The best way to prove discrimination is with a document or some other sort of documental proof. Evidence of a line of questioning or comments made during the interview can prove that you were discriminated against for a specific reason. Documented evidence is best, but it can be hard to get since most interviews are performed orally.

The first thing you should do is speak to the interviewer that discriminated against you. If this doesn’t work, talk to someone who is a position above the person who interviewed you. You may even have to take your complaint all the way to the top. Ask for an investigation into your situation. Most companies have processes in place that outline exactly how to handle discrimination during the hiring process.

Just because companies have policies against discrimination doesn’t mean that they enforce them. In some instances, discrimination is firmly entrenched in the company. If this is the case, you may need to contact an attorney. There are numerous attorneys that practice discrimination law. They will be able to tell you what your options are and point you in the direction that you should go.

Be sure to do your homework. Talk to other applicants and employees to see if they have been treated similarly. If you can gather numerous witnesses, you will increase your odds of winning your case in a court of law. Again, an attorney can help you with this.

There are numerous reasons why people are discriminated against and you need to know how to handle discrimination when it arises. Discrimination against race, gender, religion, age and sexual orientation are among the most common. Remember; discrimination can come in many forms such as refusing to hire, unlawful termination, promotion avoidance and so on. Discrimination can be hard to prove, but proving these cases is vital when it comes to upholding employee rights.

Over the years, the issue of gender discrimination has been frequently addressed by the government and policy makers.  As a result, new laws and policies have been established in order to try and reach equality.  In today’s society, however, although policies have been established, gender discrimination still exists.  On the other hand, double discrimination faced by women with disabilities is not being addressed.  People tend to discuss gender differences but it is not very often related to disability.  It is almost as if society is not aware of the stigma that is associated with disability which is created by society.  Women in general have not reached equality in the labour force and women with disabilities have not been given justice. 

The focus on “normality” and narrow standards of beauty make it more difficult for women with disabilities to be recognized and included in society.  It is believed that “normal” means not to be different from those who are in the able-bodied majority.  This includes having a specific body type and face, looking young, as well as being an able-bodied individual.  Society fears difference therefore it is referred to as “not normal”.  Society also tends to pity those who are different and establishes various assumptions regarding the capabilities of those with disabilities.  Pressure from society creates barriers and exclusion for women with disabilities.  Women with disabilities should be looked at the same way as everyone else; there is no difference.  They should be considered based on their capabilities and not assumptions that are created by others.  Women with disabilities are capable of contributing to society if given the opportunity.  Society fails to see the full potential of those with disabilities out of fear and thereby excludes them.  Denying women with disabilities this opportunity is similar to trying to hide them.  Individuals with disabilities should be integrated into society rather than trying to segregate them. 

Independence and participation are the key concepts in today’s society.  In order to be independent and able to survive, one needs to be employed or have some form of financial support.  Employment in turn provides an income that is necessary for survival but also a sense of belonging because of the ability of giving back to society.  Every individual strives towards independence but it is difficult to achieve it especially for women with disabilities.  Women with disabilities are more likely to be employed in low-status or lower paid jobs.  This in itself has an influence on achieving independence.

Employment means connecting with other people outside of home.  Being employed allows individuals with disabilities to socialize and meet new people.  Having people around enhances the quality of life of individuals.  Many of those women with disabilities who are employed find that being employed engenders a sense of belonging, which has a positive influence on their self-esteem.  In general, being employed opens a door to many opportunities.  It is especially true for women with disabilities. 

Although North America has rules and regulations in regards to employment of individuals with disabilities, clearly it is not enough.  The unfortunate part is that most of these women do not speak up and if and when they do, they are ignored.  In order to implement specific policies and regulations in regards to breaking down barriers for women with disabilities, these women themselves have to be involved as advocates if they have proper supports.  What is problematic though, is that most women with disabilities are excluded when it comes to decision making.  Over the years women have fought hard to be recognized in society and therefore at the present time it is hard to envision when women would be included when it comes to policy making.  It is necessary to move towards the time when it will be hard to imagine not including women with disabilities when it comes to policy making. 

Lack of accommodations and knowledge are two main components to exclusion and isolation from the labour force.  Some of the employers are not aware of the importance of accommodating employees with disabilities.  Lack of knowledge about disability and the stigma that is affiliated with it contributes to employment barriers.  Having a law such as the ‘duty to accommodate’ demonstrates that efforts are being made and Canada is shifting towards becoming an equal opportunity type country.  It was only 15 years ago when employers were not legally expected to ensure that individuals with disabilities were accommodated in their workplace. Having a law such as the ‘duty to accommodate’ can ensure that women with disabilities do not face direct or adverse effect types of discrimination.  However, in many cases, most women with disabilities have faced direct discrimination. 

