Executive Employment Discrimination
As Experienced by Highly Compensated Employees
Highly compensated senior level employees can be faced with employment discrimination issues that may be somewhat different from those faced by other corporate employees. Often these employees are older because it may have taken them years to rise through the ranks to the level of responsibility and compensation they now enjoy. Because they are often older, these employees as a group may have more health and disability issues than other groups of employees. It should not come as a surprise that the forms of executive employment discrimination these highly compensated senior level employees most frequently face includes age discrimination and physical disability discrimination. Of course, a highly compensated employee can also be confronted with sexual harassment in the workplace or harassment because of their race or other forms of illegal harassment and discrimination.
Age Discrimination
Age discrimination and physical disability discrimination are the curse of older workers. Since many highly compensated employees are over the age of 40, which is the protected age category, a disproportionate number of highly compensated employees eventually are confronted with some form of age discrimination in the workplace. In today’s world there is a great emphasis on youth and on being youthful, and this can lead to an unconscious tendency on the part of employment decision makers to give preference to younger candidates and to view older workers as not being as desirable as younger workers. Less experienced workers often cost less and the less experienced workers are often younger. The California legislature has declared by statute that the use of salary as a basis for differentiating between employees when terminating employment may constitute age discrimination if use of that criterion impacts older workers as a group. Any employment policy that disproportionately impacts older workers as a group is suspect and may be found to constitute age discrimination. The U.S. Supreme Court has held that employers who lay off workers must be able to show their layoff policies are reasonable and do not have an unfair impact on older workers. Often older workers are subjected to age discrimination in the form of employment decisions that rely on subjective evaluations by a decision maker who favors younger workers, perhaps unconsciously, in arriving at her evaluations of the worker’s performance.
Physical Disability Discrimination
Physical disability discrimination can easily end the career of a productive, highly compensated employee. California’s employment discrimination law defines the term “physical disability” broadly enough to include many chronic conditions that we may not normally consider to be physical disabilities, such as heart disease and high blood pressure. Since these kinds of chronic conditions are more often experienced by older workers, if an employer already has a preference for younger workers it is not a stretch to imagine that the same employer will be disinclined to accommodate the special needs and requirements of a physically disabled employee that would allow the employee to remain productive in her job. But that is exactly what the law requires an employer to do. An employer must make reasonable accommodation of the known physical and mental limitations of otherwise qualified applicants and employees with disabilities. This usually means that the disabled person must request an accommodation by their employer. However, if the employer knows that the employee has a disability that prevents the employee from performing his or her job, the employer may have an affirmative duty to engage in an interactive process with the employee to accommodate the employee’s disability and allow the employee to continue working in their job. Reasonable accommodation might include, as examples, modifying the employee’s work schedule, restructuring of the job, retrofitting the employee’s work space or even reassigning the employee to another job depending on the specific circumstances.
Response to Executive Employment Discrimination
If a California employee is subjected to illegal discrimination in the workplace the employee can bring suit under the Fair Employment and Housing Act for recovery of his or her damages for past and future lost compensation, for compensatory damages for emotional distress suffered as a result of the discrimination, for attorney fees, costs and prejudgment interest, and in an appropriate case, for punitive damages. Punitive damages are not recoverable against public employers in California. To correct the wrong done and restore the a plaintiff to the position he or she would have been in but for the defendant’s wrongful conduct a court has broad powers under the Fair Employment and Housing Act to order the employer or former employer to do such things as reinstate or hire the plaintiff, promote the plaintiff, or conduct training of employees, supervisors and managers to eliminate the discrimination.
