Authored by: James Baker, Discrimination Analyst
Edited by: Dustin Collier
Overview of California’s Fair Employment and Housing Act Anti-Discrimination Provisions
California Government Code section 12940(a) prohibits discrimination in hiring practices or treatment in the workplace based upon: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation of any person.” In theory, discrimination in the work place is easy to allege: “the employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin.” Mixon v. Fair Employment and Housing Com. 192 Cal.App.3d 1306, 1317 (1987). This, however, downplays the importance of a causal connection between the injury suffered and the alleged discrimination.
In order to make a claim under the FEHA, you have to be able to demonstrate that there is a causal relationship between an unlawfully motivated employment decision (i.e., discrimination) or workplace policy and the harm that you have suffered. For example, being repeatedly bypassed for a promotion you were qualified for on the basis of race shows that a discriminatory practice has caused you financial loss in the form of lost wages and benefits, an injury for which you can recover money damages and other relief.
By contrast, being suspicious that your boss is a racist without suffering some sort of injury is not something you can recover for, no matter how much your gut instinct may be correct. Unfortunately, the law is not concerned with truth so much as it is concerned with objective evidence of discrimination. This means that, absent some evidence to indicate an unlawful discriminatory motive, your employer is generally free to be cruel, unjust, unfair, and unreasonable. Below we discuss the two methods for demonstrating such an unlawful motive, either of which is sufficient to convert an otherwise legal employment decision into a legal claim for discrimination worth pursuing.
Disparate Treatment versus Disparate Impact:
There are two methods for demonstrating that an employer harbors an unlawful discriminatory motive: (1) Disparate Treatment; and (2) Disparate Impact. The facts which must be proven to demonstrate discrimination vary depending on which of these theories the employee pursues.
An employee alleging disparate treatment must demonstrate that:
- The defendant was an employer;
- The plaintiff either was an employee of the defendant or had applied to a position offered by the defendant
- That the defendant either
- Fired or refused to hire the plaintiff;
- Subjected the plaintiff to an adverse employment action (an “adverse employment” action is any action which “materially and adversely affects the terms and conditions of employment” and includes things such as failure to hire, failure to promote, formal disciplinary action, demotion, suspension, unpaid administrative leave, and termination); or
- The plaintiff was constructively discharged (a “constructive discharge” occurs when an employer makes continued employment so difficult as to constitute a coerced resignation)
- The plaintiff’s protected classification – such as race, gender, or age – was a motivating reason for the adverse employment action;
- That the plaintiff was harmed; and
- That the defendant/employer’s conduct was a substantial factor in causing that harm.
Basically, this means that you must have suffered a harm that was substantially caused by your employer or some practice conducted by your employer.
Disparate impact cases, by contrast, allege that a practice that is not illegitimate on its face is merely a cover for a more subtle form of discrimination. The distinction between the two concepts was outlined in Griggs v. Duke Power Co. (1977) 401 U.S. 424. In that case, it was determined that an employer’s requirement of a literacy test and high school diploma in order to be promoted to certain positions, while not discriminatory on its face, could form the basis for a racial discrimination claim where it was found to have a discriminatory impact. The intention of Title VII was to remove illegitimate barriers when they operate to discriminate on the basis of “racial or other impermissible classification,” whether such barriers are formally/explicitly unfair, or if they simply operate in such a way that leads to discrimination.
Under Griggs, the employer was forced to demonstrate the additional requirement of a high school diploma and a literacy test were substantially related to improving or correcting some deficiency in job performance in order to be legitimate. Where employees holding that position without the proscribed qualifications had performed satisfactorily, and the employer failed to show that the literacy test and high school diploma were in any way indicative of improved performance beyond a claim of “overall quality,” such additional qualifications could be found to be unlawfully discriminatory. A viable discrimination claim was thereby made.
Disparate impact cases generally proceed with statistical evidence demonstrating that an employer’s policies or practices have led to a statistically significant adverse impact on members of a protected class. Thus, for example, a fire department’s requirement that its employees be able to carry a 250 pound dummy for a mile will likely have a statistically disparate impact on female applicants for employment. Once this is proven, the burden shifts to the employer to establish a legitimate reason for the 250 pound requirement as described in the next section to avoid being held liable for unlawful discrimination.