Although the ‘duty to accommodate’ ensures that individuals with disabilities are provided with employment that meets their capabilities, it does not necessarily mean that the attitudes of others will go away.   When it comes to the workplace, many employers disregard these policies. Thus, the issue that needs to be fully examined is why do employers disregard legislation and what needs to be done to ensure that employers understand the importance of such laws?  This is the issue that still needs to be carefully examined in order to fully eliminate discrimination. 

What constitutes Discrimination?

Discrimination means applying employment decisions such as hiring, firing, promotion, pay raises, benefits, work assignments, leaves of absence or almost any other aspect of employment in a discriminatory way based upon one of the prohibited bases.

I’ve suffered discrimination. What should I do?

You should inform your employer of the discriminatory treatment (i.e., complain). Doing so is important, as the law requires that the employer investigate all claims of discrimination and take immediate and appropriate action to remedy the situation.

What if my employer retaliates against me?

It is illegal for an employer to retaliate against a victim of discrimination. Employers do sometimes retaliate against an employee for raising claims of discrimination — but they do so at their own peril. Retaliation could be any of the following actions: firing, denial of promotions, denial of pay raises, altering work assignments, denial of leaves of absence, or other adverse actions in almost any other aspect of employment. Any such adverse action taken against an employee within a relatively short time period after the employee complains of discrimination will be considered suspect. This is especially so when the employee is terminated shortly after complaining. If an adverse action is later found to be in retaliation for the complaint, the employer will be subjected to separate liability for violation of federal and state laws — whether the discrimination is proven to have occurred or not. An employee has an absolute right to complain about discrimination or harassment without fear of retaliation by his or her employer.

What if the discrimination continues?

Before any lawsuit can be filed against an employer for discrimination, an employee must file a complaint with either the federal or state authority charged with investigating such complaints. This is designed to give the employer time to remedy its conduct prior to being sued. In many cases, it is simply a formality that must be taken care of prior to a lawsuit.

The Department of Fair Employment and Housing (DFEH) is the state agency that investigates complaints of violations of state employment discrimination laws. The Equal Employment Opportunity Commission (EEOC) is the federal agency that investigates complaints of violations of federal civil rights law (Title VII) in employment.

Do I need a lawyer?

If your complaint goes nowhere, you can still strike back in court. The complaint process both within companies and through the federal and state agencies charged to investigate complaints can leave employees empty-handed and feeling unsatisfied. Both Title VII of the federal Civil Rights Act of 1964 and the California Fair Employment and Housing Act give employees a right to sue an employer for violations of their rights. If violations of the law are shown, the employee’s recovery may include his or her past lost wages and benefits, future wage loss, attorney fees, and punitive damages. Punitive damages are calculated in part on the earnings of the company.

Title VII prohibits discrimination because of “national origin.”  The Equal Employment Opportunity Commission, the agency charged with the enforcement of Title VII, defines national origin discrimination as the denial of equal employment opportunity because of an individual’s ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group.

The EEOC has consistently scrutinized English-Only policies very closely and has taken the position that such policies can be a proxy for national origin discrimination.  

Given the amount of attention given to immigration issues on a national scale, the significant increase in national origin claims being filed with the EEOC in the last few years is no surprise.  Many of these claims arise from employers promulgating English-Only policies.  In the EEOC’s view only the most limited policies do not violate Title VII.

Recently, the EEOC brought suit against a California Nursing Home company that prohibited Spanish-speaking employees from speaking Spanish to Spanish-speaking residents, and also while on breaks or in the parking lot of the facilities.

According to the EEOC, in addition to being required to comply with an overbroad English-Only policy that the employer did not apply even-handedly, it was alleged that Hispanic employees were given desirable work than non-Hispanic counterparts, were paid less, and promoted less often.  In April 2009 the EEOC and the company settled for $450,000.

Hawaii employers are also finding it difficult to balance legitimate business needs and Hawaii employment practices law prohibiting ancestry or national origin discrimination.  Hawaii law, HRS Chapter 378, prohibits discriminating against an employee in the terms or conditions of employment, because of their “ancestry.” However, as a practical matter “ancestry” and “national origin” are synonymous under Hawaii law.

Hawaii law is arguably more expansive than Title VII in that employers are precluded from making pre-employment inquiries and requests for information which tend to lead to disclosure of the person’s ancestry/national origin, unless the inquiry is justified by a bona fide occupational qualification.

Both the EEOC and the Hawaii Civil Rights Commission (“HCRC”) have issued regulations addressing the issue of English-Only rules and whether and to what extent employers prohibiting foreign languages to be spoken in the workplace have violated the prohibition against national origin discrimination.

