The Americans with Disabilities Act of 1990 outlaws discrimination against mentally or physically disabled employees. The law also requires that employers make reasonable accommodations for disabled job applicants and employees. Reasonable accommodations may include hiring interpreters for the hearing impaired, installing signaling devices for the sight impaired, making job facilities wheelchair accessible or modifying job training materials. What constitutes a reasonable accommodation will vary from job to job and company to company depending on such factors as the company's financial resources, size and the nature and structure of its operation. An employer is not obligated to lower quality or production standards to make accommodations. An employer also isn't obligated to provide personal use items such as glasses or hearing aids.

What is Sex Discrimination?

Sexual discrimination is any adverse job action taken solely because of an employee's or job applicant's gender. There are two distinct types of sexual discrimination, disparate treatment and sexual harassment. Disparate treatment occurs when a person is treated differently than a person of the other gender in matters of hiring, firing, pay, promotions, work assignments or any other tangible work conditions. For example, it would be illegal to pay women less than men are paid to perform the same job, or refusing to let women work the night shift where the pay is more.

Sexual harassment, which is prohibited under both federal and state law, may take one of two forms: "quid pro quo" harassment or "hostile environment" harassment. Harassment cases are evaluated very differently depending on which type of harassment claim is alleged.

"Quid pro quo" harassment involves demands for sexual favors as the price for favorable employment decisions. The demand must be by a person who has the power to affect the conditions of the employee's work such as hiring, firing, promotion or demotion. Employers are "strictly liable" for this type of harassment. That means that if a supervisor or agent commits quid pro quo harassment, the employer will be liable, even if the employer did not know of the conduct and even if the employer had in place a policy against sexual harassment.

An employer's liability with respect to hostile environment claims is less automatic, and employers have a greater ability to protect themselves from this type of claim. Hostile environment harassment involves unwelcome, sexually oriented behavior in the work environment, whether verbal, visual, or physical in nature, that "unreasonably interfere" with an individual's work performance or that create an "intimidating, hostile, or offensive" working environment.

Usually, a hostile environment is not created by a single incident (unless the incident is particularly serious, such as a physical assault). The conduct must be severe or pervasive enough to create an environment that a reasonable person of the plaintiff's gender would find hostile or abusive.

A hostile environment harassment claim, unlike a quid pro quo claim, may be based on the conduct of co-employees or non-employees, as well as supervisors. However, an employer is not strictly liable for hostile environment harassment by co-employees; rather, an employer is liable for the harassment by a co-employee if the employer or its supervisory personnel knew or should have known of the harassment and failed to take prompt and appropriate corrective action.

Employers can take steps to limit their exposure to liability for hostile environment harassment, but an employer may be strictly liable for hostile environment harassment that is committed by a supervisor.

An employer may be liable if it either knew or "should have known" of harassing behavior, and failed to respond appropriately. An employer typically will "know" of harassing behavior if an employee complains of harassment to a superior or member of management. Employer liability will be minimized if

1. There is a procedure in place for handling harassment complaints, and the person who receives the complaint knows and follows that procedure;
2. The complaint is taken seriously and is investigated in a prompt and thorough manner; and
3. Following the investigation, a decision is made and discipline is imposed, if warranted.

An employer "should know" of harassment where the harassing behavior is so pervasive that the employer is deemed to have knowledge of it, or where a complaint has been made to a supervisor, even if the supervisor takes no action on the complaint and does not report it to higher management.

Employers can minimize liability by

1. Encouraging employees to make complaints if they believe they are being harassed;
2. Training supervisors to recognize and put a stop to harassing behavior in the workplace even if no formal or informal complaints are received; and
3. Training supervisors in the proper way to handle any complaints of harassment that are made.

The employer's duty to take action on a complaint exists and continues regardless of a specific complainant's request that the complaint be dropped or kept confidential. Courts generally explain that the employer's duty is not simply to an individual complainant; instead, the employer has a broader duty to eliminate sexual harassment from the workplace for the benefit of all employees. If an employer receives an "anonymous" complaint of harassment, they may still have a duty to conduct an investigation, especially if the employer has received other complaints in the past regarding the same alleged harasser.

"Appropriate" remedial measures will depend on the circumstances, but include, at a minimum, taking the complaint seriously and investigating it. If harassment is found to have occurred, some sort of discipline which could range from a counseling session or verbal reprimand to suspension or termination should be imposed. Even if the investigation is inconclusive and discipline is not warranted, an employer should take the opportunity to reaffirm its commitment to a harassment free workplace by, for example, recirculating its anti-harassment policy or conducting a refresher sensitivity training course (naturally, the alleged harasser should not be singled out to receive such reinforcement that could lead to a retaliation claim).

