Types of Discrimination

Discrimination comes in many flavors. There is “disparate treatment” and “disparate impact” discrimination – meaning an employee is treated differently because they are a member of a protected class.

“Disparate treatment” involves employer actions, e.g., promotion and termination, that single an employee because of a protected characteristic, e.g., only older workers are laid off or only males are promoted.

“Disparate impact” involves employer policies that have a disproportionate adverse effect on a protected characteristic group, e.g., a company policy of counting all absences and leaves against seniority that has a disproportionate adverse impact on women who have to take time off for pregnancy.

Then there is “harassment”, meaning harassing conduct such as slurs, touching, unwanted advances, intimidation, etc., because of the employee’s protected characteristic.

Harassment can be “hostile work environment” harassment, meaning harassing conduct that is so severe or pervasive that it creates a work environment that is hostile or abusive.

And in the case of sexual harassment, harassment can be “quid pro quo” (Latin for “this in exchange for that”), which refers to a situation where the employee’s supervisor has conditioned job benefits, such as a promotion or continuation of employment, on the employee’s accepting the supervisor’s sexual advances or conduct, e.g., a supervisor forcing a subordinate to sleep with him to keep her job or get a promotion.

If the harasser is the employee’s supervisor, the employer will be held strictly liable for the supervisor’s misconduct. If the harasser is the employee’s co-worker, however, the employer will be held liable only if a supervisor knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

Federal versus State laws

Federal law, which includes the Age Discrimination in Employment Act, Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act, is generally less favorable to employees than California’s Fair Employment and Housing Act, which doesn’t have damage caps, limited attorney fee provisions, restrictive legal burdens of proof or special employer defenses.

Also, federal law typically requires the employee to file an administrative charge with the Equal Employment Opportunity Commission (EEOC) within a mere 180 days from the date of the discriminatory violation whereas California’s Fair Employment and Housing Act gives the employee 1 year to file such a charge with the California Department of Fair Employment & Housing (DFEH).

Damage Awards

An employee who wins a discrimination lawsuit is entitled to recover several types of compensation, such as lost wages, emotional distress, litigation costs and statutory attorney fees. An employee could also recover punitive damages which are designed not to compensate the employee but to deter and punish the employer.

Conclusion

Discrimination laws, especially in California, offer powerful and effective protections for employees. However, discrimination laws are changing constantly, sometimes day-by-day, and can be difficult to navigate. If you think you have a discrimination case, do not wait. Strict time limits may apply. Contact a lawyer right away.

Related posts:

1. Filing a Discrimination Complaint in California
2. And the Winner for Most Popular Discrimination Complaint in the US Is . . .
3. Free Pamphlets on Labor and Employment Laws

With layoff-fueled unemployment hitting record levels amid a severe economic downturn, more jobless workers are filing discrimination suits than ever. According to the Washington Post, private sector job bias charges filed with the EEOC in 2008 were up 15% from 2007 and up 26% from 2006. That trend is expected to accelerate in 2009.

Meanwhile, recent legislation and court decisions have helped pave the way for more discrimination lawsuits. In 2005, the Supreme Court held that victims of age discrimination need prove only that a layoff had a “disparate impact” on older workers, not that it was intentional. In 2008, Congress widened the scope of disabilities falling under the protection of the Americans with Disabilities Act to include employees who depend on medication or devices. In 2009, the second bill signed into law by a newly-minted President Obama overturned a Supreme Court decision that had held that Equal Pay Act lawsuits could only be brought by employees who file EEOC charges within 180 days of each discriminatory paycheck, regardless of actual knowledge or discovery of pay disparities. With pro-employee Democrats occupying the Presidency and in control of Congress, the legislative and judicial trends in favor of employees are expected to continue.

If you are getting inquiries from clients with discrimination claims, here are some of the things you need to know. The panoply of federal antidiscrimination laws – the Age Discrimination in Employment Act (age discrimination), the Equal Pay Act (gender pay discrimination), Title VII of the Civil Rights Act of 1964 (race, color, sex, religion, and national origin discrimination), and the Americans with Disabilities Act (disability discrimination) – is too broad and numerous to address here. However, a focus on Title VII and the ADA (which piggybacks onto and incorporates the enforcement powers, remedies and procedures of Title VII) is appropriate given they together encompass the vast majority of discrimination complaints filed with the EEOC each year (i.e., race, sex and disability discrimination).

