Is Your Boss Taking Advantage of You?
In California, most employers designate their employees as “at-will,” which means that they can terminate or demote their employees whether there is cause to do so or not. However, there are numerous exceptions as discussed on this website. For example, if you were fired or demoted due to unlawful discrimination or in retaliation against you uncovering an employer’s illegal activities or the existence of unsafe work conditions, then you may have a case for wrongful termination.
There is no single “wrongful termination” law. Rather there are several state and federal laws and court decisions that define this concept. The Law Offices of Solomon, Saltsman, and Jamieson can help you navigate these laws and court cases so you can reclaim your job or file a lawsuit.
Did your employer use unfair terms and conditions to hire you just because of your age? If so, you may have suffered from age discrimination.
The federal Age Discrimination in Employment Act of 1967 and the California Fair Employment and Housing Act (“FEHA”) protect employees and job applicants 40 years of age and older when their employers or potential employers have discriminated against them. To qualify for these protections under the FEHA, your employer may be a private company, the state or local government, a labor organization, or even an employment agency, as long as there are five or more people working there. Discrimination in this context can occur when the employer requires unfair terms, conditions, or privileges of employment such as those pertaining to hiring, firing, compensation, and benefits.
Did your employer discriminate against, harass, or terminate you without cause just because you are disabled?
Two sets of laws protect victims of disability discrimination in California – the federal Americans with Disabilities Act (“ADA”), and California’s Fair Employment and Housing Act (“FEHA”). Not only do the ADA and the FEHA prohibit such discrimination, each also requires that employers make the workplace accessible to disabled employees. In other words, they must make “reasonable accommodations” for you. The ADA applies to employers whose work affects commerce and employs 15 or more employees. FEHA applies to employers with 5 or more employees and offers more extensive protection than the ADA.
SEXUAL HARASSMENT AND GENDER DISCRIMINATION:
Do you think that you may have suffered sex or gender discrimination? Sexual discrimination happens to men and to women, can occur between the opposite or same sex, and applies to at-will or non-at-will employees. State anti-discrimination laws as well as the federal Title VII of the Civil Rights Act of 1964 are in place to give you relief.
Gender discrimination is a subset of sex discrimination. It is often non-sexual but is nonetheless directed at you because of your sex. Examples of discriminatory comments and behaviors include employers:
- Asking whether an employment candidate is married or plans on having children;
- Referring to an employee as a “bitch;”
- Making reference to an employee “PMS”ing;
- Claiming that a woman should be more feminine and wear makeup;
- Calling an effeminate male a “fairy,” or “prissy” or stating that he should ‘act more like a man;’
- Refusing to hire a man in a “woman’s job” and vice versa;
- Retaliating against an employee for assisting in or cooperating with an investigation or lawsuit based upon gender discrimination
Sex discrimination can take two forms, either 1) “Hostile Work Environment Harassment” or 2) “Quid Pro Quo Harassment.”
1) Hostile Work Environment Harassment exists, when, in the “totality of the circumstances,” the environment is severe and pervasive both subjectively (i.e. from your perspective) and objectively (i.e. from the perspective of an average person). Courts consider how frequently the conduct occurs, how severe it is, and how and to what extent it interferes with your work when determining whether the environment is ‘hostile.’
Such harassment occurs when an employer or co-worker engages in sexual conduct or behaviors or makes sexual comments that make you feel uncomfortable at best, and scared at worst. He or she may:
- Make derogatory remarks, slurs, or epithets;
- Make physical gestures, ranging from harassing you with his or her ‘eyes,’ to obstructing you from moving around the office, to physically touching or assaulting you;
- Putting up inappropriate pictures, posters, drawings, or cartoons intended to make you uncomfortable
2) Quid Pro Quo Harassment is when an employer, usually a supervisor, requests or demands sexual favors, or makes sexual advances, in exchange for providing job security, benefits, or promotions to the employee.
If you are being discriminated against or harassed based upon your sex or gender:
- Document everything;
- Demand that the harasser stop and report the harassment to Human Resources, the person designated by the employer to receive such complaints, or if no such person exists, complain to the harasser’s superior or to anyone who has authority at work;
- Seek legal advice;
- File a claim with the EEOC or applicable state or local agency
Before filing a lawsuit, one usually must file a complaint with either the Equal Employment Opportunity Commission (for a federal complaint) or the applicable state or local agency (for a state complaint) such as the Department of Fair Employment and Housing. In certain instances, the applicable agency will prosecute your case for you.
