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Disparate treatment discrimination can occur when an employee who belongs to a protected class is treated differently, specifically because of their protected class status.1
In rare circumstances, the employee has direct evidence of unequal treatment, such as a manager who admits he terminated an employee because of race. However, in most cases, the employee does not have direct evidence and must prove their case by inference.
In a failure-to-hire case, the applicant bears the initial burden of establishing the following four criteria:
Similar criteria can be applied to employment decisions other than hiring, such as promotions or terminations.3 To establish discrimination in cases related to employment decisions, the employee must initially establish the following four criteria:
If an employee shows that they were forced to leave employment because of intolerable or discriminatory working conditions, disparate treatment may have occurred.5
You can dispute a disparate treatment claim by showing that either:
If you are able to demonstrate a legitimate, nondiscriminatory reason for your action, the employee must then prove that your action was motivated by a discriminatory reason or that your stated explanation is untrue.6
One of the elements an employee must prove in either a disparate treatment discrimination case or a retaliation case is that the employee experienced an “adverse employment action.”
Neither federal nor state anti-discrimination laws specifically define “adverse employment action.” The Ninth Circuit Court of Appeals and the California Supreme Court each expressed different views on what constitutes an adverse employment action.
The Ninth Circuit Court of Appeals, relying on the definition that is contained in the Equal Employment Opportunity Commission (EEOC) Compliance Manual, uses a “deterrence test.” Under the deterrence test, an adverse employment action is an action that is reasonably likely to deter employees from engaging in a protected activity.7 This type of adverse employment action can include a lateral transfer,8 poor performance ratings,9 exclusion from activities that would lead to salary increases, denial of secretarial support, a more burdensome work schedule10 or an unfavorable job reference.11
The California Supreme Court takes a more restrictive view in interpreting FEHA. The California Supreme Court agrees with the federal courts that an adverse employment action is not limited to “ultimate” employment acts, such as hiring, firing, demoting or failing to promote an employee. But, the employer’s action must result in a substantial adverse change in the terms and conditions of the plaintiff’s employment. A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.12
An action is minor if, from an outside perspective, the action is not likely to do more than anger or upset an employee. Minor actions do not materially affect the terms, conditions or privileges of employment and do not qualify as discrimination. But an employee can claim discrimination for adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion.13
The U.S. Supreme Court recently issued a decision holding that a lateral job transfer can be discriminatory under Title VII when the transfer brought some harm to the employee, rejecting some circuit courts’ precedents that the employee must show the lateral transfer caused “significant” harm.14 Though the employee retained the same title and pay after transfer, her duties were different. She worked a less desirable schedule on less prestigious matters, no longer working alongside high-ranking individuals as she had done, instead performing more day-to-day administrative duties and losing other perks. This was enough for the Supreme Court to sustain an action under Title VII.
Employers should carefully consider all circumstances when making lateral transfers to ensure their policies and practices align with the law. Specifically, employers must go beyond ensuring that someone’s salary, benefits or rank remain the same when transferring positions and should determine whether other terms and conditions of employment will change, such as the employee’s schedule, perks, work location or anything else that could potentially be disadvantageous in the eyes of the transferred employee.
Some discrimination cases involve “mixed motives.” The employee has evidence of unlawful discrimination, but the employer can show that it still would have made the decision to terminate the employee for legitimate, nondiscriminatory reasons, such as poor performance.
Under California law, discrimination will be established if a preponderance of the evidence demonstrates that discrimination against a protected class was a “substantial motivating factor” in the denial of an employment benefit and the denial is not justified by any permissible defense.
Under California regulations, a substantial motivating factor is a factor that a reasonable person would consider to have contributed to the denial of an employment benefit. It must be more than just a remote or trivial factor, but it does not have to be the only cause of the denial. This standard applies only to discrimination and retaliation claims; not to other prohibited practices, such as harassment, failure to accommodate or failure to provide leaves.15
“Preponderance of the evidence” generally means that it is more likely than not that the evidence supports the claim. Some refer to it as a requirement that at least 51 percent of the evidence supports the claim.
In Harris v. City of Santa Monica, the California Supreme Court ruled that an employee in a discrimination lawsuit bears the burden of showing that discrimination is a “substantial motivating factor” in the adverse action taken against the employee. If the employee cannot show this, the case is over and the employer prevails.
If the employee can show discrimination was a substantial factor motivating termination, but the employer can show it would have made the same decision anyway for legitimate, lawful reasons, liability is significantly lessened. The court ruled that if an employer can prove that it would have made the same decision anyway, based on its lawful, nondiscriminatory reason standing alone, the employee is not entitled to damages, back pay or reinstatement. This includes emotional distress damages. Other non-monetary relief and attorneys’ fees may still be available to the employee.16
The court noted that the FEHA prohibits discrimination that causes an employer to refuse to hire someone, to terminate someone or to otherwise discriminate against a person in the terms and conditions of employment.
“Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision,” the court’s ruling stated.
For more information, please see Remedies Under FEHA.
The U.S. Supreme Court potentially expanded employer liability for discrimination and harassment claims when it ruled in 2011 that an employer can be liable for wrongful termination even if the manager who ultimately makes the termination decision acted with no discriminatory intent.
In Staub v. Proctor Hospital, Staub was a military reservist. He claimed that two of his immediate supervisors demonstrated bias against him because of his military status and military obligations. These two supervisors allegedly passed on false information to the vice president of HR in an attempt to have Staub fired.
The VP relied on that information in deciding to terminate Staub. The employer claimed that there was no evidence that the ultimate decision maker, the VP, had any hostility toward Staub based on his military status. Staub argued that the VP’s decision to terminate him was based on the reports by his supervisors that reflected their bias against him. The Court sided with Staub.17
Though this case involved military leave, the analysis will apply to discrimination claims. Simply having a centralized person, such as the HR director, doing the hiring and firing will not insulate an employer from liability from supervisors who engage in discriminatory conduct.
1. Golden v. International Assn. of Firefighters Local 55, 633 F.2d 817 (9th Cir. 1980)
2. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
3. Flowers v. Crouch-Walker Corp., 552 F.2d 1277 (7th Cir. 1977)
4. Guz v. Bechtel National, Inc., 24 Cal. 4th 317 (2000)
5. Satterwhite v. Smith, 744 F.2d 1380 (9th Cir. 1984)
6. Reeves v. Safeway Stores, 121 Cal. App. 4th 95 (2004)
7. Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000)
8. St. John v. Employment Development Department, 642 F.2d 273 (9th Cir. 1981)
9. Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987)
10. Strother v. Southern California Permanente Medical Group, 79 F.3d 859 (9th Cir. 1996)
11. Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997)
12. Akers v. County of San Diego, 95 Cal. App. 4th 1441 (2002)
13. Yanowitz v. L’ Oreal USA, Inc., 36 Cal. 4th 1028 (2005)
14. Muldrow v. City of St. Louis, 601 U.S. 346 (2024)
15. 2 CCR sec. 11009
16. Harris v. City of Santa Monica, 56 Cal.4th 203 (2013)
17. Staub v. Proctor Hospital, 131 S.Ct.1186 (2011)