Recently a California jury awarded 249 exotic dancers $6.5 million for unpaid wages. The jury found that their employer, Paradise Showgirls, violated the Labor Code that prohibits a Club from taking a portion of the dancers’ tips or requiring a divestment of payments for services. The exotic dancers are employees, not independent contractors, and thus need not contribute any portion of what they earn to defray the Club’s overhead.
The law prohibits employers from making decisions regarding employees based upon protected classes. But what is a protected class?
Protected classes are certain categories of specific, personal characteristics. For example, gender is a protected class. That means, an employer may not make decisions regarding employees based upon the employee’s gender. An employer cannot fire, demote, or take another adverse job action against an employee because the employee is a woman or because the employee is a man. In fact, the employee’s gender may not be the reason the employer takes any adverse action at all.
The laws recognizes the following protected classes:
- gender (or sex),
- national origin,
- age (over 40 only),
- familial status, and
- veteran status.
Additionally, California’s Fair Employment and Housing Act (“FEHA”) law expands the list of protected classes to include medical condition, sexual orientation, and gender identity. See, Gov. Code, §§ 12940, 12945, and 12945.2.
Some cities in California expand the list even further. For example, Santa Cruz and San Francisco both make it illegal to discriminate in the workplace against someone based on their weight. Santa Cruz also includes “physical characteristic” in its protected classes.
Harassment is unfair conduct targeting an employee or a group of employees based upon a protected class. Harassment can be verbal, physical, or visual (such as posters, cartoons, or drawings). See, Cal. Code Regs., tit. 2, §7287.6(b)(1).
For example, if employees frequently refer to a back co-worker as “boy” or use racial slurs, then that is harassment.
An independent contractor is a person who an employer hires to complete a project. The employer does not have control over how the project is completed. In California, a person hired to do something for the benefit of another is assumed to be an employee unless the employer proves otherwise. See, Labor Code, § 3357.
For example, if a small donut shop hires a web designer to build a website for the business and agrees to pay a set amount for the project, then the web designer is an independent contractor and not an employee.
An employee is a person hired by employers to do something for the employer’s benefit or for the benefit of the employer’s customers. An employer has the right to control how the employee does their work is done by the employee. See, Labor Code, § 2750.
An employer cannot fire, demote, refuse to hire, or take other job actions concerning employees based on the employee’s
- veteran status, or
- any other protected class.
For example, if a clothing store decides to give raises only to non-Latino employees because it wants the store’s appearance to match a changing community, then that would be employment discrimination.
Another example, if a large car dealership decides to fire the one employee who refuses to work on Saturday because of his religious beliefs, then that would be employment discrimination.
See, Government Code, § 12940.
Retaliation involves an employer taking adverse employment action against an employee because the employee opposed any workplace harassment or discrimination forbidden by law, or because the person filed a complaint, testified, or assisted in any proceeding
An employer faced with an allegation of discrimination resulting from disparate impact can defend against the allegation by claiming business necessity. To use this defense, the employer must prove that there was a real business purpose behind the workplace practice or policy that resulted in discrimination. There must also be no other way to achieve the same business purpose without having a discriminatory impact. This defense does not exist for employers facing claims of disparate treatment.
California’s law protects employees not only from so-called ultimate employment actions such as termination or demotion, but also from any adverse employment action – i.e. the entire range of employment actions that are likely to have a substantial negative impact on an employee’s job or career.
Although offensive or rude comments or even repeated social slights by an employer or co-workers may not be viewed as sufficient to negatively impact an employee’s job or career, the law is designed to have a broad reach in order to protect employees against employment discrimination.
Minor or trivial actions by employers or co-workers that, from an objective perspective, are likely to do no more than upset an employee are considered insufficient to negatively impact an employee’s job or career. The antidiscrimination laws were not designed to protect against such minor or trial actions. See, Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1053–1055.