The EEOC and HCRC’s regulations presume that blanket English-Only rules are per se unlawful.  Their position also is that limited English-Only policies are lawful only if justified by business necessity.  2002 EEOC guidelines list the following examples where business necessity justifies an English-Only policy: 

Employers with English-Only rules should also consider doing the following:

Additional information may be accessed here: www.eeoc.gov/policy/docs/national-origin.html#VC.

Roman Amaguin, Esq; http://www.amaguinlaw.com; http://www.employmentlawyerhawaii.com

If you’ve been the victim of discrimination, harassment or retaliation in your employment in California, visit our website at http://www.CaliforniaAttorneysLawyers.com and call us at any of the numbers easily found on our website.

Despite the economy and the current economic condition of the State of California, the Department of Fair Employment and Housing, the EEOC and the Department of Labor Standards Enforcement (DLSE) division of the Department of Industrial Relations still advise California labor attorneys that they have the resources to investigate complaints.

Employees who have signed arbitration agreements or who have received threats of legal action if they file a claim with any of these agencies should first contact a California labor lawyer but should also note that the State of California and the Federal Government generally will not recognize such restrictions on California and U.S. employees. Indeed, attempts to restrict employees from having government agencies investigate wrongdoing by employers may undergo severe scrutiny.

Generally, valid waivers of rights must specifically refer to the rights or claims that are being waived. They may not generally waive rights or claims that may arise in the future without additional language. And they must advise the individual in writing to consult an attorney before signing the waiver.

The position of the EEOC, for instance, is that even a valid waiver of rights by an employee does not affect the EEOC’s rights and responsibilities to enforce the law. While a valid arbitration agreement may require arbitration between an employee and an employer, it does not bar the EEOC from seeking judicial relief on behalf of an employee.

Indeed, retaliation against an employee after she reports harassment or discrimination by terminating the employee, and then a company’s further retaliation either by threatening legal action or by termination may constitutes a separate claim on top of the original claim for harassment or discrimination. Unfortunately, employees without the benefit of counsel from a California labor lawyer may be taken in by such threats.

Both the DFEH, the EEOC may handle a discrimination, harassment and retaliation claim and the DLSE/DIR’s Sacramento office which enforces retaliation laws, may act simultaneously, so long as the matters are timely filed with each agency within the appropriate statutes of limitations.

With the DFEH, once the employee or ex-employee makes an appointment to start the process, the wheels will begin turning but the statute of limitations is not tolled until a complaint is filed by the employee. With the EEOC, once the employee files an intake questionnaire and an affidavit describing the discrimination, the filing requirement will be met with the EEOC, after which the EEOC will notify the employer of the filed charge. After the EEOC receives the charge, they are obligated to conduct an investigation and they have the power to issue subpoenas in connection with their investigation. If the EEOC finds unlawful discrimination, they have the power to eliminate such unlawful practices. Even an enforceable agreement binding an employee to arbitrate disputes with the employer does not affect the EEOC’s power to sue the employer to enjoin further violations. Nor does it bar the EEOC from seeking victim-specific relief, including money damages.

If the EEOC is unable to secure a conciliation agreement with an employer within 30 days after a charge is filed, the EEOC may file a civil action against the employer and may seek temporary or permanent relief.

If the DFEH decides to pursue a matter themselves, they may issue an accusation and prosecute the claim before the Fair Employment and Housing Commission (FEHC). Like the EEOC, the DFEH has the power to issue subpoenas, take depositions and serve written interrogatories. If they find a violation, they will seek to eliminate it.

The DFEH has the authority to issue cease-and-desist orders, and to award reinstatement, backpay, front pay, emotional damages, and an administrative fine. The amount of that fine is determined by factors which include willful, intentional or purposeful conduct, refusal to prevent or eliminate discrimination, conscious disregard for the rights of employees, commission of unlawful conduct, intimidation or harassment, conduct without just cause or excuse and multiple violations of the FEHA.

While the amount awarded for emotional distress may not exceed $150,000 for each person, an additional amount of $150,000 may be awarded for intimidation. The FEHC may also award reasonable attorney fees, including expert witness fees to the prevailing party. However, the award to the prevailing party is discretionary and the courts generally do not require a losing plaintiff to pay the employer’s California labor attorney’s fees and costs.

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of race and color, as well as national origin, sex and religion. It applies to employers with 15 or more individuals. It is unlawful for an employer to discriminate against any individual, even if that discrimination is prompted by the racially motivated actions of other employees.

Title VII prohibits offensive conduct that is unwelcome and offensive, and that is severe or pervasive. Employers are required to take appropriate steps to prevent and correct unlawful harassment. Employers may not fire or otherwise retaliate against or take an adverse action against an individual for filing a charge of discrimination.

