For some people, workplace discrimination and harassment is an everyday occurrence. In California, discrimination or harassment in the workplace is illegal when it is based on the worker’s gender, race, color, religion, ancestry, national origin, sexual orientation, gender identity, disability, medical condition, and marital status. These aspects of identity are referred to collectively as “protected classes” or “protected characteristics.”
In general, illegal employment discrimination occurs when some sort of negative job-related decision is made because of a worker’s protected characteristic. This can include, for example, firing or refusing to hire, demoting or refusing to promote, and differences in pay or benefits.
The law recognizes both individual acts of discrimination and policies that have the effect of discriminating. Knight v. Hayward Unified School Dist., (2005) 132 Cal.App.4th 121, 128-29. For example, an employer who requires you to take a test as part of the
hiring or promotion process may be illegally discriminating if that test tends to disqualify a higher rate of persons in a protected class than persons not of that protected class.
It is important to note that, while discrimination is usually obvious to us when we experience it, “proving discrimination” in a legal sense can be a difficult task. Even when proven, it may be hard for the judge or other decision-maker to see discrimination given their relative position of privilege. Therefore, if you know that you’ve been discriminated against, try to think about what facts you could use to convince someone else that discrimination has occurred.
While sexual harassment is the most well-known, harassment based on any of the protected characteristics is also illegal. Harassment may take the form of words (such as slurs or derogatory comments), physical acts (like violence, touching, or intimidation), postings (such as derogatory cartoons, drawings, or poster), or unwanted sexual advances in various forms.
Sexual harassment generally takes one of two forms. The first, so-called “quid pro quo” harassment, is when a supervisor offers some employment benefit (such as a raise or promotion) in return for
sexual favors. The second, called “hostile work environment,” happens when unwanted sexual advances or other harassing behaviors are so bad and so frequent as to make for an abusive workplace.
If your employer did not have reason to know about harassment you’ve experienced, then the employer will not be considered legally responsible. Cal. Gov. Code § 12940(j). For this reason, it is important for you to report harassing conduct to your employer and follow whatever internal grievance process your employer may have. If your employer fails to correct the problem immediately, then legal action may be warranted. Cal. Gov. Code § 12940(j).
It is unlawful for an employer to take disciplinary action (including termination) against you for reporting discrimination or harassment. Cal Gov Code § 12940. Many times, the employer will cover for retaliation by pointing to supposed issues in work performance that had never been raised before. Therefore, an employee must often rely on circumstantial evidence that they were indeed terminated for a retaliatory reason.
If you believe you may be the victim of unlawful discrimination or harassment in the workplace, please call our office for a free consultation, at: (323) 208-9171.