The employment arena as for some time, and continues to the present, to be confusing and complex, especially when attempting to navigate the waters of discrimination in the workplace. This is true from the perspective of both the employer who wants to know "Why can't I do that?" and the employee who wants to know "Can they do that to me?"
There are many state and federal schemes that bar employment discrimination based on specified characteristics, such as race, sex, religion, national origin, or age. There are both similarities and differences in these various schemes. The following is a brief overview of the various avenues currently available to individuals who believe they may have been the victims of workplace discrimination, as well as a general roadmap for employers who wish to be aware of the myriad of options available to employees, applicants, and former employees.
In California, the primary state antidiscrimination statute is the Fair Employment and Housing Act (FEHA). Under Federal law, the major players are Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act of 1967 (ADEA), the Americans with Disabilities Act of 1990 (ADA), and the Equal Pay Act of 1963 (EPA).
However, as a general proposition, to establish that an employer is liable for workplace discrimination, an individual must demonstrate that the employer is subject to the law (for example, large enough to be subject to a particular law), and that the individual was adversely affected in his or her employment as a result of discrimination based on a classification protected by the law (such as race, se, religion, or age). The claimed discriminatory conduct on the part of the employer can be either intentional or merely have a discriminatory effect.
CALIFORNIA LAW
In California, the FEHA permits an employee, prospective employee or former employee who believes himself or herself to have been aggrieved by a violation of FEHA to file a civil action against his or her employer (once certain administrative remedies have been exhausted). In brief, the FEHA makes it an unlawful employment practice or an employer to discriminate against any person in recruiting, hiring, training, promotion, compensation, discipline or discharge, or any other term, condition, or privilege of employment, because of that person's race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, or sexual orientation. The FEHA also prohibits discrimination in employment gainst persons over 40 years of age or against female employees because of pregnancy, childbirth, or related medical conditions.
To be covered by the FEHA, employers must regularly employ five or more persons (except for harassment claims that only require regular employment of one or more persons).
To proceed with a civil claim against an employer based on the FEHA, the individual must first file a complaint with the Department of Fair Employment and Housing (DFEH) within one year of the most recent act of discrimination, and receive from the DFEH a so-called "right-to-sue" letter.
FEDERAL LAW
Title VII prohibits an employer from failing or refusing to hire, or to discharge, or to limit, segregate, or classify an individual (or otherwise discriminate) with respect to his or her compensation, terms, conditions, or privileges of employment, because of that persons' race, color, religion, sex, or national origin. Typically, Title VII cases fall under one of two theories of liability--"disparate treatment" (employer treats employees differently because of race, color, religion, sex or national origin) or "disparate impact" (otherwise neutral employment practice impacts on a group protected by Title VII more harshly than others).
As with a claim under California FEH, prior to filing civil litigation under Title VII, the aggrieved employee or applicant must file a timely complaint with Equal Employment Opportunity Commission (EEOC) and obtain a "right-to-sue" letter. Also, employers subject to Title VII are those with 15 or more regular employees.
The Age Discrimination in Employment Act (ADEA) protects individuals who are at least 40 years of age and provides similar protections to this class of individuals as does Title VII for the classifications enumerated in that law. An EEOC complaint is likewise required before one may proceed with civil litigation under this Act. However, the EEOC's procedures and enforcement tools differ from the Title VII-based complaints as compared to ADEA complaints. Also, covered employers are those with 20 or more employees.
The Americans with Disabilities Act (ADA) has garnered considerable press since its entry onto the scene in the early 1990's. It remains in a state of flux with the courts continuing to struggle to interpret its various ambiguous provisions. Indeed, cases are sometimes published on almost a daily basis interpreting this law.
In its simplest terms, the ADA prohibits discrimination against disabled persons by employers and the like. More specifically, an employer is prohibited from discrimination on the basis of disability with regard to recruitment, job application procedures, hiring, promotion, tenure, demotion, termination, rates of pay, job assingments, seniority, leaves or absence, sick leave, fringe benefits, training, and social and recreational programs sponsored by the employer. Further, the ADA prohibits, in some contexts, pre-employment medical examinations, and requires employers to "reasonably accommodate" disabled persons. Employers covered by the ADA are those with 15 or more employees.
Finally, the Equal Pay Act (EPA) prohibits wage discrimination on the basis of sex. That is, the EPA prohibits wage differentials based on sex for jobs requiring equal skill, effort, and responsibility, and are performed under similar working conditions (i.e. equal pay for equal work). Unlike its federal counterparts, the EPA does not require that an aggrieved employee file a complaint with the EEOC before the individual may bring an EPA claim to court. Also, the EPA essentially applies to every employer.
Authored by Rhonda Shelton Kraeber
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