The Shifting Burden of Proof in Employment Discrimination Cases: What you will need to prove over the course of your case
Employment discrimination cases progress in a way that involves “burden-shifting,” where different parties bear the burden of proof on different issues. In order to determine whether or not an employee has a viable discrimination case, it is helpful to look at a couple of the foundational cases for claims brought under the Fair Employment and Housing Act (“FEHA,” California Government Code section 12900 et seq.). In California, there are three steps wherein the burden of proof starts with the employee, shifts to the employer, and ends with rebuttal by the employee.
The basic evidentiary burden for a discrimination case was outlined in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. The guidelines are very similar to the elements necessary to make a disparate treatment claim outlined above. Employees alleging discrimination have the burden to prove that they:
- Belong to the protected class of individuals;
- Were subjected to an adverse employment action;
- The adverse employment action was motivated by the protected classification; and
- The employee was harmed by the adverse employment action.
Often it is not necessary to prove that one indisputably belongs to a protected class, but merely that one is perceived as (and discriminated against because of) belonging to that class. “While the elements of a plaintiff’s prima facie case can vary considerably, generally an employee need only offer sufficient circumstantial evidence to give rise to a reasonable inference of discrimination. Once this much has been established, the burden of proof shifts to the employer to provide a legitimate non-discriminatory reason for” the adverse employment action. Sandell v. Taylor-Listug, Inc. 188 Cal. App. 4th 297, 310 (2010). So long as the injury you have suffered is due to being perceived as holding the status that was the basis of employer discrimination, you are protected by the FEHA.
Once the complainant establishes a prima facie case, the defendant employer has the burden of proving that there was a legitimate reason for the adverse treatment of the plaintiff. The best way for them to do this is to show that the complainant does not meet some bona fide occupational qualification that another applicant has, that the employee has violated some legitimate work rules or standards of conduct warranting discharge, or that the employer otherwise had a legitimate business need for the adverse action taken. If the employer meets this burden, the complainant has an opportunity to argue that this excuse does not pass the test from Griggs and is, in fact, a cover for a discriminatory practice.
In McDonnell Douglas Corp., the non-discriminatory excuse provided by the employer for not rehiring the employee alleging racial discrimination was that the employee had engaged in unlawful conduct against the company. One way for that employee to dispute the legitimacy of the excuse would be to show that white employees who had engaged in the same activities were rehired, or were not initially fired.
The legitimacy of an employer’s excuse or hiring decision is decided using the reasonable person standard; for example, where a finder of fact can see that the plaintiff was more qualified than the individual hired, and the only apparent difference between the two applicants is the plaintiff’s protected status, then a reasonable inference of discrimination can be made. Reeves v. MV Transportation, Inc. 186 Cal. App. 4th 666, 674–675 (2010). Such inferences need not always be so obvious as to “jump off the page,” but there must be some substantial disparity between the two qualifications that lead to a reasonable belief that the deciding factor was the protected status of the complainant, rather than an innocent judgment call.
Meeting Deadlines: Filing an Administrative Complaint Within One Year of the Discrimination
In order to pursue civil litigation under the FEHA, a complainant must file an appropriate administrative complaint within one year of the unlawful activity’s occurrence. If the complaint is against a government entity or a Union contract is involved, the deadlines can be even shorter. Because of the nuance involved in determining the statute of limitations, employees with potential claims should consult with an employment lawyer as soon as possible after the discrimination occurs.
Utilizing the basic one year deadline, however, an employee “must [within one year] exhaust the administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court.” Morgan v. Regents of University of California 88 Cal. App. 4th 52, 63 (2000).
There is an exception to this rule where the unlawful practice was ongoing, or was such that it was not discoverable within one year. In such cases it is helpful to establish that current practice is reasonably similar to a previous discriminatory practice, was a reasonably frequent sequence of discriminatory behavior, or took time to acquire a degree of permanence. An employee suspicious that they are suffering from a discriminatory practice should be able to show at least one act which occurred within one year of filing, and it would help to show that this act was part of an ongoing company-wide policy, or part of a sequence of unlawful actions taken against him or her. Meeting with an attorney is the best way to gain a firm grasp on what specific deadlines you must meet to ensure that your claim is not dismissed based on a failure to adhere to the statute of limitations for claims made under the FEHA.
Do you believe you have a case that meets the standards outlined above? If so, we would love to talk to you and provide you with a free consultation to determine whether our firm is in a position to assist you. Please visit our “Contact Us” page to provide us with a brief overview of your case or simply call us at 415-366-8406. You can reach Dustin Collier at extension 102.