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Adverse Employment Actions in
Discrimination Claims
The
The case is especially noteworthy in two respects: First, for making it easier to establish an adverse employment action by applying the “totality of the circumstances” approach as first articulated in Yanowitz v. L’Oreal USA Inc., 36 Cal. 4th 1028, in that consequences other than a termination or demotion, such as a transfer, a failure to invite the complainant to a important meeting, placing the complainant on probation, and/or reducing the complainant’s responsibilities may be the basis, when taken as a whole, for an “adverse employment action”; and Second, for holding individual supervisors personally liable for retaliation under the FEHA when the underlying complaint is for discrimination.
The lesson for employers is to take all stages of a discrimination claim very seriously – from the moment you first hear of it, all the way through to the conclusion of your investigation – making sure the complaining employee suffers no adverse employment action as a result. Penalizing an employee in any way only compounds an already serious problem, exposing you and your supervisors to large monetary penalties if found guilty.
Sexual Orientation Discrimination
In the case, plaintiff Scott Jones worked as a restaurant
manager for The Lodge at Torrey Pines, in
The evidence that came out during the trial reads like a checklist of how not to handle an employee complaint of discrimination or harassment:
·
Jones
testified that Weiss and another supervisor used words like “fu*#ing,” “coc*#ucker,”
and “fag*#ot,” in jokes that
Jones found highly offensive and degrading.
·
Weiss
threatened to fire Jones if he complained to human resources, and berated him
verbally when Jones sent a memo requesting an end to Weiss’ “unprofessional
remarks.”
·
When
Jones complained to HR, the manager, Jim Fulks,
“…suggested he quit his job because ‘things like this get worse.’” Further, HR
did nothing to stop the activity, and accused Jones of “blackmailing” the
company when Jones complained to the Department of Fair Employment and Housing
(DFEH), the state agency in charge of enforcing discrimination laws.
·
Weiss
initiated a disciplinary process against Jones, writing him up on several
occasions for what amounted to trumped up charges of poor performance, all
after Jones complained of the discrimination. HR director Fulks
was complicit in the write ups, providing Weiss with the format to use to
document the poor performance.
·
When
Jones returned from a month-long disability leave due to the “on-the-job
harassment,” Weiss and other management responded by excluding him from
important meetings, and telling him he had burned a bridge with the company.
·
When
Jones finally resigned, almost a year after making his initial complaint, the
company responded by referencing Jones’ so-called performance issues, telling
him, “…despite (management’s) efforts and attempts to assist you to improve
your work performance, (we) believe you made the best decision for yourself.”
What Constitutes Adverse
Employment Action?
Among the most noteworthy issues in the case is the standard the Court of Appeal used to establish an “adverse employment action.” The court focused on the “totality of the circumstances,” rather than a single event such as a demotion or firing. This means that the sum of a number of more subtle negative incidents can add up to retaliation in the eyes of the law.
In its decision, the court noted that, “…(the law) must be interpreted broadly to further the fundamental antidiscrimination purposes of the FEHA. Appropriately viewed, (an employee is protected) against unlawful discrimination with respect not only to so-called ‘ultimate employment actions’ such as termination or demotion, but also (to) the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.”
What You Should Do
As with all claims of discrimination, it is best to err on the side of caution and investigate every claim carefully. Most importantly:
·
Review
your company discrimination policies with employees and supervisors,
making sure everyone knows your company will not tolerate discrimination
of any kind.
·
Investigate
all claims promptly, and correct any problems right away – without penalizing
the individual(s) who brought the complaint.
·
Train
all employees about harassment, discrimination and retaliation
·
Check
in with complaining employees after the investigation to see how they are doing
and investigate any complaints of retaliation
·
Purchase
The Ison Law Group’s recently published pamphlet on harassment and retaliation
prevention entitled “Harassment in the Workplace” and distribute them to all
employees. The pamphlet is in English
and Spanish and also has photos for those who cannot read. Contact us for more information. We promise
that this pamphlet will provide an extra layer of protection against harassment
and retaliation claims.
·
For
Best Practices on Preventing Sexual Orientation Discrimination and Harassment
in the Workplace, contact Pat
Luzuriaga. This is The Ison Law
Group’s newest training offering. Please
call our office for a cost quote. The
Ison Law Group’s newest trainer, Sheri Atkinson, is the Director of
the Lesbian, Gay, Bisexual,