Discrimination

On a state level, many anti-discrimination laws in California are governed by the Fair Employment and Housing Act (i.e., Government Code section 12940, et seq.).  Specifically, employers in California are prohibited from subjecting an employee to an adverse employment action or disparate treatment based on a protected characteristic.

Simply put, if an employer terminates (or otherwise treats an employee) unfairly because of the employee’s physical or mental disability, medical condition, age, pregnancy, national origin, race, color, gender, religion, gender-identity, sexual-orientation, military or veteran status, marital status, criminal conviction, reproductive health decision making or other protected characteristic, this constitutes discrimination.

Common examples of “adverse employment actions” that employers take against employees include termination, demotion, failure or refusal to promote, impairing or interfering with job performance, or engaging in any conduct that negatively affects the terms, conditions, or privileges of employment.

Harassment and Hostile Work Environment

A hostile work environment occurs when an employee is subjected to unwelcome conduct at work (and usually, by a supervisor or coworker) that is so severe or pervasive that it creates an intimidating, hostile, or abusive work atmosphere.  This type of harassment must be based on a legally protected characteristic, as defined above.

For a harassment claim to be valid under California law, the following elements must be present:

• Unwelcome Behavior: The conduct must be unwanted by the employee.
• Protected Characteristic: The harassment must target one or more protected characteristics recognized under California law.
• Severe or Pervasive: The behavior must be sufficiently severe (e.g., a single egregious act) or pervasive (e.g., repeated incidents over time) to adversely affect the work environment.
• Impact on Work Performance: The harassment must interfere with the employee’s ability to perform their job or create a work environment that a reasonable person would find hostile, intimidating, or abusive.
• Employer Responsibility: Employers may be held accountable for harassment by supervisors, coworkers, or even non-employees (e.g., clients or customers) if they knew or should have known about the harassment and did not take appropriate action to prevent it.

Examples of conduct that could contribute to a hostile work environment include offensive jokes, derogatory comments, threats, intimidation, insults, or physical actions that target an employee’s protected characteristic.

Retaliation and Whistleblower Claims

Employers can be found liable for various types of retaliation.  The two most common forms of retaliation are whistleblower retaliation and retaliation prohibited by the Fair Employment and Housing Act (FEHA).

FEHA Retaliation:

FEHA retaliation occurs when an employer takes an adverse employment action against an employee who engages in protected activities.  An example of FEHA retaliation may occur when an employer terminates, treats unfairly, or demotes an employee after the employee reports or complaints about discrimination or harassment or participates in a related investigation or legal proceeding.

To establish a FEHA retaliation claim, an employee must demonstrate the following:

• Protected Activity: The employee engaged in a protected activity, such as reporting or complaining about discrimination or harassment, filing a complaint, or assisting in an investigation or lawsuit related to FEHA.
• Adverse Action: The employer took an adverse action against the employee, such as termination, demotion, reduction in pay, or other negative employment actions that would dissuade a reasonable employee from engaging in the protected activity.
• Causal Connection: There must be a causal link between the protected activity and the adverse action.  This means that the adverse action was taken because of the employee’s participation in the protected activity.

Whistleblower Retaliation:

Under California law, whistleblower retaliation occurs when an employer takes adverse action against an employee for reporting or complaining about conduct or business practices that the employee reasonably believes is either illegal or unethical.  California’s whistleblower protection laws are designed to safeguard employees who disclose or refuse to participate in activities that they reasonably believe violate laws or regulations.

Key points about whistleblower retaliation under California law include:

• Protected Activity: The employee must have engaged in a protected activity, which typically involves reporting violations of state or federal laws, regulations, or safety standards.  This can include reporting unlawful activities, unsafe working conditions, or other misconduct.
• Adverse Action: The employer must have taken adverse action against the employee.  Adverse actions can include termination, demotion, reduction in pay, unfavorable job assignments, or other negative changes in employment status or conditions.
• Causal Connection: There must be a causal link between the employee’s protected activity and the adverse action taken by the employer.  This means the adverse action was motivated by the employee’s whistleblowing activities.

California’s whistleblower protection laws are delineated in several statutes, including Labor Code Section 1102.5 and Labor Code Section 6310.

Failure to Provide Reasonable Accommodations

Employers are required to provide reasonable accommodations to employees with disabilities, medical conditions or injuries to enable them to perform their job duties.  Alternatively, employers may be obligated to place a disabled or injured employee in an alternative position.  Failure to provide reasonable accommodations is a violation of the Fair Employment and Housing Act (FEHA) and can be the basis for a legal claim.

Below is a brief summary of the elements for a claim for failure to provide reasonable accommodations under California law:

• Protected Activity: The employee must have a disability as defined by FEHA, which includes physical or mental impairments that limit a major life activity.  The employee must also request an accommodation or indicate the need for an adjustment to perform their job.
• Reasonable Accommodation: Employers are required to provide reasonable accommodations, unless doing so would cause undue hardship for the business.  A reasonable accommodation is any modification or adjustment to the work environment or the way things are typically done that enables an employee with a disability to perform essential job functions.
• Interactive Process: Employers and employees must engage in an interactive process to identify and implement effective accommodations.  This process involves open communication and cooperation to determine what accommodations may be needed and how they can be provided.
• Undue Hardship: An employer can refuse to provide an accommodation if it would cause undue hardship, which means significant difficulty or expense relative to the size, resources, nature, or structure of the employer’s operation.
• Failure to Accommodate: A claim of failure to provide reasonable accommodations can be based on the employer’s failure to engage in the interactive process or provide accommodations that were reasonable and feasible under the circumstances.

Severance and Separation Agreements

In California, severance and separation agreements are legal contracts that outline the terms under which an employee’s employment is terminated.  These agreements typically include provisions related to severance pay, benefits, and other terms of the separation.

Employers often attempt to convince an employee that, once they have signed a severance or separation agreement, the employee can no longer file a lawsuit against that employer in the future.  However, signing a severance or separation agreement does not waive an employee’s right to sue for unlawful conduct.

Nevertheless, you should always consult an attorney prior to signing a severance or separation agreement to ensure that your interests are protected.