Employment Discrimination Litigation Made Simple

Posted in Articles on June 2, 2017

John D. Winer, San Francisco

A. Discrimination Claims Can Be Brought under Both Federal and California Law.

There are a number of different laws that protect employees from discrimination. The two most frequently utilized in California are the Fair Employment and Housing Act (FEHA) (Government Code sections 12900 – 12996) and Title 7 of the Civil Rights Act of 1964 (42 U.S.C. sections 2000e – 2000e-17).

There are also a number of Federal and State statutes specifically prohibiting employment discrimination. Employees can frequently choose whether to proceed under California or Federal law; however, there are different rights, rules and remedies under California law versus Federal law.

B. Who Is Protected Under California Discrimination Law.

Except in cases of harassment, an employee must work for an employer who regularly employees five or more people to be entitled to protection under California discrimination law.

However, a harassment claim can be brought against an employer who employs only one person or regularly receives the services of at least one independent contractor.

Further, when somebody is retaliated against because he or she complains about discrimination, the retaliation claim can be brought against any employer.

All public employers, such as cities and counties, are subject to discrimination claims.

Under California FEHA law, non-profit religious organizations are not subject to discrimination claims, but they may be subject to liability under the California Constitution.

C. Definition of an Employee.

Under California law (FEHA) an employee is considered anyone under the direction and control of an “employer” regardless of whether the employment relationship was based on an oral or written contract. Independent contractors may fall outside of the definition of “employee” for discrimination claims but not for harassment claims. Thus, generally speaking, harassment claims have a broader sweep and cover more potential workers.

D. The Requirement of Bringing an Administrative Claim.

Before pursuing a civil suit for harassment or discrimination under California law, a plaintiff must first exhaust his or her administrative remedies by filing a complaint with the Department of Fair Employment and Housing (DFEH) or with the Equal Employment Opportunity Commission (EEOC).

It is important that the complaint specifically identify the discrimination and the perpetrators of the discrimination, or it may limit the remedies sought and people who can be sued in a civil case.

If an employee files with the Department of Fair Employment and Housing, he or she can ask the agency to not investigate the claim but, rather, simply immediately request a right-to-sue letter.

It is very simple for an employee to contact the DFEH or EEOC and file a claim, although generally it is best to do so with the help of an attorney who specializes in harassment and discrimination cases.

E. Statute of Limitations.

Generally speaking, a plaintiff must file a complaint with the Department of Fair Employment and Housing or the EEOC within one year of the harassing conduct. A plaintiff must file a claim with one of the governing entities before filing a lawsuit.

If the sexual harassment has occurred over a long period of time, the plaintiff can sometimes rely on the continuing violation doctrine. Under this doctrine, if it is found to apply, the sexual harassment complaint is timely if any of the discriminatory practices continues into the one-year limitations period.

F. What Types of Discrimination Are Prohibited.

Not every form of discrimination is prohibited by law. Under California law, the following forms of discrimination are prohibited: race, religion, disability, age, sex (including sexual harassment), national original and marital status.

If an employee is discriminated against for any other reason, there may not be a case.

G. What Is the Standard for Discrimination.

Although Federal and California law differ slightly, discrimination claims fall into four broad categories:

  • individual “disparate treatment” cases, in which the employee must prove that the employer intentionally treated him or her less favorably than other employees because of race, religion, age, sex, etc.;
  • retaliation cases, in which the plaintiff must prove that the employer intentionally retaliated against him or her for opposing discrimination or engaging in protected activities;
  • disparate impact or adverse impact cases, in which the plaintiff must show that the employer’s otherwise innocuous employment practice has an unfavorable impact on a protected class and is not justified by any claimed business necessity;
  • cases involving class-wide pattern or practice or systemic disparate treatment cases, in which the plaintiff must prove a pattern or practice of intentional discrimination against a protected class, usually by showing a statistical difference between protected class members and similarly qualified members of the majority group, as well as evidence of individual instances of discrimination.