One measure that many employers find prudent, depending on the nature of the allegations, is to suspend the accused harasser pending completion of the investigation. A suspension with pay is usually appropriate because, if the allegations prove to be true, serious disciplinary action will have to be considered. The suspension is also strong evidence that the employer takes the allegations seriously and is making every effort to keep the complainant and alleged harasser apart pending the results of the investigation.

Courts and the agencies that enforce state and federal discrimination laws are finding, in an increasing number of cases, that employers' preventive and remedial measures, such as distributing anti-harassment policies, conducting training seminars, and investigating harassment complaints promptly and thoroughly, will preclude liability. Employers should also be aware that they may be liable under federal and state law for harassment of their employees that is committed by a non-employee, if the employer knew or should have known of the harassment but failed to take steps to correct the problem. This situation may arise, for example, if a supplier, customer, or client of the company harasses a company employee. In these cases, the employer's liability will be affected by the degree of control the employer exercises over the harasser and whether or not the employer made any attempts to correct the situation.

What is Sexual Harassment?

Sexual harassment can take many forms. It may be vulgar or lewd comments, or forcing workers to wear sexually revealing uniforms. It can involve unwanted physical touching or fondling, or suggestions or requests to engage in sexual conduct. Obscene or sexually suggestive cartoons and posters can be sexual harassment. Off color jokes or repeated sexual references can be sexual harassment. It depends on the circumstances. Courts consider the nature and frequency of the conduct as well as the conditions under which the conduct occurred. Courts also consider whether the plaintiff complained about the conduct, or could be considered to have condoned it by his or her conduct.

What Is the Difference Between Sexual Discrimination and Sexual Harassment?

Sexual discrimination is preferential treatment of one gender to the exclusion of the other. Sexual harassment is any unwelcome comments, gestures or physical contact of a sexually suggestive nature. Both discrimination and harassment violate the Civil Rights Act of 1964.

What Should I Do If I Feel That I Am Being Sexually Harassed?

That depends on the nature of the sexual harassment. If the harassment is quid pro quo, (a supervisor told you that a sex act would protect your job, or would get you a raise or promotion), and you are able to prove it, you have a cause of action against the company immediately. Of course, if you believe that the conduct is one that is not condoned by your employer and you like your job, you should report it to his supervisor or someone else who has authority to do something about it. If your complaint is that you have been subjected to a hostile environment, then you should report the conduct immediately to your supervisor. If it does not stop, then you can sue the employer. If you have done everything you can to stop the harassment and it still goes on, you probably need legal advice.

What Is Quid Pro Quo Harassment?

When a job benefit is directly tied to an employee submitting to unwelcome sexual advances, it is called Quid Pro Quo sexual harassment. For example, a supervisor promises an employee a raise if she will go out on a date with him, or tells an employee she will be fired if she doesn't sleep with him. Only individuals with supervisory authority over a worker can engage in quid pro quo harassment, since it requires the harasser to have the authority to grant or withhold job benefits. If quid pro quo harassment occurs, the employer is strictly liable for the supervisor's actions. This means that the victim does not need to prove that the employer knew or should have known of the harassment, as is the case in a "hostile environment" case.

What Is Hostile Environment Harassment?

When an employee is subjected to comments of a sexual nature, offensive sexual materials, or unwelcome physical contact as a regular part of the work environment, it is said to be a "hostile environment". Generally speaking, a single isolated incident will not be considered hostile environment harassment unless it is extremely outrageous and egregious conduct. The courts look to see whether the conduct is both serious and frequent. The courts also look to see if the employer was put on notice that the conduct was offensive to the plaintiff. Supervisors, managers, co-workers and even customers can be responsible for creating a hostile environment. But, unlike quid pro quo harassment, the employer is not strictly liable for hostile environment harassment. The successful plaintiff will be required to show that the employer knew of the harassment, had an opportunity to correct it, and failed to take effective corrective measures. This usually means that the victim must complain about the conduct and the fact that he or she considers it offensive, and the employer must be given an opportunity to act on the complaint.

Can I Sue for Pregnancy Discrimination?

The Pregnancy Discrimination Act amends the Civil Rights Act of 1964 and prohibits discrimination against women based on pregnancy, childbirth or related health conditions. An employer who refuses to hire or promote an otherwise qualified pregnant woman may wind up as a defendant in a discrimination lawsuit. Health insurance provided by an employer must cover expenses for pregnancy related conditions at the same premiums associated with other medical conditions. However, a health insurance plan that excludes benefit payments for pre-existing conditions can legally be denied for medical costs arising from an existing pregnancy. If a pregnant employee is temporarily unable to perform her job duties, the employer must make reasonable accommodations as with any other temporarily disabled employee. This may include modifying tasks, alternating assignments, or offering disability leave or leave without pay. It is also illegal for an employer to tell a woman when she must return from maternity leave.

