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A recent California federal court ruling confirmed that company supervisors are not individually liable for retaliatory acts.Sarmas v. County of Stanislaus, et al. October 26,2009 Westlaw 3489425 (Eastern District California).
A recent California federal court ruling confirmed that company supervisors are not individually liable for retaliatory acts. Sarmas v. County of Stanislaus, et al. October 26, 2009 Westlaw 3489425 (Eastern District California).
According to Stanislaus County’s Sheriff’s Department (Department) employee Valine Sarmas, Sheriff Christianson’s sergeant Pedro Beltran sexually harassed her on two incidents in September and October 2008 during which he made unwelcome physical advances, insisted she drive him to a strip club, kissed, bit and groped her in her car, and showed her cell phone videos of him having sex with another coworker. Days after the September incident, Sarmas learned a Department lieutenant was aware of Beltran’s conduct and was investigating the matter further. Beltran himself then contacted Sarmas, voicing his concern that he would be fired and asking Sarmas what she intended to say in the investigation. She responded she would tell the truth.
On January 20, 2009, Sarmas called 911 for assistance when a man came to her front door, verbally harassed her and her friends, and made various threats. The police arrested that suspect. On February 2, 2009, the Department’s Internal Affairs informed Sarmas she was being investigated on rumors that the man arrested at her home in January was a gang member and her boyfriend. Then on March 2, 2009, the Department fired Sarmas despite having given her an excellent performance evaluation the week before. The reason for her termination was “administrative decision.”
Sarmas’s lawsuit for violations of the California Fair Employment and Housing Act (FEHA) alleged that her termination was “retaliation for bringing Beltran’s conduct towards her to the attention of Internal Affairs and Sheriff’s Department command staff.”
The individual defendants, Sheriff Christianson and Sergeant Beltran filed a motion to dismiss the retaliation cause of action, contending that as a matter of law Sarmas was unable to sue them as supervisors for retaliation/wrongful termination under California law. The district court agreed, ruling that Stanislaus County (Sarma’s employer) was the only proper retaliation defendant as settled by the California Supreme Court’s ruling in Jones v. Lodge at Torrey Pines Partnership (2008) 42 California Reports 4th 1158.
Disagreeing with two appellate court cases and a federal Ninth Circuit case to the contrary, the Jones court had ruled that only an employer can be liable under FEHA for firing someone in retaliation and not individual supervisors.
In a footnote of its Jones ruling, however, the Court stated it was only addressing alleged retaliation by firing, demotion or other major deprivation of benefits. It left open whether a supervisor might be personally liable for retaliating against an employee by harassing that individual. One or more future decisions may deal with that issue.
If you have any questions, please contact me or any of our other employment law attorneys. Best, Cindy Bamforth
Under California law and Wage Orders, a “computer professional” is exempt from overtime compensation if he or she is “highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering.”
Under California law and Wage Orders, a “computer professional” is exempt from overtime compensation if he or she is “highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering.”
In addition, he or she must be primarily engaged (51%-plus of the time) in:
Exercise of “discretion and independent judgment” means entrusted with comparison and evaluation of possible courses of conduct relative to his duties and with the authority to make an independent choice among the alternatives, free of immediate supervision. Someone who mostly follows specified “paint by numbers” procedures does not qualify for the exemption.
The California computer professionals’ exemption has no requirement for any particular academic degree and there is no licensure or certification requirement. Furthermore, job titles are not determinative of the applicability of this exemption.
There are several types of computer workers who are not eligible for the exemption:
Effective on September 30, 2008, amended Labor Code Section 515.5 extended the exemption to salaried employees whose annual and monthly salaries are not less than statutorily specified rates, which the California Division of Labor Statistics and Research (DLSR) is responsible for adjusting every October 1st of every year, effective January 1st the following year (online at http://www.dir.ca.gov/DLSR/statistics_Research.html).
During 2009, the minimum monthly salary for the exemption for 2009 is $6,587.50 and the minimum annual salary is $79,050.00. DLSR states it should issue the 2010 minimum monthly and annual salaries for the computer professional exemption in the next one or two weeks.
