I want to hire a gay minority woman that is disabled, over 40 years old and a veteran. When is discrimination/preference legal?

Q.     This past weekend I was very much moved by Memorial Day and all of the sacrifices of our veterans, and particularly those that may have been injured in combat.  I also consider myself very progressive on social issues and would like to show my support for feminism, minorities, and the LGBT community.  I am also a member of AARP and would like to hire one of my own. Accordingly, I plan on putting an ad on the internet seeking an employee for my company that fits those characteristics.  However, before I hit “submit”, I thought I would check to see if it is legal.

A.     Good you asked – and it is an interesting question: when is discrimination legal?  Is it the same as preference?  And, would it matter if the ad was for a straight, male, able-bodied, Caucasian, young, non-veteran?

As a threshold matter, not all discrimination is illegal.  Indeed, in its truest sense, the hiring process is nothing more than a form of preference and discrimination – ultimately, an employer prefers one candidate and discriminates against another.  Generally, nobody questions whether it is illegal to discriminate based on a candidate’s education, experience, or answers to lawful interview questions.  That said, discrimination against a candidate or employee based on the candidate’s or employee’s protected class is illegal.  What is interesting about your ad is that three of the categories are likely illegal forms of discrimination while three are likely legal forms of discrimination.  In California, The Fair Employment and Housing Act enumerates the following protected classes:

  • Age (40 and over)
  • Ancestry
  • Color
  • Religious Creed (including religious dress and grooming practices)
  • Denial of Family and Medical Care Leave
  • Disability (mental and physical) including HIV and AIDS
  • Marital Status
  • Medical Condition (cancer and genetic characteristics)
  • Genetic Information
  • Military and Veteran Status
  • National Origin (including language use restrictions)
  • Race
  • Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding)
  • Gender, Gender Identity, and Gender Expression
  • Sexual Orientation

To conduct the analysis for your question, it is helpful to turn the ad around (as noted above) – would it matter if the ad read that you were seeking a straight, male, able-bodied, Caucasian, under 40 year old,non-veteran?

Being straight falls under sexual orientation. As such, a candidate’s sexual orientation (gay or straight) must not be considered in your employment advertisement or hiring decision.  Being male is a gender (obviously), therefore, neither males or females may be favored.  Race, color, national origin and ancestry are all listed, so it is illegal to favor any person based on those characteristics.

On the other hand, being a veteran, over 40 years old, and disabled are protected, but being a non-veteran / under the age of 40 / and able-bodied are not.   As such, it is likely legal to favor those candidates that are veterans[1], are over 40, or have a disability.

While the above is true, and including a preference in the ad for minorities, gays and females is certainly problematic and illegal, the issue may be slightly more nuanced than it may appear.  The Courts (including the United States Supreme Court) have grappled with the idea of whether diversity, in and of itself, is a bona fide and lawful goal of businesses or organization.  While most people think diversity is positive and would agree “sameness” should be discouraged, the problem (and irony) is figuring out a way to encourage diversity without offending the very rules established to protect against discrimination in the first place. That said, it is absolutely clear that targeting a category of individuals at the exclusion of all others, based on those individuals’ protected class(es), would be improper both under California and Federal laws.

[1] In fact, California Assembly Bill 1383, introduced on February 27, 2015, would authorize private employers to establish and maintain a written veterans’ preference employment policy that may be used to hire or retain a veteran over another qualified applicant or employee. Moreover, this Bill specifically provides that such a policy will not be deemed to violate any local or state equal opportunity law or regulation.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Should I conduct employee terminations like Richard Nixon and record everything? What are best practices for conducting employment termination meetings?

