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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, CA 91101 (626) 795-5555 www.worldesquire.com [email protected] Definition of Harassment. 2 CCR §7287.6

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discrimination and harassment in employment law overview and helpful hints

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

[email protected]

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