As you evaluate the attractiveness of potential Title VII and ADA claims, here are the some of the preliminary items you need to ascertain at the outset.

1. Covered Employers. How big is the employer? The provisions of Title VII and the ADA only apply to employers with 15 or more employees.
2. Covered Employees. Is the claimant covered by Title VII and the ADA? Title VII extends protections only to employees and job applicants, but not independent contractors. Note, just because an employer has labeled someone an independent contractor does not make them so. The courts have established numerous multi-criteria tests to determine whether someone is an employee or an independent contractor. The ADA covers the same employees as Title VII but further requires employees to have, have a record or history of – or be perceived by the employer to have – a mental or physical impairment that substantially limits a major life activity (such as sleeping, eating, walking, etc.). At the same time, the claimant must not be so disabled that they are unable to perform the “essential functions” of their job with (or without) accommodation. An amendment that took effect on January 1 of this year now extends ADA protections to disabled workers who rely on medication or devices, even if they ameliorate disabilities completely.
3. Covered Actions. Did the employer do something that is lawsuit-worthy? Adverse employment actions on which a plaintiff may sue need not rise to the level of job termination. Any action reasonably likely to deter employees from engaging in protected activity can be litigated. This federal deterrence standard extends protections to a broader spectrum of activities than some state anti-discrimination laws. In Pardi v. Kaiser Found. Hosps. , 389 F.3d 840, 850 (9^th Circ. 2004), the court ruled that an employer’s failure to turn exculpatory records over to a government agency investigating a former employee constituted an “adverse employment action” that could form the basis for an ADA discrimination lawsuit.
4. Damage Caps. Do the damages justify bringing suit? In cases where compensatory and/or punitive damages are available, Title VII and the ADA impose caps on the combined sum of those damages (excluding lost wages) ranging from $50k to $300k depending on the employer’s size. Attorney fees are also available to prevailing plaintiffs under both statutes, but at the court’s discretion.
5. EEOC Charge Requirement. Have statutes of limitations expired? Title VII and the ADA require employees to file a charge with the EEOC within 180 days of the last discriminatory act before they can bring a civil suit. Employees have the option of filing a charge with their state anti-discrimination agency in which case they have to file a charge with the EEOC within the earlier of 300 days after the last discriminatory act or 30 days after notice that the state agency has terminated proceedings. Some state anti-discrimination agencies have a “work-sharing agreement” with the EEOC such that filing with one is automatically deemed a filing with the other.
6. Individual Liability. Is individual liability important to the claimant? Most courts hold that supervisors and co-workers who do not qualify as “employers” may not be held individually liable for violations of Title VII or the ADA. Only the employing company may be liable.
7. State vs. Federal Laws. Are state anti-discrimination laws better? Some state anti-discrimination laws afford greater protections to workers than Title VII and the ADA. For instance, they may have no damage caps, longer charge filing periods, mandatory attorney fees, broader coverage of employers and employees, etc. State anti-discrimination laws are preempted by their federal counterparts only in the rare event there is a conflict. Thus, in such states, claimants may be better off filing suit under their state’s laws. Another thing to consider: the inclusion of Title VII and ADA claims in your state court complaint may introduce the risk of Federal Question removal to Federal court; not necessarily a bad thing depending on your jurisdiction, not to mention local docket conditions and backlogs, but certainly something to consider.

For more information, visit the website for the Equal Employment Opportunity Commission .

No related posts.

According to a new study from Yale University as reported by ABC News, weight discrimination is spiraling upward, extending into the workplace and social settings. Currently, fat-ism ranks as the third most common form of discrimination among women (after sexism and age-ism), and fourth among men (after sexism, age-ism and racism). Overweight women are twice as vulnerable as men, with fat-ism striking them much earlier in their lives. This is hardly surprising given the starved supermodel fashion culture we ironically live in.

