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

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Presentation on theme: "Discrimination and Harassment in Employment Law: Overview and Helpful Hints Kenneth Tanji WorldEsquire Law Firm LLP 80 S. Lake Avenue, #708, Pasadena,"— Presentation transcript:

1 Discrimination and Harassment in Employment Law: Overview and Helpful Hints Kenneth Tanji WorldEsquire Law Firm LLP 80 S. Lake Avenue, #708, Pasadena, CA 91101 (626) 795-5555 www.worldesquire.com ktanji@worldesquire.com

2 Definition of Harassment 2 CCR §7287.6 Verbal Harassment (i.e. comments) Physical Harassment (i.e. assault) Visual Harassment (i.e. posters)

3 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)

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

5 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

6 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)

7 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

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

9 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

10 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

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

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

13 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)

14 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

15 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

16 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


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