Information
Employment Discrimination Litigation Made Simple
John D. Winer, San Francisco
A. Discrimination Claims Can Be Brought under Both
Federal and California Law.
There are a number of different laws that protect
employees from discrimination. The two most frequently
utilized in California are the Fair Employment and Housing Act
(FEHA) (Government Code sections 12900 - 12996) and Title 7 of
the Civil Rights Act of 1964 (42 U.S.C. sections 2000e -
2000e-17).
There are also a number of Federal and State statutes
specifically prohibiting employment discrimination. Employees
can frequently choose whether to proceed under California or
Federal law; however, there are different rights, rules and
remedies under California law versus Federal law.
B. Who Is Protected Under California Discrimination Law.
Except in cases of harassment, an employee must work for
an employer who regularly employees five or more people to be
entitled to protection under California discrimination law.
However, a harassment claim can be brought against an
employer who employs only one person or regularly receives the
services of at least one independent contractor.
Further, when somebody is retaliated against because he or
she complains about discrimination, the retaliation claim can
be brought against any employer.
All public employers, such as cities and counties, are
subject to discrimination claims.
Under California FEHA law, non-profit religious
organizations are not subject to discrimination claims, but
they may be subject to liability under the California
Constitution.
C. Definition of an Employee.
Under California law (FEHA) an employee is considered
anyone under the direction and control of an “employer”
regardless of whether the employment relationship was based on
an oral or written contract. Independent contractors may fall
outside of the definition of “employee” for discrimination
claims but not for harassment claims. Thus, generally
speaking, harassment claims have a broader sweep and cover
more potential workers.
D. The Requirement of Bringing an Administrative Claim.
Before pursuing a civil suit for harassment or
discrimination under California law, a plaintiff must first
exhaust his or her administrative remedies by filing a
complaint with the Department of Fair Employment and Housing
(DFEH) or with the Equal Employment Opportunity Commission
(EEOC).
It is important that the complaint specifically identify
the discrimination and the perpetrators of the discrimination,
or it may limit the remedies sought and people who can be sued
in a civil case.
If an employee files with the Department of Fair
Employment and Housing, he or she can ask the agency to not
investigate the claim but, rather, simply immediately request
a right-to-sue letter.
It is very simple for an employee to contact the DFEH or
EEOC and file a claim, although generally it is best to do so
with the help of an attorney who specializes in harassment and
discrimination cases.
E. Statute of Limitations.
Generally speaking, a plaintiff must file a complaint with
the Department of Fair Employment and Housing or the EEOC
within one year of the harassing conduct. A plaintiff must
file a claim with one of the governing entities before filing
a lawsuit.
If the sexual harassment has occurred over a long period
of time, the plaintiff can sometimes rely on the continuing
violation doctrine. Under this doctrine, if it is found to
apply, the sexual harassment complaint is timely if any of the
discriminatory practices continues into the one-year
limitations period.
F. What Types of Discrimination Are Prohibited.
Not every form of discrimination is prohibited by law.
Under California law, the following forms of discrimination
are prohibited: race, religion, disability, age, sex
(including sexual harassment), national original and marital
status.
If an employee is discriminated against for any other
reason, there may not be a case.
G. What Is the Standard for Discrimination.
Although Federal and California law differ slightly,
discrimination claims fall into four broad categories:
► individual “disparate treatment” cases, in which
the employee must prove that the employer
intentionally treated him or her less favorably
than other employees because of race, religion,
age, sex, etc.;
► retaliation cases, in which the plaintiff must
prove that the employer intentionally retaliated
against him or her for opposing discrimination
or engaging in protected activities;
► disparate impact or adverse impact cases, in
which the plaintiff must show that the
employer’s otherwise innocuous employment
practice has an unfavorable impact on a
protected class and is not justified by any
claimed business necessity;
► cases involving class-wide pattern or practice
or systemic disparate treatment cases, in which
the plaintiff must prove a pattern or practice
of intentional discrimination against a
protected class, usually by showing a
statistical difference between protected class
members and similarly qualified members of the
majority group, as well as evidence of
individual instances of discrimination.
H. What Evidence of Discrimination Is Required.
The law recognizes that plaintiffs rarely have access to
direct evidence of intentional discrimination so that in most
cases, a plaintiff is allowed to introduce indirect or
circumstantial evidence of discrimination.
