Discrimination and Harassment in Employment Law
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Transcript Discrimination and Harassment in Employment Law
Discrimination and Harassment
in Employment Law: Overview
and Helpful Hints
Kenneth Tanji
WorldEsquire Law Firm LLP
80 S. Lake Avenue, #708, Pasadena, CA 91101
(626) 795-5555
www.worldesquire.com
[email protected]
Definition of Harassment
2 CCR §7287.6
Verbal Harassment (i.e. comments)
Physical Harassment (i.e. assault)
Visual Harassment (i.e. posters)
Sexual Harassment
Quid Pro Quo (sexual conduct linked to
employment condition)
Hostile Environment (sexual conduct
unreasonably interferes with work
performance or creates hostile or offensive
work environment)
Quid Pro Quo Harassment
Harassment by supervisor
“Unwelcome” conduct?
Same-sex harassment
Female-on-male harassment
Adverse effect required (firing, promotion,
benefits, pay)
Hostile Environment Harassment Definition
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.3d 590, 608
Hostile Environment Harassment – Severe
Conduct
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
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
Government Code §12940(j)
Race, religion, color, national origin, disability,
medical condition, marital status, sex, age,
sexual orientation
Liability for Harassment
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
Race, religion, color, national origin, ancestry,
disability, medical condition, marital status,
sex, sexual orientation, age (40 or over),
pregnancy
Unlawful practices: hiring, compensation,
terms, conditions
Coverage: 5 employees
Proof of Discrimination – Disparate
Treatment
Disparate treatment (treat person different
than person in similar situation because of
discrimination)
Causation
Direct evidence
Circumstantial evidence
Proof of Discrimination – Disparate
Impact
Disparate impact (policy appears neutral but
has differing impact on different groups)
Intent to discriminate NOT required
Defenses to Discrimination
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
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
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
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