Both federal and California laws specifically prohibit discrimination and harassment in the workplace. For example, under California law, employers cannot discriminate against workers on the basis of several protected categories, including “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation”. Harassment, that is, offering employees a “quid pro quo” or creating a hostile work environment, is similarly prohibited under both the laws of California and those of the nation.
Employers Continue to Flout the Law
Given these explicit legal prohibitions, one would expect employers to be more circumspect and the number of such lawsuits to be on the decline, if not a thing of the past. In fact, discrimination and harassment in the workplace continue virtually unabated. For example, in 2014, the U.S. Equal Employment Opportunity Commission (EEOC) received almost 90,000 complaints of workplace discrimination nationwide, little changed from the previous year. Similarly, charges of sex-based harassment have been steady since 2010 at about 13,000 each year.
What is Workplace Discrimination?
Simply stated, discrimination occurs when an employee is treated differently because she or he is a member of a protected class, as described above. There are two basic kinds of workplace discrimination, those which involve “disparate treatment,” and those which involve “disparate impact:”
Disparate treatment is defined as “inconsistent application of rules and policies to one group of people over another.” In other words, the employer treats an employee differently on the basis of that his or her protected class, such as race, gender or age. An example of disparate treatment would be promoting only males to senior management positions.
Disparate impact does not require that an employer intended to discriminate, but only that the results of his actions result in discrimination against a protected class of employees. For example, an employer’s requirement that candidates for a job exhibit a certain level of strength or physical stamina could unfairly disqualify female applicants.
What is Workplace Harassment?
Harassment occurs when an employer’s conduct is unwelcome and is based on the employee’s membership in a protected class. An employer crosses the line into unlawful, harassing behavior when:
“1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”
The first example is sometimes referred to as “quid pro quo,” or giving this (enduring the behavior) for that (keeping one’s job). The second example is often referred to as creating a hostile work environment. Both are unlawful, and both make employers vulnerable to harassment lawsuits.
Workplace discrimination and harassment typically leave their victims feeling isolated, depressed and powerless. Unfortunately, employers count on these emotions in the hope that victims will be too debilitated to take legal action.
It’s important to know your rights in the workplace, and to take legal action when you’ve been the victim of discrimination or harassment. At Aiman-Smith & Marcy, a boutique law firm with expertise in federal and California workplace discrimination and harassment laws, we are dedicated to helping victims. If you’ve been subjected to workplace discrimination or harassment and would like to discuss your case, contact us today.