Management Discriminates Daily, But Is It Unlawful Discrimination?

Jack Welch, in his book, Winning (chapter 3 “Differentiation” page 37), underscores one of his core values by stating:

“Companies win when their managers make a clear and meaningful distinction between top- and bottom-performing businesses and people, when they cultivate the strong and cull the weak. Companies suffer when every business and person is treated equally and bets are sprinkled all around like rain in the ocean.”

Whether they act on it or not, business management differentiates or “discriminates” when it comes to employees. The question is whether it is lawful or unlawful differentiation.

Unlawful Discrimination

If management discriminates based on what we labor lawyers call a “protected class,” we have legal problems. Examples of protected classes include (but are not limited to):

• Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation under the California Fair Employment and Housing Act (Government Code section 12940);
• Filing a workers’ compensation claim or suffering a workers’ compensation injury under the California Workers’ Compensation Act (Labor Code section 132a);
• Filing a claim with the California Labor Commissioner under the California Labor Code (Labor Code section 98.6);
• Taking a pregnancy disability leave under the California Pregnancy Disability Leave law (Government Code section 12945);
• Taking an eligible leave under the federal Family Medical Leave Act (29 USC section 2614, 2615) or under the California Family Rights Act (Government Code section 12845.2(l));
• Taking other legally allowed leaves under California law.

Discrimination claims are one of the obvious and major exceptions to “at-will” employment. In a nutshell, an employer (defined as five or more employees under California law) may terminate employees “at-will,” but not because of a “protected class.”

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