By Randall Strauss, Managing Partner, Gwilliam Ivary Chiosso Cavalli & Brewer

Workplace discrimination is more than just a legal problem. Long before anyone considers filing a lawsuit, discrimination erodes workplace morale, damages employee well-being, and undermines business productivity. It can destroy the self-esteem of individuals and tarnish the reputation of organizations that allow it to occur — or worse, to persist unchecked.

We hear the word discrimination often — on social media, in public controversies, and in the news. Think of a bakery refusing to serve a customer because of sexual orientation. In everyday life, individuals may harbor discriminatory attitudes. For better or worse, in one’s private life, people are entitled to harbor discriminatory thoughts. It may be wrong, it may be reprehensible, but it’s not illegal.

The workplace, however, is a different story. Employment discrimination is prohibited under both federal and California law. The questions are: What does discrimination at work look like? When is it illegal? And can you simply have a difficult or unpleasant boss without crossing into discrimination?

What the law protects

The Equal Employment Opportunity Commission (EEOC) investigates workplace discrimination nationwide. Federal law prohibits adverse treatment based on certain “protected classes,” including race, color, sex, national origin, religion, disability, age (40 and over), pregnancy, and sexual orientation, among others.

California law is even broader. The Fair Employment and Housing Act (FEHA), enforced by the Civil Rights Department, prohibits discrimination and harassment in 14 protected categories, including: age, ancestry, color, disability, gender identity and gender expression, marital status, military or veteran status, medical condition, race, religion, and reproductive health decisions.

The rule is simple in principle: employers cannot single out or treat workers differently based on their membership in a protected class.

What workplace discrimination looks like

Discrimination takes many forms. Sometimes it is overt:

Racial slurs or derogatory comments.

Unwanted sexual advances.

Penalizing someone for requesting disability accommodations.

Other times it is more subtle:

Excluding an employee from meetings or projects without explanation.

Asking only female employees to perform administrative tasks unrelated to their roles.

Moving goalposts in a way that sets a particular employee up for failure.

Here is an example that illustrates how discrimination and retaliation can overlap: A female executive refuses repeated advances from a male consultant. She reports his harassment. In response, the company gives him direct oversight of her performance review. This is not only sexual harassment — it is retaliation. When the company fails to investigate or intervene, it exposes itself to liability.

Whether overt or subtle, the common thread is “discriminatory motive.” Without it, an unpleasant workplace may be just that — unpleasant — but not unlawful.

The difficult boss vs. the discriminating boss

This distinction matters. Many people come to me and say, “My boss is a jerk.” I usually believe them. Unfortunately, there is no law against being rude, abrasive, or narcissistic. If a boss treats everyone poorly, that is poor management, not discrimination.

The law does not guarantee a pleasant workplace. What it guarantees is a workplace free from discrimination and retaliation.

Pretext: a common modern scenario

Many discrimination cases today involve what lawyers call pretext — when an employer offers a false or misleading reason for termination or another adverse action.

Consider a pregnant employee told she is being “downsized.” Yet weeks later, her role is filled by a less qualified male employee. She was the only person laid off, and the only one expecting to take maternity leave. The stated reason — downsizing — was not genuine. It was a pretext for pregnancy discrimination.

Pretext cases can be harder to prove than direct harassment. But they remain actionable. The legal standard in civil cases is “more likely than not.” To meet that standard, evidence matters. Which is why documentation is critical.

The importance of documentation

If you suspect discrimination:

Report internally first. File a complaint with Human Resources. Even if nothing changes immediately, you create a record.

Keep records. Save emails, write down dates, and preserve relevant documents.

Be consistent. Documenting events as they happen is far more reliable than trying to recall them years later.

This record often becomes central evidence if litigation becomes necessary.

Real-world cases

These two cases, handled by our firm, highlight how discrimination can appear in very different ways.

Harassment case: A Muslim police officer faced years of vile name-calling after 9/11, including slurs such as “raghead.” The intent to harass based on religion was unmistakable.

Pretext case: A Lawrence Livermore National Laboratory physicist in his 70s was reassigned from groundbreaking work to labeling equipment. It was part of a broader effort to push out older, higher-paid workers. 

Both examples show the breadth of workplace discrimination: from explicit harassment to more subtle, but equally damaging, pretextual terminations.

When to call an attorney

Not every workplace dispute requires legal counsel. But you should consider consulting an attorney if:

You experience retaliation after filing a complaint.

HR ignores or minimizes your concerns.

You are penalized for requesting accommodations.

The stated reason for your termination does not match the facts.

You are worried about filing deadlines. (Some claims require action within as little as 180 days.)

Reaching out to an attorney does not mean you are filing a lawsuit. Often, the first step is simply understanding your rights and your options.

Key takeaways

Discrimination is unlawful when it targets protected categories.

Not all bad behavior is discrimination. Sometimes a bad boss is just a bad boss.

Pretext matters. Employers cannot disguise discrimination with false justifications.

Documentation is essential. Complaints, emails, and notes may later prove invaluable.

Seek guidance early. Employment claims are time-sensitive.

Final word

Workplace discrimination remains a serious problem despite training programs and company policies. Most employers want to comply with the law and avoid lawsuits. But discrimination and retaliation still occur.

While life outside of work may tolerate discriminatory views, the workplace should never be one of those places.

If you suspect discrimination, take it seriously. Start with internal complaints and documentation. Then, if needed, consult an experienced employment attorney. At worst, you will confirm your situation does not meet the legal standard. At best, you will protect your rights and perhaps help make the workplace more equitable for others as well.

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