What Is Unlawful Employment Discrimination? CALIFORNIA LAW

Definition of discrimination

Employment discrimination is against the public policy of California and the United States. Many people misunderstand the meaning of employment discrimination. “Discrimination" does not mean an employer has to be fair, respectful or has to make good decisions. Workplace discrimination means the employer treats one person or group differently from others who are not in the same group, but are similarly situated.

The only workplace discrimination that is illegal is discrimination that is against public policy. Public policy refers only to things that are specifically prohibited by a statute (law) enacted by the legislature, or prohibited by a regulation promulgated (established) by a government agency. Public policy includes statutes prohibiting discrimination against people in specific protected groups, which include sex, race, national origin, disability, sexual orientation, age (40 years and older), religion, marital status, pregnancy and genetic information. Sexual harassment is considered a form of sex discrimination.

Public policy also protects people who blow the whistle on a matter of public concern, complain about improper wage and hour practices, or who exercise voting rights, family leave rights, jury duty rights, domestic violence rights, and a few more rights protected by statute.

An employer cannot change terms of employment or fire an employee if the reason for the change is against the law (against public policy). For example, an employer cannot increase your workload because of your race, sex, national origin, religion, etc. or because you blew the whistle on safety violations.

Definition of retaliation

Retaliation is a form of unlawful discrimination. It is against the law to retaliate against a person who makes a good faith charge or complaint of discrimination. This means the employer cannot change terms of employment for the worse or fire an employee if the reason because of the complaint. For example, an employer cannot change your duties, pay, hours, work location, etc. because you blew the whistle on safety violations or reported sexual harassment, or reported any other violation of public poloicy.

How to enforce discrimination laws

There are various ways to enforce these rights, depending on the particular public policy involved.

The type of discrimination most people know about is discrimination based on sex, race, national origin, disability, sexual orientation, age (40 years and older), religion, marital status and pregnancy. To pursue a claim protesting this kind of discrimination, a person must file a claim with an administrative agency before he or she can file a lawsuit. In California, a person can file a claim with either the California Department of Fair Employment and Housing (DFEH) http://www.dfeh.ca.gov within one year of the discriminatory act. The DFEH is a state agency that is charged with enforcing California’s main anti-discrimination law, the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA).

Another way to pursue a claim protesting this type of discrimination is to file a claim with the federal Equal Employment Opportunity Commission (EEOC) http://www.eeoc.gov within 300 days of the discriminatory act. The EEOC is a federal agency that enforces a number of federal anti-discrimination laws. Most of these laws apply to employers who have 15 employees or more. It is almost always more favorable to the employee to file with the DFEH. Keep reading for more information about filing a charge of discrimination.

What does the agency do?

The agency will process the charge and make a decision to pursue the case with its own staff and attorneys, or it will give the charging party a right-to-sue letter, which will allow the charging party to file a lawsuit on his or her own behalf.

The entire process can take a long time, and in the end, it is unlikely the agency will pursue the case. The bad economy has left most state and federal agencies with smaller staffs, larger workloads, and not nearly enough funding to meet their mission. As a result, individuals who have been victimized by discrimination will probably need to pursue their cases using their own attorney. Nevertheless, even though the agency probably won’t do much, it is still necessary to file a claim with the agency before filing a lawsuit in court.

In California, there are two ways to file with a government agency:

THE FIRST OPTION: File a claim of discrimination with the California Department of Fair Employment and Housing (DFEH) http://www.dfeh.ca.gov/. The DFEH enforces California’s employment discrimination laws, which are contained in the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA). The employer must have at least five employees for the FEHA to apply.

A person filing with the DFEH must file within one year of the date of the event he or she is complaining about. For example, if Maria was demoted on January 15, 2012 and she believes it is because she is female ¬– a protected category – she must file a claim with the DFEH no later than January 14, 2013. (There is a reason for the one-day difference that is too complicated to go into here.)

When there are a number of similar events involved, there may be a “continuing violation." This is common when there is discriminatory harassment. To be considered part of a continuing violation, the events must be similar to each other, not final (such as a termination or failure to promote), and relatively close in time to each other. To pursue a claim of discrimination under a continuing violation theory a person must file within one year of the most recent event. For example, if a manager made fun of Samuel because of his religion – a protected category – on January 12, January 25, February 19, March 22, and April 02, 2012, then Samuel must file his DFEH complaint no later than April 01, 2013. Even if some of the events are too late to be part of the charge, they will still be relevant as background information and will help in pursuing your case, so don't leave anything out.

THE SECOND OPTION: File a claim with the federal Equal Employment Opportunity Commission (EEOC) http://www.eeoc.gov. The EEOC enforces several different federal employment laws. The protected categories are almost the same under federal law as they are under California law, except that there is no federal protection based on sexual orientation. Most of the laws the EEOC enforces apply to an employer with 15 or more employees.

In California, a person has 300 days to file with the EEOC. The EEOC’s 300 days are counted in the same way the DFEH’s one year is counted.

FEDERAL GOVERNMENT EMPLOYEES: There is a separate and very complicated procedure to pursue a claim of discrimination against s federal agency. It is important to speak with an attorney or union representative who knows the federal agency system. Note you must take your first step within 45 days of the discriminatory event. Also, please review my guide to the EEO process for federal government employees: http://www.avvo.com/legal-guides/ugc/summary-of-federal-employees-eeo-discrimination-complaint-process.

Where to go from here

Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.