What is The Americans With Disabilities Act?

Effective July 1992, the Americans with Disabilities Act (ADA) requires employers to provide equal opportunity and reasonable accommodations to disabled employees. The ADA requires employers to consider disabled job candidates. Once hired, disabled workers must receive equal pay and opportunities for advancement. The ADA defines reasonable accommodations as those that don't create undue business hardships on the employer. Examples include elevators, handicapped parking, ramps and wheelchair accessible rest rooms and break rooms. Signaling devices, such as lights, might be used to supplement alarms for the hearing impaired. The ADA also requires reasonable accommodations for the disabled. What will be considered a reasonable accommodation will vary depending on the size and resources of the employer. What may be reasonable to expect of a huge multi-national employer may not be reasonable for a mom and pop corner grocery.

Can I Sue for Wrongful Termination of Employment?

California, likes most states, follows the employment "at will" doctrine. This means that your employment may be terminated by you or by your employer at any time and for any non-discriminatory reason. However, under certain limited situations, a termination may constitute wrongful discharge. For example, an employer cannot fire an employee because of his or her race, religion, color, national origin, age, gender, or handicap, including having AIDS. Additionally, an employer cannot fire an employee for filing a workers's compensation claim. An employment contract may also provide for termination "for cause", meaning that an employer cannot terminate you without a lawful reason for the termination. Good cause may include violation of an employer's work rules or habitual neglect of work duties. Whether termination was "for cause" is determined by the terms of your employment agreement. If it requires good cause, then any employer who terminates your employment without good cause is subject to a civil lawsuit.

What Is a "Good Cause" Basis for Being Fired?

"Good cause" normally exists when the employer has a realistic or legitimate business reason/basis for terminating the employee. Examples of a "good cause" basis are:

• layoffs for economic reasons;
• the employee has documented poor performance;
• the employee is found to have committed a crime which impacts his/her employment (stealing, preparing false documents or submitting false information to a governmental agency, or assaulting another employee or customer); or
• the employee violates a company policy such as engaging in a discriminatory activity or sexual harassment.

What Is an "Implied Contract"?

An implied contract is created when statements and actions of the employer, and circumstances of the employment relationship lead the employee to reasonable believe that he/she is no longer an employee "at will" and that the employer must have "good cause" to fire the employee. Examples of elements to determine an implied contract would include (but are not limited to)

• The presentment of an employee handbook or manual which does not clearly state the handbook or manual does not change the employee's status of an "at will" employment and which has specific disciplinary procedures, appeal rights, or a list of offences which merit termination. In California, the law has developed over the last 20 years which has specific detailed limitations on the handbook/manual at will employment language and violations of the law negates the at will provisions of the manual/handbook
• Employee handbook/manual which provides for progressive discipline
• Employee handbook/manual which fails to include an "at will" employment provision
• The length of the employee's employment with the employer
• Promotions, salary increases, bonuses, and benefits increases
• Performance evaluations which reflect good/outstanding ratings and commendations or "at a boy" letters
• Statements by the employer assuring the employee that his/her employment is secure
• Whether it is the practice and/or policy of the employer (does not have to be written) that the employer will only discipline or fire the employee when there is a "good cause".

What If My Employee Manual Indicates My Employment Is "At will"?

There are specific limitations on the effect of employee manuals. Additionally, if there evidence that the employee manual is honored in the breach (commonly disregarded or not followed) or there is evidence of an implied contract, that evidence may override the effect of the employee handbook/manual.

What If I Accept a Job Offer and Then I Am Fired Before I Have a Chance to Start the Job?

If you reasonably relied on the job offer and made changes based on the job offer, the employer may be liable for wrongful termination (though you never started) or breach of contract.

When Does a Firing Violate a Public Policy?

California and the federal government have laws that prohibit employers from firing employees based on certain forms of action, such as discrimination, sexual harassment, retaliation, whistle blowing, or providing certain information to governmental authorities the company had a duty to provide, but did not provide. A firing based on any of these actions may entitle you to pursue legal action against the employer.

I am a member of a labor union and I was fired. What do I do?

You are probably protected by union contract and if there was not a sufficient basis for your firing, you should immediately request your labor union to file a "grievance" against your employer. In California, you also may have the right to request a full hearing and you may have appeal rights, including to the Superior Court, the Public Employment Relations Commission, Department of Labor, or the Merit System Board of the Department of Personnel (in case of civil service employees). Depending on the type of labor union, you may also proceed with a complaint to the National Labor Relations Board or its state counterpart (e.g. Labor Relations Commission).

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