All California employers should be familiar with the California Fair Employment and Housing Act (FEHA), which prohibits employment discrimination and harassment. The FEHA offers employees greater protection and relief than its federal counterpart, Title VII of the Civil Rights Act of 1964.
One critical difference is that unlimited compensatory and punitive damages are available under the FEHA, while only limited damages may be awarded under Title VII.
California juries have consistently shown that they will impose significant liability against employers committing discrimination or harassment. A few years ago, the California Supreme Court affirmed an award of $3.8 million for disability discrimination and harassment. And in 2010, a California jury awarded a casino dealer over $2 million for sexual harassment and retaliation.
California attorneys Lyne A. Richardson and Jolina A. Abrena, both of the Los Angeles office of Ford & Harrison, LLP, offer some tips on what you need to know in order to minimize potential liability for discrimination and harassment under the FEHA.
1. Know who is subject to potential liability
The FEHA generally applies to any person regularly employing five or more persons, any person acting as an agent of an employer, the state or any political or civil subdivision of the state, and cities. However, the coverage for the FEHA’s antiharassment provisions is much broader, covering any person who regularly employs one or more individuals or regularly receives the services of one or more independent contractors.
Employers may be held liable for damages if they are found to have engaged in harassment, discrimination, or retaliation in violation of the FEHA. Under state law, employees (including supervisors and coworkers alike) are also personally liable for harassment.
2. Know who is protected
The FEHA protects job applicants, employees, and independent contractors from harassment based on their membership in a protected class. Similarly, it protects applicants and employees (but not independent contractors) from discrimination based on their membership in a protected class.
For example, you may not ask nonjob-related questions that would discriminate against applicants based on their protected class. Further, before making a job offer, you may not require an applicant to undergo any medical or psychological examination or ask him any medical or psychological questions.
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3. Know the protected classes
The FEHA prohibits harassment against applicants, employees, and independent contractors based on their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (40 years of age or older), or sexual orientation. It also protects applicants and employees from discrimination based on their membership in the same protected classes.
4. Know what harassment is
Harassment and discrimination are separate wrongs under the FEHA.
Unlawful harassment may be verbal (e.g., a racial epithet), visual (e.g., pornographic posters), and/or physical (e.g.,groping). In Reno v. Baird, the California Supreme Court described harassment as “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.”
Even in the absence of unwelcome sexual advances or comments directed at an employee, an individual may establish hostile environment sexual harassment by demonstrating that her employer created an atmosphere that was demeaning toward women.
In Miller v. Department of Corrections, for example, the California Supreme Court held that an employee could maintain a sexual harassment claim by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter her working conditions and create a hostile work environment.
The evidence showed that advancement for women at the prison was based on sexual favors, the warden viewed female employees as sexual playthings, his conduct conveyed that demeaning message (which detrimentally affected the workforce), and his sexual favoritism blocked the way to merit-based advancement for the employees.
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5. Know what discrimination is
The FEHA prohibits discrimination in “terms, conditions, or privileges of employment.” This is commonly referred to as an “adverse employment action.” To maintain a discrimination lawsuit, the adverse employment action must significantly and detrimentally affect the terms and conditions of employment. Examples of adverse employment actions are termination from employment, refusal to hire, and refusal to promote.
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