Adverse actions include an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Prohibited acts of retaliation can occur after termination and receive the same scrutiny by the DFEH whether they occur before or after termination.

Protected activities of employees include complaining to anyone about alleged discrimination against oneself or others, taking part in employment discrimination proceedings, and filing a charge of employment discrimination.

While the amount of damages that can be awarded for compensatory and punitive damages recoverable under Title VII go up to only $300,000 against companies with 501 or more employees, there are no such limits under the FEHA. Even under Title VII, damages for emotional distress may be awarded. Title VII specifically authorizes compensatory damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses.

Before the Civil Rights Act of 1991, neither compensatory nor punitive damages were recoverable under Title VII. By contrast, both types of damages were and are available under the FEHA. Punitive damages are also now available against nongovernmental entities under Title VII for cases of intentional employment discrimination, including cases proved by disparate treatment where the respondent engaged in a discriminatory practice with malice or reckless indifference to the federally protected rights of an aggrieved individual. The standard is similar with the FEHA.

One of the recurring themes employers use to justify the termination of an employee they have harassed or discriminated against to California labor lawyers, is that the termination was part of a planned reduction in employees. However, under the law, even if good cause exists for a reduction in force, an employer’s decision to lay off certain employees while retaining others may be challenged by a California labor attorney under applicable anti-discrimination laws. A case involving just this situation receiving a great deal of national publicity involves the lay offs of a disproportionate number of women from Wall Street institutions.

Employers are bound by state laws that provide greater protection for employment than comparable federal laws, which is the reason most employment claims are filed with the FEHA.

When it comes to harassment and retaliation, the California constitution prohibits harassment based upon factors which include race, color, sex, national or ethnic origin. Discrimination based on physical or mental disability, marital status, a medical condition (including pregnancy and child birth) and sexual orientation is also prohibited. The FEHA also requires employers to take all reasonable steps necessary to prevent discrimination and harassment from occurring.

With the DFEH, the interviewing consultant drafts a formal complaint. If the complaint is accepted for investigation, the complaint is also filed with the EEOC. After the DFEH issues an accusation, the DFEH may litigate the case in a public hearing before the Fair Employment and Housing Commission. If emotional distress damages or administrative fines are sought, the employee can have the case moved to a civil court. If the case is moved to court, the DFEH prosecutes, but the complainant is the real party in interest.

Government codes section 12965(b) requires that individuals must exhaust their administrative remedies with the DFEH by filing a complaint and obtaining a “right-to-sue notice” from the Department before filing a lawsuit. The DFEH, however, will accept requests for an immediate “right-to-sue-notice” from persons and from their California labor lawyers for clients who have decided to proceed in court. A DFEH complaint must be filed within one year from the last act of discrimination or you may lose your right to file a lawsuit.

Once a “right-to-sue-notice” is received from the DFEH, the employee has one year to file a civil lawsuit. Failure to do so may again cause you to lose your right to sue.

Common mistakes by harassment victims are not telling the person doing the harassment to stop, not documenting the harassment by that person, not reporting the harassment to your superiors, not making sure the employer is taking action to end the harassment, not obtaining medical or psychological help when needed, not realizing that retaliation is illegal, accepting the word of your employer that you do not have a case for harassment or discrimination, not filing a DFEH, EEOC or DLSE/DIR complaint within the time allowed, not having an attorney assess whether any arbitration agreement is binding, and not consulting with an attorney.

A complaint to the EEOC under Title VII of the Civil Rights Act of 1964 must be made within 180 days from the date of the incident. This period, however, is extended to 300 days if the employee also files a complaint with the DFEH. Complaints of discrimination commonly include discrimination based on race, color, religion, sex, national origin, age, handicap, sexual orientation and retaliation or reprisal. That time period, however, can be reduced to as little as 30 days after a complainant receives notice that a state agency such as the DFEH has terminated its processing of a charge. It is thus best to contact the EEOC immediately whenever discrimination is suspected because of its short statutes of limitations.

In addition, many governmental agencies require that for an employee or applicant for employment to preserve their rights under EEO laws, they must contact an EEO Counselor within 45 calendar days of the alleged discriminatory action. There are exceptions and grounds for extending this period, but neither a complainant nor his or her California labor attorney does not want to be in a position to be having to argue those grounds as the complaint may be deemed too late to be accepted.

Once a complaint is filed with the EEOC, if the EEOC finds substantial evidence of discrimination, it will file a lawsuit. If the EEOC does not find sufficient facts to support the complaint, it dismisses the complaint and issues a “right to sue” letter to the complaining party. A lawsuit must then be brought by the complaining party within 90 days of receiving the Right to Sue letter from the EEOC.

