The Fair Employment and Housing Act (FEHA), California Government Code §§ 12900 – 12996, California’s chief statute used to combat unlawful discrimination in employment, prohibits an employer from dismissing/discharging an employee based on his or her:
Sexual orientation (heterosexuality, homosexuality, and bisexuality), California Government Code § 12926(s);
Age (the chronological age of any individual who has reached a 40th birthday), California Government Code § 12926(b);
Gender, gender identity, gender expression, California Government Code § 12926(r)(2);
Race, color;
Physical or mental disability; medical condition, genetic information;
National origin, or ancestry;
Sex, pregnancy, childbirth, or related medical conditions, California Government Code § 12926(r),
Religious creed, California Government Code § 12926(q); or
Veteran or military status.
It is unlawful for an employer to dismiss an employee from employment because of any of the characteristics mentioned above. California Government Code § 12940(a).
Unlawful Dismissal Due to Sex or GenderIt is unlawful for an employer to dismiss an employee from employment because of the employee’s sex or gender. California Government Code § 12940(a). One of the common forms of discrimination by employers is to discriminate based on a gender stereotype—a person's nonconformity to social or other expectations of that person's gender based on the perception that the employee was a man but failed to look or act like a man or the employee was a woman but failed to look or act like a woman.
Example: A female employee, Ann Hopkins, was a senior manager at a professional accounting partnership firm when she was proposed for partnership. At the firm, a senior manager becomes a candidate for partnership when the partners at the local office name the employee as a candidate. At that point, the other partners at the firm are invited to submit written comments on the candidate. After reviewing the comments and interviewing the partners who submitted the comments, a committee then either accepts the candidate for partnership, places the partnership application on hold, or denies the application. The decision is not controlled by fixed guidelines. No certain number of positive reviews will guarantee admission as a partner, nor will a certain number of negative reviews guarantee denial of the application. There is no limit on the number of candidates that may be admitted as partners at any one time.
Ms. Hopkins had worked at the firm for five years when she was proposed as a candidate for partnership. At the time, out of 662 partners at the firm only 7 were women. Of the 88 employees proposed for partnership that year, only one—Ms. Hopkins—was a woman. Out of those candidates, 47 were admitted to the partnership, 21 were rejected, and 20—including Ms. Hopkins—were deferred for reconsideration the following year. In the statement supporting her candidacy, the partners in Ms. Hopkins' office highlighted her successful effort to secure a $25 million contract, labeling it “an outstanding performance” that was carried out “virtually at the partner level.” However, other statements noted that she was sometimes overly aggressive, harsh, difficult to work with, and impatient. There were clear signs that partners reacted negatively to Ms. Hopkins’ personality because she was a woman. She was described through sex-stereotyping comments as “macho,” "overcompensated for being a woman," and needed to take “"a course at charm school.” She was criticized for using profanity, which was noted as being objectionable only “because it's a lady using foul language." A supporter noted that she had “matured from a tough-talking somewhat masculine hard-nosed” manager. In previous years, a partner had commented that he could not consider any woman seriously as a partnership candidate.
While her candidacy was held over for reconsideration, Ms. Hopkins’ was advised to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry."
When she was later not re-proposed for partnership, Ms. Hopkins sued her employer under Title VII of the Civil Rights Act of 1964, a federal law similar to the FEHA in that it seeks to prevent undue discrimination in the workplace. She alleged that her employer had discriminated against her on the basis of sex. The U.S. Supreme Court ultimately ruled that an employer may not take gender into account in employment decisions. Once an employee shows that gender played a motivating part in an employment decision, the employer may avoid liability only by proving by a preponderance of the evidence that it would have made the same decision even if gender had not played a role in the decision. An employer who objects to aggressiveness in a woman, but the position occupied by the woman requires this trait, places her in an intolerable and impermissible predicament.
Price Waterhouse v. Hopkins (1989) 490 U.S. 228.
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Unlawful Dismissal Due to AgeIt is unlawful for an employer to dismiss an employee from employment because of the employee’s age. California Government Code § 12940(a). Under this section, age refers to individuals who have reached a 40th birthday. California Government Code § 12926(b). Many times, employers dismiss employees solely because of their age (and the associated perception that older workers are slower and less energetic, more resistant to change, or do not understand or like technology), not because they lack the ability to perform their jobs. Employees are protected from this type of unlawful dismissal.
Example: Jeannie McKenzie had been employed at a hospital for 17 years as an admitting clerk. Ms. McKenzie met or exceeded the performance expectations set by the hospital. To overcome a financial crisis, the hospital informed Ms. McKenzie and other employees that their employment was terminated, but that, upon application they would be rehired by Canfield & Associates. Ms. McKenzie was rehired as an admitting clerk. About a month later, she received a warning for leaving her department without supervisor approval. The absences were the result of Ms. McKenzie combining her lunch and break, a practice permitted by the hospital prior to the takeover. Soon thereafter, Ms. McKenzie’s job title was changed to financial counselor and she was assigned new job duties. She was then given a final warning for failing to obtain insurance authorizations for four patients, though further investigation showed that she had in fact pre-verified insurance coverage for one of the patients and that she was not to blame for the other incidents. Despite the warnings, her performance was rated as "good" or "very good" in all categories. Nonetheless, 8 days later her employment was terminated along with several other employees. In addition to the warnings, a further reason given for her termination was that she had made a racist remark, though later it was shown that another employee actually made the remark. At the time of termination Ms. McKenzie was age 40.
Ms. McKenzie sued Canfield alleging she was terminated based upon her age in violation of the FEHA. There was testimony that the individuals hired to replace Ms. McKenzie and others who were terminated around the same time were all under the age of 40. There was testimony that the president of Canfield told a replacement that he wanted “someone that's young, but not too young, someone that wears makeup, but not gaudy makeup, someone that dresses well but doesn't overdress.” Statistical evidence showed that the average age of terminated employees was 51.02 years, while the average age of retained employees was 39.2 years. However, there was also evidence that Ms. McKenzie’s duties were reassigned to an existing employee who was older than Ms. McKenzie. After a jury verdict in her favor was overturned by the trial court, Ms. McKenzie appealed. She argued that evidence that she was replaced by a person older than she was (who thus was in the age class protected by the FEHA) did not preclude the jury from inferring that she was terminated based upon her age and that the stated reasons for her termination were false and pretextual, as she had presented substantial evidence of age discrimination. The Court of Appeal agreed.
Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66.
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