If you have any questions, please contact me or any of our other employment law attorneys. Best, Bob Edwards
California’s cell phone law (Vehicle Code section 23123), effective July 1, 2008, makes it unlawful to drive a motor vehicle while using a wireless telephone (cell phone) unless the driver uses a hands-free listening and talking device. A companion law, also effective July 1, 2008, forbids anyone under the age of 18 to drive while using a cell phone, period. In light of these new laws, should employers forbid all employees from talking on their cell phones while driving on the job? Must empl
California’s cell phone law (Vehicle Code section 23123), effective July 1, 2008, makes it unlawful to drive a motor vehicle while using a wireless telephone (cell phone) unless the driver uses a hands-free listening and talking device. A companion law, also effective July 1, 2008, forbids anyone under the age of 18 to drive while using a cell phone, period. In light of these new laws, should employers forbid all employees from talking on their cell phones while driving on the job? Must employers furnish their 18-plus employees with cell phone headsets?
According to the Assembly Committee on Transportation’s report, the main reason for this legislation is to encourage driving with two hands on the steering wheel. Although studies show drivers remain distracted to a certain degree while talking on cell phones, even with two hands on the wheel, the legislature acknowledges the safety benefits associated with using cell phones, such as reporting road hazards, stranded motorists, and car accidents. Accordingly, the new law attempts to strike a balance for certain cell phone use while driving (unless under the age of 18 as discussed below). Section 23123 prohibits drivers from using cell phones unless they are using a hands-free listening and talking device, such as an earpiece, headset, speaker phone or even Bluetooth technology. Any such hands-free listening device will suffice.
Section 23123 does not apply to persons using a cell phone for emergency purposes, to emergency services professionals, nor to persons using digital two-way radios that operate by depressing a push-to-talk feature while driving a truck (requiring commercial class A or B driver’s license to operate), farm vehicle, or tow truck. Nor does the law apply to anyone driving a motor vehicle on private property.
A violation of this new cell phone law in California is an infraction punishable by a base fine of twenty dollars ($20.00) for a first offense and fifty dollars ($50.00) for each subsequent offense.
Teens Talk at their own Peril: Minors are forbidden from driving while using any one of a multitude of electronic items including cell phone, even if equipped with a hands-free cell phone device. The prohibited list includes cell phone, pager, two-way messaging device, laptop computer with mobile data access, specialized mobile radio device, or broadband personal communication device, unless for emergency purposes, such as an emergency call to a law enforcement agency, health care provider, fire department, or other such emergency services agency. Violation of this law is an infraction punishable by a base fine of twenty dollars ($20.00) for a first offense and fifty dollars ($50.00) for each subsequent offense. Unlike the ban on handheld cell phones, however, a law enforcement officer may cite a teen for a suspected violation of this law only in connection with another suspected driving offense – meaning law enforcement officers cannot stop a vehicle for the sole purpose of determining whether the driver is violating this law.
Sensible Employer Actions: Employers should update their company handbooks and other policy pertaining to employee driving and cell phone use. Obviously, the safest policy would be to prohibit all cell phone use – hands free or otherwise – unless in an emergency. Employers probably do not want to find themselves in the unenviable position of having to justify the lack of such a policy if an employee causes a traffic collision while talking on a cell phone about work-related matters or while driving on the job, even if using a hands’ free system.
With this increased focus on the manner of work-related driving, employers should also ensure they have updated copies of employee drivers’ licenses and insurance policies for those employees whose jobs require them to drive on company time.
Along with each paycheck, California law requires employers provide a written itemized statement containing nine pieces of information about that payment:
Along with each paycheck, California law requires employers provide a written itemized statement containing nine pieces of information about that payment:
(1) Gross wages earned;
(2) Total hours worked (except salaried exempt employees);
(3) Piece rate units and rate, if applicable;
(4) All deductions, including taxes, disability insurance, and health and welfare payments (deductions ordered by the employee may be aggregated and shown as one item);
(5) Net wages earned;
(6) The inclusive dates of the pay period;
(7) The name of the employee along with his or her social security number (last four digits only) or an employee identification number;
(8) The name and address of the legal employing entity; and
(9) All applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.
These payroll laws are intended to prevent workers from being cheated on their pay. Intentional failure to provide this payroll stub data entitles the employee to recover all actual damages or up to $50 for the initial pay period in which a violation occurs and $100 per employee for each violation in a subsequent pay period, up to a total of $4,000, plus costs and reasonable attorney’s fees.
