California employment attorneys generally rely on the California Government Code, starting at section 12940, to establish the elements of a termination or discrimination case. The first element in proving discrimination is that the plaintiff, or person suing, is entitled to hold the job that they have. So, the issue becomes, what if the employee concealed information which, if known to the employer, would have required the employer to remove the person from that job? Some examples may well be a person who claims to be a US Citizen, or a person who has never had a serious felony conviction (which, lets assume, would have disqualified him or her from holding the job. We come across these at employmentattorneyca. pretty regularly. Or, a person belongs to a union which does not recognize the job given the member as consistent with the Collective Bargaining Agreement or Memorandum of Understanding.
Courts are split on whether someone who was not entitled to hold their position is in fact a qualified employee for purposes of discrimination laws. The better logic in our opinion is to look to the job performance–not the background qualifications–to make that determination. Here’s the thought process on it:
1. The employee is succeeding at the job regardless of the prior, unknown impediment to “legally” holding the job.
2. The employer did not , know (perhaps through their need to quickly fill the job or negligence of a third party screener) about the impairment so it could not have been a reason to terminate them.
3. The law, at least in California, of “after acquired” evidence, provides that economic damages are cut off when the disqualifying event is discovered. As such, a “new” rule prohibiting the employee from even recovering limited damages up until the date of discovery, gives the employer an added windfall or protection, regardless of how malicious the termination or discrimination was.
Under the burden-shifting of California’s summary judgment burdens, the plaintiff must prove that he or she is a bona fide employee qualified for the job and that the act of discrimination was the proximate cause of the damages suffered. The same burdens apply under the federal laws such as Title VII which is administered by the Equal Employment Opportunity Commision.