Discrimination, Retaliation, Harassment

Many employers have learned the hard way that wrongful termination, retaliation, discrimination, and harassment go hand in hand. If you are being sued for wrongful termination, there is a very high chance that you are also being sued for retaliation, discrimination, and harassment. That is because California law is even broader than federal anti-discrimination laws and very employee friendly.

Discrimination

Protected classes under federal anti-discrimination law include the following:

• age (40 years and older),

• race,

• sex (pregnancy, gender identity, and sexual orientation),

• physical disability,

• mental disability,

• religion/ religious practices,

• national origin, and

• political affiliation.

Likewise, protected classes under California’s anti-discrimination law include the following:

• age (over 40),

• race or color,

• sex or gender (pregnancy, childbirth, breastfeeding or related medical conditions),

• sexual orientation,

• gender identity, gender expression,

• physical disability,

• mental disability,

• religion, creed,

• ancestry, national origin,

• medical condition,

• genetic information,

• marital status, and

• military and veteran status.

Clearly, California has more “protected classes” and the “protected classes” are broader and more inclusive. In other words, California gives your employees more reasons to sue you under California’s anti-discrimination laws.

If at any time an employee feels that he or she are a part of any of the above “protected classes” and is being discriminated against, he or she may bring a claim for discrimination against you.

Retaliation

If an employee feels that he or she is being retaliated against for asserting his or her rights or engaging in “protected activity,” the employer may liable for damages pursuant to California’s Fair Employment and Housing Act. As such, it is unlawful for employers to retaliate against employees who resist or object to discrimination or harassment. Retaliation includes discharging, expelling, or otherwise discriminating against an employee because the employee opposed employer’s unlawful actions or because the employee filed a complaint, testified, or assisted in any proceeding against the employer.

Examples of protected activity include: whistle-blowing, reporting harassment, reporting unsavory business practices, taking family or sick leave, filing a complaint regarding wages.

Examples of workplace retaliation include: schedule changes, reassignment to a different position, hostile interactions, blocked promotions and benefits, poor performance reviews, or even termination.

As you can imagine, the term “retaliation” can be interpreted to include many types of actions, including actions the employers may not have viewed or even have intended to be “retaliation.” Many times, employees make claims of retaliation based on the timing of an employee’s actions alone.

Harassment

Likewise, if an employee feels that he or she is being harassed for being in a “protected class,” the employer may again be liable for damages under California’s Fair Employment and Housing Act. This is because the term “harassment” is equally broad and has been defined to include any negative, inappropriate, or unwanted conduct at an employee based on his or her inclusion in a “protected class.” In other words, if an employee feels that he or she has suffered through any negative, inappropriate, or unwanted conduct because of his or her race, disability, religion, sex, gender identity, marital status, sexual orientation, pregnancy, etc.

Examples of harassment include inappropriate jokes, derogatory comments, sexual innuendo, unwanted touching or hitting, threats (verbal or implied), offensive posters or signs, aggressive or repeated requests for sexual favors, showing favoritism.

Employees may sometimes feel they are being harassed and that certain actions are “wrong,” but the actions they complain about do not rise to the level of unlawful harassment. It is important for employers to know the difference.