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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 ktanji@worldesquire.com. Definition of Harassment. 2 CCR §7287.6

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Discrimination and Harassment in Employment Law: Overview and Helpful Hints

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  1. 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 ktanji@worldesquire.com

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

  3. 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)

  4. Quid Pro Quo Harassment • Harassment by supervisor • “Unwelcome” conduct? • Same-sex harassment • Female-on-male harassment • Adverse effect required (firing, promotion, benefits, pay)

  5. 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

  6. 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)

  7. 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

  8. Other Types of Harassment • Government Code §12940(j) • Race, religion, color, national origin, disability, medical condition, marital status, sex, age, sexual orientation

  9. 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

  10. 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

  11. Proof of Discrimination – Disparate Treatment • Disparate treatment (treat person different than person in similar situation because of discrimination) • Causation • Direct evidence • Circumstantial evidence

  12. Proof of Discrimination – Disparate Impact • Disparate impact (policy appears neutral but has differing impact on different groups) • Intent to discriminate NOT required

  13. 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)

  14. 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

  15. 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

  16. 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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