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- Age/Race/Sex Discrimination
- Disability/Pregnancy Discrimination
- Sexual Harassment
- Wrongful Termination
Discrimination claims form the basis of many wrongful termination suits. There are both federal and state laws prohibiting discrimination in employment. For a variety of reasons, we recommend that, whenever possible, our clients pursue their discrimination claims in a state court under state law.
California’s anti-discrimination statute is called the “Fair Employment & Housing Act” (“FEHA”) and is part of the Government Code. This law protects the right of all persons to seek, obtain, and hold employment without discrimination based on race, religion, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, sexual orientation, age (at least 40), or pregnancy.
What Employers Are Covered?
FEHA defines “employer” as “any person regularly employing five or more persons, or any person acting as an agent of an employer.”
There is one important exception to the five-employee requirement: the prohibition against harassment applies to anyone who regularly employs at least one person or regularly receives the services of at least one independent contractor.
Public employers, including the State of California, cities, counties, local agencies, special districts, and any other political or civil subdivision, must comply with FEHA regardless of how many people they employ.
FEHA exempts religious organizations that are not organized for private profit, subject to special rules for religious organizations that provide health care.
How Do I Prove Discrimination?
There are generally two theories for proving discrimination:
- Disparate treatment occurs when an employer treats an individual less favorably than others because of the individual’s protected status – for example, his or her race, religion, sex, sexual orientation or age.
- Disparate impact occurs when an employer has an employment practice or a selection policy that appears neutral but has a disproportionate adverse impact on members of a protected group.
Is Some Discrimination Lawful?
- Disparate Treatment. Decisions to discharge, take other adverse employment actions, or to refuse to hire an applicant for employment may be lawful if the employer was entitled to consider protected status as a job requirement. This defense is known as a bona fide occupational qualification.
- Disparate Impact. An employment practice or selection policy may be lawful because it is necessary to the employer’s business.
What Damages Are Recoverable?
In a civil action under FEHA, damages for lost earnings, including future lost earnings in certain circumstances, and for emotional distress may be recovered — if proven. Punitive damages against a private employer may also be awarded if there is clear and convincing evidence of malice, oppression or fraud. Under FEHA, the court also has discretion to award reasonable attorney’s fees and costs, including expert witness fees, to the prevailing party.
What If I Quit?
Discrimination, retaliation or harassment in employment often leads an employee to decide to quit — usually feeling powerless to do anything about it or too upset to continue to go to work.
You may still have a claim for damages if the discrimination is proven even though you resigned and weren’t discharged. But your decision to resign will be scrutinized and will have to be explained.
If you have a reasonable opportunity to complain about the conduct to a person in authority but don’t do so, this failure on your part will be questioned and even criticized later. Your employer will undoubtedly argue that you did not really want the conduct to stop — you just wanted a lawsuit — a chance at the “litigation lottery,” as many employers like to call it.
When in doubt, and if circumstances permit, get competent legal advice before you quit.
Is There Any Step I Should/Must Take Before Suing?
- Using Internal Complaint Procedures. If you believe that you are the victim of discrimination, harassment, or retaliation while you are still employed, you may have an obligation to report the misconduct in an effort to stop or remedy the wrongful conduct. There may be reasons why you do not wish to make a report but, if you sue, you will have to convince a judge or jury that your reasons were good reasons.
- Using FEHA’s Complaint Procedures. Before pursuing a civil suit under FEHA, a person who believes that he/she is the victim of an employer’s violation of the state’s anti-discrimination laws, must first file a complaint with the state’s Department of Fair Employment & Housing (“DFEH”). The complaint is signed under penalty of perjury and must specifically identify the alleged unlawful conduct and the names of all the people being accused.
For more information about DFEH and its services, visit www.dfeh.ca.gov or call 1-800-884-1684. The DFEH office in San Diego can be reached at 619-645-2681.
What are the Time Limits?
In general, a complaint must be filed with the DFEH within one year after the date of the alleged unlawful act of discrimination, harassment or retaliation. [Caution: The time limits for filing with the federal EEOC are shorter.]
There are both state and federal laws making it unlawful for an employer to wrongfully discriminate against an employee or applicant for employment based on physical or mental disability. In general, the state law is superior to the federal law and a victim of disability discrimination should seek the protection of state law whenever possible.
A violation of the state law prohibiting disability discrimination occurs when:
- An employer knew or thought that an employee or applicant for employment had — or had a history of having — a physical or mental condition, disease or disorder that limited a major life activity;
- The employee or applicant was able to perform the essential job duties with or without reasonable accommodation for his or her condition, but
- This physical, mental condition, disease or disorder was a motivating reason why the employer discharged, refused to hire or took other adverse action against the employee or applicant.
In determining whether a condition, disease or disorder limits a major life activity, a judge or jury must consider the condition, disease or disorder in its unmedicated state and without assistive devices or other mitigating measures. “Working” is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments.
