San Francisco Employment Law Firm Blog

The recently published case, DFEH v Lyddan Law Group, decided by the agency that reviewing DFEH decision, reaffirms that fact that an employee is unlikely to prevail on a racial discrimination/harassment claim when his/her boss makes racial jokes, off-color comments with regard to different races in an apparent desire to entertain himself and his colleagues and staff members. As inappropriate and as offensive racist jokes at workplace might be, especially when they originate from a manager who is an attorney-partner in a San Francisco law firm, like it was in this case, these jokes do not mean that the alleged harasser discriminates or that he creates an hostile work environment, especially if the relationship between him and the alleged victim is otherwise good and if the alleged victim does not complain about the harassment and does not make it known in any way that he/she is unhappy about the comments she hears.

Both, the Department of Fair Employment and Housing and the Court will require more than isolated racist jokes to find racial harassment or discrimination at workplace. Not all conduct at workplace that can be described as harassing creates liability under FEHA and the related anti-discrimination laws. As the Supreme Court has stated, the statutory protections against harassment do not create a "general civility code." Oncale v. Sundowner Offshore Services (1998) 523 U.S. 75, 81. There has to be a showing that the employer created or failed to remedy objectively intolerable working conditions for the victim. The requisite standard involves a shoring that the harasser's conduct would have interfered with a reasonable employee's work performance, seriously affecting the psychological well-being of a reasonable employee and that the alleged victim was actually offended. As the court stated in Aguilar v. Avis Rent A Car System, Inc., (1999) 21 Cal.4th 121, 130, "not every utterance of a racial slur in the workplace violates the FEHA or Title VII."

In this particular case, the DFEH also hinted in their decision that they also believe that at least one reason the employee brought a claim for racial discrimination against her boss was that she was denied her annual bonus and salary increase in a prior year.

Like any other kind of employment discrimination, proving age discrimination at workplace is anything but easy. Some employees believe that being terminated at the age of over 40 means they have a wrongful termination claim based on age discrimination. While the termination itself if one factor that may point at age discrimination, if this were all that need to prove the age case, every person over 40 who was terminated would have had a discrimination claim. This would of course be an absurd.

It is useful to know however what facts can be helpful in prosecuting a lawsuit for age discrimination. The First Appellate District provides a useful guidance in Stephens v. Coldwell Banker Commercial Group, Inc. 199 Cal.App.3d 1394 (1988). Like pretty much all other courts, the Stephens court began analyzing the jury's verdict by noting that in most employment discrimination cases , direct evidence of the employer's discriminatory intent is unavailable or difficult to dispute, and therefore an indirect method of proof is required. Thus, to establish the initial claim for age discrimination, the employee has the burden of proving that he was within a protected a class (over 40), that he was performing satisfactorily, and that he was terminated or demoted under circumstances which give rise to an inference of unlawful discrimination. Once the initial claim is shown, the employer has to produce evidence that plaintiff was demoted or terminated for legitimate, non-discriminatory reasons. Plaintiff then has an opportunity to prove that a discriminatory reason more likely motivated the employer or that the employer's proffered explanation for termination or demotion is unworthy of belief in pre-textual as a cover-up for discrimination. As you can imagine, once an employee meets the initial burden, the employer will do its best to show that it had a legitimate reason for taking action against the employee. The most common proffered reasons for firing are misconduct, poor performance, insubordination or even reduction in force. It's easier for employers to use poor performance as a justification for termination because it is such a subjective matter, where employer under the law have discretion in determining for themselves whether they are satisfied with the employee's work. However, this doesn't mean that all is lost for the victim of age discrimination. Just because the employer argues that the employee was a bad worker, doesn't mean the employer wins the case.

There are several useful tools in the employee's arsenal to rebut or make the poor performance argument less believable to the jury/judge. First, long tenure of service for the employer is a major element of showing that the employee was likely not terminated because of poof performance. After all, if plaintiff was such a bad worker, why did the employer keep him/her around for so many years. in Stephens, the plaintiff was employed with the defendant-employer for nearly 30 years before being terminated for "poor performance." But, even a shorter, but still significant career length with the employer will cast doubt on why the employer kept a certain employee around if they were not happy about the quality of his work, especially if the employee has a documented past of good performance, such as promotions, awards, bonuses, positive performance reviews and alike.

The second, very important fact is when the plaintiff was replaced by someone significantly younger. In Stephens, shortly after plaintiff was terminated, a person 26 years younger was hired in to fill his position.

Other factors suggesting age discrimination are any statements that would suggest that the employer wanted the older employee out, such as encouraging the employee to retire and calling him derogatory names such as "old times," "father," "old man," "grandpa" and alike. In Stephens, the plaintiff's new supervisor made several inquiries about his retirement plans. Once it was clear that plaintiff had no plans to retire, several memos was written by the same supervisor criticizing plaintiff's management of the flood building. It is helpful if the plaintiff cab actually rebut the accusations of deficiencies in his performance. This is easier to do if the purported deficiency can be objectively measured (such as tardiness that might be possible to be tracked through time cards, production volume, etc...).