H. What Evidence of Discrimination Is Required.

The law recognizes that plaintiffs rarely have access to direct evidence of intentional discrimination so that in most cases, a plaintiff is allowed to introduce indirect or circumstantial evidence of discrimination.

I. What the Plaintiff Must Prove.

To prevail in a “disparate treatment” case, the plaintiff must first prove that he or she is a member of a protected class, and that the employer intentionally discriminated against the plaintiff, most often by treating the plaintiff differently from the way the employer treated people not in the protected class. Generally, the plaintiff must prove the disparate treatment by indirect evidence such as establishing that members of a certain race or older workers (over 40 under California law) are singled out for demotions or termination.

Thus, as is most often the case, when the plaintiff’s disparate treatment case depends on circumstantial or indirect evidence, then the plaintiff must first prove the following:

  • that the employee is a member of a protected class;
  • that the employee was qualified for his or her position; and
  • that the employee was discharged.

If plaintiff can prove all of this, then the court will presume that intentional discrimination has occurred.

However, that does not mean the plaintiff automatically wins. The employer then has an opportunity to rebut or counter the presumption of discrimination by stating a legitimate, non-discriminatory reason for terminating the plaintiff or taking any other adverse employment action.

If the employee can show that the reason stated by the employer for the termination or adverse employment action was not the true reason, but a pretext for discrimination, then the plaintiff will win the case. The plaintiff must prove to the judge or jury that the employer’s explanation is not worthy of belief and also that the employer’s action was, at least in part, discriminatory.

J. Proving Retaliatory Discrimination.

In a case in which the plaintiff is claiming he or she was retaliated against for complaining of discrimination or engaging in other protected activity, in the absence of direct evidence, the plaintiff must show that he or she suffered an adverse employment action and that there is a connection between the protected activity, such as complaining about discrimination or opposing discrimination, and the adverse employment action.

Again, the employer has the opportunity to demonstrate that there was non-retaliatory explanation for the employment action and the plaintiff must, once again, show that the explanation is pretextual (i.e., fake).

K. Harassment Cases.

Sexual, racial, religious and other forms of harassment are actually considered, under the law, to be discrimination. In cases of harassment, the employee does not have to go through the more difficult standard of proof required in disparate impact discrimination cases. To prevail on a harassment claim, a plaintiff need only establish that the harassing conduct was unwelcome, severe and pervasive and interfered with the employee’s working condition.

L. Recoverable Damages for Discrimination Cases.

If an employee sues under California law, he or she is entitled to recover damages for past and future medical and psychiatric expenses, past and future wage loss, damages for emotional distress and punitive damages.

In a discrimination case, a plaintiff does not need to undergo psychiatric or psychological treatment in order to recover damage for emotional distress.

To recover punitive damages, i.e., damages to punish the defendant employer, a plaintiff must prove:

  • that the employer hired or retained the discriminating individual with knowledge of his or her unfitness for the position and in conscious disregard of other’s rights for safety;
  • authorized or ratified the wrongful conduct; or
  • was personally guilty of oppression, fraud or malice.

If the employer is a corporation, its knowledge, conscious disregard, authorization or act of oppression, fraud or malice must be on the part of a corporate officer, director or managing agent. A managing agent is a person who exercises substantial independent authority and judgment over decisions that ultimately determine corporate policy.

A plaintiff can prove that an employer’s ratification for purposes of liability for punitive damage by establishing:

  • the employer adopted or approved of the action of the discriminator;
  • it can be inferred from the employer’s failure, after being informed of the discrimination, that it ratified the conduct of the discriminator by such evidence as a failure to fully investigate and punish the discriminator.

M. Claim for Loss of Consortium.

A plaintiff’s spouse can also sue and recover damages for ‘loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.

There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

N. Punitive Damages.

Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, he or she is entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant as opposed to the injury to the plaintiff. The amount of punitive damage will vary depending upon the heinousness of the defendant’s misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals. In motor vehicle cases, punitive damages are most frequently awarded against drunk drivers.

