Wrongful Termination – Discrimination, Retaliation and Harassment
What is the Difference?
In California the Fair Employment and Housing Act (FEHA) makes certain employment practices illegal based on particular classifications. The FEHA makes it illegal for an employer to discriminate against, retaliate against or harass an employee on the basis of race, age, sex, gender, sexual orientation, physical disability, medical condition, national origin, religious creed, color, ancestry, mental disability, medical condition, genetic information, marital status, gender identity or gender expression. “Discrimination,” “retaliation,” and “harassment” are all legal terms that have very different meanings. Lay persons often use the terms interchangeably, but each term prohibits a different kind of conduct. An experienced employment lawyer should be able to tell you what type of conduct is in issue in your case and it is important to speak with a legal professional to determine what legal options are available. This article will look a little closer at the differences between “discrimination,” “retaliation,” and “harassment.”
The FEHA makes it illegal for an employer to discriminate against an employee, applicant, volunteer or independent contractor on the basis of a protected classification. The FEHA delineates each of the protected classifications, prohibiting discrimination on the basis of race, age, sex, gender, sexual orientation, physical disability, medical condition, national origin, religious creed, color, ancestry, mental disability, medical condition, genetic information, marital status, gender identity or gender expression are illegal in California. (Cal. Gov’t Code §12940(a).) The definition of “discrimination” is constantly changing. With each new case that is decided through the courts, the definition of “discrimination” changes. Generally, “discrimination” is further defined to as an “adverse employment action” against an employee (applicant, volunteer or independent contractor). Logically, the next question is what conduct is considered an “adverse employment action?”
Just like the definition of the terms “discrimination,” “retaliation” and “harassment,” the definition of the phrase “adverse employment action” is constantly changing. Currently, here is no settled definition of the phrase “adverse employment action.” Generally, courts are supposed to “liberally construe” the phrase to include any of an employer’s conduct which negatively affects the terms and conditions of employment. The United States Supreme Court defined an “adverse employment action” as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” (Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).) Thus, “discrimination” is used to describe adverse employment acts that significantly change the terms of employment.
For an employer’s conduct to be considered an “adverse employment action,” the conduct must involve an ultimate employment decision, such as the decision to fire, demote, reduce pay, reduce hours, deny leave, deny a promotion or otherwise jeopardize an employee’s ability to advance in his or her employment. An adverse employment action must be a material change, meaning that it must be something more than a mere nuisance, an inconvenience or a minor alteration of job responsibilities. A change in employment conditions must be more than a change that is simply undesirable or inconvenient. A person cannot make out a discrimination claim by pointing to trivial conduct alone. Minor, innocuous, or immaterial changes to the employment relationship will not be considered to be materially adverse.
Sometimes whether conduct rises to the level of an “adverse employment action” is a matter of degree. It can be difficult to determine, even among legal professionals, whether the conduct in issue will be found to be an “adverse employment action.” However, whether an employment action rises to the level of an “adverse employment action” is determined on an individualized, objective basis. When suing a former employer, the aggrieved employee must be able to establish that the action in issue is objectively adverse, meaning a reasonable person who is similarly situated to the aggrieved employee would also find that the conduct materially affects the employment relationship.
There is little doubt that a termination materially affects the employment relationship. A termination is not minor or trivial. Thus, a termination will almost always be considered an adverse employment action. Conduct by an employer that falls short of a termination may also be considered an adverse employment action. For example, a demotion, an undesirable transfer, a decrease in wages, a less distinguished title, a transfer to a less desirable shift, a loss of benefits or a loss of seniority may rise to the level of an adverse employment action, especially if multiple factors are present simultaneously.
Now that we know what an adverse employment action is, when can turn to “retaliation.”
A separate code section makes it an unlawful employment practice for an employer or its employees retaliate against an employee “because the person has opposed” discrimination and/or harassment or because an employee “filed a complaint, testified, or assisted in any proceeding” involving claims of unlawful discrimination or harassment. (Cal. Gov’t Code §12940(h).)
This means that an employer cannot take any adverse employment action against a person because the person complained about illegal discrimination or harassment. It also means that an employer cannot take any adverse employment action against an employee who acts as a witness or otherwise helps someone else complain about illegal discrimination or harassment. “Retaliation” is a form of discrimination. “Retaliation” is an adverse employment action that is taken in response to an individual’s exercise of protected rights. In a retaliation claim, the phrase “adverse employment action” means the same thing as it would in a discrimination claim.
Yet another code section makes it an unlawful employment practice for an employer, or its employees, or its customers, or its clients to harass an employee, applicant or independent contractor on the basis of race, age, sex, gender, sexual orientation, physical disability, medical condition, national origin, religious creed, color, ancestry, mental disability, medical condition, genetic information, marital status, gender identity or gender expression. (Cal. Gov’t Code §12940(j)(1).) “Harassment” is another legal term that has no precise definition. Again, as more and more cases are decided, the definition of harassment changes. Although most people are familiar with sexual harassment, there are numerous other type of illegal harassment as well. For example, most often a termination based on gender or race would most likely be considered “discrimination” or “retaliation,” while making inappropriate racial or sexual jokes would most likely be considered “harassment.”
Not all adverse conduct by an employer is discrimination or retaliation. An employer’s conduct that does not rise to the level of an adverse employment action, may still be actionable as harassment. Often employees experience a course of conduct in their employment where the employer tries to make them quit. All of the conduct that is designed to make an employee quit can most likely be classified as harassment. Additionally, any time of unwelcome or offensive conduct that it motivated by an illegal reason can also be harassment even if it is not sufficient to rise to the level of “discrimination.”
Discrimination, retaliation and harassment are all illegal when based on one of the protected classifications. Determining what type of conduct is in issue is important because each type of illegal conduct is proved in a different way. It is important to note that the employer’s state of mind is what is important here. If the employer is motivated by an illegal reason, the conduct will also be considered illegal. If the employer is motivated by a legal reason, then the same conduct may not be illegal at all. For example, terminating an employee because the employee is Asian is illegal race discrimination. However, terminating that same employee because the employee made a series of errors is not illegal discrimination.
Sometimes an employer terminates an employee for something that it seems should be illegal, but is not. For example, it is not illegal discrimination for an employer to fire a worker so that the employer can put his personal friend into the position. It may seem that this type of conduct should be illegal. Certainly, a strong argument can be made that such conduct would be completely unfair. However, terminating an employee in order to put a friend into the position has simply not been made illegal in California. In order for “discrimination” to be considered illegal in California, the conduct must be an “adverse employment action” that is motivated by one of the protected classification stated in the California codes.
By Janeen Carlberg