It is against the law in California for an employee to be discriminated against because of his or her: race; religious beliefs; color; national origin; ancestry; physical or mental disability; medical condition; genetic information; marital status; sex; gender; gender identity; gender expression; sexual orientation; military and veteran status; age; or pregnancy, childbirth, breastfeeding or related medical conditions. These characteristics are known as “protected characteristics.”
What Constitutes Illegal Discrimination?
Illegal discrimination occurs when an individual is discriminated against in the “terms, conditions, or privileges” of employment because of a protected characteristic. When this occurs, it is said that an individual has suffered an adverse employment action.
How Does an Employee Prove They Were Discriminated Against?
To have a successful discrimination claim, an employee must show that the adverse employment action they suffered, i.e. the detrimental change in the terms, conditions, or privileges of their employment, was because of a protected characteristic, i.e. their race, sex, disability, gender, religion. Thus, a causal connection (a direct relation between the adverse employment action and one's protected characteristic) is essential to a discrimination claim.
An employee can demonstrate a causal connection by showing disparate treatment or the disparate impact of an employment policy.
Disparate Treatment
Proving discrimination through disparate treatment requires showing that an employee was intentionally treated differently than other employees because of his or her protected characteristic.
Quick Tip: Disparate = Different.
An employee can prove disparate treatment through 1) direct evidence or 2) indirect or circumstantial evidence.
Direct Evidence of Disparate Treatment
Direct evidence of disparate treatment is exactly what one would think it is: straight-forward, unambiguous evidence of an individuals' discriminatory intent.
Examples:
An employee's supervisor tells her that she will not receive a promotion “because women should not be managers.” The employee subsequently does not receive a promotion.
An employee's manager tells him one week before he is terminated that he is “too old” to do his job, that he should “retire,” and that “younger employees are better workers.”
Circumstantial Evidence of Disparate Treatment
Usually, there is no direct evidence of disparate treatment. In today's day and age, people tend to be less blatant and do not directly voice their discriminatory intent. This however, does not mean that in the absence of direct evidence one cannot prove discriminatory conduct.
Through circumstantial evidence, an employee is able to prove discriminatory intent. This is done by showing that an employee was treated differently, and less favorably, than similarly situated individuals who did not share the same protected characteristics.
Quick Tip: Compare the treatment of employees who share similar characteristics except for one employee's protected characteristic, i.e. man vs. woman who hold the same position; disabled employee vs. non-disabled employee who do the same job; younger employees vs. older employees at company.
Examples
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An African American employee and a Caucasian employee both engage in the same course of conduct. The employees' supervisor subsequently learns of their behavior. The employees' supervisor terminates the African American employee but does not issue any discipline to the Caucasian employee.
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There is one female employee in a department. This female employee receives excellent performance reviews each year of her employment but is repeatedly denied a promotion. Less qualified, but male employees are promoted instead.
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Mexican employees are always assigned to work the more desirable day shift while Puerto Rican employees are always assigned to work the night and weekend shifts. Mexican employees are allowed to work overtime hours and earn overtime pay but Puerto Rican employees are prohibited from working any overtime. Mexican employees are paid more than Puerto Rican employees even though all the employees do the same work.
Disparate Impact
Proving discrimination through a showing of disparate impact requires demonstrating that an employment practice, which on its face does not appear to be discriminatory, in fact, treats one group of employees less favorably than another group of employees.
Example:
A company implements a new policy applicable to all employees. The policy, which on its face does not appear to be discriminatory, has the effect of preventing the vast majority of female employees from being eligible for a promotion within the next ten years.