The California Fair Employment and Housing Act (FEHA) (as well as Title VII) makes it an unlawful employment practice for an employer, “because of the . . . sex . . . of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov.Code § 12940, subd. (a).) This prohibition represents a fundamental public policy decision regarding “the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination.” (Brown v. Superior Court (1984) 37 Cal.3d 477, 485, 208 Cal.Rptr. 724, 691 P.2d 272.)
FEHA prohibits an employer from, among other things, discharging a person from employment because of his or her gender, gender identity, gender expression or sexual orientation. (§ 12940, subd. (a).) The express purposes of FEHA are “to provide effective remedies that will both prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons.” (§ 12920.5.) The Legislature accordingly has mandated that the provisions of the statute “shall be construed liberally” to accomplish its purposes. (§ 12993, subd. (a).) As the Supreme Court has recognized, “[b]ecause the FEHA is remedial legislation, which declares `[t]he opportunity to seek, obtain and hold employment without discrimination’ to be a civil right [citation], and expresses a legislative policy that it is necessary to protect and safeguard that right [citation], the court must construe the FEHA broadly, not … restrictively.” (Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 243 [5 Cal.Rptr.2d 782, 825 P.2d 767].
Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181.
To establish a prima facie case of discrimination under state or federal law, a plaintiff must show that “(1) she is a member of a protected class; (2) she was qualified for his position; (3) she experienced an adverse employment action; and (4) similarly situated individuals outside her protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Whitman v. Mineta, 541 F.3d 929, 932 (9th Cir. 2008) (internal citations omitted).[1] McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668, 93 S.Ct. 1817].
If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. The burden then shifts to the employer to rebut the presumption by producing admissible evidence sufficient to raise a genuine issue of fact and to justify a judgment for the employer that its action was not pretext for discrimination but was taken for a legitimate, nondiscriminatory reason.
The issue of pretext is an issue of causation: “there must be a causal link between the employer’s consideration of a protected characteristic and the action taken by the employer.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 215 [152 Cal.Rptr.3d 392, 294 P.3d 49] (Harris).) There must be evidence of a causal relationship between the discriminatory animus and the adverse employment action.
Pretext may be demonstrated by showing “’the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.’” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224 [87 Cal.Rptr.2d 487]; see also Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 [67 Cal.Rptr.2d 483] [pretext may be shown by “’such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for [the asserted] non-discriminatory reasons”’”]; Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 [81 Cal.Rptr.3d 406] [court may “take [into] account … manifest weaknesses in the cited reasons [for termination] in considering whether those reasons constituted the real motive for the employer’s actions, or have instead been asserted to mask a more sinister reality”].) “’Pretext may also be inferred from the timing of the company’s termination decision, by the identity of the person making the decision, and by the terminated employee’s job performance before [the] termination.’” (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1023 [18 Cal.Rptr.3d 906].)
[1] The burden-shifting framework is only necessary if there is no direct evidence of discrimination.