Numerous federal and state statutes protect equal opportunity in the workplace. The analysis applicable under most of these laws derives from Title VII of the Civil Rights Act of 1964. California’s Fair Employment and Housing Act (FEHA) generally follows this federal law, but features some slight variations that are often advantageous to plaintiffs.
Employment discrimination cases generally involve four questions: 1) Was the plaintiff an “employee” within the meaning of the applicable law? 2) Was the employer subject to the law in question? 3) Was the conduct about which the plaintiff complains covered by the law? and 4) Did the worker exhaust his/her administrative remedy before suing?
Who is an Employee?
Whether a given worker is an “employee” is generally a question of agency law, which mandates that courts consider a number of factors to determine whether a worker is an employee or an independent contractor. An independent contractor is an individual who performs work for someone else, but who is not so subject to the hiring party’s control that he or she may fairly be considered an agent of the hiring party. For example, if a homeowner were to hire a plumber to fix a leaky pipe, the plumber would likely be considered an independent contractor, rather than an employee, of the homeowner. This is because plumbers are typically hired for specific jobs, and because they use their own tools and unique skills to complete such jobs. Homeowners usually do not hire plumbers on a long-term basis, nor do they ordinarily intend to maintain control over the manner and details of those plumbers’ work.
In contrast to the example of the plumber, consider the case of a worker in a factory. The factory worker would likely be considered an employee of the corporation that owns the factory because the corporation maintains a great deal of control over the factory worker’s activities. Unlike the plumber, the factory worker does not employ his own independently-acquired skills in the workplace, but rather implements training and instructions given to him by the corporation. Also, the factory worker performs his job on the corporation’s premises, uses tools and materials provided by the corporation, and is likely employed on a long-term basis for a set period of time each day. In sum, the corporation is able to dictate the manner in which the factory worker does his job, while the plumber generally has much more discretion as to how he will complete his work. The more control the hiring party exercises over the hired party, the more likely the hired party is to be considered an employee rather than an independent contractor.
Which Employers are Subject to the Law?
Whether a given employer is subject to laws that protect equal opportunity in the workplace is usually a question of how many workers regularly report to the employer. In order to qualify as an employer under Title VII, a person or entity must employ at least fifteen employees with the degree of regularity specified in the statute. California’s FEHA has a more sweeping definition of employer, however, which includes employers with as few as five employees. Additionally, under the FEHA, employers of any size may be liable for harassment claims.
Is the Conduct Complained of Legally Actionable?
The question of whether an employer’s conduct is covered by laws protecting the workplace is crucial, because ultimately, a worker who wishes to bring an employment case against his or her employer will not be able to prevail in court unless there is a sound legal basis for the lawsuit. Though many workers may feel that some conduct by their employers is unfair or wrongful, the law only creates causes of action for specific types of offenses. Most employment is “at will,” which means that an employer may lawfully terminate an employee for almost any reason. It is only when an employer takes action against an employee for a reason that is prohibited by law that the employee has grounds for a lawsuit. Two broad areas of conduct prohibited in the workplace are discrimination and retaliation.
Discrimination: Title VII prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin, while California’s FEHA provides additional protection, also forbidding discrimination based on marital status and military or veteran status. An employer is subject to liability if it discriminates for one of the proscribed reasons with regard to the terms, conditions, or privileges of employment. This means that it is not only unlawful for employers to discriminate in hiring, firing, promoting, and demoting, but also in assigning employees to particular job types, and in conferring employment-related benefits such as raises and pensions.
Federal and state law also work in tandem to prevent disability-based discrimination in the workplace. The Americans with Disabilities Act (ADA) is a federal statute that not only prohibits workplace discrimination on the basis of disability, but also requires employers to make reasonable accommodations to enable disabled individuals to perform a position’s essential job functions. The ADA does not, however protect disabled people who are not able to perform a job’s essential functions. California protects the disabled under the FEHA. Once again, this statute’s provisions create more expansive protection than their federal counterparts. For example, the ADA limits the amount of damages recoverable under its rules, while the FEHA has no damage cap. Additionally, the FEHA’s definition of the term “disability” is more expansive than the ADA’s. Whereas the ADA defines disability as a physical or mental impairment that “substantially limits” a major life activity, the FEHA definition requires only that the impairment “limit” a major life activity.
Retaliation: Employers are also forbidden from taking adverse action against employees who oppose any practices made unlawful by Title VII or who participate in investigations related to such practices. If an employer discriminated on the basis of race in hiring, for example, and a worker who did not experience discrimination complained to a governmental agency about the employer’s actions, the employee would be protected from receiving negative treatment by the employer in retaliation for his complaint about its unlawful hiring practices. Retaliation cases are often referred to as “whistleblower” cases, in reference to the fact that they are brought by plaintiffs who allege that they have experienced mistreatment at work because they “sounded an alarm” against their employers.
Has the Plaintiff Exhausted His or Her Administrative Remedy?
A plaintiff who wishes to file a claim for discrimination or retaliation in the employment context must pursue the claim with an administrative agency before filing a lawsuit in court. The plaintiff may initially file the claim with the Federal Equal Employment Opportunity Commission (EEOC) or with the California Department of Fair Employment and Housing (DFEH) or another state or local fair employment agency. If the plaintiff proceeds with the EEOC, the agency will serve the charge on the employer and conduct an investigation to determine whether the allegations in the charge are supported by reasonable cause. If the EEOC determines that there is no basis to support the charge, it will issue a right-to-sue notice to the plaintiff, who will then be able to initiate a civil lawsuit in court. If the EEOC determines that the allegations in a charge are supported, however, it will proceed to attempt to ameliorate the conduct that is the subject of complaint via informal proceedings. If the EEOC is able to reach a conciliation agreement with the employer, then the plaintiff may not bring a private lawsuit, but if the agency is unsuccessful in reaching conciliation, the plaintiff may bring the lawsuit in court.
California plaintiffs who wish to sue in court face fewer barriers to filing private lawsuits if they proceed with the DFEH. While the DFEH maintains a procedure for investigating charges in a manner similar to the EEOC, the Department benefits plaintiffs who desire to bring their charges in court by allowing them to obtain immediate right-to-sue notices. A plaintiff who wishes to proceed in court without a DFEH investigation may obtain an immediate right-to-sue notice by filling out an electronic complaint form on the DFEH website, www.dfeh.ca.gov.