Most people who think of discrimination naturally focus on the conduct which is motivated by some discriminatory bias; things like a racist comment or a sexist joke. Without a doubt, this type of conduct will almost always be distasteful and offensive, but does such conduct without more give the employee the right to sue for discrimination? The answer to this question is “not always.”
Adverse Employment Action Under the Fair Employment and Housing Act
The Fair Employment and Housing Act (“FEHA”) makes it illegal for an employer to discriminate against a person in compensation or terms, conditions, or privileges of employment, based on that person’s protected characteristic (such as for example, race, religion, gender, etc.). The Court has interpreted this to mean that an employer cannot take discriminatory action resulting in what is commonly referred to as an “adverse employment action.” Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373.
To be actionable, the conduct must be both substantial and detrimental. Courts have explained that “minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination. Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373.
I Did Not Suffer Any Adverse Employment Action – Does That Mean I Can’t Sue?
No. That is not the case. While many claims require an employee to show an adverse employment action, not all of the claims arising under the Fair Employment and Housing Act have such a requirement. For example, an employee can sue his or her employer for harassment on the basis of a protected characteristic, even if that employee has never suffered any adverse employment action. Unlike discrimination claims, harassment claims arising under the FEHA do not require an adverse employment action.
Seeking help for facing discrimination? Contact Akopyan Law Firm, A.P.C. for Advice
Employees in Southern California with questions about this topic or those wondering if they have a case against an employer should contact Akopyan Law Firm, A.P.C. We’ll provide a complimentary evaluation and may offer contingency fee services. Trust the experts at Akopyan Law Firm, A.P.C. for proven results and positive testimonials.