TYPES OF DISCRIMINATION CLAIMS
There are two types of illegal discrimination, called disparate
treatment and disparate impact. A disparate impact case involves employment
practices which are neutral on their face but have a greater impact on one
class of individuals than another. For example, a business that only hires
employees who can bench press 150 pounds is probably discriminating against
women due to the disparate impact of its policy. In disparate treatment
cases, a plaintiff (employee) claims that the defendant (employer) intentionally
treated him or her less favorably because of race, ethnicity, gender or other
prohibited classifications.
WHAT MUST BE SHOWN TO PROVE A CASE OF DISCRIMINATION
A prima facie case of disparate treatment discrimination has
four essential elements: (1) the plaintiff belongs to a protected class;
(2) the plaintiff's job performance was satisfactory; (3) the plaintiff was
the victim of some adverse job action by the employer; and (4) others not
in the protected class but in the same or similar circumstances (e.g., job
position, status, tenure, skill level, etc.) were treated differently than
the plaintiff. (Mixon v. Fair Employment & Housing Com. (1987)
192 Cal.App.3d 1306, 1318.)
Whether a plaintiff has established a prima facie case is
strictly a question of law for the trial court, not a question of fact for
the jury. (Caldwell v. Paramount Unified School Dist. (1995) 41
Cal.App.4th 189, 201.)
One question that remains unanswered in California is whether
an individual not in a protected class (such as men in gender discrimination
cases) can allege a claim for discrimination. The courts have repeatedly
held that the first element of a prima facie case requires that the plaintiff
be a member of a protected class or minority status. In the seminal decision
of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802, 36 L.Ed.2d
668, 677, 93 S.Ct. 1817, the United States Supreme Court held that a prima
facie case of racial discrimination requires that a plaintiff belong to a
"racial minority." McDonnell Douglas has been repeatedly cited by California
courts to establish the elements of and the burden of proof for discrimination
claims. There are no California cases discussing this issue in the context
of discrimination claims.
In the context of harassment claims California does permit
individuals who are not in a historically protected class to file suit.
Although there are seemingly obvious examples where a discrimination
claim may be made by, for example, a male employed in a predominantly female
business or industry, to permit this type of claim would require the courts
to eliminate the first element of a prima facie claim, and change the comparison
test in the fourth element from a "protected class" to a "different class."
The plaintiff has the initial burden of establishing a prima
facie case. If successful, the burden then shifts to the defendant to prove
that there were legitimate, nondiscriminatory reasons for the adverse action
taken against the employee. Whether or not a defendant has rebutted a prima
facie showing is also a question of law for the court and not a factual question
for the jury. (Caldwell.) If defendant carries its burden, then the
plaintiff must convince the trier of fact by a preponderance of the evidence
that defendant intentionally discriminated against him or her, and that the
legitimate reasons offered by defendant are mere pretexts for discrimination.
(Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th
1735, 1749-1750.) If a plaintiff has no evidence, then the court will
dismiss their claim.
Another hurdle a plaintiff must overcome is the pragmatic
presumption that no illegal discrimination has occurred where the adverse
employment action occurs shortly after a person is hired. The law is rational,
and recognizes that, for example, a defendant will not hire African-Americans
if the defendant is prejudiced against individuals of this class.
The courts have held that in these circumstances a strong
inference exists that no discrimination occurred. As well stated by Ninth
Circuit Federal Court of Appeal applying California law:
"[Plaintiff] argues that her supervisor's real reason for terminating her was sex discrimination, because she wanted to give [plaintiff's] position to a male. However, [supervisor], the person who terminated [plaintiff], is the same person who originally made the decision to hire her less than a year earlier. In this context, [plaintiff's] allegation that her supervisor wanted a male in the position is at best suspicious. If [supervisor] had preferred to place a man in the position, we can see no reason why she would have hired a woman only a year earlier. As the Fourth Circuit has observed:
'One is quickly drawn to the realization that claims that employer animus exists in termination but not in hiring seem irrational. From the standpoint of the putative discriminator, it hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them), only to fire them once they are on the job.'
Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) (quotations omitted). We therefore hold that where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive. See Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173 (9th Cir. 1992) (finding argument that company developed aversion to older people less than two years after hiring member of protected age group "simply incredible"); Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 464 (6th Cir. 1995) ("An individual who is willing to hire and promote a person of a certain class is unlikely to fire them simply because they are a member of that class.")"
