Federal law does not require employers to hire or promote the most qualified applicants. However, in making hiring decisions, promotion, or terminations, employers cannot base their decisions on personal characteristics that are not job-related. Summarily, the decisions cannot be based on age, race, sex, religion, national origin, and disability. Note that federal law does not protect an employee from harassment because of sexual or gender orientation. However, employers should avoid making any hiring decisions based on a person's sexual orientation.

In conducting an interview, the employers are prohibited from asking questions relating to the characteristics stated above. Prohibited questions may include:

• How old are you?
• When were you born?
• Where were you born?
• Are you married?
• Are you single?
• Do you have children?
• Are you planning to have children?
• Have you ever been arrested?
• Are you disabled?

Some employers may ask employers questions related to one's gender for compliance purposes. That is, some employers may ask her the employee to voluntarily answer questions such as:

• Ethnicity: African American, Asian, Pacific Islander, White, Latin American, or Native American
• Gender: Male or Female

It is important the employees understand that they do not have to answer any such question. Further, employers must make sure that employees understand that not answering any such question will NOT affect their application and employment opportunity. However, employers can ask about a personal characteristic if it could potentially affect the employee's job performance. Some of these questions may be:

• Have you ever been convicted of a crime?
• Are you eligible to work in the U.S.? If so, can you prove your eligibility to work in the U.S?
• Can you do this job with or without reasonable accommodations? Employers are required to provide reasonable accommodations at the request of the employees.

In addition to federal law, California law seeks to protect workers from:

• Discrimination Based on Pregnancy: California Fair Employment and Housing Act (CFEHA) directly prohibits employers from harassing, demoting, terminating, or discriminating against any employee for becoming pregnant, or for requesting or taking pregnancy leave. The Act applies to all employers that regularly employed at least five (5) or more full-time employees in the preceding year. In addition, the Pregnancy Disability Leave Law (PDLL) requires employers to provide up to four (4) months of leave for employees actually "disabled" by pregnancy or pregnancy-related conditions. The 4 months leave under PDLL is statutory required despite of the employer's short-term disabilities policies. Therefore, unlike the federal Pregnancy Discrimination Law ("PDL"), PDLL under California law requires employers to give pregnant workers special treatment, rather than equal treatment as other short-term disability leave. Additionally, "under the California Family Rights Act ("CFRA"), which is similar to the Federal Medical Leave Act (FMLA), once the employee has given birth, she may be entitled to an additional 12 weeks of leave "for the reason of the birth of a child."
• Discrimination Based on Race, Age, Sex, Religion, National Origin, and/or Disability: California Fair Employment and Housing Act (CFEHA) prohibits employers from discriminating against employee because of race. Although the "smoking gun" would be evidence the employer's discrimination, such evidence is rare. Oftentimes, the court will allow circumstantial evidence, such as a pattern of discrimination, to show the employer's discrimination. An inference of discrimination is usually raised by showing that the employee (1) belongs to a protected class, (2) was subjected to an adverse employment action (termination, demotion, suspension, work hour cut), and (3) similarly situated employees outside the protected class were treated differently and more favorably. Additionally, an employee may also offer statistical evidence, comparative evidence, or direct evidence to show disparity of treatment or hiring practices. Direct evidence may be comments made by the employer, supervisor, or someone of power and authority within the workplace. Direct evidence is often the most persuasive. The evidence will be based on an individual basis. Sometimes a "smoking gun," or a specific incident may be sufficient, and at other times a series of derogatory comments would suffice. Statistical data in large companies may be used to demonstrate that the employer systematically discriminates against a particular a protected class (race, age, national origin, sex, religion, or disability) in hiring, promotion, demotion, and termination practices.
• Wrongful Termination: California is an "at will" state. At-will employees may be terminated for any reason, with or without cause, so long as it is not illegal (discriminatory or retaliatory in nature). Oftentimes, an employment contract may provide additional rights and obligation for both employers and employees. Generally, employees that work under an employment contract can only be terminated for reasons specified in the contract. If the contract stipulates a specific amount of notice, such as two (2) weeks or thirty (30) days notice, then the contract will be strictly enforced. Nevertheless, the at-will presumption can be overcome by evidence that despite the absence of a specified language in the employment agreement, the parties agreed that the employer's power to terminate would be limited in certain ways.
• Sexual and Other Harassment: Federal law and California law provides employees certain level of protections against sexual and other types of harassment. Employers may be liable to an employee for instances of "sexual harassment" which can include unwelcome sexual advances, conduct, and physical or verbal acts of a sexual nature, that occur in the workplace. It is important to remember that "the workplace" may be outside of the employer's office, such at a company's sponsored function. Although many times harassments are sexually based, other harassment types can be based on gender, age, race, and national origin, which are all protected class. The following conduct is generally considered sexual harassment or harassment in nature:
  
  
  • Direct sexual conduct: An employer makes sexual advances or statements toward an employee. The employer may include an executive, manager, supervisor, or anyone of power and authority.
  • Quid Pro Quo: "Quid Pro Quo" exists when job-related benefits are offered in exchange for sexual conducts or favors.
  • Hostile work environment: an employer maintains an overly sexual work environment.

The California Department of Social Services' Civil Rights Bureau is tasked with the duties of protecting the rights of Californians with regards to sexual harassment and discrimination claims. Because the laws determining what conduct, or pattern of conduct, constitutes actionable sexual harassment are complex, employers and employees should contact the experienced Long Beach Labor and Employment Lawyers at Smith & Garg for a personal consultation.

As stated earlier, employers are not required by law to have employee handbooks. However, it is recommended that employers should have employee handbooks to illustrate employer's hiring practices and anti-discrimination and/or harassment policies. Employee handbooks provide a centralized, complete record of the employers' policies and procedures. In addition, employee handbooks also provide employees and managers an organized and convenience resource to adhere to in the workplace. At a minimum, employee handbooks should include:

• A statement regarding the at-will employment relationship
• An equal employment opportunity statement
• Policies regarding anti-discrimination in the hiring practice
• Policies regarding sexual and other types of harassment
• Policies regarding internet access, e-mail, and voice mail
• Policies and procedures to report questionable conducts and practices
• Copy of the California Fair Employment and Housing Act
• Copy of The Family Medical Leave Act
• Copy of the California Family Rights Act
• Copy of the California Pregnancy Disability Leave Law