The Division of Labor Standards Enforcement (DLSE) provides an example of an itemized wage statement (pay stub) as required by California law for an employee paid an hourly wage (http://www.dir.ca.gov/dlse/PayStub.pdf) to reflect the January 1, 2008 requirement that the itemized statement may only show the last four digits of the social security number.
Under California labor laws, certain provisions of the Industrial Welfare Commission (IWC) Wage Orders – including California overtime law and meal and rest period premiums – do not apply to persons employed in an exempt administrative capacity. An exempt administrator is primarily engaged (51%-plus) in high level “desk-bound” planning, organizing, and enabling of production as opposed to the actual production of the company itself. An administrator makes sure the “production line” is created,
Under California labor laws, certain provisions of the Industrial Welfare Commission (IWC) Wage Orders – including California overtime law and meal and rest period premiums – do not apply to persons employed in an exempt administrative capacity. An exempt administrator is primarily engaged (51%-plus) in high level “desk-bound” planning, organizing, and enabling of production as opposed to the actual production of the company itself. An administrator makes sure the “production line” is created, established, coordinated, serviced and maintained as opposed to participating directly in that production line. In other words, an administrator is concerned with how a business is programmed and organized to turn out its products or services, not with actually assembling that product or delivering that service. Since an exempt administrator may also perform such organizational duties for his employer’s clients or customers to enable them to produce in turn, it is possible in special cases for an employer’s service providers to be exempt administrators (for example, a consulting company that employs specialists to provide custom management or financial investment consulting and advice to its clients).
An exempt administrator needs no actual juniors to direct on the chain of command. It is possible for such administrator to occupy a “one person” subdivision of a company. However, he or she must regularly and customarily exercise independent judgment and discretion in the programming and coordination of personnel and/or resources that enables the production of the employer or the employer’s clients.
While every employee is expected to use judgment as an element of any job, a worker will qualify for the administrative exemption only where he or she has and exercises the authority to make independent choices on the highest or higher levels of business policy, planning and coordination of operations, so-called “matters of significance.” A truck driver who makes “discretionary” decisions on the route he or she takes to a destination is not exempt from overtime. A programs director for a trucking business – responsible for the planning, programming, financing, acquisition of resources, allocations of personnel, etc. to ensure the company’s viability – is probably exempt from overtime compensation.
Last, the required regular and customary exercise of discretion and independent judgment is not limited to powers to make final decisions on significant matters. An administrator is legitimately exempt from overtime even if he or she only makes recommendations on policy, planning and coordination subject to review and approval, as long as the company’s seniors give weight to those recommendations.
If an administrator must perform a rote or routine duty that is “directly and closely related” to his or her planning and coordination functions such as typing up a program or counting and reporting on the statistical production of an area, the law considers this incidental work as part of exempt duties.
California recognizes three main settings for exempt administrators:
Job titles are not determinative. As with exempt executives, an exempt administrator’s purposes, duties and products contained in his or her written job description should accurately emphasize all of the above concepts as requirements, including the expectation that he or she will devote the majority of work time to the job’s administrative functions.
As with exempt executives, the employer must pay an exempt administrator a salary in each pay period that is at least two times the state minimum wage. As of January 1, 2008, the minimum is $640 weekly and $2,773.33 monthly. These amounts are unchanged for 2009 and thus far for 2010.
The California Industrial Welfare Commission (IWC) Wage Orders are available online at http://www.dir.ca.gov/iwc/wageorderindustries.htm.
If you have any questions, please contact me or any of our other employment law attorneys. Best, Bob Edwards
“Commission wages” are compensation based proportionately on the value or amount of the item or service sold. An “inside sales representative” sells merchandise in a store or sales lot or sells products or services via a company telephone. In contrast, “outside sales representative” means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer’s place of business selling or obtaining orders for a product or service. The p
“Commission wages” are compensation based proportionately on the value or amount of the item or service sold. An “inside sales representative” sells merchandise in a store or sales lot or sells products or services via a company telephone. In contrast, “outside sales representative” means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer’s place of business selling or obtaining orders for a product or service. The provisions of the California Industrial Welfare Commission Wage Orders (see blog article, “DO YOU KNOW YOUR CALIFORNIA WAGE ORDER?”) do not apply to outside salespersons.
