Curtis E. Allen, Esq.
303 Twin Dolphin Drive, Suite 600, Redwood City, CA 94065
Ph & Txt 650 868 6620; Fax 650 362 1864

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Discrimination / Harassment

Discrimination

The main body of employment discrimination law is composed of federal and state statutes - The Americans with Disabilities Act; Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act.


As a practical matter, employment discrimination can manifest itself in a failure to promote, a demotion, a difference in compensation, a difference in treatment (that usually affects the client’s ability to earn money) or a termination.


Discrimination cases are typically difficult to prove because an employee always bears the burden of proving both that a discriminatory act took place and that the motivation behind the act was illegal. For example, it is not enough to prove that the employee did not get the raise. The employee must also prove that s/he didn’t get the raise because the decision maker was motivated by racism, sexism, etc. – what the courts call the employee’s “membership in a protected class.” Employers have a very low burden in discrimination cases. The employer doesn’t have to provide any evidence of their motive unless an employee first presents evidence that a court believes will convince a jury that discrimination has occurred. After that, an employer is required only to articulate a non-discriminatory reason that explains the act. Then the employee must demonstrate that the reason is not worthy of belief AND that the true reason is discrimination.


Evidence of a discriminatory motive is often very hard to come by – seldom does the employer openly admit that it is taking action based on an illegal motive. Consequently, circumstantial evidence such as how the employee is treated in comparison to employees similarly situated, except for their race, gender, age, etc, is often used to prove the case. Do the same workplace rules seem to apply to the employee as co-workers of a different race? Does the boss skip over disciplinary steps when dealing with a work infraction while the boss lets another worker of a different gender slide for the same infraction? Answers to such questions can provide evidence of impermissible discrimination.


Harassment Sufficient To Create an Illegal Hostile Environment

The Courts have held that harassment is a type of discrimination. If the harassment is sufficiently severe or sufficiently frequent to create a hostile work environment as judged by the reasonable person in the employee’s shoes, that harassment is illegal. But to be illegal the harassment must be based on the employee’s gender, age, disability, national origin, race, sexual orientation, religion. Harassment can embrace verbal harassment (i.e. derogatory comments, racist or sexist jokes under the right circumstances), visual harassment (i.e. displaying a noose, derogatory or embarrassing posters, cartoons, drawing, etc.), physical harassment (such as rape, assault, touching, blocking access, blocking exit).  The Courts have also held that conditioning employment benefits such as continued employment, a raise, a promotion, overlooking workplace rule infractions that would otherwise result in discipline, on sex/race/etc. is a form of discrimination.


Additionally, the Courts have held that harassment in retaliation for opposing certain illegal practices such as discrimination is actionable.

Once retained, I can help clients evaluate the situation, and if appropriate marshal the evidence to present the client’s case to the employer in an effort to resolve the problem prior to litigation. If informal resolution is not possible, and there is enough evidence to pursue litigation, I may recommend and pursue litigation.