Discrimination is the treatment of a person of a particular group, or the entire group of people, less favorably or differently for a reason. If the reason is intentional, meaning the employee belongs to a protected class of individuals and the discrimination is directed at the employee because of an animosity toward that class (for example, age, race, religion, national origin, sex, etc.), it is called disparate treatment. California now recognizes disparate treatment discrimination also occurs because of the intersection or combination of multiple protected characteristics and is not limited to a single trait.
If the reason for the discrimination is unintentional, meaning there is a policy or practice which seems neutral on its face but which adversely affects an entire group of employees who are members of a protected group, it is called disparate impact. Examples of disparate impact discrimination include: eliminating higher paid employees (age), credit history checks (race), requiring high-level language skills for unskilled positions (national origin), strict dress codes for client-facing positions (religion or ethnicity), and pay disparity (gender or race). These practices can act as barriers to hiring, job opportunities, career advancement, or job retention.
Fair Pay / Pay Disparity
It is illegal under the California Fair Pay Act for an employer to pay any of its employees at wage rates less than those paid to employees of the opposite sex, or of another race or ethnicity, who perform substantially similar work without a legal justification (which includes seniority, merit, productivity, or education, training, or experience). Nor may an employer rely on prior salary to justify a disparity in wage rates or to determine what salary to offer someone applying for the job, as this simply reinforces historical pay gaps. It also is illegal for an employer to retaliate against an employee for asking about another employee’s wages (which is how people learn about pay disparities at work). Companies with 100 or more employees or 100 or more contract workers must submit pay data reports to the state detailing the number of employees by race, ethnicity and sex who work in specific job categories, and the median and average hourly rates within each job category.
If you have reason to believe you are being paid less than a coworker who performs substantially similar work because of your gender and/or race, ask your employer about that other employee’s wages. Ask your coworkers to see if the pay discrepancy reflects a pattern or practice of treating one group better than others or one group consistently worse than others. Ask your employer for a salary range for your position and see where in that range your wages fall. If you discover you are being paid less, ask for the reason in writing.
What is Disability Discrimination?
Disability discrimination is most often a form of disparate treatment discrimination, but unlike other forms of intentional discrimination, the employee need not show that the company harbored animosity towards the employee for having a disability – they must show the company harbored a bias towards the disability itself, such as a reluctance to provide a reasonable accommodation or antipathy towards employees taking any time off, including for medical leave. Being treated differently because of one’s disability could also manifest itself in unfairly comparing the job performance of someone who needed to take time off for medical leave for their disability with the performance of someone who did not need to take time off and therefore enjoyed the advantage of having had more time and more opportunities to complete the work.
What is a Disability Under California Law?
Under California’s Fair Employment and Housing Act (FEHA), the definition of disability is broad: it includes mental or physical conditions that limit a person’s major life activities, such as physical, mental, or even social activities, as well as working. “Limiting” a major life activity simply means making the activity more difficult. An employee is protected even if the disability is not currently limiting.
Reasonable Accommodations and the Interactive Process
An employer must provide reasonable accommodations for its disabled employees. A reasonable accommodation is a modification of the employee’s work environment that allows them to continue performing the essential functions of their job. Essential functions generally are those functions without which the job position would not exist. Your employer should provide guidance as to which functions are essential to your job, whether it be through a written job description, reference to the importance of specific job functions on performance reviews, or the work performance of other people who have performed your job or are performing similar jobs.
The employer must initiate a timely, good-faith interactive process (meaning, a dialogue or a discussion) with the employee once it becomes aware the employee has a restriction or restrictions that need accommodating. The process is “interactive” because both sides must participate in a meaningful way, working together to find a reasonable accommodation that is not an undue hardship for the employer. Thus, while the employee’s requested accommodation should be given preference, the employer has discretion to choose between two or more accommodations that would be effective, including if one option is less expensive than another.
You do not need to identify a specific diagnosis or medical condition when requesting an accommodation, nor may your employer ask you for one. The only information you must provide is the fact that you have a disability and the restrictions that disability imposes on your ability to perform your work. Your employer may then ask for a doctor’s note justifying the need for an accommodation.
Failure to participate in the interactive process and a failure or refusal to provide a reasonable accommodation without justification are two separate and distinct causes of action employees may bring, in addition to disability discrimination.
Examples of reasonable accommodations include:
- Adjusting work schedules
- Modifying equipment
- Providing assistive technology
- Offering extended medical leave
Failure to Provide Medical Leave
One of the more misunderstood accommodations is a request for extended medical leave. A medical leave of absence can be a form of reasonable accommodation, allowing the employee time needed to heal or recuperate. Most employers of a certain size are familiar with state and federal requirements to provide up to 12 weeks of unpaid leave. However, employers frequently mistake that no further time off need be granted after that time is exhausted, and some fire employees who do not return after 12 weeks.
If you need additional time beyond the 12 weeks, as determined by your healthcare professional, your employer must provide that additional leave, providing it does not cause an undue hardship to the business. If it does not, your employer may be found to be liable for failure to provide a reasonable accommodation, failure to engage in the interactive process, and even disability discrimination.
At Sansanowicz Law Group, we are experienced in handling discrimination cases and will work tirelessly to protect your rights.
