Discrimination: Trends and Challenges in Today’s Workplace
July 28, 2011
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On July 28, 2011, Miller Law Group presented a webinar exploring the latest trends in federal and California employment discrimination law, including the challenges of managing an aging workforce, increased diversity of religious beliefs, emerging gender and disability issues at work, and more. The following are answers to frequently asked questions by webinar attendees.
Q: WHAT IS THE DIFFERENCE BETWEEN RACE AND COLOR DISCRIMINATION?
A: Race and color discrimination overlap, but they are not synonymous; they are separately listed as protected characteristics under Title VII and California’s Fair Employment and Housing Act (FEHA). According to the U.S. Equal Employment Opportunity Commission (EEOC), race discrimination involves treating an applicant or employee unfavorably because of race or because of personal characteristics associated with race, such as hair texture, skin color, or facial features. Color discrimination, on the other hand, involves treating someone unfavorably because of skin color -- pigmentation, complexion, or skin shade or tone. Color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity.
Q: IF WE PROVIDE EXTRA BREAKS TO EMPLOYEES AS A RELIGIOUS ACCOMMODATION FOR THEIR PRAYER, DO WE HAVE TO PROVIDE EXTRA BREAKS TO ALL EMPLOYEES IN ORDER TO AVOID A REVERSE DISCRIMINATION LAWSUIT?
A: No, unless an employee of a different faith requires similar prayer breaks as a religious accommodation. Employers, however, should seek legal counsel before paying employees for extra break time that is granted for religious reasons, as employees have filed reverse discrimination claims on the grounds that the extra pay amounts to preferable treatment on the basis of religion.
Q: AT WHAT POINT CAN AN EMPLOYER CLAIM THAT A PROPOSED RELIGIOUS ACCOMMODATION AMOUNTS TO AN UNDUE HARDSHIP FOR THE EMPLOYER?
A: Employers are only required to provide a religious accommodation if it would not pose an undue hardship. An accommodation may pose an undue hardship if it would cause more than “de minimis” costs on the employer’s business operations. Depending on the situation, the following factors should be considered: type of workplace, the nature of the employee’s duties, the cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will need a particular accommodation.
In terms of what costs can be considered, costs may include direct monetary costs but also the burden on the employer’s business. For example, undue hardship could exist where the proposed accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, interferes with workplace safety, or results in co-workers carrying the accommodated employee’s share of burdensome or hazardous work. Religious accommodations that infringe on co-workers’ rights or the ability to perform their duties will generally constitute undue hardship. By contrast, general disgruntlement, resentment, or jealousy by co-workers about the proposed accommodation will not suffice to show undue hardship.
Of course, if an employee’s proposed accommodation would pose an undue hardship, that’s not the end of the employer’s accommodation obligation. The employer is still required to explore with the employee whether there are alternative accommodations that could solve the religious conflict without undue hardship.
Q: CAN YOU EXPLAIN THE “CAT’S PAW” THEORY OF LIABILITY IN DISCRIMINATION CASES?
A: Under the “cat’s paw” theory, an employer may be held liable for the discriminatory animus or intent of a biased supervisor, even if that supervisor was not the decision maker in the challenged employment decision, so long as the employee can demonstrate that the employer’s decision was in fact influenced by the biased supervisor. Recently, in a case involving retaliation under the Uniformed Services Employment and Reemployment Act (USERRA), the U.S. Supreme Court upheld the “cat’s paw” theory of liability, finding that “if a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.”
Q: ARE THERE STEPS EMPLOYERS CAN TAKE TO MINIMIZE THE RISK OF CAT’S PAW LIABILITY?
A: Yes. Measures that can help reduce the risk that a supervisor’s bias will infect the ultimate decision-making process include: 1) adopting an aggressive investigation policy that requires an independent inquiry into whether the employee should be terminated, including whether the offense actually did occur and was in violation of company policy or practice, as well as how similarly situated employees were treated for similar offenses; 2) having a comprehensive internal complaint procedure to ensure that employees have an avenue to report allegations of supervisor bias; 3) maintaining thorough and consistent documentation of performance and misconduct issues; and 4) providing training for supervisors regarding their obligations under the anti-bias laws.
Miller Law Group exclusively represents business in all aspects of California employment law, specializing in litigation, risk management, wage and hour class actions, ERISA litigation, and appellate law. If you have questions about your workplace obligations, please contact Michele Ballard Miller (mbm@millerlawgroup.com) or Carolyn Rashby (cr@millerlawgroup.com), or call 415-464-4300.
This webinar and Question and Answer Summary are presented by Miller Law Group to review recent developments in employment law. This material is designed to provide informative and current information as of the date of the webinar and should not be considered legal advice.
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