A much less publicized and less known agency, even among California labor attorneys in the State of California at which complaints for retaliation and discrimination can be filed is with the Division of Labor Standards Enforcement (DLSE) of the Department of Industrial Relations (DIR). An employee or job applicant alleging violation of any law under the jurisdiction of the Labor Commissioner must file a complaint with the DLSE within six months of the adverse action. Adverse actions include unlawful discharge, demotion, suspension, reduction in pay or hours, refusal to hire or promote and other actions. There are, however, some exceptions to the 6-month deadline, but again, it is best to file a complaint as soon as possible to ensure that it is timely.

Filing a complaint with the Labor Commissioner does not prevent a person or their California labor lawyer from filing a private lawsuit.

Visit our website at http://www.CaliforniaAttorneysLawyers.com and call us if you have been the victim of harassment, discrimination or retaliation in your employment in California.

Finally, an employee or job applicant who alleges retaliation for having complained about a workplace health or safety issue has the right to file a concurrent complaint with the federal OSHA within 30 days of the occurrence of the adverse action.

Equal opportunities workplace discrimination in sex discrimination cover sexual orientation, same-sex prejudice, adoption, paternity, maternity, parental, dependant leave, marital status, equal pay; race relations employment discrimination ethnic relations, religious discrimination, nationality, citizenship; discriminatory practices, disability discrimination.

Sex equality, race relations, disability work rights in employment discrimination laws are:-A. It is employment discrimination contrary to nondiscrimination policy, unlawful prejudice, to treat employees e.g. working women, colored, foreign workers less favorably than others ~this is the basis of equal opportunities, nondiscrimination laws, in workplace discrimination, be it gender equality, racial equality, disability rights in employment -applying employment discrimination rights is illegal.B. It is illegal workplace victimization to penalize one for complaining or inquiring about or doing anything in good faith in relation to employment discrimination -be it about discriminatory practices of e.g. gender prejudice or sexual orientation or ethnic relations, even if there has not been, and even if the employer retaliation is not itself employment discrimination ~causing detriment after employment ends also is employment discrimination.

Important details of employment discrimination are:-Equal Opportunities are not minority rights, or women’s rights only ~it is equally illegal employment discrimination for e.g. black or women employers to subject to racial inequality or gender discrimination or sexual harassment a white an employee -in ethnic relations it is employment discrimination whether the employer belongs to a dominant majority group or a minority group.Lawful prejudice is possible: in employment discrimination, whether it is race relations, ethnic relations, or sex equality, employers are entitled to employment discrimination in recruitment by preferring a particular racial or ethnic or gender or sexual orientation class to ensure fair gender equality or racial equality respecting nondiscrimination policy ~non-employment of the disabled is legal employment discrimination if workers are less than 20 -or if a legal musts, e.g. safety helmet for Sigh bike messenger.Segregation, racial or ethnic, is not unlawful employment discrimination if genuinely otherwise it would disrupt ~in gender equality it is not illegal employment discrimination but lawful discriminatory practice to provide separate one-sex facilities to avoid embarrassment -it is also legal employment discrimination if it would offend a sizable faith.

Otherwise racial segregation can make liable in employment discrimination as race discrimination -if it arises from an employment discrimination complaint, additionally, also as employment victimization.Employment victimization if is due to, e.g., gender prejudice, an employment discrimination complaint must have preceded it – Negorajam -v- Agnew, 1994.Workplace harassment, be it sexual, religious or belief, ethnic or racial harassment, is more than employment discrimination -it can be, additionally to employment discrimination, a criminal offence ~also if it is only employment discrimination and on its own not of criminal nature, if persisted in, in employment or after termination.

Sex harassment or racist abuse by a colleague is not workplace harassment as employment discrimination if not in course of or at place of work nor related to work -action lies in equal opportunities but not as employment discrimination.

Workplace harassment, e.g., sexual harassment, is required in employment discrimination case-law to be shown to have adversely affected one’s dignity – Porcelli -v- Stratchlyde Rural District Council, 1980.Religious or Belief Discrimination it is in equal opportunities and employment discrimination, because of one’s religion or belief, to apply a condition on the assumption that a law would not be respected -e.g. an undertaking that Sigh builders would wear helmets at all times, or that a Sigh judge would wear instead of his turban the wig worn in British courts of law. Degrading treatment (which the above would also be) in employment discrimination under the race relations legislation (racial victimization -or religious, ethnic, color, nationality, citizenship) takes into account what the complainant considers to be degrading.Age Discrimination may also be complained of, if employee or candidate may is refused employment because of his or her age, or in employment if is less favourably treated or subjected to victimization. Disability discrimination while it is, in employment discrimination legislation, to not provide some 30% disability work for disabled employees in a workforce of 20 or more -with appropriate work and equipment and workplace adjustments, disability discrimination is subject to employment discrimination precedent and the courts may regard an employer’s failure in special interviewing arrangements not a discriminatory practice amounting to employment discrimination but failure of the disabled job applicant, even if the special arrangements need was stated on the application and details were never asked, if disabled persons fail to specify them .

