Could we be liable for accidental bias against those or ‘associated with’ protected groups? — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Could we be liable for accidental bias against those or ‘associated with’ protected groups?

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in Discrimination and Harassment,Human Resources

Q. As a California employer, I realize that I cannot discriminate against employees who belong to protected groups. But what if I mistakenly think that an employee is or is not a member of one of these groups, and accidentally treat him or her in a way that is discriminatory?

A. California’s Fair Employment and Housing Act (FEHA) prohibits discrimination and harassment against individuals on the basis of their protected status. California’s FEHA also extends this protection to certain other employees with specific associations with protected groups:

  • Employees “perceived” to be in a protected group
  • Employees “associated with” members of a protected group
  • Employees “sympathizing” with groups asserting rights protected by FEHA.

Under FEHA, employees who are perceived by the employer to be in a protected group receive protection, even if the person is not actually in a protected class. For example, if an employer mistakenly believes an employee to be pregnant, and discriminates against or harasses her for her believed status as “pregnant,” the employer would be engaging in a discriminatory employment action under FEHA.

Employees who are associated with another person who has, or is perceived to have, characteristics of a protected group receive FEHA protection. For example, an employee who is involved in an interracial relationship, marriage, or friendship would be protected against employment actions based on these associations.

If an employee sympathizes with, encourages, or participates in groups organized for the protection or assertion of rights that are protected under FEHA, he or she also receive protection from the act.

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