Failure to Prevent Discrimination

Discrimination is, quite simply, unequal treatment of individuals for reasons which have nothing do with legal rights or abilities. It may be preferential treatment exhibited towards another individual, unfair practices carried out against the victim, or refusal to allow a person onto grounds or the same rights as another for arbitrary reasons. According to Title VII of the Civil Rights Act of 1964, individuals cannot be discriminated against for possessing the following traits:

• National origin
• Religion
• Sex (including pregnancy, childbirth, etc.)
• Race
• Color
• Disability
• Age (40 and older)
• Citizenship status
• Genetic information

These classes have been protected in other laws. For example, the Americans with Disabilities Act of 1990 specifically pertains to those who have been left physically handicapped or who need accommodations to work, while the Age Discrimination in Employment Act of 1967 specifically dealt with those individuals who were over the age of 40 suffering discrimination. Other amendments include the Pregnancy Discrimination Act and the Equal Pay Act of 1963.

Discrimination in California is not defined any differently than it is defined Federally. However, California does have other protected classes; therefore, there are numerous ways that individuals can be discriminated against in the state. They may be targeted for possessing the following qualities, traits, or characteristics:

• Ancestry
• Marital status
• Sexual orientation
• Gender identity and gender expression
• AIDS/HIV infliction
• Military or veteran status
• Victim of domestic violence, assault, or stalking
• Medical condition
• Political activities or affiliations

According to California State Law (Cal. Gov’t Code § 12940, title 2. Government of the State of California, Division 3. Executive Department, Part 2.8. Department of Fair Employment and Housing, Chapter 6. Discrimination Prohibited, Article 1. Unlawful Practices):

• (j) (1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because 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, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.

Yes, according to California law, your employer must do all he can to prevent harassment or discrimination. The very next section of the aforementioned law states the following:

• (k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.

It is extremely important to understand, though, that there must have been harassment or discrimination that occurred in order to take legal action and show that your employer was negligent in his duty to prevent the action in the first place. In 2015, in Dickson v. Burke Williams, Inc., it was ruled that an employer cannot be held liable for the failure to prevent sexual harassment if none occurred.

As an employee, you can be discriminated against in both personal and professional manners. Discrimination can take the form of harassment for your religion or sex, or it can be done to prevent you from moving vertically within the company. A few examples of discrimination include:

• Passed over fro promotions
• Denied raises
• Targeted for your race, religion, sex, and more
• Bullied for your traits
• Passed over for c3ertain assignments or openings because of your age
• Refused benefits
• Denied medical leave or other kinds of leave
• Reduction of hours
• Reduced pay
• Lesser salary offers
• Violation of civil and employee rights like denial of lunch break
• Wrongful termination

Often, workers may not be able to identify discrimination because they do not see the other end of the spectrum. You should observe the interactions that other employees have with management and with other coworkers; if you are treated differently, or if you are purposely excluded from activities and promotions, you may be facing discrimination. However, if all people are subjected to poor management and unfair decisions, the mistreatment may simply be due to a poor boss.

If you have been discriminated against, it is important that you collect as much evidence as you can of the discrimination. Your first step should always be to address the issue with the perpetrator, whether it’s your boss or another coworker, and try to figure out the issue and solve it. However, this is seldom effective, as many individuals will outright deny the discrimination happened. It is then necessary for you to pay a visit to your Human Resources Department to file a complaint. You should keep all copies of any complaints you file, and try to receive both a paper and electronic trail. The reason is simple: Human Resources works for the company and protects the company from matters within it; in terms of priorities, the company comes before workers, and your claim and complaint may be ignored. Worse, the decision may be made to simply terminate you instead of trying to create a solution. You should make it a point to document the discrimination as it happens, whether by recording it in a journal, recording audio clips with your cell phone, making copies of documents that show disparate pay, noting the differences in promotions, and more. If fellow coworkers were also discriminated against in such a manner, you should interview them for their statements and testimonies. The issue, though, is that many workers may fear for the preservation of their jobs; they may believe that, by voicing their opinions or providing you with testimony, they will lose their careers. In some cases, this is true; employers will retaliate against workers by firing them or forcing them to quit due to an increase in discrimination and harassment, leading to a toxic work environment.

Liability for discrimination is often attributed to the employer. According to the law, your employer must do all he can to prevent discrimination. He must not partake in any actions that could shield himself from being aware of the discrimination and he cannot refuse to hear complaints. He also may not be legally allowed to hire certain individuals who have a history of harassing behaviors or who cannot legally be near others. The individuals carrying out the discrimination or harassment may also be held liable, but they cannot be held accountable for preventing the harassment from occurring.

You have 300 days from the harassment to file a lawsuit against your employer. You will have to submit a letter DFEH (Department of Fair Employment and Housing) to be considered; if they agree that there is enough evidence for you to sue, you will be able to take legal action. If you plan to sue a government entity, though, the statute of limitations is greatly reduced to 90 days from the date of the harassment. A common reason that many individuals do not take action against their employers for failure to prevent discrimination is simply because they run out of time or they do not know how much time they have to file a claim.

Employees who have been discriminated against and whose employers failed to prevent the discrimination or harassment from occurring can receive ample compensation for their damages. These damages may include back pay for wages that were missed due to termination or refusal of benefits, future pay for additional income that could not be earned due to severance or due to an inability to find a job in a reasonable amount of time, punitive damages for mistreatment or gross negligence by the company, and more.