Q.     I am going to terminate an employee today, and let me tell you, it is about time!  I know “Horrible Bosses” was a popular, funny movie, but the reason they don’t make a movie called “Horrible Employees” is because they are NOT funny.  I have been paying my soon-to-be ex-employee for the last two years to do essentially nothing productive.  I have been reluctant to terminate her because I am afraid she is going to sue me.  To make matters worse, in public, this employee is as sweet-as-pie and would do great in front of a jury.  She is also very popular in the community where I do business.  But, in private, she is simply nasty.  I want to make sure I get her attitude documented! I am going to activate my smart phone’s recording feature so that I can video the termination meeting.  I don’t want tell my employee that I am recording the termination meeting, because I want to capture her true self. Even if she doesn’t sue, it would be great to put all her nastiness on You-Tube.  After the video goes viral, I will not look like a Horrible Boss, but she will definitely look like a Mean Girl.

A.     Slow down, Milhous…….recording is not the answer.  In California, all people have the right to privacy.  Indeed, it is enumerated in Article I, section 1 of California’s Constitution.  This right to privacy is broad enough to encompass the actions of private employers.  Surreptitiously recording another person may be considered a violation of that person’s constitutional rights.

Moreover, and perhaps more importantly, in California you can be criminally liable if you record another individual without their consent.  See California Penal Code section 632.  Not only does the Penal Code provide for possible jail time and fines, it also permits a victim to sue for civil damages.

And, because the evidence would have been illegally obtained, you likely wouldn’t be able to use it at trial, even in the event that the employee actually sued.

If you are still dead set on recording the termination meeting, you can do so only if the employee consents to the recording.  It is recommended that the consent be in writing.

Notwithstanding the above, there are some things you can do to make sure your termination meeting goes as smoothly as possible:

  • Arrange a confidential meeting place.
  • At least two representatives should attend. Designate one as the primary communicator and the other as the witness.  Have the witness document what was said in the meeting.  When selecting a witness, remember that you want to make sure he or she is not only a good witness for the purpose of the meeting, but would also be able to perform well in a deposition and/or in front of a jury in case of a lawsuit.  If you cannot have a second representative present, immediately after the termination meeting, be sure to document what was said in the meeting.
  • Stick to the content of the termination notice.  Briefly state the termination decision and basis.
  • Be matter of fact.  Meetings should not become argumentative.  Recognize at this juncture that the decision has been made based on the best available information.
  • Be as brief as appropriate – usually, about 10 minutes.
  • Discuss the return of your property, and if possible, retrieve all company property in the employee’s possession at the time of the meeting.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Lessons from Tom Brady and Kim Jong Un – How does an employer determine the proper discipline for an employee in California? Are there any guiding principles for employee discipline?

Q.     The sporting news has been dominated by Tom Brady’s four game suspension for Deflate-Gate.[1] Also, this week there were reports out of North Korea that claimed the North Korean Defense Minister was executed for falling asleep in a meeting.[2] (Tom – you thought your punishment was harsh!) All these punishments have me thinking. What is the proper discipline for an employee? Are there any guiding principles for employee discipline?

A.     Yes – for starters Kim Jong Un’s disciplinary measures are most likely illegal in California. Additionally, there are several other principles to remember when issuing discipline to an employee. They are as follows:

  1. Consistency – To avoid claims of discrimination, it is important to discipline employees in a consistent manner. For those in the Valley, you may remember the Fresno State Women’s basketball coach who was allegedly fired for taking a player’s pain medication. Ultimately, she settled her case for millions of dollars – not because it was inappropriate for the University to terminate an employee under those circumstances, but because it was commonly perceived that Fresno State had previously given male coaches a slap on the wrist for similarly severe misconduct.
  2. Curb Future Conduct – Discipline is especially required if another employee is a victim of a co-worker’s conduct, or if there is a risk of future harm from a repeated offense. For example, when an employer finds that sexual harassment has occurred in the workplace, Courts have required that the employer’s remedial steps must be “reasonably calculated to end the current harassment and deter future harassment from the same offender or others.” (See Yamaguchi v. United States Dept of Air Force (9th Cir. 1997) 109 Fed 1475, 1483.)
  3. Increased Punishment for Repeat Offenders – If an employee repeats the offense, particularly in instances of harassment or discrimination, then the discipline must be progressive. (See Intlekofer v. Turnage (9th Cir. 1992) 973 F2d 773, 779.)
  4. Comply With Policies – Although it is generally recommended that you avoid rigid “progressive discipline” policies, if you have them, or are otherwise part of a collective bargaining agreement, you will need to comply with your own discipline policies or agreements. Be sure to check these before taking disciplinary action.
  5. The Accused Has Rights – It is important to remember that the employee being punished could sue for libel or slander. Accordingly, measures should be taken to keep discipline as confidential as possible. (See Downes v. F.A.A. (Fed.Cir. 1985) 775 F.2d 288, 294.)