I. What the Plaintiff Must Prove.
To prevail in a “disparate treatment” case, the plaintiff
must first prove that he or she is a member of a protected
class, and that the employer intentionally discriminated
against the plaintiff, most often by treating the plaintiff
differently from the way the employer treated people not in
the protected class. Generally, the plaintiff must prove the
disparate treatment by indirect evidence such as establishing
that members of a certain race or older workers (over 40 under
California law) are singled out for demotions or termination.
Thus, as is most often the case, when the plaintiff’s
disparate treatment case depends on circumstantial or indirect
evidence, then the plaintiff must first prove the following:
► that the employee is a member of a protected
class;
► that the employee was qualified for his or her
position; and
► that the employee was discharged.
If plaintiff can prove all of this, then the court will
presume that intentional discrimination has occurred.
However, that does not mean the plaintiff automatically
wins. The employer then has an opportunity to rebut or
counter the presumption of discrimination by stating a
legitimate, non-discriminatory reason for terminating the
plaintiff or taking any other adverse employment action.
If the employee can show that the reason stated by the
employer for the termination or adverse employment action was
not the true reason, but a pretext for discrimination, then
the plaintiff will win the case. The plaintiff must prove to
the judge or jury that the employer’s explanation is not
worthy of belief and also that the employer’s action was, at
least in part, discriminatory.
J. Proving Retaliatory Discrimination.
In a case in which the plaintiff is claiming he or she was
retaliated against for complaining of discrimination or
engaging in other protected activity, in the absence of direct
evidence, the plaintiff must show that he or she suffered an
adverse employment action and that there is a connection
between the protected activity, such as complaining about
discrimination or opposing discrimination, and the adverse
employment action.
Again, the employer has the opportunity to demonstrate
that there was non-retaliatory explanation for the employment
action and the plaintiff must, once again, show that the
explanation is pretextual (i.e., fake).
K. Harassment Cases.
Sexual, racial, religious and other forms of harassment
are actually considered, under the law, to be discrimination.
In cases of harassment, the employee does not have to go
through the more difficult standard of proof required in
disparate impact discrimination cases. To prevail on a
harassment claim, a plaintiff need only establish that the
harassing conduct was unwelcome, severe and pervasive and
interfered with the employee’s working condition.
L. Recoverable Damages for Discrimination Cases.
If an employee sues under California law, he or she is
entitled to recover damages for past and future medical and
psychiatric expenses, past and future wage loss, damages for
emotional distress and punitive damages.
In a discrimination case, a plaintiff does not need to
undergo psychiatric or psychological treatment in order to
recover damage for emotional distress.
To recover punitive damages, i.e., damages to punish the
defendant employer, a plaintiff must prove:
► that the employer hired or retained the
discriminating individual with knowledge of his
or her unfitness for the position and in
conscious disregard of other’s rights for
safety;
► authorized or ratified the wrongful conduct; or
► was personally guilty of oppression, fraud or
malice.
If the employer is a corporation, its knowledge, conscious
disregard, authorization or act of oppression, fraud or malice
must be on the part of a corporate officer, director or
managing agent. A managing agent is a person who exercises
substantial independent authority and judgment over decisions
that ultimately determine corporate policy.
A plaintiff can prove that an employer’s ratification for
purposes of liability for punitive damage by establishing:
► the employer adopted or approved of the action
of the discriminator;
► it can be inferred from the employer’s failure,
after being informed of the discrimination, that
it ratified the conduct of the discriminator by
such evidence as a failure to fully investigate
and punish the discriminator.
M. Claim for Loss of Consortium.
A plaintiff’s spouse can also sue and recover damages for
‘loss of consortium.” A spouse is allowed to recover damages
for the loss of society, comfort and care that result from the
injured spouse’s unavailability due to their injury and having
to watch the plaintiff suffer. In order to recover these
damages, a spouse must be named as a party to the lawsuit and
must have been married to the plaintiff at the time of the
injury.
There are advantages and disadvantages to filing a loss of
consortium claim that should be discussed with an attorney
before filing.
