What is discrimination?
To “discriminate” in its original “dictionary” sense means to “distinguish between,” and is derived from the Latin root cernere meaning “distinguish, separate, sift.” All of us “discriminate” every day — when we decide what to wear, what to eat, what route to take to work, and what TV show to watch, as just a few examples. In each case we are selecting one choice out of several different options, based on such subjective factors as taste (I will eat a bowl of Cheerios for breakfast because it tastes better than oatmeal), social approval (I will wear blue today because I don’t want everyone at work to think I only have black clothes) efficiency (I will take Wilshire Blvd. to work because the 10 Freeway is usually packed in the morning), or sense of enjoyment (I will watch the Lakers game instead of the evening news because I love basketball and the news is boring). There is nothing wrong with any of these choices — they are based on your own personal likes and dislikes.
Similarly, your supervisor or manager will often “discriminate” between you and others based on subjective factors in deciding who to hire, who to give a lucrative account, and whether to discipline someone for misconduct. So if an employer hires candidate A over candidate B because candidate A has more experience, or even if she gets along with candidate A and feels he will be a better “fit,” there is nothing wrong with that. Or if your boss fires employee A for forging documents and “only” gives a warning to employee B for being tardy, that is fine because your boss may perceive forgery as a more serious violation than tardiness.
The point is that your boss has the right to exercise her “business judgment” and make personnel decisions. That is true even if you disagree with her business judgment. You might be more qualified on paper for a promotion than the person who actually got the promotion, and it might be unfair or unintelligent that your boss passed you up, but it is not necessarily illegal. Your boss is entitled to make good or bad decisions for any reason or no reason at all.
But your boss cannot make a personnel decision for an unlawful reason. That is where the law protects current and former employees and candidates for employment.
Am I being unlawfully discriminated against?
As mentioned, your employer cannot discriminate against employees for an unlawful reason. Some of those reasons concern what are called “protected characteristics.”
Under Federal law, Title VII of the Civil Rights Act of 1964 (codified at 42 U.S. Code 2000e, et seq.) states that it is unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” or “to limit, segregate, or classify his employees or applicants for employment” because of “such individual’s race, color, religion, sex, or national origin.” In addition, employees and candidates suffering from a disability or serious medical condition are also protected under Federal law by the Americans with Disabilities Act of 1990 (ADA), and employees over 40 are protected by the Age Discrimination in Employment Act of 1967 (ADEA).
Under California law, employers are prohibited from discriminating against candidates for employment and employees with respect to all the classifications protected by Federal law, and the California Fair Employment and Housing Act (FEHA) also on the basis of marital status, sexual orientation, and pregnancy, childbirth, or related medical conditions. Therefore, there are more characteristics protected under California than Federal law, which may be a factor in deciding which administrative agency and which type of court to file a claim with.
What type of acts constitute discrimination?
Discriminatory acts of course include major adverse employment actions such as hiring (for example, where an employer will only hire non-pregnant employees); firing (for example, if an African-American is fired for absenteeism but a Caucasian employee with a similar history of absenteeism is merely given a warning); and failure to promote (for example, if only young employees are promoted to the position of executive sales manager or encouraged to apply).
But they also extend to other decisions that affect the “terms or conditions” of employment, such as preferences in shifts and hours worked, end-of-year bonuses and raises, assignment of tasks, flexibility in the ability to work from home, training opportunities, and ability to take vacations when requested. Each of these has the potential to affect an employee’s bottom line, potential for advancement, or the value of their benefits.
What should I do if I’m being discriminated against?
If you believe that you are being treated differently based on a protected characteristic, you should review your employee handbook and follow the internal procedures set forth therein. If your handbook does not provide guidance, or if you don’t have a handbook (or don’t have a copy), you should bring your concerns to human resources, to another manager, or to an officer or executive of your company. If you do not complain about being treated unlawfully, your employer may claim that it had no knowledge of your concerns and that it is not responsible for the actions of your supervisors. You should also do your best to make sure that there is a written record of your complaint — either written by you or by the person you complained to, or both — and that you keep a copy.
If your employer does not resolve the situation, or if you feel you are being retaliated against for making the complaint (which is also unlawful), your next recourse may be to contact an employment attorney or to file a charge of discrimination with either the Equal Employment Opportunity Commission (EEOC), or with the Department of Fair Employment and Housing (DFEH). You must file an administrative complaint within one year of the discriminatory act, or some of your claims may be barred by the statute of limitations.
What if I don’t have any proof?
Often employees will worry that “no one will believe me” and that they don’t have any “proof” that the discrimination occurred. This should not be your concern — it is the job of the agency or your attorney to concern themselves with what documents to request or obtain. Also, civil employment cases are not decided based on a “beyond a reasonable doubt” standard which is applied to criminal cases — the jury only needs to determine whether it was “more likely than not” that you suffered discrimination, and oral testimony is valid evidence. So you should not be deterred if you believe that your case is “hard” to prove — that is for your attorney or the investigator to worry about.
The bottom line is that if you believe that you are being treated differently than other employees based on your race, religion, medical condition, gender, sexual orientation, or any other protected factor, you should by proactive and take steps to protect your rights by notifying your employer of your concerns and by contacting an administrative agency or an attorney to discuss your claim.
If you believe you are being discriminated against, the Law Offices of Benjamin Davidson would be happy to discuss your case with you, and you may choose from a variety of contact options.
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