Although your disciplinary actions hopefully will not be as publicized as Tom Brady’s or as severe as North Korea’s, remember there is risk in every adverse employment action. As such, remember to follow these general rules and be sure to contact your employment law attorney to review your discipline policy before an issue arises or when contemplating employee discipline.

[1] http://bleacherreport.com/articles/2461447-tom-brady-to-appeal-deflategate-suspension-latest-details-and-comments

[2] http://www.foxnews.com/world/2015/05/13/n-korea-executes-defense-chief-for-falling-asleep-during-meeting-s-korea-spy/?intcmp=latestnews

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

When Can I Terminate an At-Will Employee and How Must an Employer Respond to Discovering Potential Sexual Harassment?

Q.     I operate a store called Patriot Racing which sells automotive parts, including tires, to local racers.  We can install the parts, if required.  To the extent that we install any automotive parts on the cars, it is extremely important that it is done according to the manufacturer’s specifications. Otherwise we could be liable if there is an accident.

After a recent race in which a customer of Patriot Racing won, it was discovered that the racer’s tires were underinflated, giving him an advantage on the slick track.  I immediately suspected an employee – let’s call him Tom Drady – who likes to curry favor with local racers.  I asked one of my supervisors to conduct an investigation.

The supervisor talked to other employees, the racer in question, and the race officials.  I cannot definitely prove that Tom Drady deflated the tires but it appears likely based on several text messages between the racer and his crew chief.  The text messages also (allegedly) repeat some sexist remarks that Drady said about one of my female employees.  Drady has denied it all.  Can I terminate Drady even though I cannot prove with 100% certainty that he deflated the tires and the sexist statements were second hand?

A.     You might be able to suspend Tom Drady for a couple of games and take away his superb…. (wait – that is a different question.)  Yes – you can fire an employee even if you can’t absolutely prove misconduct.  Indeed, in California, it is presumed that the employee is at-will.

What does at-will-employment mean? It means you can terminate any employee for any lawful reason or for no reason at all.  See Cal. Labor Code 2922. Here, terminating an employee that is suspected of not following company policy to install parts to the manufacturer’s specifications is not an unlawful reason – therefore, termination is permissible.

And what about your obligation with regard to suspicion of sexual harassment? Once the suspicion of sexual harassment came into play, you may have been required to investigate – which you did.  See Swenson v. Potter (2001) 371 F3d 1184.  The law does not specifically require that investigations be conducted a specific way – the investigation simply must be reasonable.  See Baldwin v. Blue Cross (2007) 480 F3d 1287, 1304.  The law also takes into account that, ultimately, whether to terminate is going to be a judgment call.  If after the termination Drady sues and claims you manufactured the reason and that you were truly motivated to terminate his employment because of his marital status (which is a protected class), you don’t have to show that you came to the correct determination – only that you were motivated by the investigation’s findings and were not motivated by his (super model) marital status.

Employment questions can be tricky and convoluted, so you should consider contacting an attorney prior to any termination. Don’t just assume that you are insulated from a lawsuit because the employee is at-will. That said, many times the risk of a lawsuit can be minimized or eliminated through careful planning.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.