Though many people are aware that they have the right to recovery for discrimination and harassment by an employer, most people are not that familiar with the nuts and bolts of such claims.  As a result, there are a number of misconceptions regarding to the way an employment claim works.   Here’s a few commonly held views that you should be aware are not correct:

Misconception #1:  Discrimination and Harassment are the Same Thing.

Though they are sometimes used interchangeably by laymen and cases do often involve both, discrimination and harassment have very different meanings under the law.

Discrimination deals with employment decisions like hiring, firing and promotion.  If an employment decision is made based on race, gender, age, national origin or sexual orientation, then that decision is discriminatory.

On the other hand, harassment refers to actions which are directed at the individual personally, outside of employment decisions.  Things like insults, use of racial slurs and unwanted physical touchings are examples of harassment.

Misconception #2:  Any Employment Decision which does not favor a member of a protected class is automatically discrimination.

There is a common belief that any time a member of a protected class is denied a promotion or is terminated, there is always a actionable claim for discrimination.   This is not true.  An employer is within his rights, for example, to terminate a member of a protected class, so long as the reason for the termination is not based solely on the fact that the employee is a member of a protected class.  It is not just membership in the protected class that makes the employment decision actionable discrimination, it is whether the employment decision is based on the class membership.

Misconception #3:  “My Boss and Co-Workers are mean to me” is a valid claim for employment discrimination

Similarly, just because your boss may yell at you or your co-workers may not be open to socializing with you, it does not mean that you have a valid discrimination and/or harassment claim.  As noted above, to have an actionable claim, you must be able to prove that the treatment you are receiving is based solely on your status as a member of a protected class.  A boss who yells at everyone is not discriminating against an employee who is a member of a protected class by yelling at them as well.  If that same boss is only yelling at members of a protected class, then there may be a claim.

Misconception #4:  You don’t need to prove damages to win an employment claim.

One of the elements of a discrimination or harassment claim is that you must prove that you were damaged or hurt in some way.  If there is no damage, then there is no case.  Cases where the employee fails to receive promotions or is terminated have obvious damages.  But in other cases, it has to be looked at on a case by case basis.   For example, a colleague of mine told me that she had a potential client tell her that he got yelled at a couple of times, but that it never bothered him.  In a case like that, there really is no damage and as a result, it is unlikely that there is a claim.

Misconception #5:   You can sue your boss and co-workers on every employment claim.

In deciding the case of Reno v. Baird 18 Cal.4th 640 (Cal. 1998),  the Supreme Court of California determined that under California law, you cannot sue co-workers and supervisors in discrimination cases.  The Court decided that since discrimination cases involved employment decisions it would make it impossible for supervisory employees  to make such decisions, even if those decisions were justified,  if they knew that every such decision involving an individual in a protected class would subject the supervisory employee to litigation as an individual.  The court protected the right to sue individual employees for harassment and employers for both discrimination and harassment.

These are just a few of the misconceptions which exist with regards to employment cases.  As you can see, there is a wide variety of issues which need to be addressed and considered in filing an employment case.  An experienced employment attorney like the Mesriani Law Group can help you navigate these issues and help you on your way to a successful claim.

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Tags: discrimination and harrassment, employment claim, employment discrimination

This entry was posted on Friday, March 21st, 2008 at 3:16 pm and is filed under Discrimination, Employment Law. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.