Current State of Discrimination in the Workplace
Since the passage of the Civil Rights Act (CRA) of 1964, federal and state governments have sought to prevent discrimination in the American workplace by creating anti-discrimination laws. In California, the Fair Employment and Housing Act (FEHA), passed in 1980, is the cornerstone for statewide laws outlawing employment discrimination.
Unfortunately, almost 60 years after the passage of the Civil Rights Act, discrimination is still prevalent for many Americans at work. According to a national survey conducted by Glassdoor in 2019, 61% of Americans report having experienced and or witnessed discrimination at work. That same year, the Equal Employment Opportunity Commission (EEOC) received 72,675 individual charge filings regarding workplace discrimination. With the rise of work-from-home due to the COVID-19 pandemic, charge filings received by the EEOC fell to 67,448 and 61,331 in 2020 and 2021 respectively but remained high.
Similarly, 40 years after the passage of the FEHA, workplace discrimination is widespread in California. The California Department of Fair Employment and Housing reported receiving approximately 101,821 and 18,000 claims relating to employment discrimination in 2019 and 2020 respectively.
What Constitutes Employment Discrimination
Employment discrimination is the differential or unfavorable treatment of employees based on their membership in a protected class or participation in a protected activity.
Protected classes in California include (but are not limited to): race, color, religion, sex/gender, gender identity, gender expression, sexual orientation, marital status, medical condition, military or veteran status, national origin, ancestry, disability, genetic information, medical condition, request for family care leave, request for leave for employee’s own serious health condition, request for pregnancy disability leave, and age (over 40)
Differential or unfavorable treatment in the workplace could impact hiring, pay, benefits, workplace opportunities, performance reviews, physical or verbal treatment, assignments, and firing.
Different Types of Employment Discrimination
There are many forms of employment discrimination. Some of the most common forms of discrimination reported in California workplaces according to the DFEH are disability discrimination (reported in approximately 20% of claims), sex and gender based discrimination (reported in approximately 14% of claims), racial discrimination (reported in approximately 11% of claims), age discrimination (reported in approximately 11% of claims), and retaliation (reported in approximately 20% of claims). It is possible to experience multiple forms of employment discrimination, and possible to experience employment discrimination as an employee and as a job applicant.
The Americans with Disabilities Act (ADA) and the FEHA prohibit employers from discriminating against employees with disabilities or medical conditions. The laws also grant employees the right to “reasonable accommodations” in the workplace. A reasonable accommodation is a change to an employee’s work environment, work duties, or work schedule that will help the employee perform their job, without causing “undue hardship” to the employer.
Sex and Gender Discrimination
Employers can not treat employees differently based on their sex or gender identity, including what pronouns employees use or how employees prefer to dress. It is likewise illegal for employees to be treated differently because of their sexual orientation. Verbal or physical harassment regarding gender, sex, or sexual orientation, is illegal if it rises to the level of creating a hostile work environment.
Racial discrimination involves the differential treatment of employees based on their race. It is illegal for an employer to treat an employee unfavorably because of their racial background, skin color, hair, and other physical features. Racial harassment, including the use of slurs, jokes, and offensive comments is also illegal in the workplace if the harassment is considered severe or pervasive in the workplace.
Age discrimination is the unfavorable treatment of employees who are 40 and older. Age discrimination may impact hiring, job opportunities and treatment in the workplace, and firing. Discrimination based on age is illegal, whether it is intentional or not. For example, it is illegal for employers to fire higher paid employees as a way to save money if the practice targets older workers.
Reporting Discrimination at Work
If you think that your employer is or has discriminated against you, you should record all relevant events or interactions in writing, and save related emails, notes, and documents, and report the discrimination directly to your employer. If your employer does not correct their behavior, you may file a complaint with the Federal Equal Employment Opportunity Commission (EEOC) (if your employer has more than 15 employees) or with the California Department of Fair Employment and Housing (DFEH) (if your employer has more than 5 employees). There is a 300-day deadline to file with the EEOC and a 3-year deadline to file with the DFEH.
Retaliation is Illegal
The FEHA defines participating as a witness in a discrimination or harassment complaint, and reporting or resisting any form of discrimination or harassment, as protected activities and prohibits retaliation based on an employee’s participation in a protected activity. If your employer has treated you differently because you reported or resisting any form of discrimination or harassment, your employer has broken the law.
Contact a California Employment Attorney
Experiencing discrimination and or harassment at work can be distressing and difficult. If at any point you need support moving forward, contact an employment discrimination attorney.