According to SCI Companies Client Newsletter (HR Strategy) today, the EEOC reports that fiscal year 2009 was the second highest year on record for discrimination charges.  

SCI states:

. . . The EEOC received record numbers of charges alleging discrimination based on origin (11,134 charges), religion (3,386 charges) and sex-based discrimination (28,028 charges.)  However retaliation discrimination (33,613 charges) and race discrimination (33,579 charges) reached an all time high for this year. The EEOC also reported that through its enforcement, mediation and litigation programs, the agency recovered monetary relief for discrimination victims totaling over $376 million. The total number was 93,277, just slightly off the 2008 record numbers of 95,402, making the two-year annual average for 2008 and 2009 a staggering figure of 94,340 charges filed.

The goal of everyone should be to resolve employee issues amicably so as to AVOID litigation if at all possible.  Therefore, one thing employers can do when making broad employment decisions, is to conduct a statistical assessment to determine whether any disproportionate impact is occurring against members of any protected class employees.  If so, the employer should cautiously analyze its decisions to ensure they are supported by legitimate business reasons.  

If an employee later makes a retaliation / discrimination claim anyway, then the eventual workplace investigator should conduct a basic statistical assessment, if a sufficient number of true comparators exists, to determine if there is a disparate impact on any protected classes.  And again, if a disparate impact is found, the investigator should determine if the basis for the employer’s actions are supported by legitimate non-discriminatory, non-retaliatory business reasons.  

It should be noted, that the scope of disparate impact liability under the federal Age Discrimination in Employment Act is narrower than that under Title VII (race, color, religion, sex, or national origin).  Under a Title VII claim, an employer must show that, although the policy or practice at issue may have had a disparate impact on a protected class of employees, the policy or practice was consistent with business necessity and there was no other way for the employer to achieve its goals.  However, in 2005, the U.S. Supreme Court (in Smith v. City of Jackson, Mississippi) held that in defending an age discrimination claim under the ADEA, an employer need show only that its practice or policy was based on reasonable factors other than age.  This is a significantly lesser standard than required under Title VII.  

A workplace investigator should be able to conduct a basis statistical assessment assuming there is a sufficient number of true comparators.  The investigator should also be aware of differing standards of disparate impact liability under the different statutes and what an employer needs to establish under the standards of liability.  I am not saying that the investigator should go into a discussion of the law in his/her written report.  What I am saying is that the investigator should have these standards in mind while conducting his/her analysis of the facts.  These "disparate impact" issues can then be analyzed by the investigator to help determine whether or not an employer has violated its own written policies prohibiting discrimination. 

In sexual harassment investigations, the words "harassment" and "discrimination" are oftentimes used interchangeably by the complainant and witnesses.  Even formal complaints drafted by the lawyers allege the same exact incidents to form the basis of the "Sexual Harassment Cause of Action" and the "Sex Discrimination Cause of Action."  

We know that sexual harassment is a subset of sex discrimination, but they are not supposed to always be completely identical claims, although they can sometimes be identical.  Occasionally, the line between the two is blurry and the workplace investigator (or EEO investigator) needs to determine whether the alleged conduct violates one or both policies of the employer.

In California, only the employer can be held liable for "discrimination", but the employer and any employee can be held liable for "harassment".   As a recent blog post by Attorney Jeff Polsky of the law firm Fox Rothschild said:

One rationale for the difference is that discrimination involves official actions of the employer (e.g. hiring, firing, promotion, demotion).  Harassment, in contrast, focuses on things an individual can do (or say) to make the work environment hostile.  

In the recent California Supreme Court case, Roby v. McKesson Corporation [PDF], the Court examined the legal definitions of each, as follows:

Discrimination:  Discrimination refers to bias in the exercise of official actions on behalf of the employer, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action.

Harassment:  Harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace. It focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.

The lower court (in Roby) had ruled that personnel management decisions could not support the harassment claim because they were part of the discrimination claim.  However, the Cal. Supreme Court in Roby disagreed with the idea that the same conduct couldn’t be both discrimination and harassment.  The Court reasoned that official employment actions (i.e. discrimination) can communicate a hostile message (i.e. can be harassing).  

A harassment investigator will need to very carefully evaluate the facts to determine whether "personnel decisions" (such as demotion, failure to promote, firing, transferring, etc.) were carried out in a way that sent a "harassing" message to the complainant, and if so, a managerial employee could potentially violate a "harassment" policy by virtue of a personnel decision. 

Failure of an employer to allow an employee to breastfeed during her rest break can subject the employer to a sex discrimination lawsuit and hefty damages.  Just ask the owner of Acosta Tacos in Los Angeles.

In a "precedential decision" by the Fair Employment and Housing Commission ("FEHC"), which regulates and enforces California’s anti-discrimination laws in the workplace, the FEHC has determined that breastfeeding is an activity intrinsic to the female sex.  Accordingly, termination of an employee in violation of her right to return to work from pregnancy disability leave because she was still breastfeeding is discrimination on the basis of sex (a violation of Cal. Gov’t Code section 12940, subdivision (a), and 12945, subdividsion (a)).

In the case, the employer, Acosta Tacos, was ordered to pay $46,645.00 in damages in a workplace pregnancy discrimination case that was prosecuted by the Department of Fair Employment and Housing ("DFEH") before the FEHC.  After a two-day hearing, the FEHC, in a precedential decision, found that Acosta Tacos’ termination of Marina Chavez because she insisted on her right to return to work, and her right to nurse her baby, violated the Fair Employment and Housing Act’s ("FEHA") prohibition against sex discrimination.  See Dept. Fair Empl. & Hous. v. Acosta Tacos (Chavez) (FEHC Precedential Decision 09-03P [2009 WL _____ (Cal.F.E.H.C.)] filed 6/19/2009).

Working as a cashier for Acosta Tacos since 2004, Chavez learned she was pregnant in October 2006 and began her pregnancy disability leave on April 30, 2007, due to premature labor. On May 30, 2007, Chavez attempted to return to work, but the employer told her she could not because her job had been filled.   On June 1, and then again on June 2, Chavez was called into work to cover a shift for an absent employee.   Upon learning on June 2 that Chavez had nursed her baby in her car during her break the preceding night, the employer told Chavez he did not want her working as long as she was breastfeeding — a fact he admitted at the FEHC’s hearing. When Chavez protested that she needed her job back immediately to support her family, the employer told her he did not like her attitude, could no longer use her, and fired her.

Finding the employer liable for sex discrimination, retaliation, and failure to prevent discrimination, the FEHC ordered the employer to pay Chavez $21,645.00 in lost wages plus $20,000.00 to compensate her for her emotional suffering.   The FEHC also ordered her to pay the state’s General Fund a $5,000.00 administrative fine; develop a written policy, printed in English and Spanish, prohibiting sex and pregnancy discrimination in the workplace; train all employees and supervisors on the policy; and post a notice stating that the FEHC found the company violated the FEHA and ordered it to pay damages.  

With all the California laws supporting and facilitating breastfeeding in the workplace, employers need to be aware of these legal obligations and insure that they are in compliance because a failure to do so can now expose an employer to additional liability for sex discrimination.