(Bradley v. Harcourt, Brace and Company (9th Cir. 1996) -- F.3d -- (12/30/96, 96 D.A.R. 15653).) This 'inference' is treated as a presumption of nondiscrimination. (Tyndall v. National Educ. Centers (4th Cir. 1994) 31 F.3d 209, 215.)
According to Proud v. Stone (4th Cir. 1991) 945 F.2d
796, this strong presumption is considered at the "third stage" during which
the plaintiff must come forward with evidence that he or she was intentionally
discriminated against. For example, in Tyndall plaintiff claimed that
she was the victim of discrimination based upon an alleged disability. Her
supervisor had commented that she was missing a lot of work, that she was
"not sounding very good," and that plaintiff's health seemed more important
than her job. The Tyndall court noted that "an employer must feel
free to explore workplace problems with an employee without fear of making
actionable statements at every turn." (Tyndall, supra, 31 F.3d at
215.) The court affirmed summary judgment in favor of defendant and held
that "[v]iewed against this strong presumption of nondiscrimination,
[plaintiff's] evidence is plainly inadequate to establish that discrimination
motivated her termination." (Id.)
It is critical then, that an employee have evidence that they
were treated unfairly due to an unlawful reason. Circumstantial evidence
may be used. However, if the claimed discriminatory act occurs shortly
after being hired, the evidence must be strong to overcome the presumption
that the employer's actions were proper and not unlawful.
PREREQUISITES THAT MUST BE MET BEFORE DISCRIMINATION LAWSUITS MAY BE BROUGHT
In California, before a civil lawsuit alleging discrimination
may be brought, the employee must first file an administrative claim with
the California Department of Fair Employment and Housing (DFEH). Alternatively,
a claim may be filed with the United States E.E.O.C. office, so long as the
claim is forwarded by the E.E.O.C. to the DFEH. If this administrative
filing is not timely done, the court will dismiss any discrimination claim.
Administrative claims must be filed with the DFEH within one
year after the last alleged wrongful act occurred. After the DFEH issues
a "right-to-sue letter," a plaintiff has one year to file their lawsuit.
WATCH OUT FOR THIS TRAP:
An employee will often want to include more than a discrimination
claim in their civil lawsuit. If the non-discrimination claims have
a one-year statute of limitations, then the lawsuit must be filed within
one-year after the last alleged wrongful act. Otherwise, the court will probably
dismiss the non-discrimination claims.
SUPERVISORS CANNOT BE HELD PERSONNALY LIABLE FOR DISCRIMINATION
In California, individual employees, including supervisors
and managers, cannot be personally held liable for claims of discrimination.
(Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55.) Note,
however, that supervisors and managers may still be liable for harassment,
and for retaliation (including retaliating against an employee who complains
about discrimination).
AGE DISCRIMINATION: WHEN PLANTIFF IS REPLACED BY SOMEONE 40 OR OLDER
A unanimous United States Supreme Court has clarified the
elements necessary to establish a prima facie case of age discrimination
under the Age Discrimination in Employment Act ("ADEA"). In O'Connor v.
Consolidated Coin Caterers Corp., the Court held that a plaintiff is
not required to prove that he or she was replaced by an individual under
40 years of age to establish a prima facie case of age discrimination.
In O'Connor, plaintiff was 56 years old when he was
terminated. He was replaced by an individual 40 years of age. Plaintiff brought
suit alleging that he was terminated because of his age.
Previously, many courts had held that because age discrimination
suits may only be brought by those 40 or older, a plaintiff must prove that
he or she was replaced by someone under the age of 40. However, the Supreme
Court stated that the language in the ADEA "does not ban discrimination against
employees because they are aged 40 or older; it bans discrimination against
employees because of their age, but limits the protected class to those who
are 40 or older. The fact that one person in the protected class has lost
out to another person in the protected class is thus irrelevant, so long
as he has lost out because of his age."
In California, the statutory provisions are very similar to
the ADEA, permitting anyone 40 or older to file suit if discriminated against
due to their age. Although California courts are not required to follow
Supreme Court interpretation of federal law when interpreting state law,
in this instance the reasoning of the United States Supreme Court is likely
to be followed.
The rule can thus be stated: employees who are 40 or
older can file suit for age discrimination if younger employees are treated
more favorably.