O. Recovery for Attorneys Fees.

If the plaintiff can prove discrimination, he or she is entitled to recover his or her attorneys fees as an element of damages. This is a very important aspect of the law because frequently the award for attorneys fees will be greater than the actual damage award to the employee. California law allows recovery for attorneys fees greater than the amount of actual damages because it recognizes that it important that attorneys have an incentive to handle sexual harassment and discrimination cases and that legitimate victims of harassment and discrimination would be unable to seek legal redress if attorneys fees were not awarded on top of a damage award.

P. Key Factors in Employment Discrimination Cases.

Like almost any case, the most important factor for a plaintiff in an employment discrimination case to prevail is the credibility of the plaintiff employee. If the case goes to trial and a jury does not believe the employee, the plaintiff will generally lose regardless of the rest of the evidence. Further, if the defendant employer can prove that the employee has lied, either before or during the litigation, even a good case can be destroyed because jurors do not want to award money to somebody they believe is lying and manipulating the system.

Although derogatory, discriminatory remarks are not necessary to win an employment discrimination case, they are very, very helpful. If the plaintiff can establish through other witnesses that such remarks were made by supervisors or management in a company aimed at plaintiff or aimed at people of plaintiff’s protected class (people of the same race, national origin, gender, age range, etc.) it will provide powerful evidence that the company has a hostile, discriminatory environment.

It is also helpful to a plaintiff’s case if more than one member of their protected class joins the lawsuit or has made complaints to HR and management about discriminatory misconduct.

It is normally harmful to a plaintiff’s case if similarly situated members of the plaintiff’s protected class testify that the company is fair and non-discriminatory. This will normally create an inference that plaintiff is either a troublemaker or was treated negatively for poor performance or reasons other than discrimination. One of the most important concepts of employment law is that, in order to prevail in a discrimination case, the plaintiff must prove that they were treated poorly because of their race, age, gender, etc., and not because a supervisor or another employee had it in for plaintiff or simply did not like the plaintiff or treated the plaintiff worse than other employees. That is not discrimination under the law.

Finally, in cases in which a plaintiff is alleging that the company systematically discriminates against people in the plaintiff’s protected class through hiring, paying, promoting, demoting or firing, it is, of course, very helpful if statistical evidence within the company verifies the plaintiff’s claim and the company cannot provide a reasonable explanation for why members of plaintiff’s class are treated differently than members of other classes. For instance, if a company can prove that the reason why there are no women in higher management is because very few women ever apply for jobs within the company and that the same percentage of women rise in the company as men even though there are many more men in higher management, the company will generally be able to prevail in an employment discrimination case.

Q. Settlement of Employment Discrimination Cases.

Employment discrimination cases are generally difficult to settle because they are complex, difficult to prove and difficult to evaluate. Attempting to ascertain what jurors have done in other similar cases, which is the yardstick by which most cases settle, is not particularly fruitful in employment discrimination cases because there is such a wide variance in verdicts from millions of dollars to small recoveries to defendants prevailing.

Thus, generally speaking, the case must be settled on a risk analysis. Based on the evidence that is available at the time that settlement is considered, the defendant has to consider its risk of a potential multimillion dollar verdict if plaintiff can establish a punitive damage point while the plaintiff must consider the risk of a very small verdict or losing if the jury fails to find punitive damages or finds no discrimination.

An important settlement factor in plaintiff’s favor in an employment discrimination case is that if the plaintiff can prove discrimination, they will be awarded their attorneys fees which, by the time the case comes to trial, will almost always be hundreds of thousands of dollars and sometimes millions of dollars. Thus, in an employment discrimination case, even if the defense believes there is a significant risk that they will lose, they must consider paying a significant amount of money in settlement even if they believe the plaintiff is not particularly injured because a low verdict can still result in a very large attorney fee award.

This article was authored by John D. Winer. Winer, Burritt and Scott, LLP
specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.