Disability discrimination is legal if the workforce is less than 15 ~also if of indirect effect on disabled workers -it is employment discrimination only if it affects directly.

Disabilities do not entitle to equal rights or disability rights in disability employment discrimination unless for a year seriously disabled in ordinary daily activities -else it is not employment discrimination.Genuine occupational qualification excuses employment discrimination -in equal opportunities employment rights it is a genuine occupational qualification is one that does not unjustly disqualify an entire class of, e.g., female workers or married women employees, or staff transsexual or of a different sexual orientation, or alien workers ~in employment discrimination such proof is on the employer in sex or race discrimination claims – Panesaar -v- Nestle 1980.Grading of employees vulnerable to employment discrimination -e.g. of working women or black or immigrant workers, may be complained of as employment discrimination ~employer must show that were not taken into account personal factors, e.g. a working woman likely to take maternity leave or a single parent working girl, in assessing – National Vulcan Engineering -v- Wade, 1977.Maternity leave, paternity or parental or adoption or dependant leave, in employment discrimination laws are for all -married, partner, or neither ~if it is agreed contractually, employment discrimination laws forbid employers to prefer the contractual or the statutory entitlement -in equal opportunities applicable to employment discrimination employees choose which.Comparison must be made if one is directly subjected to employment discrimination to show that employment discrimination to have been by way of less favorable treatment of the complainant than other workers – Aziz -v- Trinity Taxis, 1998.Less favorable treatment complained of as employment discrimination must have taken place at the workplace or must be in relation to employment, otherwise it is not employment discrimination ~in ethnic relations, e.g., employer’s excluding from a house-warming party is not equal opportunities race equality breach of nondiscrimination policy -but it is employment discrimination if from a workers’ office party – Walters -v- Metropolitan Police, 1997.Equal pay if the employment discrimination has been in respect of, it is inessential for comparison to be of identical work -in employment discrimination precedent similar work suffices, e.g., a single working girl’s work and a married working woman’s like work – Hayward -v- Canwell Laird Shipyards, 1977.Internal Appeal offer in employment discrimination must precede worker’s dismissal, if made – James -v- Waltham Holy Cross Urban District Council, 1973.Claims for employment discrimination or, e.g., sexual harassment or color victimization must allege so -if the worker only claims only unfair dismissal the qualifying period may bar an, e.g., race equality employment discrimination case exempt from the qualifying period requirements – British Airways Engine Overhaul -v- Francis, 1981.Qualifying period for suing does not apply to employment discrimination and workplace harassment -no particular length of service need be shown to sue for employment discrimination ~also so in equal opportunities workplace victimization.Time limit does apply -in employment discrimination legal proceedings must be commenced within three months of the equal opportunities breach or of when the employment discrimination, or the employment discrimination victimization, became known – Cornelius -v- University College -Swansea 1987.Questionnaires are part of equal opportunities claims in employment discrimination whether sex discrimination, color prejudice, workplace harassment, or employment victimization ~one may serve one on the employer and use answers or non-reply in arguing employment discrimination.Amendments may be allowed by employment tribunals to employment discrimination complaints, only if are about a matter included in the in employment discrimination particulars – Swiss Life & Health Insurance -v- Kay, 2004.Additional claims based on same employment discrimination also so – Ashworth Hospital -v- Liebling, 1996.Onus of proof in employment discrimination is the complainant’s on a balance of probabilities ~regard to employer’s reasons for the alleged employment discrimination can reverse that – Humphrey’s -v- Board of Management of St. George’s School, 1978.

The European Court of Justice has ruled in employment discrimination cases that there is no limit on what may be awarded for injury to feelings in claims arising from workplace discrimination.

Costs may be involved if a party, including the complainant, has been vexatious, frivolous, or “otherwise unreasonable” –normally, in the course of or in relation to the proceedings.

Laws change; these are brief guidelines.The author has a website at: http://www.geocities.com/eoa_uk

It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with “immediate (or successively higher) authority over the employee.”  However, in cases where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.  

Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence.  Also important is effective supervisory training and training of employees on the harassment policy and complaint procedure.

Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378.  State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors. 

While the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant.

The April 16, 2009 Illinois decision will certainly be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation.  Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.

I.          The Importance of Having an Effective Harassment Policy

A.                The Faragher/Ellerth Defense

Having an effective sexual harassment policy and training program will greatly increase the chance of avoiding liability under the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (“Faragher”) and Burlington Industries v. Ellerth, 523 U.S. 742 (1998) (“Ellerth”). 

