Workplace discrimination is when your employer treats you unfairly because you are part of a protected class.
There are many kinds of protected classes. The most commonly identified are pregnancy, age, disability, and race. If an employer treats someone in a protected class differently than they treats their other employees, that is workplace discrimination and is against the law.
There are other protected classes such as religion, national origin, medical condition, genetic information, marital status, sex, age, gender, gender identity, gender expression, sexual orientation, or military and veteran status.
If we prove you were discriminated against based on any one of these protected classes, your employer will have to pay your attorney’s fees. This is very valuable leverage, and it often leads employers to settle viable discrimination claims for substantial amounts.
You should not be subjected to any type of adverse employment action because of medical conditions or religious beliefs, as long as you work for an employer with five or more employees which is not a religious organization, and you make the employer aware of any accommodations you need.
Religious organizations are allowed to discriminate, and choose only employees that match their religious beliefs, but they cannot discriminate against someone because of a physical disability.
All employees of employers with five or more employees are protected from employment discrimination. That means if you are fired because you are pregnant or because you have a disability that prevents you, either permanently or temporarily, from working as hard as you used to, or if you are a member of any other protected class, the protections of the Fair Employment and Housing Act apply to you, and will protect you from any adverse employment action your employer takes against you.
California is an at-will employment state. Unless you are a member of a union, you are an at-will employee and you can be fired for any legal reason. You also have the right to quit work at any time. However, an employer is not able to fire an employee for an illegal reason. So, rather than do that, the employer will come up with an alternative reason and not share that reason with the employee. Once we obtain the employee’s personnel file, we might be able to discern what the real reason is.
Not all lawsuits end up at trial, in fact over 90% settle before a trial. But while many claims can be settled prior to litigation, most should be filed in court, because a court filing enhances both the value of your case and the threat to the employer. Oftentimes, as the trial date approaches, the employer feels threatened by the potential harm that an adverse jury verdict could do to their brand and reputation. Employers are willing to pay to avoid the uncertainty of a trial, and the harm to their reputation that might be caused by losing a harassment, discrimination or retaliation case in court.
A multitude of state and federal laws are in place to protect job applicants and employees against workplace discrimination. Workplace discrimination can appear at almost any stage of the employment cycle, including application, hiring, job assignment, promotion, compensation, and discipline. Discrimination can also play a role in other areas of employment law, such as employer retaliation and wrongful termination.
The FEHA bars employers from engaging in discrimination based on disability, age, race, color, religion, gender, national origin, and sexual orientation. The California Department of Fair Employment and Housing (DFEH) enforces the FEHA.
Title VII is a very important piece of federal legislation which protects employees from discrimination based on religion, race, national origin, and gender. Title VII applies to employees in the public sector, as well as to companies which employ 15 people or more. Title VII is enforced by the EEOC (Equal Employment Opportunity Commission), one of the most important federal agencies that plays a role in protecting workers.
Prohibiting discrimination against employees who are at least 40 years old, the ADEA applies both to private sector employers with over 20 employees and all public sector employers.
As the name suggests, this is a federal anti-discrimination legislation, which prevents employers from discriminating based on mental or physical disabilities. The ADA covers employers in public sector as well as private businesses with 15 employees or more.
The FLSA is US federal law, guaranteeing a minimum wage and overtime pay for American workers. The FLSA also sets standards regarding the employment of children.
This Act is part of the FLSA, added in 1963. It narrowly focuses on protecting employees of businesses with 15 or more employees against wage discrimination. Under the Equal Pay Act, discrimination based on sex is strictly prohibited. This means that men and women doing the same work, or similar work, must be paid equal wages for their work.
The IRCA is federal legislation prohibiting the hire and employment of illegal aliens. The IRCA also disallows employment discrimination against aliens who are lawfully residing in the United states.
The Federal Pregnancy Discrimination Act prohibits employers from discriminating against job applicants or employees based on their pregnancy status, or medical conditions related to pregnancy or childbirth.
The two agencies that oversee suing for employment discrimination are the Equal Employment Opportunity Commission (EEOC) and the Department of Fair Employment & Housing (DFEH). The EEOC is the federal agency and the DFEH is the state agency.
In order to sue in California, you need a Right-to-Sue letter. Before you can obtain a Right to Sue letter, you must report the discrimination to one of those two agencies. Luckily, a report to one is a report to both. Either one can accept a discrimination complaint on behalf of the other.
So, it does not matter if your claims are reported to the EEOC – you can still sue in state court as long as you were not a Federal employee, for example a US Postal Service worker.
You must file your claim with the EEOC or DFEH within three years.[1] It is highly recommended that you have an employment lawyer file this claim on your behalf.