A reasonable accommodation is a reasonable change to the workplace that:
- gives a qualified applicant with a disability an equal opportunity in the job application process;
- allows an employee with a disability to perform the essential duties of the job; or
- allows an employee with a disability to enjoy the same benefits and privileges of employment that are available to employees without disabilities.
Reasonable accommodations may include the following:
- making the workplace readily accessible to and usable by employees with disabilities;
- changing job responsibilities or work schedules;
- reassigning the employee to a vacant position;
- modifying or providing equipment or devices;
- modifying tests or training materials;
- providing qualified interpreters or readers; or
- providing other similar accommodations for an individual with a disability.
If more than one accommodation is reasonable, an employer satisfies its obligation to make a reasonable accommodation if it selects one of those accommodations in good faith — even if this is not the one the individual with a disability prefers.
An employer has a legal obligation to engage in a timely, good faith, interactive process with an employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodations by an employee or applicant with a known physical or mental disability or known medical condition.
An employer can prove that its conduct was lawful because an employee or applicant for employment was unable to perform an essential job duty even with reasonable accommodations, by proving both of the following:
- that a particular job duty was an essential job duty; and
- that the employee or applicant could not perform it, even with reasonable accommodation.
In deciding whether a job duty is essential, a judge or jury may consider, among other factors:
- whether the reason the job exists is to perform that duty;
- the number of employees available who can perform that duty; and
- whether the job duty is highly specialized.
An employer can prove that its conduct was lawful because, even with reasonable accommodations, an employee or applicant for employment was unable to perform an essential job duty without endangering his or her health or safety or the health or safety of others.
If an employer claims that the proposed accommodation would create an undue hardship to the operation of its business, the employer must prove that the accommodation would be significantly difficult or expensive to make.
Pregnancy discrimination is a form of sex discrimination prohibited by state law.
Harassing an employee because of pregnancy or retaliating against an employee who asserts her rights under California’s Pregnancy Disability Leave Law are independent violations of state law.
An employer may not treat pregnancy or conditions related to pregnancy and childbirth less favorably than other medical conditions in providing medical insurance or benefits.
An employer must:
- Provide reasonable unpaid pregnancy leave for the period of medical disability for up to four months (16 work weeks); and
- Reasonably accommodate pregnant employees who want to be transferred to less strenuous or less dangerous positions during their pregnancy, on receipt of a medical certificate that a transfer is advisable.
- Return the employee to the same position after her leave unless her job no longer exists because of a plant closure, or unless preserving her job would substantially undermine the employer’s ability to operate the business safely and efficiently.
- Reinstate her to a comparable position if the employer is excused from returning her to the same position or duties — with certain exceptions.
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Sexual harassment in the workplace has received a great deal of attention over the last decade. News accounts of certain high profile cases and big jury verdicts have underscored the importance of this issue in a society where women continue to struggle for equality.
Many women still endure the humiliation of sexually harassing conduct and experience the sense of degradation and powerlessness which it typically causes. Understanding what conduct constitutes unlawful sexual harassment is an important first step in taking control over this aspect of your work life.
- Conditioning a job, benefits or a promotion on acceptance of sexual advances or conduct. The law calls this type of sexual harassment “quid pro quo”, a Latin phrase meaning “this for that”.
- Creating a hostile or abusive work environment by subjecting a person to unwanted harassing conduct based on that person’s sex when the harassing conduct is so severe, widespread, or persistent that a reasonable person of the same sex in the same circumstances would consider the work environment to be hostile or abusive, and when the person herself or himself in fact considered the work environment to be hostile or abusive.
Harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Harassment because of a person’s race or age or other protected status is also unlawful. See Age/Race/Sex Discrimination.
“Harassing conduct” may include the following:
- Verbal harassment, such as obscene language, demeaning comments, slurs, or threats;
- Physical harassment, such as unwanted touching, assault, or physical interference with normal work or movement;
- Visual harassment, such as offensive posters, objects, cartoons, or drawings;
- Unwanted sexual advances.
Harassing conduct does not create a hostile work environment if it is only occasional, isolated, or trivial. In determining whether the work environment was hostile or abusive, a judge or jury would consider all the circumstances, including the following:
- The nature and severity of the conduct;
- How often, and over what period of time, the conduct occurred; and,
- The circumstances under which the conduct occurred.
Remember… not every offensive remark or incident of rude or bad behavior is unlawful sexual harassment.
An employer is liable for the harm caused:
- by a supervisor’s engaging in “quid pro quo” sexual harassment.
- by the creation of a hostile work environment when it is a supervisor — with actual or perceived authority over the person affected — who created the hostile work environment, or assisted or encouraged another or others in creating it.
