Preventing Discrimination, Harassment, and Retaliation in California Law Offices
By Michael C. Robinson, Esq.Sessions & Kimball, LLC
Introduction
Attorneys and law offices are sometimes subject to claims for employment discrimination, harassment, and retaliation, despite being owned and operated by members of the bar with extensive knowledge of the law. Law firms are just as susceptible to employment law claims as other types of employers in California.
In Weeks v. Baker & McKenzie,1 a law firm was subject to a multimillion dollar verdict for a partnerâs sexual harassment of a secretary. This verdict demonstrates that law firm employers must be aware of the ever-evolving laws regarding discrimination, harassment, or retaliation, and must be constantly vigilant to ensure that these do not occur in their offices.
The goal of this article is to prevent discrimination, harassment, and retaliation in law offices by explaining the basic laws prohibiting such conduct. Caveat: There is a substantial amount of room for argument on these issues and there is frequently new case law further defining employersâ duties and employeesâ rights. Therefore, each individual situation where these issues arise should be reviewed and analyzed by an independent attorney with working knowledge of employment law to determine how to address a particular situation.
Applicable Law Regarding Protected Categories of Employees
Employees may be terminated at any time by either the employee or employer for any reason or no reason at all, but not an illegal reason.
The California Constitution, Article I, § 8 prohibits discrimination and harassment by all employers on the basis of sex, race, creed, color, and national or ethnic origin. Any employer can be sued for discrimination or harassment on these bases because of the public policy behind the California Constitution.2
The California Fair Employment and Housing Act (âFEHAâ) governs employers with five or more employees.3 This number includes partners, of counsel, part time employees, and any person who acts as an agent for the firm.4 FEHA applies to any non-profit law firm with five or more employees.5 Individuals within the law firm cannot be personally liable for discrimination or retaliation under FEHA, but may be personally liable for harassment.6
FEHA prohibits discrimination, harassment, and retaliation against an employee or applicant in compensation or in terms, conditions, or privileges of employment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age [over 40], or sexual orientation or because the employee is associated with a person who is in one of those protected categories.7 An employer cannot fire, demote, refuse to hire or promote, or refuse to select the person for training based on these protected categories.8
The federal counterpart of FEHA is 42 USC § 2000e-2(a) (âTitle VIIâ), which applies to employers with fifteen or more employees. This number does not include shareholding partners in the firm.9 Individuals in the firm cannot be held personally liable under Title VII.10 Title VII does not apply to federal government agencies.11 Title VII prohibits discrimination against an individual based on his or her race, color, religion, sex, or national origin.12 Other federal laws prohibit discrimination of an employee based on age and disability.13
California discrimination law is rarely preempted by federal law except where state law allows practices prohibited by federal law. Employees typically choose to bring these claims under California law because it has longer deadlines, covers more employers, and does not require a unanimous jury to prevail as federal courts do.
Discrimination
Discrimination occurs when an employer takes an adverse employment action against an employee because of a protected status. An âadverse employment actionâ is any significant change in the terms, conditions, or privileges of employment, which includes termination, demotion, failure to transfer, failure to promote, or reduction in pay or hours, because of an employeeâs legally protected status or activity.14
Employees may be terminated at any time by either the employee or employer for any reason or no reason at all, but not an illegal reason.15 This is âat willâ employment. California law office employees are presumed to be âat will,â unless they have an agreement to work for the firm for a specified period of time. 16
Discrimination can be proven as âdisparate treatment,â where an employee has suffered an adverse employment action because of his or her protected status.17 For example, an associate who is terminated because she is age 65. Discrimination by disparate treatment requires proof of discriminatory intent.
An employee must show a causal link between the protected status and the adverse employment action.18 Statements by the decision maker, such as racist or sexist comments, are direct evidence of animosity toward a person based on their protected status.19 A supervisorâs discriminatory animosity towards an employee may be imputed to the final decision maker if the supervisor took some action against the employee, such as a written reprimand, that was motivated by animosity towards the employeeâs protected status.20
Discrimination may also be proven by a âdisparate impact,â where an employee suffers an adverse employment action because of a discriminatory policy against her protected status.21 An example of this would be a glass ceiling situation where no women are made partners because of their sex. This type of discrimination does not require a showing of discriminatory intent.22
Most discrimination cases are proven by indirect or circumstantial evidence. This requires a three part analysis, which is known as the McDonnell Douglas analysis.23 First, the employee must show a prima facie showing of discrimination.24 This requires the employee to show she was a member of the protected class, she was qualified for the position, she suffered some adverse employment action [such as termination, demotion, failure to hire or promote], and circumstances suggest a discriminatory motive [such as an unfavorable double standard between employees in the protected class and those outside the protected class.]25
The burden then shifts to employer to prove it had a legitimate, non-discriminatory reason for the adverse employment action that is unrelated to the prohibited bias.26 This is a minimal burden because the employer can rely on reasons that are âfoolish or trivial or even baseless,â so long as they are honestly believed.27 Even a âpersonal grudgeâ may be sufficient to prove a non discriminatory reason for the adverse employment action.28
Finally, the employee must prove that the alleged nondiscriminatory reason is a false pretext to cover the discriminatory motive.29 The employee must prove that the alleged non discriminatory reason is false and the termination was actually motivated by a discriminatory animosity toward the protected status.
FEHA requires that an employer take all reasonable steps to prevent discrimination and harassment.30 FEHA also requires employers to accommodate an employee for pregnancy, disability, or religious beliefs.31
Harassment
Harassment may take many forms and is defined by regulations to include, but not be limited to: verbal, such as epithets, derogatory comments or slurs about the protected status; physical, such as assault, impeding or blocking movement, or any physical interference with normal work or movement, directed at a person because of his or her protected status; visual, such as derogatory posters, pictures, cartoons, or drawings about the protected status; or sexual favors, such as unwanted sexual advances that condition an employment benefit upon an exchange of sexual favors.32 Screaming, using offensive language, and throwing items should not occur in a professional office setting.
FEHA prohibits harassment of any employee or applicant based on any of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age [40 and over], or sexual orientation.33 The policy against sexual harassment is so strong that employers with 50 or more employees are required to provide their supervisors with sexual harassment training.34 All employers are subject to harassment claims under FEHA regardless of how many employees they have.35
It is not harassment to tell an employee to perform his or her job, how to perform it, or provide specific deadlines in which the employee must perform the duties for the purpose of getting the employee to perform his or her duties. An employee must substantially comply with all directions from his employer about the performance of his duties, except where the instructions are impossible, unlawful, or impose new and unreasonable burdens on the employee.36 An employerâs comments to an employee should be about performing the employeeâs job duties and not about any protected status, which may be construed as harassment.
Retaliation
An employer cannot retaliate (terminate or take any other adverse employment action) against an employee for engaging in legally protected activity. Several laws prohibit illegal retaliation for specific protected activity.
FEHA prohibits retaliation against an employee or applicant of any of the following: opposing any practices that violate FEHA, filing a complaint, or testifying in any proceeding under FEHA.37 Terminating an employee in retaliation for taking a leave protected under the federal Family Medical Leave Act or its state counterpart, California Family Rights Act is illegal.38
California Labor Code § 1102.5 protects a whistleblower, who reports an employer to a government law enforcement agency or refuses to participate in any illegal activity. If an employee reports her employer to a government law enforcement agency, the employer must meet a higher burden of proof by clear and convincing evidence that the adverse employment action would have occurred for legitimate, independent reasons, even if the employee had not engaged in protected activity.39
The California Labor Code prohibits retaliation for several specifically protected activities, including the following provisions: Section 98.6 prohibits retaliation against an employee for asserting his or her rights under the California Labor Code, such as complaining about unpaid wages or failure to provide meal breaks. Section 232.5 prohibits retaliation against an employee for disclosing information about the employerâs working conditions. Section 6310 prohibits retaliation against an employee for reporting workplace safety concerns to a government agency. Section 132a prohibits retaliation for making a workersâ compensation claim.
An employer is subject to liability for taking an adverse employment action against an employee for reporting a violation of the law to management of the company.40 As a matter of public policy, employers are prohibited from retaliating against or terminating an employee for reporting conduct that he or she reasonably believes is in violation of the law.41 The report can be made to a government agency or to the employer itself.42
Posting Requirements for Employers
The law imposes on the employer a duty to advise its employees of the law regarding discrimination, harassment, and retaliation. Employers must post information about the employee rights in a location where the employees can see them, such as in the break room. FEHA requires employers to post information about medical and pregnancy leave rights.43 FEHA requires employers to post information prohibiting sexual harassment and deadlines to bring such claims, and makes it a crime to fail to do so.44 Employers with 15 or more employees must post information about Title VII.45 Employers must post information about protection against retaliation for whistleblowers.46 Most employers purchase annual employee rights posters and display them in the same place every year to meet the posting requirements.
Remedies Available to Victims
An employer liable for discrimination, harassment, or retaliation can be required to pay lost wages and benefits, injunctive relief, damages for emotional distress caused by the harassment or termination, and punitive damages.47 There is no cap or limit to the amount of compensatory damages or punitive damages an employee can get for a violation of the FEHA. However, under Title VII there are caps to both types of damages depending on the size of the employer.48
Law offices should consider Employment Practices Liability Insurance that covers these types of claims against employers.
The employee may recover his or her attorneyâs fees under the FEHA and Title VII.49 This provides employees an incentive to bring discrimination, harassment, and retaliation claims. This also gives the employer a substantial incentive to determine what the realistic value of the claim is and resolve it as early as possible. If an employer prevails in such a claim it may be able to recover its attorneysâ fees, but it is very unlikely for the employer to do so because the employer must prove that the claim was brought in bad faith.50
Statutes of Limitation and Requirements to Exhaust Administrative Remedies
Both FEHA and Title VII require employees to exhaust their administrative remedies before they can file a lawsuit for discrimination, harassment, or retaliation under these statutes. This means an employee must file a complaint with the California Department of Fair Employment and Housing (âDFEHâ) or the U.S. Equal Employment Opportunity Commission (âEEOCâ) and receive a Right to Sue letter before he or she can file a lawsuit.
Under FEHA, a complaint must be filed with the DFEH within one year of the last discriminatory act, typically termination from employment.51 The DFEH may investigate and prosecute the claims on its own or may issue a Right to Sue letter, which allows the employee to bring the claim in Superior Court within one year of the date of the Right to Sue letter.52
The Title VII deadlines are shorter. The Complaint to the EEOC must be filed within 180 days and the employee has 90 days from the receipt of the Right to Sue letter to file the lawsuit.53
An employee may bring a claim for wrongful termination in violation of public policy of anti-discrimination laws within two years of the discriminatory termination from employment.54 No exhaustion of administrative remedies is required for this claim.
Conclusion
A law office must be vigilant and address issues when they arise. Following the laws discussed in this article will help attorneys to avoid claims by their employees. However, just because a law firm or attorney follows the law does not mean they will not be sued. Law offices should consider Employment Practices Liability Insurance that covers these types of claims against employers.
Some employers use a severance offer in exchange for a release of these claims at the time of termination to avoid claims from arising after the termination, even if no possible claims are apparent. However, such release agreements should be created and reviewed by attorneys who have experience and working knowledge of the rules regarding employment law severance/release agreements.
Since most members of society despise and avoid discrimination, harassment, or retaliation against any person for an immutable characteristics or legally protected activity, all legal professionals can work to prevent and curtail such conduct from our law practices. The best way to avoid claims by former employees is to treat employees as any person would want to be treated. Employers should listen to and promptly address their employeesâ concerns and complaints about the workplace. Consistently treating all employees as valuable members of our community is an effective approach to avoid legal disputes.
Further Reading and Resources:
- Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation, Continuing Education of the Bar: California
- California Practice Guide Employment Litigation, The Rutter Group
- California Labor Law Digest, California Chamber of Commerce.
- Judicial Council of California Civil Jury Instructions (CACI), No. 2500 et. seq.
Michael C. Robinson is an employment law attorney with Sessions and Kimball, LLP in Orange County, California. He litigates various matters including discrimination, retaliation, harassment, unpaid wages, and breach of contract claims. In 2004, he graduated magna cum laude from Western State University College of Law, and was Lead Articles Editor for the Western State Law Review. In 2004, he was a Judicial Appellate Extern for Justice Eileen C. Moore of the California Fourth Appellate District Court of Appeals, Division Three. He received his undergraduate degree from DePauw University. (email: mcr@job-law.com)
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Notes:
1. Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128.
2. Badih v. Myers (1995) 36 Cal. App. 4th 1289, 1293.
3. Cal. Government Code § 12940. Back
4. Cal. Government Code § 12926(d); Robinson v. Fair Employment and Housing Commission (1992) 2 Cal.4th 226, 234-43.
5. Cal. Government Code § 12940(a)-(o).
6. Reno v. Baird (1998) 18 Cal.4th 640, 645-46; Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173. Back
7. Cal. Government Code § 12940.
8. Cal. Government Code § 12940.
9. Devine v. Stone, Leyton & Gershman, P.C. (8th Cir. 1996) 100 F.3d 78, 80.
10. Greenlaw v. Garrett (9th Cir. 1995) 59 F.3d 994, 1001.
11. 42 USC § 2000e(b). Back
12. 42 USC § 2000e-2(a)(1).
13. 42 USC §§ 12101-12213; 29 USC §§ 621-634.
14. Yanowitz v. LâOreal USA, Inc. (2005) 36 Cal.4th 1028, 1052â1056; Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 761.
15. Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1138â1139
16. Cal. Labor Code § 2922.
17. Mixon v. Fair Employment and Housing Com. (1987) 192 Cal.App.3d 1306, 1317.
18. Mixon v. Fair Employment and Housing Com. (1987) 192 Cal.App.3d 1306, 1319.
19. Godwin v. Hunt Wesson, Inc. (9th Cir.) 150 F.3d 1217, 1221.
20. Staub v. Proctor Hospital (2011) 131 S. Ct. 1186, 1194.
21. Raytheon Co. v. Hernandez (2003) 540 US 44, 52-53.
22. International Brotherhood of Teamsters v. United States (1977) 431 US 324, 335.
23. McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.
24. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-55.
25. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-55.
26. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355-56.
27. Villiarimo v. Aloha Island Air, Inc. (9th Cir. 2002) 281 F.3d 1054, 1063 quoting Johnson v. Nordstrom, Inc., 260 F.3d at 733.
28. Slatkin v. University of Redlands (2001) 88 Cal. App.4th 1147, 1157.
29. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355-56.
30. Cal. Government Code § 12940(k).
31. Cal. Government Code §§ 12940(l)-(n) and 12945(b).
32. 2 Cal. Code of Regulations § 7287.6(b).
33. Cal. Government Code § 12940.
34. Cal. Government Code § 12950.1
35. Cal. Government Code § 12940(j)(4)(A).
36. Cal. Labor Code § 2856.
37. Cal. Government Code § 12940(h).
38. 29 USC § 2615(a); Cal. Government Code §§ 12940(h), 12945.2(l); 2 Cal. Code of Regulations § 7297.7.
39. Cal. Labor Code § 1102.6.
40. Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal. App.4th 1137, 1148-49.
41. Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090-91.
42. Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1123-24.
43. 2 Cal. Code of Regulations §§ 7297.9 and 7291.16.
44. Cal. Government Code §§ 12950 and 12975.
45. 41 Code of Federal Regulations 60-2.2.1(a)(9).
46. Cal. Labor Code §§ 1102 and 1128.
47. Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.
48. 42 USC § 1981a(b)(3)(A)-(D).
49. 42 USC § 200e-5(k); Cal. Government § Code § 12965(b).
50. Christiansburg Garment Co. v. EEOC (1978) 434 US 412, 422.
51. Cal. Government Code § 12960; 2 Cal. Code of Regulations § 10002(b).
52. Cal. Government Code §§ 12930 and 12965(a); 2 Cal. Code of Regulations § 10005.
53. 42 USC § 2000c-5(f)(1).
54. Cal. Code of Civil Procedure § 335.1; See Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 501.