What Qualifies as Illegal Discrimination or Harrassment?
California and federal law prohibit most employers from discriminating against or harassing employees or job applicants based on or motivated by certain factors. California law generally provides more protection to employees and applicants than federal law.
Discrimination and harassment can be manifested in a variety of different ways which are oftentimes so subtle or frequent, that discriminatory or harassing conduct can seem “normal.” In fact, oftentimes, neither applicants, employees, nor employers are even aware that certain behavior is unlawfully harassing or discriminatory. On the other hand, not all types of obvious discrimination or harassment at work are illegal. Discrimination and harassment are only illegal when they are motivated by or based on a protected category.
For example, an employer may lawfully discriminate against you by firing you because they don’t like you. However, if the reason they don’t like you is because you are a woman, then the firing (discrimination) is illegal. This is because sex and gender are protected categories—most employers may not discriminate or harass an employee because of the employee’s sex or gender.
Discrimination and Harrassment at Work: Protected Categories
In California, it is illegal for an employee to discriminate against or harass an employee or job applicant when it is motivated or based on the following factors or characteristics (protected categories):
- Race, color, ancestry, or national origin
- Religion or creed
- Age (40 and older)
- Medical condition
- Sex or gender, including pregnancy, childbirth, breastfeeding, or related medical conditions
- Sexual orientation
- Gender identity, gender expression
- Genetic information
- Marital status
- Military or veteran status
- Criminal history*
In addition to these protected categories, it is unlawful for most employers to discriminate or harass an employee or applicant because they did or threatened to do any of the following:
- Complained about discriminatory or harassing behavior at work, whether the behavior or actions complained about were actually unlawful or not.
- Complained about any actions in the workplace the employee believes to be unlawful, whether they are actually unlawful or not.
- Refused to engage or partake in activities or behavior at work the employee believes to be unlawful, including but not limited to discrimination and harassment, whether they are actually unlawful or not.
- Asked for or exercised a right they are entitled to, such as asking for reasonable accommodations for a bona-fide disability, or taking family or medical leave under the Family and Medical Leave Act or the California Family Rights Act.
Common Forms of Discrimination
The most common forms of discrimination include:
- Failure to hire
- Failure to promote
- Failure to grant job/career advancement opportunities or training
- Termination of employment
- Unfair/unreasonable discipline such as verbal and written warnings and suspensions
- Unequal pay or benefits
- Preferential treatment to other employees
- Over-scrutinizing or over-criticizing work
It is important to emphasize that not all discrimination is illegal. Rather discrimination is only illegal when it is done based on or motivated by a protected category.
Common Forms of Harrassment
The most common forms of harassment include:
- Demeaning or inappropriate jokes, comments, or gestures
- Unwanted or inappropriate touching of any kind
- Leers, unpleasant looks or gazes
- Adverse employment actions, such as termination, demotion, decreased wages, verbal or written warnings, suspensions, reprimands
- Demeaning or lewd photographs, pictures, or drawings at the workplace
- Flirting, sexual comments, or sexual/intimate advances
It is important to note that not all behavior that is harassing is necessarily illegal. For example, if a co-worker makes a joke in front of another co-worker about him being “dumb,” generally, that in and of itself, although harassing, is not illegal.
However, if a co-worker makes a joke about people of a certain ethnicity or race being dumb to another co-worker of the same ethnicity or race, then the joke would be a form of illegal harassment. This is because ethnicity and race are protected categories. Also, the harassing conduct does not necessarily have to be aimed at the claimant. It suffices that the claimant be negatively impacted at work from it.
Other Prohibited Practices
Finally, the above lists are non-exhaustive—employers may violate anti-discrimination and harassment laws in other ways. California employment law has many prohibited practices which include:
- English-only rules in the workplace
- Asking about an applicant’s criminal history before a conditional job offer has been made
- Considering only an applicant’s criminal history in withdrawing a conditional offer of employment
- Having policies and procedures in its hiring and employment process which have a disproportionate and negative impact on members of a protected category
- Asking an applicant about arrests that did not lead to a conviction
- Requiring a medical or mental examination before a conditional job offer has been made
- And more.
*Although criminal history is not afforded as much protection as the other categories on the list, job applicants and employees with criminal histories do have some rights under California anti-discrimination laws, including the following: It is unlawful for most employers to inquire about or consider an applicant’s criminal history unless and until a conditional job offer has been made (this includes questions on applications and during interviews); it is unlawful for most employers to withdraw a conditional job offer after considering only the applicant’s criminal history. Also many employer policies or procedures regarding denying employment to applicants with criminal histories may have a negative and disproportionate impact on members of some of the protected categories. For more information on California’s laws regarding criminal history and employment, click here.