Where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.  “A tangible employment action constitutes 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.”  Ellerth, supra.

The importance of the Faragher/Ellerth defense was significantly increased by the U.S. Supreme Court’s decision in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

A zero-tolerance harassment policy must fit the environment and employees.  The Ellerth court stated:

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.  The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it … [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.

Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense. 

B.        Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure. 

(1)               Write in simple English.

(2)               Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.

(3)               State the company’s “zero-tolerance” philosophy in the policy regarding all forms of harassment,

(4)               Designate at least two specially trained managers who will be responsible for investigating harassment complaints for the company. 

(5)               Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders. 

(6)               Provide a “clear chain of communication,” allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and consider having a toll-free number employees can call.

(7)               State that employees who report prohibited conduct will be protected from retaliation.

(8)               State that the employer will promptly investigate the matter in an objective and discrete manner.

(9)               Provide the form of disciplinary action to which offenders can expect to be subjected.

(10)           State that the employer will also take remedial action.

(11)           Train your management employees and line employees on the policy and procedure. 

(12)           Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy. 

C.        The Faragher/Ellerth Defense and Hawaii Law

Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in virtually all aspects of employment.  However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense. 

Currently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken:

§12-46-109 Sexual harassment.

(a)        Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when:

(1)        Submission to that conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or

(2)        Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or

(3)        That conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

(b)        In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

(c)        An employer shall be responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisory or agency capacity.

(d)       With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee’s failure to give such notice may not be an affirmative defense.

D.        Problem Areas for Employers

* Inadequate complaint procedure

* Failure to disseminate policy

* Employer on notice of harassment

 * Failure to promptly investigate

 * Failure to take appropriate disciplinary action

 * Failure to apply it even-handedly

 * Failure to review and revise when necessary

 * Failure to provide training

E.         Illinois Supreme Court Decision a Foreshadowing of Hawaii Law?

In Sangamon Cty Sheriff’s Dep’t v. The Illinois Human Rights Comm’n, Nos. 105517, 105518 cons. (Ill. Apr. 16, 2009), decided on April 16, 2009, the Illinois Supreme Court gave the HCRC direct support of the HCRC’s own interpretation of HRS Chapter 378.

The Sangamon decision holds Illinois employers strictly liable for sexual harassment by any of their management or supervisory personnel, and, as noted by the dissent, “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”

In that case employee Feleccia filed a sexual harassment claim against employer Sangamon County Sheriff’s Department and Ron Yanor, who was a supervisor, but was not Feleccia’s direct supervisor.  The Illinois Human Rights Commission ruled that the Sheriff’s Department was strictly liable for Yanor’s conduct under the Act because Yanor was a supervisor. The Illinois appellate court reversed, and Feleccia and the Commission appealed to the Illinois Supreme Court.

The Illinois Supreme Court reversed and confirmed the Commission’s decision. In a 4-2 ruling, the Illinois Supreme Court agreed that the Sheriff’s Department could be held strictly liable in such circumstances.  The basis of the decision was the plain and ordinary meaning of the statute, which states that “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”

According to the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability standard.  As such, the Court found “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.”  The Court rejected the employer’s argument that federal case law should apply to the case.

II.        The Importance of Conducting EEO Training

Of course, in Hawaii the HCRC has merely interpreted HRS Chapter 378’s statutory language to impose strict liability for supervisory harassment.  Unlike the Illinois statute interpreted by the Illinois Supreme Court it is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward. 

Nevertheless, the HCRC is charged with the interpretation and enforcement of HRS Chapter 378 and it does not bode well for Hawaii employers that another state’s high court is willing to impose what some would consider harsh penalties on the employer defendant.  Accordingly, employers in Hawaii should redouble its efforts to train supervisors AND employees regularly on preventing discrimination and harassment in the workplace.  Training should include the consequences of violating company policy.

Training employees reduces the likelihood that inappropriate conduct will be engaged in or tolerated at a level that can create a hostile environment.  See Arquero v. Hilton Hawaiian Village, 104 Hawai’i 423, 91 P.3d 505 (2004) (coworker pinched buttocks of the plaintiff on two occasions); Nelson v. University of Hawai’i, 97 Hawai’i 376, 38 P.3d 95 (2001) (verbal harassment).

Second, in the event that inappropriate conduct takes place, employees who are offended will be substantially more likely to use the employer’s complaint procedure, thereby permitting the employer to remedy the situation and avoid having a lawsuit filed against it.

Lastly, training is a tool for prevention and reducing the potential of supervisory harassment.

A.        Training as a Tool for Prevention

The EEOC’s Policy Guidance on Sexual Harassment states:

An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result.  Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

The HCRC regulations state that “prevention is the best tool for the elimination of sexual harassment.  Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.”  §12-46-109(g).

