Employment Discrimination Law BooksAbsent evidence of a contract or a specific law to the contrary, the employment relationship between employer and employee is typically treated as an “at will” affiliation in California. This means that either the employer or employee may terminate the relationship without notice or good cause. However, pursuant to employment discrimination laws in California, there are many exceptions to the employment at will doctrine, which employers and employees should be aware of, including: discrimination based on race, gender, age, disability, pregnancy or childbirth, religion, marital status, sexual orientation, national origin (including English only policies), citizenship status, genetic information, AIDS/HIV, medical condition, political activities or affiliations, military or veteran status, status as a victim of domestic violence, assault, or stalking.

Each of these classifications has many nuances and types of personal characteristics, conduct, or activities by employees which are protected by law. For example, while many employers are aware that federal and California laws require employers to reasonably accommodate workers in the practice of their religion, such as offering time off to attend religious ceremonies or in observance of religious holidays, the prohibition against religious discrimination also prevents employers from barring employees from wearing religious symbols, such as jewelry, clothing or artifacts. Employees are also entitled to wear the hairstyles, facial hair and body hair which are in accordance with their religion, absent a compelling reason asserted by the employer.

Intentional or Unintentional Discrimination

Unlawful workplace discrimination may occur not only where an employer overtly favors non-minority or protected employees, but also where more subtle forms of discrimination exist, including intentional or unintentional conduct by an employer:

  • During the hiring and screening process
  • During regular evaluations
  • During the promotion process
  • In setting employee compensation, including benefits
  • In setting job assignments which may be more or less desirable
  • In establishing employment policies
  • During the disciplinary process
  • In harassing minority employees
  • During the termination or layoff process, by favoring non-minorities

If, by way of example, a current employee has a mental or physical disability for which the employee requests a reasonable accommodation, such as arriving to work later than scheduled and leaving work later than schedule and the employer’s policy requires strict adherence to their set schedule, if the employer refuses the requested accommodation based on their policy, they could be held liable for damages to the employee, even if there was no intention to discrimination against the particular employee. This result occurs because anti-discrimination laws require employers to grant a requested reasonable accommodation to an employee, unless the accommodation is an undue hardship to the employer. This “undue hardship” exclusion is typically interpreted to mean employers are not required to provide accommodations which are too costly to them, so smaller businesses may find it easier to assert this exception than large corporations since they have fewer resources.

Direct or Circumstantial Evidence

Age discrimination and sexual harassment are common types of cases which are asserted against employers as exceptions to the employment at will doctrine. Like other types of employment discrimination cases, they may be proven through either direct or circumstantial evidence while relying on a disparate treatment or disparate impact theory of the case.

Whether you are an employer or employee, your employment law attorney will want to determine whether there is any direct evidence in your case such as documents containing statements of an intent to discriminate. The majority of employment discrimination cases do not include this type of direct evidence. Instead, most parties rely on circumstantial evidence to prove their case, which requires the trier of fact to make inferences from the evidence presented. Common circumstantial evidence includes personnel documents revealing that the employee was treated less favorably than a similarly situated employee who was not a member of a protected class.

Disparate Treatment or Disparate Impact

Disparate treatment cases typically involve either direct or circumstantial evidence of an employer’s intention to discriminate against protected employees. In contrast, a disparate impact case will normally involve an otherwise neutral policy or practice by an employer which has a discriminatory impact on a protected class of employees. This type of discrimination is also prohibited under state and federal laws.

This is a broad overview of a vast line of statutes and case law which prohibit discrimination in the workplace. For a fact intensive analysis of your specific situation, it is important to seek the assistance of an experienced employment law attorney. An employment law attorney will carefully gather information about your case and compare it to recent authoritative opinions to determine the best course of action for you.

Here is a link to the California Department of Fair Employment and Housing which sets out protected classifications: