Terminating the Employment Relationship

A. D ISCRIMINATION C LAIMS A discrimination claim, which is also referred to as a “disparate treatment” claim, occurs when an employee is treated differently than other similarly-situated employees because the employee belongs to a protected class or is a member of a certain group. Discrimination claims most often arise under the California Fair Employment and Housing Act (“FEHA”) or Title VII of the federal Civil Rights Act of 1964 (“Title VII”). However, there may be other unlawful bases for discrimination, such as discrimination based on union membership. The key to avoiding discrimination claims is to treat all employees in a consistent and even-handed manner. California’s FEHA (Gov. Code, §§ 12900, et seq .) prohibits discrimination based on the following protected classes: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex (includes pregnancy, breastfeeding and conditions related to pregnancy), gender, gender identity, gender expression, age (40 and over), sexual orientation, and military and veteran status. 36 Under federal law, Title VII prohibits discrimination in employment based on race, color, national origin, religion, sex and pregnancy, 37 while the Americans with Disabilities Act, Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act prohibit discrimination based on disability, age, and genetic information, respectively. An employee may prevail in a discrimination lawsuit if he/she can prove that discrimination was a substantial motivating reason for the termination. 38 Accordingly, managers and supervisors should examine a proposed termination to make sure that the misconduct is consistent with discipline proposed and/or taken against other similarly situated employees who have engaged in similar misconduct. B. R ETALIATION C LAIMS Retaliation claims may arise when an employee is terminated after the employee engages in an activity protected by statute. The most common retaliation claims arise under FEHA and involve an employee who claims s/he was terminated after complaining about discrimination or harassment. Other common retaliation claims arise when an employee is terminated after s/he has exercised free speech rights or complained regarding unlawful conduct in the workplace. a. FEHA California’s FEHA prohibits employers from retaliating against an employee for opposing a discriminatory practice or for filing a complaint, testifying or assisting in any proceeding under FEHA. 39 For example, if an employee submits a sexual harassment complaint or participates in an investigation of a sexual harassment complaint submitted by another individual, and is then terminated for doing so, the employee may assert a retaliation claim. Employers must be aware of an employee’s history of complaints or participation in investigations of complaints. A complaint should not stop an employer from moving forward with an otherwise legitimate termination. Nevertheless, an employer should make sure the 1. A CTIVITIES P ROTECTED BY FEHA/T ITLE VII

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 29