Legal Question in Discrimination Law in California

I work as a part time Professor at several community colleges in California and meet the requirement of having a Masters degree and experience teaching at the community college level in my field. My employers are starting to hire PhD's as the preferred qualification yet the state requirement is a Masters degree. I am part of several protected categories (race, disability, age) and the workers I am being displaced by are not of these same categories. My workload has been reduced to the point I am making less than the federal poverty level but I have always gotten good evaluations/reviews. Do I have a case for disparate impact or disparate treatment? Should I file a complaint with HR or go staright to the EEOC or the Department of Fair Housing and Employment? What other agencies can I seek help with?

Asked on 2/20/19, 11:34 am

1 Answer from Attorneys

Terry A. Nelson Nelson & Lawless

Rather than give you an unsatisfying short-shrift ‘see an attorney’ answer, here is a brief summary of requirements for an employment ‘disparate impact’ claim you should expect in consultation with an experienced employment litigation attorney:

You said nothing about tenure or written contract, so I assume none exists to protect you from then general CA rule of ‘at will’ employment allowing hire, fire and personnel decisions at the discretion of the employer.

In your case alleging discrimination, you have the initial ‘burden of proof’ that you were subjected to an adverse employment action. Your reduction in hours and income would seem to be sufficient on that initial point. You must also prove that the adverse employment action was motivated by discrimination against you because of protected classification[s] you claim, not mere coincidence that you happen to be in a protected class and that you ‘suspect’ or ‘know in your gut’ their motive.

Generally an employee must offer sufficient factual and circumstantial evidence to give rise to a reasonable inference of discrimination, such as that only others in your protected class[s] suffer the same treatment and damage. Did other minority, aged, disabled and similarly situated individuals also suffer such reductions? If not, your burden is much higher to prove you were somehow individually targeted because of your ‘class’, and not office politics, personality conflicts, or other non-illegal reasons. The law does not protect any of us from ‘unfair’ treatment, only statutorily illegal treatment.

If you reasonably believe you can meet the tests laid out above, formal complaint to the employer HR should be pursued first. That is, as long as you are not running up against the statute of limitations from time of the ‘adverse action’. If you are, then you should file complaint with DFEH [my preference] within one year, or with EEOC within 10 months, then pursue claim to HR at the same time. If you have made no attempt to remedy the situation through your employer, then DFEH and EEOC will have less interest in your 'case' than normal.

If and when this first step burden has been established, the burden of proof shifts to the employer to provide a legitimate non-discriminatory reason/excuse for the claimed adverse employment action, such as an otherwise legitimate business need for the action taken, such as shifting class/course/enrollment needs possibly met by the new hires’ better qualifications, or changing economics and funding needs, or need to upgrade the employers’ ‘staff quality ratings’. You already stated the new hires have ‘better’ scope and nature of degrees, so expect such response and be prepared to rebut them if you can.

If the employer meets this burden in defense, the burden shifts back to you to show that this excuse does not pass the smell test and is, in fact, a cover for a discriminatory practice. The legitimacy of an employer’s excuse is decided using the reasonable person standard. Where a ‘finder of fact’ can be shown that the plaintiff was more or equally qualified than the individual hired, and the ONLY apparent difference between the two is the plaintiff’s protected status, then a reasonable inference of discrimination can be made, that the deciding factor was the protected status of the complainant, rather than an innocent judgment call. That appears a high burden/hurdle in your case, but not impossible, depending upon your evidence.

You seem to have shown the new hire have ‘more’ and ‘better’ qualifications than you, not less or equal. Also of note, you seem to complaining about more than one employer, and that each is separately following a ‘discriminatory’ plan, and you seem to be trying to ‘stretch’ and claim multiple ‘class’ standings as reasons for discrimination. That will increase your burden of proof and affect the credibility of your claim[s] against each.

Now, if you seriously believe you have sufficient credible evidence to meet your burdens and hurdles, and this is in SoCal, feel free to contact me to discuss the validity and value of you claim.

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Answered on 2/21/19, 12:44 pm

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