As part of its settlements against employers, the EEOC and HCRC have chosen mandatory training as one of its primary responses through the use of consent decrees requiring organizations to conduct training and ensure policy compliance.

In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to conduct compulsory sexual harassment training for all of its supervisory employees by January of 2006, thus supporting the EEOC and HCRC’s position that training and education is the best tool for prevention.  Under the California law, the training must re-occur every two years, and all new supervisors brought in after the original round of training must go through the program within six months of their arrival. 

Managers who are aware of the implications of sexual harassment may be less likely to take official action they realize will create vicarious liability for the organization – this may preserve the employer’s right to the Faragher/Ellerth affirmative defense in a case of constructive discharge.  Further, managers who are aware of how to proceed with complaints from employees about harassment are more likely to intervene with an appropriate employer response thus making a stronger showing under the first prong of the Faragher/Ellerth affirmative defense.

Finally, as noted throughout this article training can be an effective tool to combat inappropriate behavior by supervisors and to reduce risks under state law—especially to the extent it is interpreted similar to the Illinois Supreme Court’s decision.

B.                 Training and the Faragher/Ellerth Defense

Conducting training will greatly increase the chance of avoiding liability under the Faragher/Ellerth affirmative defense.  The importance of this defense was significantly increased by the Suders decision, which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

The training of rank and file employees should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.

C.        Training and Damages Issues Under Hawaii Law

Generally, individuals cannot be found liable for violations under federal law.  Under Hawaii law, however, courts may award unlimited punitive and compensatory damages. 

Significantly, unlike under Title VII individuals can be held liable for violations of Hawaii’s Employment Practices Act.  See HRS §378-1 (defining “employer” to include “any person”) and §378-2 (3) (making it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”); Schefke v. Reliable Collection Agency, 96 Hawai’i 408; 32 P.3d 52, 93-94 (2001) (holding individuals may be found liable under Hawai’i Employment Practices law).

Thus, training employees may alert them to the financial risks they take when they engage in behaviors prohibited by Hawaii law.

D.        Training to Reduce Exposure to Punitive Damages

In Kolstad v. American Dental Association, the Court held that “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’”  Accordingly, compliance efforts are both necessary and sufficient to avoid liability for punitive damages.

Roman Amaguin, Esq.; http://www.virtualhawaiiemploymentlawyer.com; http://www.amaguinlaw.com

Unfortunately, it seems to be a fairly common occurrence that once a woman becomes pregnant her formerly nice and reasonable employer treats her differently. Treating a woman differently – unless it’s to say how awesome it is that she’s pregnant – is likely to be illegal.

In 1978, Congress enacted the Pregnancy Discrimination Act (PDA) as an amendment to Title VII of the Civil Rights Act of 1964. In doing so Congress made clear that women were not to be punished for becoming mothers.

The PDA prohibits discrimination in areas and ways, including*:

*    Hiring/Firing: An employer cannot refuse to hire a woman because of her pregnancy or a related condition and cannot fire a woman for those things either. *    Pregnancy & Maternity Leave: An employer: cannot single out pregnant women for special procedures to determine her ability to work; must hold open the job while she is on pregnancy leave; must treat her the same as any temporarily disabled worker if she is unable to perform her duties for a short time; must allow her to work if she is able.  *    Health Insurance: Employer provided health insurance must cover pregnancy and pregnancy-related conditions on the same basis as other medical issues.  *    Fringe Benefits: Benefits cannot be given only to married couples. Benefits cannot be provided differently to pregnant and non-pregnant employees. Seniority, vacation, pay, temporary disability benefits, must all be the same as all other employees.

*This list is not all inclusive. See an attorney if you feel as if you have, or are, suffering some sort of mistreatment.

Additionally, the law prevents retaliation for complaining about discrimination either to your employer or to the EEOC. States and local governments may also have laws that are similar to the PDA. For example, in Illinois the city of Chicago, Cook County, and the state of Illinois all have laws intended to prevent or remedy pregnancy discrimination. There are also administrative forums at each of these levels devoted to hearing claims of discrimination and providing remedies, including monetary damages.

Women who suffer, or believe that they may have suffered, discrimination need to file a charge of discrimination with the EEOC within 180 days of the date of the last act of discrimination. The various local and state agencies may have different filing times but many mirror the 180 day filing requirement set by the federal government as well as the types of discrimination considered illegal. Missing the filing date may eliminate the women’s right to sue so careful attention must be paid to the date, or dates, the act of discrimination took place.

As always, it’s best to consult a local attorney about a claim of discrimination but these forums will allow a woman to file her claim without a lawyer and some will investigate the claims using trained personnel.