N. Punitive Damages.
Under California law, if a plaintiff can prove that the
conduct of the wrongdoer was fraudulent, malicious or
despicable, he or she is entitled to recover punitive damages
which are intended to punish the wrongdoer and provide an
example for the rest of society. The focus of this type of
case is generally on the wrongdoing of the defendant as
opposed to the injury to the plaintiff. The amount of
punitive damage will vary depending upon the heinousness of
the defendant’s misconduct and its economic status. The law
recognizes that large companies have to pay more money in
punitive damages to be adequately punished than small
companies or individuals. In motor vehicle cases, punitive
damages are most frequently awarded against drunk drivers.
O. Recovery for Attorneys Fees.
If the plaintiff can prove discrimination, he or she is
entitled to recover his or her attorneys fees as an element of
damages. This is a very important aspect of the law because
frequently the award for attorneys fees will be greater than
the actual damage award to the employee. California law
allows recovery for attorneys fees greater than the amount of
actual damages because it recognizes that it important that
attorneys have an incentive to handle sexual harassment and
discrimination cases and that legitimate victims of harassment
and discrimination would be unable to seek legal redress if
attorneys fees were not awarded on top of a damage award.
P. Key Factors in Employment Discrimination Cases.
Like almost any case, the most important factor for a
plaintiff in an employment discrimination case to prevail is
the credibility of the plaintiff employee. If the case goes
to trial and a jury does not believe the employee, the
plaintiff will generally lose regardless of the rest of the
evidence. Further, if the defendant employer can prove that
the employee has lied, either before or during the litigation,
even a good case can be destroyed because jurors do not want
to award money to somebody they believe is lying and
manipulating the system.
Although derogatory, discriminatory remarks are not
necessary to win an employment discrimination case, they are
very, very helpful. If the plaintiff can establish through
other witnesses that such remarks were made by supervisors or
management in a company aimed at plaintiff or aimed at people
of plaintiff’s protected class (people of the same race,
national origin, gender, age range, etc.) it will provide
powerful evidence that the company has a hostile,
discriminatory environment.
It is also helpful to a plaintiff’s case if more than one
member of their protected class joins the lawsuit or has made
complaints to HR and management about discriminatory
misconduct.
It is normally harmful to a plaintiff’s case if similarly
situated members of the plaintiff’s protected class testify
that the company is fair and non-discriminatory. This will
normally create an inference that plaintiff is either a
troublemaker or was treated negatively for poor performance or
reasons other than discrimination. One of the most important
concepts of employment law is that, in order to prevail in a
discrimination case, the plaintiff must prove that they were
treated poorly because of their race, age, gender, etc., and
not because a supervisor or another employee had it in for
plaintiff or simply did not like the plaintiff or treated the
plaintiff worse than other employees. That is not
discrimination under the law.
Finally, in cases in which a plaintiff is alleging that
the company systematically discriminates against people in the
plaintiff’s protected class through hiring, paying, promoting,
demoting or firing, it is, of course, very helpful if
statistical evidence within the company verifies the
plaintiff’s claim and the company cannot provide a reasonable
explanation for why members of plaintiff’s class are treated
differently than members of other classes. For instance, if a
company can prove that the reason why there are no women in
higher management is because very few women ever apply for
jobs within the company and that the same percentage of women
rise in the company as men even though there are many more men
in higher management, the company will generally be able to
prevail in an employment discrimination case.
Q. Settlement of Employment Discrimination Cases.
Employment discrimination cases are generally difficult to
settle because they are complex, difficult to prove and
difficult to evaluate. Attempting to ascertain what jurors
have done in other similar cases, which is the yardstick by
which most cases settle, is not particularly fruitful in
employment discrimination cases because there is such a wide
variance in verdicts from millions of dollars to small
recoveries to defendants prevailing.
Thus, generally speaking, the case must be settled on a
risk analysis. Based on the evidence that is available at the
time that settlement is considered, the defendant has to
consider its risk of a potential multimillion dollar verdict
if plaintiff can establish a punitive damage point while the
plaintiff must consider the risk of a very small verdict or
losing if the jury fails to find punitive damages or finds no
discrimination.
An important settlement factor in plaintiff’s favor in an
employment discrimination case is that if the plaintiff can
prove discrimination, they will be awarded their attorneys
fees which, by the time the case comes to trial, will almost
always be hundreds of thousands of dollars and sometimes
millions of dollars. Thus, in an employment discrimination
case, even if the defense believes there is a significant risk
that they will lose, they must consider paying a significant
amount of money in settlement even if they believe the
plaintiff is not particularly injured because a low verdict
can still result in a very large attorney fee award.
|