Fat-ism promises only to worsen as waistlines in America continue their decades-long expansion. CNN Health has this interactive map showing the rise of obesity in the US between 1985 to 2006. In fact, America now ranks as the number one fattest country in the world, edging out Mexico which comes in second. Check out this global ranking of countries by obesity.

For fat plaintiffs who have suffered fat-ist discrimination, there may be one potential avenue for legal recovery. Diabetes, a disability, is often associated with obesity; and anti-diabetic discrimination is illegal under federal and state disability discrimination laws. Nevertheless, challenges remain. Juries in particular tend to be unsympathetic toward obese plaintiffs, judging and blaming them for the lifestyle choices that led to diabetes in the first place. That jury bias frequently translates into courtroom defeats or small judgments.

Of course, that is not to say that diabetic plaintiffs don’t win from time to time. The American Diabetes Association describes a few of these legal victories at their website.

As obesity spreads to more and more Americans, it is anyone’s guess whether public sympathy for the victims of fat-ism will ever build to the point that anti-fatism legislation becomes a reality. Stay tuned.

Photo: ABC News

No related posts.

On January 24, the Supreme Court ruled that the CUA does not protect medical pot users from being fired by their employers for marijuana use.

I watched the oral arguments here. It seemed to me the Supremes were focusing on the conflict between state and federal criminal law over the legality of marijuana use. Plaintiff was arguing for a logical extension of the CUA to the employment context while Defendants were arguing a limited interpretation of the CUA. In the end, the Supremes did the conservative thing and ruled that the CUA did not extend its protections to the employment context. Several of the Supremes (Kennard and Werdegar come to mind) seemed to WANT to do so, though.

Tough break for all you medical pot users out there. Even if you’re administering the medical marijuana only while at home, that apparently won’t save you.

UPDATE: I’ve learned the vote breakdown among the Supremes on RagingWire. Justice Werdegar wrote the majority opinion (joined by George, Chin, Baxter, Corrigan), while Justice Kennard wrote the dissent (joined by Moreno).

Related posts:

1. Shocker – U.S. Supreme Court Rules in Favor of Employees!
2. US Supreme Court Says Class Actions Can Be Banned
3. FMLA Medical Leave Expanded to Families of Military

I’ve created the below chart from discrimination charge statistics published on the EEOC’s website. Because most people who file an EEOC charge list multiple types of discrimination, the total number of charges is actually less than what’s indicated, hovering around 75,000 to 80,000 per year.

Age discrimination is solidly in sixth place, but I suspect that will be rising significantly as the baby boom generation enters retirement age.

For more information, go to the EEOC’s statistics page.

For a low resolution gif version of the chart, right-click on the thumbnail image and save:

For a higher resolution pdf version of the chart, right-click and save this link: EEOC Charge Statistics by Year.

Related posts:

1. Filing a Discrimination Complaint in California
2. Discrimination Laws in California
3. House Passes Bill Banning Discrimination of Lesbians, Gays, Bis (but not Transgenders)

ENDA has angered leading Lesbian, Gay, Bi and Transgender (LGBT) advocacy groups such as Parents and Friends of Lesbians and Gays, National Center for Lesbian Rights, Lambda Legal, or the National Gay and Lesbian Task Force because it fails to address discrimination based on gender identity/expression (i.e., transgenders, masculine women, and feminine men).

ENDA will need Senate approval before being enacted into law. Twenty states and the District of Columbia already ban discrimination on the basis of sexual orientation. Transgender people suffer the highest unemployment rates in the LGBT community.

For more information, go to http://www.unitedenda.org.

Related posts:

1. Senate Passes Legislation to Strengthen Whistleblower Protection Act
2. Discrimination Laws in California
3. And the Winner for Most Popular Discrimination Complaint in the US Is . . .

Related posts:

1. Starbucks Baristas Win $105 Million Class Action Judgment
2. Longshorewoman Wins $1.2 Million Jury Award for Retaliation
3. Fresno State Women’s Basketball Coach Wins $19.1 Million Jury Award for Discrimination, Retaliation