Most employers do not tell an employee, “We aren’t promoting you because you’re pregnant.”
They give another reason.
Maybe another candidate was a “better fit.” Maybe your performance suddenly became a problem. Maybe there was a restructuring, a change in expectations, or a vague concern about your “attitude.”
Sometimes those explanations are legitimate.
Sometimes they are not.
California law prohibits employers from making certain employment decisions because of an employee’s protected characteristics. But because employers rarely announce a discriminatory motive, figuring out whether discrimination occurred often means looking beyond a single comment or decision and examining the larger pattern.
What Is Employment Discrimination in California?
Under California’s Fair Employment and Housing Act (FEHA), employers generally cannot discriminate against employees or applicants because of protected characteristics such as:
- Race or color;
- National origin or ancestry;
- Religion;
- Sex or gender, including pregnancy and related conditions;
- Sexual orientation;
- Gender identity or gender expression;
- Physical or mental disability;
- Medical condition;
- Age, for workers 40 and older;
- Genetic information;
- Marital status;
- Reproductive health decision-making; or
- Military or veteran status.
Discrimination can affect hiring, firing, promotions, compensation, job assignments, working conditions, and other terms or privileges of employment.
But simply having a protected characteristic and experiencing something negative at work does not necessarily mean you were discriminated against.
The important question is whether your protected characteristic played a role in how your employer treated you.
What Are Some Signs of Workplace Discrimination?
There is no single checklist that proves discrimination. But certain facts can raise questions about an employer’s stated reason for its actions.
Employees Are Being Treated Differently
Consider how your employer treats other employees in similar situations.
Were you disciplined for conduct that other employees engaged in without consequence? Were you denied an opportunity routinely given to employees outside your protected group? Does your employer enforce a workplace rule strictly against some employees but overlook the same behavior from others?
Differences in treatment can matter—particularly when the employees are otherwise similarly situated.
Your Employer’s Attitude Changed After Learning Something About You
Timing can also be significant.
Maybe your performance reviews were consistently positive until you disclosed a pregnancy. Perhaps problems suddenly appeared after your employer learned your age, religion, disability, medical condition, or another protected characteristic.
The timing does not automatically prove discrimination.
But a sudden change can be worth examining, particularly when there is little evidence that your actual work changed along with it.
Your Employer Makes Comments About a Protected Characteristic
Sometimes the evidence is more direct.
A supervisor might make comments about an employee being “too old” for a position, question whether a pregnant employee will remain committed to work, mock an employee’s accent, or make stereotyped comments about race, religion, gender, disability, or sexual orientation.
Not every inappropriate workplace comment establishes unlawful discrimination.
But comments can become important when they come from someone involved in an employment decision or appear connected to the way an employee is being treated.
The Explanation Doesn’t Match the Evidence
Suppose your employer says you were passed over for a promotion because of performance.
What do your performance reviews say?
Or perhaps you are told your position was eliminated—but shortly afterward, someone else is hired to perform substantially the same work.
Ask whether the employer’s explanation is consistent with the records and with what actually happened.
Some things to look for include:
- Explanations that change over time;
- Sudden negative reviews after a history of positive feedback;
- Discipline inconsistent with company policy or past practice;
- Different treatment of employees who engaged in similar conduct; or
- Documents, messages, or other evidence that conflict with the employer’s stated reason.
An employer can make an unfair or mistaken decision without violating discrimination law. But inconsistencies can sometimes suggest that the stated reason is not the entire story.
There Is a Larger Pattern
Sometimes the most important evidence is not what happened to one employee.
Who gets promoted? Who gets the desirable assignments? Who is disciplined? Who gets pushed out?
If employees belonging to a particular group consistently seem to fare worse than others, the broader pattern may provide context for what happened to you.
Does Discrimination Have to Result in Being Fired?
No.
Employment discrimination can affect many aspects of the employment relationship, including:
- Hiring;
- Promotions;
- Pay;
- Job assignments;
- Transfers;
- Discipline;
- Working conditions; and
- Termination.
An employee therefore does not necessarily have to lose their job before discriminatory treatment can become legally significant.
What Should You Do if You Suspect Workplace Discrimination?
If something does not add up, start preserving the information available to you.
That might include:
- Performance reviews;
- Disciplinary notices or write-ups;
- Emails, texts, or workplace messages;
- Job postings or promotion announcements;
- Relevant workplace policies;
- Pay records;
- Complaints made to Human Resources or management; and
- Your own contemporaneous notes about important conversations and events.
It can also help to create a timeline.
When did the treatment change? Who made the relevant decisions? What reason did the employer give? How were other employees treated in similar situations?
You do not need to prove your entire case before speaking with an attorney. But preserving records can make it much easier to understand what actually happened.
When Something at Work Doesn’t Add Up
Not every bad manager is discriminating. Not every unfair workplace decision is illegal.
That distinction can be frustrating, particularly when you know you were treated badly.
But California discrimination law asks a more specific question: Did a protected characteristic play a role in the employer’s decision?
Sometimes the answer is apparent from what someone said. More often, it emerges from timing, comparisons, inconsistencies, and patterns.
If you believe your employer treated you differently because of a protected characteristic, an experienced California employment attorney can review the circumstances and help you understand whether the conduct may violate California law.