Preventing Discrimination, Harassment, and Retaliation in California Law Offices

• Publication year: 2013
• Author: By Michael C. Robinson, Esq.Sessions & Kimball, LLC

Preventing Discrimination, Harassment, and Retaliation in California Law Offices

By Michael C. Robinson, Esq.Sessions & Kimball, LLC Introduction

Attorneys and law offices are sometimes subject to claims for employment discrimination, harassment, and retaliation, despite being owned and operated by members of the bar with extensive knowledge of the law. Law firms are just as susceptible to employment law claims as other types of employers in California.

In Weeks v. Baker & McKenzie,¹ a law firm was subject to a multimillion dollar verdict for a partner’s sexual harassment of a secretary. This verdict demonstrates that law firm employers must be aware of the ever-evolving laws regarding discrimination, harassment, or retaliation, and must be constantly vigilant to ensure that these do not occur in their offices.

The goal of this article is to prevent discrimination, harassment, and retaliation in law offices by explaining the basic laws prohibiting such conduct. Caveat: There is a substantial amount of room for argument on these issues and there is frequently new case law further defining employers’ duties and employees’ rights. Therefore, each individual situation where these issues arise should be reviewed and analyzed by an independent attorney with working knowledge of employment law to determine how to address a particular situation.

Applicable Law Regarding Protected Categories of Employees

Employees may be terminated at any time by either the employee or employer for any reason or no reason at all, but not an illegal reason.

The California Constitution, Article I, § 8 prohibits discrimination and harassment by all employers on the basis of sex, race, creed, color, and national or ethnic origin. Any employer can be sued for discrimination or harassment on these bases because of the public policy behind the California Constitution.²

The California Fair Employment and Housing Act (“FEHA”) governs employers with five or more employees.³ This number includes partners, of counsel, part time employees, and any person who acts as an agent for the firm.⁴ FEHA applies to any non-profit law firm with five or more employees.⁵ Individuals within the law firm cannot be personally liable for discrimination or retaliation under FEHA, but may be personally liable for harassment.⁶

FEHA prohibits discrimination, harassment, and retaliation against an employee or applicant in compensation or in terms, conditions, or privileges of employment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age [over 40], or sexual orientation or because the employee is associated with a person who is in one of those protected categories.⁷ An employer cannot fire, demote, refuse to hire or promote, or refuse to select the person for training based on these protected categories.⁸

The federal counterpart of FEHA is 42 USC § 2000e-2(a) (“Title VII”), which applies to employers with fifteen or more employees. This number does not include shareholding partners in the firm.⁹ Individuals in the firm cannot be held personally liable under Title VII.¹⁰ Title VII does not apply to federal government agencies.¹¹ Title VII prohibits discrimination against an individual based on his or her race, color, religion, sex, or national origin.¹² Other federal laws prohibit discrimination of an employee based on age and disability.¹³

California discrimination law is rarely preempted by federal law except where state law allows practices prohibited by federal law. Employees typically choose to bring these claims under California law because it has longer deadlines, covers more employers, and does not require a unanimous jury to prevail as federal courts do.

Discrimination

Discrimination occurs when an employer takes an adverse employment action against an employee because of a protected status. An “adverse employment action” is any significant change in the terms, conditions, or privileges of employment, which includes termination, demotion, failure to transfer, failure to promote, or reduction in pay or hours, because of an employee’s legally protected status or activity.¹⁴

Employees may be terminated at any time by either the employee or employer for any reason or no reason at all, but not an illegal reason.¹⁵ This is “at will” employment. California law office employees are presumed to be “at will,” unless they have an agreement to work for the firm for a specified period of time. ¹⁶

Discrimination can be proven as “disparate treatment,” where an employee has suffered an adverse employment action because of his or her protected status.¹⁷ For example, an associate who is terminated because she is age 65. Discrimination by disparate treatment requires proof of discriminatory intent.

An employee must show a causal link between the protected status and the adverse employment action.¹⁸ Statements by the decision maker, such as racist or sexist comments, are direct evidence of animosity toward a person based on their protected status.¹⁹ A supervisor’s discriminatory animosity towards an employee may be imputed to the final decision maker if the supervisor took some action against the employee, such as a written reprimand, that was motivated by animosity towards the employee’s protected status.²⁰

Discrimination may also be proven by a “disparate impact,” where an employee suffers an adverse employment action because of a discriminatory policy against her protected status.²¹ An example of this would be a glass ceiling situation where no women are made partners because of their sex. This type of discrimination does not require a showing of discriminatory intent.²²

Most discrimination cases are proven by indirect or circumstantial evidence. This requires a three part analysis, which is known as the McDonnell Douglas analysis.²³ First, the employee must show a prima facie showing of discrimination.²⁴ This requires the employee to show she was a member of the protected class, she was qualified for the position, she suffered some adverse employment action [such as termination, demotion, failure to hire or promote], and circumstances suggest a discriminatory motive [such as an unfavorable double standard between employees in the protected class and those outside the protected class.]²⁵

The burden then shifts to employer to prove it had a legitimate, non-discriminatory reason for the adverse employment action that is unrelated to the prohibited bias.²⁶ This is a minimal burden because the employer can rely on reasons that are “foolish or trivial or even baseless,” so long as they are honestly believed.²⁷ Even a “personal grudge” may be sufficient to prove a non discriminatory reason for the adverse employment action.²⁸

Finally, the employee must prove that the alleged nondiscriminatory reason is a false pretext to cover the discriminatory motive.²⁹ The employee must prove that the alleged non discriminatory reason is false and the termination was actually motivated by a discriminatory animosity toward the protected status.

FEHA requires that an employer take all reasonable steps to prevent discrimination and harassment.³⁰ FEHA also...