December 7, 2020

Failure To Accommodate

article photo

Both harassment and discrimination relate to some form of prejudice, but discrimination refers to a specific job-related decision that was motivated by the inappropriate bias. Harassment involves other mistreatment. Thus, a supervisor who uses racial slurs may be liable for harassment for uttering those slurs. However, this does not involve discrimination. On the other hand, if the CEO demotes the same employee based on the same prejudice, the company may be liable for discrimination because there was a specific job-related decision—a demotion—motivated by the inappropriate bias. In the real world, harassment and discrimination often go hand-in-hand.

Discrimination sometimes involves a wrongful termination but not always. Any negative treatment can equal harassment or discrimination. The most pronounced act of discrimination may be to terminate an employee, but there are infinite more ways to discriminate. A supervisor may give someone a less convenient shift, a less profitable assignment, or fewer hours. If any of these are the result of a supervisor being prejudiced, it can equal a viable discrimination claim.

Although California follows the “at will” doctrine such that employers have the right to fire employees even if the employee is performing well and has done nothing wrong. However, it is unlawful to terminate an employee if a substantial motivating factor for the termination was prejudice based on a legally recognized characteristic, which is termed a “protected class.”

Some protected classes are listed below.
• Age (40 and over)
• Race, Color, Ethnicity, National Origin (including language use restrictions)
• Religion
• Denial of Family and Medical Care Leave
• Disability (mental and physical), Medical Condition (cancer and genetic characteristics), Genetic Information
• Sex (including pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding), Gender, Gender Identity, and Gender Expression, Sexual Orientation
• Employee reporting a violation of his or her own rights
• Whistleblower reporting that the company is violating a law

Sex discrimination and race discrimination claims are two of the most common complaints we hear. Claims for harassment, discrimination, and retaliation may be based on prejudice against minorities, females or based on inappropriate conduct of a sexual nature. The law explicitly protects minorities and female employees from prejudice based on race or gender and protects employees from being subjected to unwanted sexual advances. A sexist or racist boss often causes problems for workers and for the company who can be forced to pay significant amounts of money because of the supervisor’s wrongful conduct. Companies who do not have policies in place regarding the prevention of discrimination and harassment increase the risk of conflicts in the workplace and of litigation. Companies must also take care to investigate and terminate prejudiced supervisors; otherwise, the company will likely be held liable for all damages and penalties.

A successful discrimination lawsuit can result in significant damages, penalties, and more. If an employee convinces a judge or a jury that discrimination or harassment was “substantially motivated” by, for instance, the fact that an employee is a minority or the fact that an employee reported a violation of his own rights, the company could be held liable for significant amounts of money because there are penalties, multiple types of damages, and more.