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
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2 CCR §7287.6
Verbal Harassment (i.e. comments)
Physical Harassment (i.e. assault)
Visual Harassment (i.e. posters)
Sexual Harassment
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Quid Pro Quo (sexual conduct linked to
employment condition)
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Hostile Environment (sexual conduct
unreasonably interferes with work
performance or creates hostile or offensive
work environment)
Quid Pro Quo Harassment
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Harassment by supervisor
“Unwelcome” conduct?
Same-sex harassment
Female-on-male harassment
Adverse effect required (firing, promotion,
benefits, pay)
Hostile Environment Harassment Definition
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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
Hostile Environment Harassment – Severe
Conduct
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Work-related
Frequency
Severity
Judge from reasonable person in Plaintiff’s
position (objective standard)
Plaintiff still must have been offended
(subjective standard)
Hostile Environment Harassment - Notes
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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
Other Types of Harassment
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Government Code §12940(j)
Race, religion, color, national origin, disability,
medical condition, marital status, sex, age,
sexual orientation
Liability for Harassment
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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
Types of Discrimination
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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
Proof of Discrimination – Disparate
Treatment
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Disparate treatment (treat person different
than person in similar situation because of
discrimination)
Causation
Direct evidence
Circumstantial evidence
Proof of Discrimination – Disparate
Impact
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Disparate impact (policy appears neutral but
has differing impact on different groups)
Intent to discriminate NOT required
Defenses to Discrimination
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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)
Damages
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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
Helpful Hints - 1
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Employer prevention: training, take
complaints seriously, document
Perils of representing Plaintiffs: many
problems not actionable, rare clear liability,
defense verdicts not uncommon, paperintensive, defendants usually uninsured
Technicalities: exhaust administrative
remedies, lawsuits limited to administrative
claims, frequent demurrers and summary
judgment motions
Helpful Hints - 2
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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