Under California law, a commissioned inside sales representative covered either by Wage Order 4 or Wage Order 7 is exempt from overtime compensation if:
Since the compensation must exceed the $12.00 amount for every hour worked in a week, this exemption has the unique requirement of employee’s accurately tracking work hours each week to ensure he or she qualifies for the exemption. Whether the sales commission structure is comprised of a base salary plus commissions, pure sales commissions, a draw provided against future commissions or some combination of these, the exemption also requires that each weekly paycheck exceeds $12.00 times the number of hours worked to qualify.
The exemption applies in the case of an employee paid a fixed salary plus an additional amount of earned commissions if the amount of sales commission payments exceeds the total amount of salary payments for a chosen representative period. If a worker is compensated by pure sales commission, this “51% – 49%” calculation is of course irrelevant.
The representative period a company chooses to establish the plus-50% commissions and minus-50% salary ratio must be at least one month and not longer than one year. The employer should pick reasonable duration at or between those extremes which yields a fair reflection of the sales person’s true weekly average of earned commissions. For example, in a company where sales to the public and commissions paid are relatively constant month-in and month-out, then picking a relatively short representative period is reasonable. In a company that has seasonally high or low periods of sales, then calculating the average weekly figure for commissions should reasonably require a period nearer or at a year’s-worth of activity. Whatever representative period(s) the employer chooses, the employer must document the average ratio for each employee for each such period.
The employer thus must maintain adequate records that clearly indicate: i) the amount paid to employees exempt under this category; ii) the breakdown of base salary and commission payment for each week; and iii) the number of hours worked each week. In order to implement the exemption, the employer must also maintain:
Note: The California and federal exemptions and wage and hour laws are not identical. The comparable federal exemption only applies to retail or service establishments. Therefore, California employers are cautioned not to rely on the commissioned insides sales employee exemption from overtime without first consulting with an attorney.
If you have any questions, please contact me or any of our other employment law attorneys. Best, Bob Edwards
Under California law, provisions of theIndustrial Welfare Commission (IWC) Wage Orders– including overtime compensation and meal and rest period premiums – do not apply to persons employed in an executive capacity. This exemption is for executives primarily engaged (51%-plus) in managing at least two personnel below them in the chain of command. Exempt executives do not have to oversee – or have the authority to oversee – every worker in the organization. They can be senior to a distinct divis
Under California law, provisions of the Industrial Welfare Commission (IWC) Wage Orders – including overtime compensation and meal and rest period premiums – do not apply to persons employed in an executive capacity. This exemption is for executives primarily engaged (51%-plus) in managing at least two personnel below them in the chain of command. Exempt executives do not have to oversee – or have the authority to oversee – every worker in the organization. They can be senior to a distinct division or, conceivably, a department or even a unit. However, as one moves further down the organizational chart, qualification for exemption becomes less-and-less likely as the chances diminish that the subject employee is going to be involved in actually managing employees more than half of his or her time.
The sort of “managing” that will qualify for executive exemption is not just supervising two or more subordinates, i.e. spending over half of one’s day telling them what to do or supervising them to complete their job assignments or other set lists of tasks.
“Managing personnel” means having and exercising the authority for full responsibility over the planning, recruiting, work priorities and allocation, coordination, documentation (e.g., statistics, evaluations of personnel performance) and production results of a company or a distinct area of a company. This must include the ability to hire, advance, demote, discipline or fire other employees (or, at least, to make recommendations that are “given particular weight” by senior managers on these matters). Production, sales or routine clerical or maintenance work, whether or not the same as the work of subordinates, is not management work. However, if a manager must perform a rote or routine duty that is “directly and closely related” to managing personnel – e.g., writing a daily or weekly report of the area’s production, photocopying materials to pass out to subordinates – the law considers these labors as part of exempt duties.