- by the creation of a hostile work environment due to the conduct of a co-worker(s) when a supervisor knew or should have known of the conduct and failed to take immediate and appropriate corrective action.
An employer is also liable for retaliating against any person who makes or files a complaint about sexual harassment or opposes sexual harassment occurring against another.
Losing a job under any circumstances can be a traumatic experience — especially if you have devoted a number of years to a particular employer. When the reason for losing a job is a legitimate one, the blow is softened. But when an employer terminates an employee unjustly, the adverse impact can be far-reaching. Anger, humiliation, and worry predictably follow — together with many sleepless nights. What next? Can you fight back? Should you?
The first question is: do you have a potential legal claim? Whether to act on it or to let go of it is a different question.
It surprises many working people in California to learn that there is not always a remedy even when a wrong has occurred — in other words, not every injustice is a violation of law. And a legal remedy is available only for violations of law. Management decisions may be bad or unfair — and ultimately limit a company’s success — but may not be unlawful.
“At-will” employment is still the law in California. An employee hired for an indefinite term can be discharged at the will of the employer — with or without notice, and for good or bad reasons or for no reason at all. Employees with written contracts of employment for a specified term, or requiring that termination be for “good cause,” are not “at-will.” And employees who are covered by a Union contract are also not “at-will.” See Labor Law/Unions.
Over the years, the California legislature and the courts have created exceptions to the harsh results of the at-will rule, making certain terminations wrongful.
Here are the most common examples of wrongful terminations:
- The employer is motivated by discrimination or retaliates against an employee for opposing discrimination. See Age/Race/Sex Discrimination, Sex Harassment and Disability/Pregnancy Discrimination.
- The employer is motivated by a desire to retaliate against an employee:
- who complained in good faith about unsafe working conditions
- who refused to perform an illegal act, like price fixing or giving false testimony
- who was a whistleblower by disclosing information to a government or law enforcement agency
- who was an internal whistleblower by making his/her employer aware of illegal activity on a matter affecting the public interest
- who was injured on the job. See Workers’ Compensation.
- The employer’s real reason for the termination violates a public policywhich is
- beneficial for the public, and
- embodied in a statute or constitutional provision.
- The employer’s conduct in terminating an employee results from a serious invasion of a legally protected privacy interest when the employee had a reasonable expectation of privacy.
- The employer terminates an employee without good cause when the employer had promised, by words or conduct, to discharge the employee only for good cause.
- The employer terminates an employee who is absent from work on a protected leave or because he/she requested or took such leave — for example, under the California Family Rights Act or under the Pregnancy Disability Leave Act. There are exceptions and defenses. See Disability/Pregnancy Discrimination.
Employers may also be held accountable for the harm they cause when they violate employees’ rights protected by other laws:
- Discharging an employee who refuses to take a polygraph examination or other lie detector test.
- Discharging an employee for engaging in political activities.
- Blacklisting former employees, whether they quit or were discharged, by using misrepresentations to prevent or attempt to prevent them from obtaining employment.
- Making misrepresentations — statements of fact known to be false at the time made — about a job or the compensation to be paid in order to induce a person to relocate to accept it.
What If Your Employer’s Conduct Forces You To Quit?
Under certain circumstances, an employee who is “forced to quit” has a legal claim for constructive discharge. In general, for a seemingly voluntary resignation to be treated as a “discharge,” the employee must have been required to endure intolerable working conditions associated with the employer’s violation of a statute or a public policy. But when an employer demands a resignation in lieu of being fired, this will be treated as a discharge not a constructive discharge.
You Have A Duty To “Mitigate” Your Damages
Even when you are the victim of a wrongful termination, you have a duty to mitigate the damages caused — meaning to minimize the resulting damages by making reasonable efforts to get and keep comparable replacement employment.
If you believe that you have been wrongfully terminated, you need the advice of a competent, qualified attorney who specializes in Employment Law who can:
- Review the details of what happened.
- Identify whether a violation of law has occurred.
- Determine if there are credible witnesses and evidence to prove it.
- Consider the effect of any internal grievance procedure or agreement to arbitrate.
- Evaluate the provable damages.
- Help you decide whether to sue, improve on a severance offer being made, or simply close this unhappy chapter in your life and move on.
All litigation costs money and causes stress to the parties involved. Not every wrongful termination can be effectively remedied in a court of law. And not every wrongful termination causes enough damage (even if the harm feels immense at first) to justify the high costs associated with litigation.
We are here to serve you! If you have need of our help in the area of Employment Law, please begin by completing this questionnaire, and we will get in touch with you promptly.
Caution: What appears on this page is not an exhaustive list of all the ways in which employers may violate the law. What is offered here is intended to illustrate some of the wrongs that can and do happen in the workplace. If your employment is terminated or you are demoted or discriminated against under circumstances which cause you concern, you should get legal advice about your rights and what options are available to you to challenge your employer’s conduct.