Workplace Discrimination in California: What Employees Need to Know
Unlawful workplace discrimination generally occurs when an employer takes an adverse employment action against an employee because of a legally protected characteristic, such as race, disability, sex, age, religion, national origin, sexual orientation, gender identity, or another characteristic protected by law. The critical question in many discrimination cases is therefore not simply whether the employer treated you unfairly, but why.
What Is Workplace Discrimination Under California Law?
California’s Fair Employment and Housing Act (FEHA) prohibits covered employers from discriminating against employees and job applicants based on protected characteristics.
Discrimination can involve decisions concerning:
- Termination or layoff;
- Demotion;
- Failure to hire or promote;
- Compensation;
- Job assignments or transfers;
- Discipline;
- Working conditions; and
- Other significant terms or conditions of employment.
FEHA’s employment discrimination provisions generally apply to employers with five or more employees.
What Characteristics Are Protected in California?
California law prohibits employment discrimination based on a number of protected characteristics, including:
- Race and color;
- National origin and ancestry;
- Religion or religious creed;
- Physical or mental disability;
- Medical condition;
- Sex, including pregnancy and related medical conditions;
- Gender, gender identity, and gender expression;
- Sexual orientation;
- Age, for workers age 40 and older;
- Marital status;
- Genetic information;
- Military or veteran status; and
- Reproductive health decision-making.
Unfair Treatment Is Not Always Illegal Discrimination
This is one of the most important distinctions for an employee considering a discrimination claim.
Suppose an employee is fired after receiving an unfair performance evaluation. The employee may be able to show that the evaluation was inaccurate or that the supervisor simply disliked the employee. That alone does not necessarily establish unlawful discrimination. The employee generally needs evidence connecting the adverse treatment to a protected characteristic.
For example, the analysis changes significantly if a 58-year-old employee with a long history of positive reviews suddenly receives questionable criticism after a new manager makes comments about wanting “younger energy,” and the employee is then replaced by a substantially younger worker.
Likewise, an employee’s discrimination claim may become stronger if discipline begins shortly after management learns of a disability, pregnancy, religious practice, or other protected characteristic. The surrounding facts matter.
How Can You Prove Workplace Discrimination?
Employers rarely, if ever, admit that they terminated, demoted, or disciplined an employee because of race, disability, age, sex, religion, or another protected characteristic. As a result, employment discrimination cases often depend heavily on circumstantial evidence. You and your attorney should make a judgment call regarding whether or not you have sufficient evidence to make a case before pursuing it in court or before an administrative agency. Evidence that may support a discrimination claim includes:
Suspicious Timing
The timing of events can be important. For example, an employee may have years of positive performance reviews but suddenly begin receiving criticism shortly after disclosing a disability or pregnancy. Timing alone does not necessarily prove discrimination, but it can become significant when combined with other evidence.
Discriminatory Comments
Comments by supervisors or decision-makers concerning age, race, disability, pregnancy, religion, accents, national origin, or other protected characteristics may provide evidence of discriminatory motive. The context, timing, frequency, and identity of the person making the statement can all matter.
Different Treatment of Other Employees
Evidence that similarly situated employees outside the protected group were treated more favorably can be particularly important. For example, if an employer claims that an employee was fired for violating a particular policy, it may be relevant that other employees committed similar violations but were not terminated.
Changing or Inconsistent Explanations For Firing
An employer may initially give one explanation for an adverse action and later provide a materially different explanation. Significant inconsistencies can raise questions about whether the stated reason was the true reason for the decision.
A Sudden Change in Performance History
History of positive evaluations followed by abrupt criticism and bad review can sometimes support a discrimination claim, particularly when the change coincides with a protected event or a change in management. However, a good employment history by itself does not establish discrimination. The question remains whether there is evidence connecting the change in treatment to a legally protected characteristic.
Similar Discriminatory Treatment of Other Employees
Evidence that the same manager or employer treated other employees in a similar protected group adversely may also be relevant depending on the circumstances.
What Evidence Should You Preserve?
If you believe you may be experiencing workplace discrimination, preserve evidence that you lawfully possess and that may help establish the chronology and reasons for what occurred.
Potentially important evidence includes:
- Performance evaluations;
- Written warnings and disciplinary notices;
- Emails and text messages;
- Relevant workplace policies;
- Communications with HR or management;
- Documents concerning promotions or job assignments;
- Accommodation requests and medical documentation, when applicable;
- Names and contact information of potential witnesses; and
- Documents showing your employment history and performance.
It is also useful to identify evidence that may hurt your claim. Prior warnings, performance issues, customer complaints, attendance problems, or workplace conflicts are likely to be raised by the employer and should be evaluated at the outset rather than ignored.
Do not improperly take confidential, proprietary, or privileged company documents simply because you believe they might be useful in a future case.
How Strong Is Your Workplace Discrimination Case?
There is rarely one fact that determines whether a discrimination case is strong or weak.
A useful evaluation usually requires looking at the entire chronology:
What happened before the adverse action? Who made the decision? What reason did the employer give? Does the documentary record support that explanation? Were other employees treated differently? Were discriminatory comments made? Did the employer follow its normal procedures? Has its explanation changed? Are there any potential or actual witnesses to any discriminatory comments toward you?
Just as importantly, a proper evaluation should consider the employer’s likely defenses. A strong discrimination case is not simply a story of unfair treatment. It is a case in which the available evidence can support the conclusion that a protected characteristic actually contributed to the employer’s decision.
Our office represents employees in workplace discrimination, retaliation, wrongful termination, disability, and other employment disputes in Sacramento and throughout Northern California.
If you would like us to evaluate your situation, contact our office to discuss.
Please also be sure to watch the video below about two common misconceptions that many workers have about what unlawful workplace discrimination is: