Treating one employee different than another

Ok,., I manage a restaurant in CA. It is 1 of 2 stores in the owners Corp. He also franchises, and is 2 of 300 stores in Ca. I draft, Edit and Print all company paperwork. I orientate all employees at both locations. All employees at both locations sign exactly the same documents. All the standard required by CA state law. As well as a company policy page is signed. Of which all employees are handed a policy booklet and it is also available upon request at anytime.
One store of his is run by his brother, however it has not always been run by his brother.
The other store is run by me and has been since before he bought it 4 or so years ago.
He has since the purchase had me take over the other stores paper work (which he has owned longer by 3 years)

In short, the documentation, the employer, the everything is the same at both stores. While most of my employees are Hispanic, and the other store is all white. (I am white) I do no believe that race or any other "protected" status has anything to do with the owners discrimination.
Ill give even more details than I should, His other store is on south side of San Jose, where all the rich people are and shop. The only constant in his discrimination.
So, He will treat my store way different than the other store. For instance, he will implement new rules for my opener that he does not implement for the other store. He will disallow discounts on one item on one store but not the other, all of which THE PAPERWORK REMAINS THE SAME. I have employee files on every employee for both stores and they all signed a paper saying that bottle drinks may not be on discount, yet he allows employees to do so at one store and not the other.
I guess the simplest way to ask this is, MAY THE CEO/OWNER OF A COMPANY IMPLEMENT A RULE/POLICY to one employee but not another WITHIN HIS OWN CORPORATION?

Hello abacon thank you for posting I answered your question as DaSlapa on that sham site LLT. I still believe the solution to your situation lies in Labor Law. On the other board workhorse (also a member here) suggested there may be a solution in the incorporating documents being it is a franchise. We have only a few attorneys on this site hopefully they will weigh in so hang tough.

As far as the Tittle VII implications, it may be a disparate impact case in which there does not have to be discriminator in intent only in outcome. McGruff will have to bone up on Tittle VII and post later.

Generally speaking, plaintiffs hoping to prove “discrimination” can choose between two theories: “disparate treatment” or “disparate impact.” “Disparate treatment” claims require proof of an intent to discriminate based on the plaintiff’s membership in a “protected class.” “Disparate impact” claims, on the other hand, generally require a plaintiff to demonstrate only that the employer has used a criteria in making employment decisions that disproportionately affects members.

I have P.M'd the moderator of this forum who has more knowledge on CA civil rights's law than the rest of us, and hopefully she will weigh in.
JoeC (McGruff)

Hello,

It doesn't sound like there is any significant evidence of discrimination. It sounds more like one kind of business strategy. There is a number of reasons why the owner would have different rules for different business locations. Tailoring business strategy to demographics of the location of that business is a common business practice.

Thanks,

Arkady Itkin
San Francisco & Sacramento Employment Lawyer

I agree if in fact the rules were different in the 2 locations, however they are very close, and identical paperwork and rules and policies, Its the lack of implementation, and lack of consequences there after that I am mainly asking. I posted this hypothetical question on the other board. 2 twins, they both work for the company, one at each store. Both paid same, both working same shifts, both receiving the same performance marks on their evaluations. May the owner, on any given day, waive a policy such as no discounts on bottle drinks and allow one of the twins to receive it, while telling the other one that he may not? Can the owner pick and choose who he wants to waive or enforce for any given company policy?

Abacon10902 wrote: he will implement new rules for my opener that he does not implement for the other store

I can see how this is contradictory, when I say implement new rules, he will simply verbally tell employee x that they have to do this every morning M-th, however then will not tell another person to do the same or correct them when they do not, when working the same shift. This can actually happen times at 1 store not the other, or often one employee within the same store but not the other.

More details with this guy, I am told as general manager not to expect the same from each crew member, that I must lower the bar for those who are not capable of performing up to what I consider par for the store. All while requiring the "good workers" to perform at optimal levels at all times. Again this behavior can happen at either store or both. I understand thats where pay comes in . Paying one person more because they work hard, however this is not the case in this situation, they all make the same money!

Admin wrote:Hello,

It doesn't sound like there is any significant evidence of discrimination. It sounds more like one kind of business strategy. There is a number of reasons why the owner would have different rules for different business locations. Tailoring business strategy to demographics of the location of that business is a common business practice.

Thanks,

Arkady Itkin
San Francisco & Sacramento Employment Lawyer

Arkady long time no see, great to hear from you! How does that answer square with S.B. 26 passed by the the California Legislature July 15, 1999? As you know that was passed after the controversial Marks v. Loral decision were the court had ruled in favor of defendant as business necessity justification in an ADEA suite. Also even under U.S law Business necessity defense the employer must prove that the challenged practice is "job-related for the position in question and consistent with business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i).

Inquiring minds want to know.
JoeC (McGruff)

Folks,

I dont know enough about the particular situation to make a determinative statement one way or the other as to the possibility that there is employment discrimination.

I would like to point out that in any situation where there is employment discrimination the discriminatee would be wise to look into local or state anti discrimination statutes rather than federal law. The Supreme Court has consistantly narrowed the applicability of federal discrimination statutes and Congress has, a number of times, corrected the Courts directions. This tension has caused some states, and in some cases cities, to pass their own discrimination statutes that are much wider is scope than federal law. Federal law in these contexts do not preempt state and local laws, they only provide a floor that local laws cannot sink below.

So, in conclusion, it is sometimes true that bringing a discrimination claim in federal court grounded in federal law is per se legal malpractice.

Eric