When an employer or supervisor requires an employee to engage in sex to keep their job or receive some job benefit like a raise or promotion, that’s quid pro quo harassment. California’s FEHA law (Fair Employment and Housing Act) prohibits quid pro harassment and permits the employee to sue both the employer and the harasser.

See, Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607. See, CACI 2520.

As one court explained:

“A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put. To state a cause of action on this theory, it is sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome sexual advances.”

(Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414, internal citations omitted.) 

Sometimes an employer has some policy or practice that appears to be fair to everyone but, in the real world, has negative consequences for certain employees only. If the employees who suffer are members of a protected class, then the policy is said to have a disparate impact and it is illegal.

For example, if a clothing store has a policy that they only hire employees who are over 6 feet tall, then this would have a negative impact on women because they are less likely to be 6 feet tall than men. or other protected classes getting jobs. If the policy has no legitimate business purpose, then it is employment discrimination.

See, CACI 2502 and Government Code, § 12940. 

Sometimes an employer knows it is wrong to fire an employee, so the employer makes the employee so miserable that the employee has no other choice but to quit. In those cases, the employer has constructively terminated the employee. The law treats employees who have been constructively terminated as though they had been fired even though they quit.

 

“[C]onstructive discharge occurs only when an employer terminates employment by forcing the employee to resign. A constructive discharge is equivalent to a dismissal, although it is accomplished indirectly. Constructive discharge occurs only when the employer coerces the employee’s resignation, either by creating working conditions that are intolerable under an objective standard, or by failing to remedy objectively intolerable working conditions that actually are known to the employer. We have said ‘a constructive discharge is legally regarded as a firing rather than a resignation.’ ”

(Mullins v. Rockwell Internat. Corp. (1997) 15 Cal.4th 731, 737, internal citations omitted.)

A hostile work environment is one in which the harassment has become so frequent or horrible that the victim’s working conditions are changed for the worse. For there to be a hostile work environment, the harassment has to be aimed at a protected class.

For example, if a supervisor at a tech company frequently makes comments about women being bad at coding, or perhaps sends emails with cartoons making fun of women, then a hostile work environment may exist. If, however, the supervisor is angry and hostile to all of the employees, both men and women, then, even though it is unpleasant, the work environment is not, from a legal perspective, “hostile.” 

An employee is wrongfully terminated if he or she is fired for an illegal reason. The reason may be illegal because it violates an established law or because the firing goes against a public policy.

A firing may constitute a wrongful termination because it violates the law prohibiting discrimination based on protected classes. Even if the firing violates no law, it may still be considered a wrongful termination and, therefore, illegal if it goes against an established policy of the state. For example, firing an employee because they were selected for jury duty is a wrongful termination because the California Constitution supports people serving on juries.

See, CACI 2430. 

Disparate treatment means “different treatment.” Disparate treatment is illegal when it is aimed at an employee or independent contractor because of their membership in a protected class.

Most often, illegal disparate treatment results in an employee not getting a raise, being passed over for a promotion, being assigned an undesirable shift or job duties, or being fired because of a characteristic they have which belongs to a protected class. For example, being male or female is a characteristic of the protected class gender; being Muslim, Catholic, Jewish, or Hindu is a characteristic of the protected class religion.

See, CACI 2500 and Government Code, § 12940. 

It depends. Does your employer retain the right to control the how you perform your work? If yes, then you are an employee. If no, than you are an independent contractor. If maybe, then the Court will consider these additional questions:

  • Are you engaged in a distinct business?
  • Is your job usually done with or without supervision?
  • What skills does your job require?
  • Do you supply the tools, instruments and the place of work?
  • How long do you work?
  • How are you paid? By time or by the job?
  • Is the work part of the regular business of the company?
  • Did you or the company believe you were creating an employer-employee relationship?

These questions usually raise complicated and detailed answers. A judge or jury will weigh the answers to these questions to determine whether a person is an employee or independent contractor.  As discussed here, the answer makes a difference as to how employment laws may be enforced.

 Yes! The law provides greater protection for an employee than an independent contractor. Anti-discrimination, anti-retaliation and rest break laws protect employees not independent contractors. State agencies such as the Division of Labor may enforce the laws for employees; but independent contractors must seek remedies from the Court under contract law.