Discrimination and Harassment in Employment Law Overview and

Discrimination and Harassment in Employment Law: Overview and Helpful Hints Kenneth Tanji World. Esquire Law Firm LLP 80 S. Lake Avenue, #708, Pasadena, CA 91101 (626) 795 -5555 www. worldesquire. com ktanji@worldesquire. com

Definition of Harassment n n 2 CCR § 7287. 6 Verbal Harassment (i. e. comments) Physical Harassment (i. e. assault) Visual Harassment (i. e. posters)

Sexual Harassment n Quid Pro Quo (sexual conduct linked to employment condition) n Hostile Environment (sexual conduct unreasonably interferes with work performance or creates hostile or offensive work environment)

Quid Pro Quo Harassment n n n Harassment by supervisor “Unwelcome” conduct? Same-sex harassment Female-on-male harassment Adverse effect required (firing, promotion, benefits, pay)

Hostile Environment Harassment Definition n n Subjected to unwelcome conduct or comments Sex-based Harassment so severe that it alters conditions of employment and creates abusive working environment Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3 d 590, 608

Hostile Environment Harassment – Severe Conduct n n n Work-related Frequency Severity Judge from reasonable person in Plaintiff’s position (objective standard) Plaintiff still must have been offended (subjective standard)

Hostile Environment Harassment - Notes n n n Adverse effect NOT required Psychological harm NOT required Who can harass: supervisor, co-worker, nonemployee Same-sex harassment, female harassment Harassment based on gender: does not have to be “sexual” (i. e. pranks, picking on women) Favoring the paramour

Other Types of Harassment n n Government Code § 12940(j) Race, religion, color, national origin, disability, medical condition, marital status, sex, age, sexual orientation

Liability for Harassment n n Employer liability Supervisor harassed: strict liability Non-supervisor harass: negligence analysis, reasonable steps to prevent harassment (knows or should know of conduct and fail to take appropriate corrective action) Harasser liability: yes

Types of Discrimination n Race, religion, color, national origin, ancestry, disability, medical condition, marital status, sexual orientation, age (40 or over), pregnancy Unlawful practices: hiring, compensation, terms, conditions Coverage: 5 employees

Proof of Discrimination – Disparate Treatment n n Disparate treatment (treat person different than person in similar situation because of discrimination) Causation Direct evidence Circumstantial evidence

Proof of Discrimination – Disparate Impact n n Disparate impact (policy appears neutral but has differing impact on different groups) Intent to discriminate NOT required

Defenses to Discrimination n n Disparate treatment: legitimate nondiscriminatory reason for action, lack of pretext, bona fide occupational qualification (reasonably necessary, all/substantially all persons in class fail to satisfy, impractical to change qualification) Disparate impact: lack of proof of disparate impact, business necessity (legit business purpose, easier defense to satisfy)

Damages n n n Reinstatement Backpay: mitigation? Frontpay: length? Emotional distress: must be severe Attorney fees: mostly for Plaintiffs, can include expert fees Punitive damages: must be from act of managing agent or officer or director

Helpful Hints - 1 n n n Employer prevention: training, take complaints seriously, document Perils of representing Plaintiffs: many problems not actionable, rare clear liability, defense verdicts not uncommon, paperintensive, defendants usually uninsured Technicalities: exhaust administrative remedies, lawsuits limited to administrative claims, frequent demurrers and summary judgment motions

Helpful Hints - 2 n n n Remember attorney fees: if liability clear or difficult to defend, may want quick settlement Be aware of retaliation claims Settlement value: Backpay and frontpay very significant Expert consultants: good to have early in case if economically feasible Proof: juries like witnesses