[1] Effective in January 2020, the Statute of Limitations for FEHA discrimination, harassment and retaliation claims has been extended from one to three years, but this change is not retroactive, which means that the offensive conduct must have occurred after January 1, 2019.
Once you receive a Right-to-Sue letter from either agency, you have one year to file suit. The letter from the EEOC might say you have 90 days to sue in federal court, but in truth, unless you are a federal employee, the one-year statute applies.
Most often, state law applies to an employee’s claims. State laws are more beneficial to the employee and in fact, unless you work for a federal agency, it is much better to sue under state law, if at all possible.
You have two choices when going to one of these agencies. You can let the EEOC or DFEH investigate your claim, or you can request an immediate Right-to-Sue letter. Usually, lawyers request an immediate Right-to-Sue letter. The only circumstance where it might be best to allow the EEOC or DFEH to investigate is where you are not sure of the real reason for your termination.
Sometimes employees come to us and tell us that they do not know why they were fired. Obtaining those answers is very important. Under Labor Code 11 98.5, you have the right to your employment file, which might hold the answer to why you were fired.
Either way, if possible, it is best if you allow an attorney to formulate the complaint to the EEOC or DFEH, so that it is done properly, and that all the appropriate boxes are checked.
In California, the FEHA (Fair Employment & Housing Act) applies to employers with more than five employees. However, with regard to sexual harassment, even a single employee qualifies. Independent contractors are also protected against sexual harassment by employees of companies that they perform services for.
Other exceptions include, for example, religious organizations, which are exempt from some religious anti-discrimination laws for certain categories of employees. For example, a religious organization can legally terminate a preacher who fails to abide by its precepts, but cannot discriminate against a bookkeeper or janitor who fails to follow its doctrine.
Employers are obligated to take all reasonable steps to prevent harassment, discrimination, and retaliation from occurring. They are responsible to establish policies and to enforce those policies. They are required to provide periodic anti-discrimination training to all supervisors and managers.
When they receive complaints, employers are responsible to investigate those complaints, and to determine whether any illegal actions took place, and take appropriate remedial actions to reverse any discriminatory actions taken against its employees.
In order to trigger an investigation, the employee has to complain, and should do so in writing or by email from their personal email address. Many employees are afraid to complain because they fear retaliation, but ironically, it is the existence of the written complaint that protects them from retaliation, so long as the complaint includes a protected class.
Avoid complaints that do not implicate a protected class, or protected activity. If you are not sure, contact an employment lawyer before you complain. An employee should never complain that their supervisor took an adverse action against them because their supervisor does not like them. Doing so could be career suicide.
Typically, employers cannot ask your age, whether or not you suffer from any disabilities, or whether you are pregnant or thinking about becoming pregnant. New laws now exist that prevent employers from asking about your previous wages due to past gender pay disparities and the public policy goal to pay men and women equally for the same work going forward.
What happens once a company receives a charge of discrimination depends on whether it is an immediate Right to Sue letter or whether the EEOC has chosen to investigate the complaint. That decision is the right of the employee. If the EEOC is investigating, the employer must provide the EEOC with a response. After that response, the EEOC may ask for further elaboration and then will either decide to take on the case themselves or issue a Right to Sue letter.
In higher value cases, utilizing the EEOC’s mediation program is selling yourself short. If you are willing to accept less than $20,000 for your employment discrimination case, then the EEOC may be a viable avenue. However, these cases can have very significant value if litigated properly in Court, and the threat of that litigation adds hundreds of times the value you might otherwise see in an EEOC mediation.
Claims of workplace discrimination can be especially challenging to prove, because it is often difficult to establish that an employer has behaved in a fashion that can be considered discriminatory.
California is an at-will employment state, meaning an employee could be fired for nearly any reason other than an illegal one. Therefore it is often difficult to establish that an employer’s actions were discriminatory. Wrongful Termination Law Group has more than 10 years experience in uncovering evidence supporting discrimination.
If you believe discrimination has caused you to be the victim of unfair treatment in the workplace, passed over for a position or promotion, or even fired, Wrongful Termination Law Group has the knowledge and experience to help you with your case. We work with residents of Los Angeles, Riverside, San Bernardino, and Orange counties to achieve the best possible legal outcome.
Eric A. Panitz is an experienced employment discrimination lawyer with a long track record in discrimination litigation, and is dedicated to bringing justice to hard-working people in need of legal assistance and advice.
Wrongful Termination Law Group offers a 100% free case evaluation to discuss your case and answer any questions you might have. In addition, we accept employment discrimination cases on contingency, so that you pay no fees unless we win your case.
To see how our legal experts can help with your discrimination case, contact Wrongful Termination Law Group today.
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