Discrimination

Employers may not discriminate against employees because of their age, race, national origin, gender, disability or medical condition, and other protected reasons.

Gender Discrimination

It is illegal under both the Civil Rights Act of 1964 (Title VII) and the California Fair Employment and Housing Act (FEHA), to discriminate on the basis of gender in the terms and conditions of employment. This can include salary, benefits, hours, vacations, promotions, hiring, firing or any other term. With few exceptions, most any defining characteristic of a particular position of employment is considered a "term or condition of employment." Gender discrimination in the simplest of terms, refers to situations in which an employer treats an individual or group of individual employees differently, based on their gender, be it female or male.

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Racial Discrimination

It is illegal under both Federal and State Law to discriminate on the basis of a person's race or national ancestry in the terms or conditions of employment, which may include salary, benefits, hours, vacations, promotions or whether a person is hired. Discrimination may take the form of outright different treatment, or be more subtle and accompanied by ethnic slurs and derogatory comments. Further, discrimination based on a person's association with people of a particular race is also prohibited.

Age Discrimination

It is illegal under both the Federal Age Discrimination in Employment Act (ADEA) and the California Fair Employment and Housing Act (FEHA) to discriminate against an employee or job applicant because of their age in the terms or conditions of employment, including their salary, benefits, hours, vacations or promotions. The person suing for age discrimination must be at least 40 years of age.

It is not necessarily illegal to replace older employees who are being paid higher wages with new younger employees who will work for less; that is where the employer's motivation is based on wage considerations alone. However, where an employer is replacing older employees with younger ones and the wage considerations are merely a pretext for eliminating employees because they are "too old," that would be illegal. It would also be illegal when the use of salary criterion, adversely affects older employees as a group.

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Religious Discrimination

The term "Religion" includes all aspects of religious observance and practice, as well as belief. The employer must demonstrate that they are unable to reasonably accommodate an employee's religious observance or practice without undue hardship. The Courts usually interpret the duty to accommodate narrowly, and tend to enforce the duty against employers in only the most obvious cases.

Religious discrimination frequently occurs where managers or owners of a business are of a particular religion or following, and they seek to convert employees to the same belief. Under these circumstances, discrimination may occur where employees are denied employment, not promoted, denied raises or unfairly disciplined because the employee will not accept the employer's or managers religious beliefs.

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Pregnancy Discrimination

In California pregnancy is considered to be a temporary disability. Employers can not discriminate against anyone because of a pregnancy or childbirth. Employers can not legally deny employment or fire anyone who is pregnant. Once someone who has given child birth returns to work, they must be given a similar job to the one they had before their leave. Employees are also entitled to leave for pregnancy and childbirth in certain circumstances.

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Sexual Orientation Discrimination

Discrimination based upon the sexual orientation of an employee or applicant is prohibited under the California Fair Employment and Housing Act, Government Code Section 12940. Harassment or discrimination based upon sexual orientation includes actual or perceived sexual orientation. Same-sex sexual harassment may also be sexual orientation discrimination.

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Disability Discrimination

It is illegal under both the Federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act to discriminate against an employee or job applicant because of disability or certain medical conditions, in the terms or conditions of employment. This could include salary, benefits, hours, vacations, promotions hiring, firing or other conditions.

It is illegal for an employer to discriminate against a "qualified" individual with a disability. For the employee to be eligible under the ADA or FEHA, they must first be a "qualified individual with a disability." The person must be physically able to do the job and their disability must limit one or "more major life activities." A mere annoyance or hindrance is not enough. The disability must interfere with a person's physical abilities and ability to earn a living. Even if the disability doesn't affect most areas of life, but affects the person's employment or their ability to work, it may be sufficient. Under recent California legislation, there is no longer a requirement that the disability "substantially" limit major life activities, rather only "limit" activities.

Employees must usually ask for a reasonable accommodation. When they do, the employer must consider the request, and if reasonable, accommodate the employee's special needs in most cases. If the employee can do the job, then the employer must engage in an interactive process with the employee and consider whether or not a "reasonable accommodation" can be made. This is when the employer modifies the job duties, provides an assistant, or takes some other special measures to enable the person to perform the job.

Disability and medical condition discrimination laws are among the most rapidly expanding areas of the law. If you have questions, you should contact us.

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