Discrimination and Harassment in Employment Law: Overview and Helpful Hints Kenneth Tanji WorldEsquire Law Firm LLP 80 S. Lake Avenue, #708, Pasadena, CA (626)

Definition of Harassment 2 CCR § Verbal Harassment (i.e. comments) Physical Harassment (i.e. assault) Visual Harassment (i.e. posters)

Sexual Harassment Quid Pro Quo (sexual conduct linked to employment condition) Hostile Environment (sexual conduct unreasonably interferes with work performance or creates hostile or offensive work environment)

Quid Pro Quo Harassment Harassment by supervisor “Unwelcome” conduct? Same-sex harassment Female-on-male harassment Adverse effect required (firing, promotion, benefits, pay)

Hostile Environment Harassment - Definition Subjected to unwelcome conduct or comments Sex-based Harassment so severe that it alters conditions of employment and creates abusive working environment Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608

Hostile Environment Harassment – Severe Conduct Work-related Frequency Severity Judge from reasonable person in Plaintiff’s position (objective standard) Plaintiff still must have been offended (subjective standard)

Hostile Environment Harassment - Notes Adverse effect NOT required Psychological harm NOT required Who can harass: supervisor, co-worker, nonemployee Same-sex harassment, female harassment Harassment based on gender: does not have to be “sexual” (i.e. pranks, picking on women) Favoring the paramour

Other Types of Harassment Government Code §12940(j) Race, religion, color, national origin, disability, medical condition, marital status, sex, age, sexual orientation

Liability for Harassment Employer liability Supervisor harassed: strict liability Non-supervisor harass: negligence analysis, reasonable steps to prevent harassment (knows or should know of conduct and fail to take appropriate corrective action) Harasser liability: yes

Types of Discrimination Race, religion, color, national origin, ancestry, disability, medical condition, marital status, sex, sexual orientation, age (40 or over), pregnancy Unlawful practices: hiring, compensation, terms, conditions Coverage: 5 employees

Proof of Discrimination – Disparate Treatment Disparate treatment (treat person different than person in similar situation because of discrimination) Causation Direct evidence Circumstantial evidence

Proof of Discrimination – Disparate Impact Disparate impact (policy appears neutral but has differing impact on different groups) Intent to discriminate NOT required

Defenses to Discrimination Disparate treatment: legitimate nondiscriminatory reason for action, lack of pretext, bona fide occupational qualification (reasonably necessary, all/substantially all persons in class fail to satisfy, impractical to change qualification) Disparate impact: lack of proof of disparate impact, business necessity (legit business purpose, easier defense to satisfy)

Damages Reinstatement Backpay: mitigation? Frontpay: length? Emotional distress: must be severe Attorney fees: mostly for Plaintiffs, can include expert fees Punitive damages: must be from act of managing agent or officer or director

Helpful Hints - 1 Employer prevention: training, take complaints seriously, document Perils of representing Plaintiffs: many problems not actionable, rare clear liability, defense verdicts not uncommon, paper- intensive, defendants usually uninsured Technicalities: exhaust administrative remedies, lawsuits limited to administrative claims, frequent demurrers and summary judgment motions

Helpful Hints - 2 Remember attorney fees: if liability clear or difficult to defend, may want quick settlement Be aware of retaliation claims Settlement value: Backpay and frontpay very significant Expert consultants: good to have early in case if economically feasible Proof: juries like witnesses