In order to qualify for the executive exemption, a manager must “customarily and regularly exercise discretion and independent judgment.” This means a manager must have and exercise throughout the workday the power of making independent decisions on important aspects of planning and operations in his or her area. In contrast, actions that merely follow specified procedures are “paint by numbers” tasks that do not qualify for the exemption. While every employee must use discretion to make decisions no matter the position, a manager is entrusted to make decisions on matters that have a relatively substantial impact on the success or failure of the business or some major portion of the enterprise. For example, a janitor may have discretion on which room he or she vacuums first but this does not make him a manager. On the other hand, a division head deciding to allocate all of the personnel of his or her area to work on an “all hands” promotional blitz for an entire work day is clearly exercising discretion on a sufficiently important matter to qualify for the exemption.
An exempt executive’s purposes, duties and products contained in his or her written job description should accurately emphasize all of the above concepts as requirements, including the expectation that he or she will devote the majority of work time to the task of managing his or her subordinates. California is a stickler for requiring an executive to manage 51% or more on post hours, week-in and week-out. Working foremen, for example, are not exempt. The only exceptions include a manager who must pitch-in on rote tasks occasionally or one who must overcome an emergency so demanding in a given week that he or she is unable to actually manage for the majority of work hours.
To qualify an executive for exemption, the employer must pay him or her a salary in each pay period that is at least two times the state minimum wage. As of January 1, 2008, the minimum is $640 weekly and $2,773.33 monthly. “Salary” means a predetermined amount that is some or all of the employee’s compensation. “Predetermined” means the employer cannot reduce it due to changes in that worker’s amount or quality of work. With some exceptions, if an exempt executive works even a single hour in a given workweek, the employer must pay that person his or her salary for the entire week.
If you have any questions, please contact me or any of our other employment law attorneys. Best, Bob Edwards
The California Supreme Court, for the second time in the past four years, has affirmed that sexually harassing conduct must be either “severe” or “pervasive” to be actionable sexual harassment. The decision stems from a high profile suit by Suzan Hughes, Herbalife’s deceased founder Mark Hughes’ ex-wife and mother to his only son, Alex, against Hughes estate trustee Christopher Pair. This was not the first legal battle between Ms. Hughes and Mr. Pair. Upon his sudden death at age 44, Mark Hugh
The California Supreme Court, for the second time in the past four years, has affirmed that sexually harassing conduct must be either “severe” or “pervasive” to be actionable sexual harassment. The decision stems from a high profile suit by Suzan Hughes, Herbalife’s deceased founder Mark Hughes’ ex-wife and mother to his only son, Alex, against Hughes estate trustee Christopher Pair. This was not the first legal battle between Ms. Hughes and Mr. Pair. Upon his sudden death at age 44, Mark Hughes left an estate valued at approximately 400 million to Alex as sole beneficiary. Thereafter, Suzan Hughes had an acrimonious relationship with the three trustees of that estate, including Mr. Pair, an Herbalife executive, prompting her to file seven prior lawsuits against the trust or the trustees.
Battle of the Beach House: In this eighth lawsuit, Suzan Hughes sued trustee Christopher Pair for sexual harassment and intentional infliction of emotional distress. According to Ms. Hughes’s harassment complaint, on June 13, 2005, she requested the trust reimburse her for a two-month Malibu beach home rental for her and Alex, at a cost of $80,000 per month. Three days later, the trustees unanimously approved a one-month rental, but not two. The trustees declined reimbursement of the second month because (a) they did not have sufficient information from Suzan Hughes to justify the expense; (b) vacation expenses were Suzan Hughes’s responsibility under her marital settlement agreement; (c) a portion of the vacation home expense should be allocated to Ms. Hughes; and (d) the two-month rental was for Ms. Hughes’s benefit rather than Alex’s. The trustees sent Ms. Hughes’s attorney written notice of their decision.
The King Tut “Exhibitionism”: After not speaking with each other directly for three years, Christopher Pair called Ms. Hughes shortly afterwards to invite her and Alex to join him and his son that evening at a King Tut exhibit. During the call, Ms. Hughes complained about the trustees’ beach rental decision, to which Pair reportedly replied, “you know how much I love Alex and you in that special way” and Pair could be persuaded to give Ms. Hughes more rental time if she would “be nice” to him. When Ms. Hughes replied that it was crazy for Pair to talk to her this way, he replied, “how crazy do you want to get?” Pair gave Ms. Hughes his home phone number and told her to call him if she wanted to go to the exhibit that night. Although she wrote down his home number, she declined his invitation.
