The employment law attorneys at Fauver, Large, Archbald & Spray are available to help our clients respond to and defend employment discrimination claims including claims based on protected class discrimination, sexual harassment claims, and retaliation claims.

More importantly, we want to help our clients realize their business goals by avoiding discrimination claims before they arise, minimizing the negative impact of employment lawsuits and conflict in the workplace whenever possible.

In this article, we will review some of the recommended policies and procedures, strategies for avoiding workplace discrimination, and best practices including:

• A general overview of the types of employment discrimination claims in California,
• How clear, written policies can help to avoid discrimination claims before they arise, and
• Best practices for managers involved in training or investigation of discrimination claims in the workplace.

Employment Discrimination in California: Types of Claims

In order to avoid discrimination claims, business owners, managers and supervisory personnel alike should understand what behavior constitutes discrimination and/or harassment under federal and California law, and what personal traits or characteristics are protected by these regulations.

Protected Classes

Under federal law, it is illegal to discriminate against any person based on:

• Race,
• Color,
• National origin,
• Religion,
• Sex (including conditions related to pregnancy and childbirth),
• Disability,
• Age,
• Citizenship status, or
• Genetic information.

While certain prohibitions against discrimination under federal law apply to all employers, regardless of size, such as those targeting gender-based wage discrimination, others apply only to those businesses employing a certain number of workers. For example:

• Age discrimination applies to businesses with 20 or more employees,
• Citizenship status discrimination applies to businesses with four or more employees, and
• Other federal discrimination laws apply to all California employers with 15 or more employees.

California state antidiscrimination laws apply to all businesses with five or more employees and offer additional protections above and beyond those found in federal law. These include laws prohibiting discrimination based on:

• Race,
• Color,
• Ancestry,
• National Origin,
• Religion,
• Sex – including conditions related to pregnancy and childbirth,
• Mental or physical disability,
• Age,
• Marital status,
• Sexual orientation,
• Gender identity,
• AIDS/HIV status,
• Medical conditions,
• Political affiliation,
• Military status, and
• Status as a victim of domestic violence or stalking.

In addition to the federal and state antidiscrimination laws outlined above, many municipalities in California have adopted their own local antidiscrimination ordinances.

Sexual Harassment Claims

State and federal laws also prohibit sexual harassment in the workplace and require employers to train supervisors and workplace managers on the prevention of and response to sexual harassment.

For example, the California Fair Employment and Housing Act prohibits both “quid pro quo” harassment, where a supervisor or manager in a position of authority over an employee makes sexual advances with the explicit or implied threat of termination, demotion, or negative reviews, and “hostile work environment” harassment which can be committed by any employee regardless of status.

Retaliation Claims

Workplace supervisors and managers also have a responsibility to prevent retaliation claims under federal law and California law through training, policies and procedures to protect employees and applicants from retaliation, and appropriate procedures for internal reporting of discrimination or harassment.

Clear, Written Policies Help to Avoid Discrimination Claims and Employee Lawsuits

Comprehensive, written employment discrimination and harassment policies should be distributed to all employees, and each employee should sign a form acknowledging that they have read and understand the policy.

Although an employer’s written policies must be tailored to account for the nature of the business and all applicable laws, most policies will have some common elements including:

• A description of the procedure for how employees should make reports of discrimination or harassment, who receives the complaints, how the complaints will be investigated, and the extent to which confidentiality will be maintained,
• Definitions of employee discrimination and harassment under local, state, and federal laws,
• The consequences for discrimination or harassment including any potential discipline or termination,
• The time frame for investigations and resolutions to discrimination or harassment claims,
• When the employer will take steps to separate the parties during an investigation including the transfer of an employee to a new location or assignment of a new supervisor for the reporting employee, and
• The company’s policy for termination including when an employee will receive a warning, when an employee will be terminated, and when an employee may be terminated without warning.

Best Practices to Avoid Employee Discrimination Claims

In addition to the adoption of comprehensive written policies and procedures, there are best practices that will help your company 1) avoid discrimination claims in the workplace and 2) handle discrimination or harassment claims professionally and competently when they arise.

Some examples include:

• Training. Managers, supervisors, corporate officers, interviewers, and human resources personnel should have regular training on local, state, and federal anti–discrimination laws, the procedure for reporting and investigating claims, and what to do when an employee makes an allegation.
• Investigate Claims Immediately.  Do not wait to investigate discrimination claims. Perform a thorough investigation of all such claims and take each claim seriously,
• Taking Action. Although it may be necessary to separate the accusing employee(s) from the accused employee(s), do not act against the accused employee(s) until a thorough investigation has been completed. Take care to avoid potential claims for defamation or wrongful termination.
• Avoid Discrimination in Hiring. Ensure that your company’s demographics are consistent with the demographics of the workforce in general and the community, and work to eliminate perceived discrimination among employees as well as actual discrimination.
• Maintain Confidentiality Whenever Possible. Although the investigation must be completed, interviews may be required, and it may be necessary to report the claims to government agencies, unnecessary discussion of the report could result in defamation claims or other lawsuits if the report turns out to be unsubstantiated.
• Thorough Documentation. Obtain written statements from accusing employees and witnesses, keep notes from all meetings and interviews, provide all warnings, terminations, or other resolutions in writing, and always have a witness present during employee interviews.

Please feel free to contact Fauver, Large, Archbald & Spray with questions about employment discrimination claims, proceedings before the California Labor Commission, Department of Fair Employment and Housing, EEOC, and Department of Labor, assistance in developing appropriate policies and procedures for your company, or review of your company’s existing discrimination and harassment policies.

We also remain available to help you with all your general business, corporate, estate, and tax planning needs.

DISCLAIMER:  This publication is one of a series of business, real estate, employment, estate planning, and tax bulletins prepared by the attorneys at Fauver, Large, Archbald & Spray, LLP. This publication is not exhaustive, nor is it legal advice. You should discuss your unique situation with us or with your attorney. Our legal representation is only undertaken through a written engagement letter and not by the distribution or use of this publication.