September 7, 2018
On July 6, 2018, Boeing employee Roderick Marshall was awarded $350,000 in a federal jury trial arising from his claims of racial discrimination at Boeing. In one incident, a co-worker tied a rope into a hangman’s noose and tossed it to Mr. Marshall as they worked in Boeing’s El Segundo facility. Other co-workers made racist jokes directed at Mr. Marshall. Boeing never denied the allegations, but argued that Marshall did not follow company procedure for filing complaints. That defense did not succeed.
Title VII of the Civil Rights Act of 1964 (“Title VII”) and California’s Fair Employment and Housing Act (“FEHA”) both prohibit employment discrimination “because of such individual’s race, color, religion, sex, or national origin,” among other things. [42 U.S.C. § 2000e-2; Cal. Gov. Code § 12940.]
The FEHA is broader than Title VII in that it specifically forbids not just discrimination, but also harassment (a hostile work environment caused by verbal, physical, or mental abuse in the workplace) and retaliation. [Cal. Gov. Code § 12940(j) – (l).]
FEHA also requires employers to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” [Cal. Gov. Code § 12940(k).]
Employers That Are Subject to FEHA
An employer who regularly employs five (5) or more persons (excluding religious association and non-profit corporations) is subject to FEHA’s provisions against discrimination, harassment, and retaliation, with certain exceptions. [Cal. Gov. Code § 12926(d).] The harassment provisions of Government Code § 12940(j), unlike the rest of the FEHA, apply to employers with as few as one employee or independent contractor. [Cal. Gov. Code § 12940(j)(4)(A).]
Supervisors and Other Individuals Who Are Subject to FEHA’s Harassment Provisions
Supervisors: A supervisor can be individually liable for harassment, but not for discrimination or retaliation. [Reno v. Baird (1998) 18 Cal.4th 640 (discrimination by supervisor); Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 (retaliation by supervisor); Myers v. Trendwell Resorts, Inc. (2007) 148 Cal.App.4th 1403 (harassment by supervisor).] While a supervisor cannot be held liable for discrimination, a discriminatory act can be evidence that the supervisor held discriminatory animus against the employee, and is therefore evidence that the harassment was motivated by animus.
Holding a supervisor liable for harassment does not insulate the employer though: the employer is liable for harassing acts of its supervisor, because a supervisor acts as the employer’s agent. [Cal. Gov. Code § 12940(j)(1).]
Co-workers: An employee’s co-worker who is not a supervisor can be individually liable for harassment under Government Code section 12940(j)(3). The employer is also liable for the co-worker’s act if the employer knew, or should have known, of the harassment but did not take immediate and appropriate corrective action.
Non-employees: “Any other person” can be individually liable for harassment under Government Code § 12940(j)(1). Employers are only liable for a non-employee’s harassment of employees if it is sexual harassment and the employer knew, or should have known, of it but did not take immediate, appropriate corrective action.
Employees Protected by FEHA
The FEHA protects employees (job applicants and temporary, permanent, and former employees) from unlawful discrimination, harassment, and retaliation. [Cal. Gov. Code §§ 12940(a) and (h).] Independent contractors are protected from harassment only, under Government Code § 12940(j)(1).
The Difference Between Discrimination and Harassment
Any of these actions, if taken for discriminatory reasons, constitute illegal discrimination under FEHA:
- refusing to hire or employ;
- refusing to select for a training program leading to employment;
- discharging from employment or from a training program leading to employment;
- discriminating in compensation or terms, conditions, or privileges of employment.
Harassment is defined as:
- verbal harassment, such as epithets, derogatory comments or slurs;
- physical harassment, such as unwanted touching, rubbing against someone, assault and physical interference with movement or work; or
- visual harassment, such as derogatory cartoons, drawings, or posters, lewd gestures, or leering.
Race Discrimination
Race discrimination is not limited to minorities. Rather, Title VII prohibits discrimination against any group, minority or majority. [Griggs v. Duke Power Co. (1971) 401 U.S. 424, 430.] The protection against race discrimination extends to persons “associated with” a member of the protected class, such as spouses. A valid cause of action for race discrimination existed where the employer’s treatment of the employee may have been motivated by her interracial marriage. [Watson v. Nationwide Ins. Co. (1987) 823 F.2d 360, 361.]
National Origin Discrimination
Title VII and the FEHA each provide a separate cause of action for national origin discrimination, though they each define the term differently.
National origin discrimination under Title VII is the denial of equal employment opportunity based on an individual’s, or his/her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group, or other reasons grounded in national origin such as (a) marriage to or association with persons of a national origin group; (b) membership in, or association with an organization identified with or seeking to promote the interests of national origin groups; (c) attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group; and (d) because an individua’’s name or spouse’s name is associated with a national origin group. [29 C.F.R. §§ 1606.1 – 1606.8.]
California’s Unruh Civil Rights Act forbids discrimination on the basis of national origin. [Cal. Civ. Code § 51(b).] The FEHA prohibits discrimination, harassment, or retaliation based on national origin. [Cal. Gov. Code § 12940.]
On July 1, 2018, California law adopted a broader definition of “national origin,” which now “includes, but is not limited to, the individual’s or ancestors’ actual or perceived:
(1) physical, cultural, or linguistic characteristics associated with a national origin group;
(2) marriage to or association with persons of a national origin group;
(3) tribal affiliation;
(4) membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
(5) attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
(6) name that is associated with a national origin group.”
[Cal. Code of Regs., Title 2, section 11027.1(a).]
The term “national origin groups” includes, but is not limited to, ethnic groups, geographic places of origin, and countries not presently in existence. [Cal. Code of Regs., Title 2, section 11027.1(b).]
The FEHA notes that a protected characteristic such as “national origin . . . includes a perception that the person has [that characteristic] or that the person is associated with a person who has, or is perceived to have, [that characteristic].”
Be aware that not all adverse employment actions related to national origin are necessarily illegal. For example, accents are sometimes inextricably intertwined with a person’s national origin. However, in Raad v. Fairbanks North Star Borough School District, the court ruled that it was not illegal for a school district to refuse to hire a substitute teacher for a full-time position because her strong accent materially interfered with her job performance. [Raad v. Fairbanks North Star Borough School District (2003) 323 F.3d 1185, 1195.]
Discrimination Based on Citizenship
It is a violation of federal law to discriminate against an individual on the basis of citizenship, except in the case of “unauthorized aliens.” [8 U.S.C. § 1324b(a).]
California’s Unruh Civil Rights Act forbids discrimination on the basis of citizenship or immigration status, though it allows verification of immigration status where required by federal law. [Cal. Civ. Code § 51(b) and (g).] The FEHA’s definition of “national origin discrimination” also includes a type of citizenship discrimination: “discrimination on the basis of possessing a driver’s license granted under Section 12801.9 of the Vehicle Code,” i.e. a driver’s license granted to California residents whose citizenship or immigration status is undocumented. [Cal. Gov. Code §§ 12926(o) and (v).]
The FEHA provides detailed procedures and remedies to deter and redress unlawful employment practices. Be aware that you have only one year from the time of the discriminatory action to file a complaint.
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ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net). Please visit our website at eskridge.hv-dev.com.
This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.