Ms. Hughes brought Alex to the King Tut exhibit on her own, where she encountered Pair and his nine-year-old son in a hallway. Ms. Hughes alleged that in her only direct encounter with Pair that evening, Pair crudely predicted she would yield to his sexual proposition, stating he would get her “on your knees eventually.” He made this statement while the boys were standing nearby. He then said hello to Alex and walked off.
Ms. Hughes filed for sexual harassment under California Civil Code section 51.9, which prohibits sexual harassment by a person engaged in a designated “business, service, or professional relationship.” As a trustee, Christopher Pair was in such a qualifying relationship.
Pair Prevails: The trial court granted Pair’s motion for summary judgment, ruling that Ms. Hughes could not establish sexual harassment as the alleged harassment was neither “pervasive” nor “severe.” The appellate court and Supreme Court affirmed. Looking to hostile work environment workplace harassment cases for guidance, the Supreme Court ruled the harassment was not pervasive because “pervasive” requires a level of egregiousness that would alter their relationship and the harassment must be more than a few isolated incidents. Here, the underlying professional relationship was not altered in any way (the trustees had already voted in favor of a shorter house rental) and the comments were made during one telephone conversation and one brief in-person encounter.
The Supreme Court also found that to constitute “severe” harassing behavior, a single harassing incident generally must include physical violence or the threat of physical violence to constitute sexual harassment. In this case, Pair’s comment at the King Tut exhibit, although course, vulgar and grossly inappropriate was made during an isolated incident which did not reach the level of violent sexual assault or unwanted physical conduct. The Court also believed his telephone conversation was “ambiguous” and did not support Ms. Hughes’ sexual harassment claim.
Lessons for the Work Place: Although this case did not involve an employer-employee relationship, Pair’s alleged behavior, if true, was unprofessional and out of line. Clearly, such behavior should not be tolerated or condoned in the workplace, regardless of whether or not it is sufficiently “severe or pervasive” under state or federal employment law. Employers should enact and enforce company harassment policy that prohibits such unprofessional conduct, and management should discipline violators, up to and including termination. We are available to assist you in preventing workplace harassment. To view our available dates for anti-harassment training seminars, please go to Bowles Law or contact us to schedule a seminar at your location.l
If you have any questions, please contact me or any of our other employment law attorneys. Best, Cindy Bamforth
CALIFORNIA CHALLENGES CISCO SYSTEMSFOR COLOR (“CASTE-BASED”) DISCRIMINATION
CALIFORNIA CHALLENGES CISCO SYSTEMS FOR COLOR (“CASTE-BASED”) DISCRIMINATION
On June 30, 2020, the California Department of Fair Employment and Housing (DFEH) filed suit against Cisco Systems, Inc. (Cisco) and two managers for caste-based discrimination, harassment, and retaliation.
The complaint alleges that an all-Indian immigrant Cisco team expected an engineer co-worker to accept a cultural caste hierarchy because he is Dalit (“Untouchable”) Indian. The DFEH asserts Dalits are “typically the darkest complexion caste,” enduring “severe inequality and unfair treatment” and “often targets of hate violence and torture.”
The state charges these Indian team members, all from higher castes, have imposed their traditionally discriminatory practices into the workplace, subjecting the engineer to disparate treatment (less pay, fewer opportunities, and other substandard terms and conditions of employment) because of his “religion, ancestry, national origin/ethnicity, and race/color.”
DFEH Director Kevin Kish commented, “It is unacceptable for workplace conditions and opportunities to be determined by a hereditary social status determined by birth. Employers must be prepared to prevent, remedy, and deter unlawful conduct against workers because of caste.”
The government also noted in a 2018 U.S. survey of South Asians, 67% of Dalits claimed unfair workplace treatment.
This lawsuit highlights why employers should ● correctly train managers and workers on preventing, detecting and resolving all forms of unlawful or inappropriate harassment, discrimination and retaliation; and ● ensure equal promotion opportunity to all qualified workers.
See also,
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
September 4, 2020
CALIFORNIA CHALLENGES CISCO SYSTEMS FOR COLOR (“CASTE-BASED”) DISCRIMINATION