Sexual Orientation Discrimination
Do you think that you may have been discriminated against based upon your sexual orientation or perceived sexual orientation? California has laws in place to protect you. It prohibits discrimination against those “with traits not stereotypically associated with their gender,” such as mannerisms, appearance, speech, etc. Sexual orientation discrimination comes up, for instance, when employers enforce a dress code, permit women to wear makeup but not men, or require men and women to only use restrooms designated for their particular sex regardless of whether they are transgendered.
If you have experienced discrimination because you are transgendered, a transvestite, a cross dresser, gay, lesbian, bisexual, curious, or simply perceived as unfeminine or unmasculine, California’s gender identity laws protect you.
Did your employer discriminate against you, harass you, or wrongfully terminate you for any of the following reasons:
- Your religion, race, color, national origin, or ancestry?
- Your sex, sexual orientation, marital status, or pregnancy status?
- Your age, physical or mental disability, or medical condition?
If you answered yes to any of these questions, then you may have suffered unlawful discrimination.
Fortunately, California protects you under its Fair Housing and Employment Act (FEHA) law, as does the federal government under Title VII of the Civil Rights Act of 1964 (“Title VII”). We typically sue employers under FEHA, as it affords more protections to our clients than does Title VII.
Racial discrimination usually takes two forms – 1) Disparate Treatment and 2) Disparate Impact.
1) Disparate Treatment occurs when the employer deliberately discriminates against an employee based upon his or her race, ethnicity, skin color, or racial characteristics. 2) Disparate Impact occurs when an employer’s policies have a discriminatory impact on employees due to their race, ethnicity, skin color, or racial characteristics. Disparate treatment is usually intentional discrimination, whereas disparate impact is usually inadvertent discrimination (although this is not always the case).
Racial discrimination may take many forms. Did your employer or co-worker:
- Ask you racially-charged questions during your interview or questions which sought to determine your race?
- Make offensive jokes, statements or slurs based upon your race such that your work environment is hostile?
- Require you to work in a certain geographic area solely based upon your race?
- Assign you to a certain type of position solely because of your race?
- Retaliate against you for participating in or cooperating with an investigation or lawsuit based upon a racial discrimination allegation?
Before filing a lawsuit, one usually must file a complaint with either the Equal Employment Opportunity Commission (for a federal complaint) or the applicable state or local agency (for a state complaint). In certain instances, the agency will prosecute your case for you.
National Origin Discrimination
Are you being discriminated against because of where you are from, your ethnicity, with whom you associate, or your accent and mannerisms associated with where you are from? You are entitled to the same employment opportunities and workplace treatment as anyone else, irrespective of your place of origin. Title VII of the Civil Rights Act of 1964 (which applies to employers with 15 or more employees) protects you from “national origin” discrimination. In California, the Fair Employment and Housing Act protects you from such discrimination.
National origin discrimination may arise in several contexts. Has:
- Your employer based employment decisions, including hiring and firing you, on your national origin?
- A potential employer bypassed you just because you had an accent, even though it would not have affected your job performance?
- A potential employer required you to be fluent in English and/or only speak English, even though the use of English is unnecessary to perform your job?
- Your employer permitted a work environment hostile to you because of your national origin to develop or continue?
FAMILY MEDICAL LEAVE ACT/ LEAVE OF ABSENCE:
Were you discriminated against because you are pregnant, have children, have a medical condition stemming from pregnancy, or are married to someone who has been discriminated against for these reasons? Pregnancy discrimination is characterized as a type of unlawful sex discrimination under federal law.
The California Pregnancy Disability Leave Law enables a woman to take 4 months of pregnancy leave, even if she is a new employee, and even if she does not work full time. Pregnancy leave is mandatory when a woman is “disabled” due to her pregnancy, a medical condition associated with her pregnancy, or to childbirth. A medical professional makes the determination of whether a woman is “disabled” such that she requires leave. An employer may not force you to take leave all at once. Moreover, before taking leave, an employer must permit you to take time off for pregnancy-related illnesses.
The California Family Rights Act (“CFRA”) permits some pregnant women to take 12 weeks of leave (assuming your employer employs 5 or more people and the requirements of the CFRA are met). Therefore, a pregnant woman may be entitled to take a significant amount of time off for her pregnancy under these laws – up to approximately 7 months.
Pregnancy discrimination can manifest in several ways. Did the employer:
Refuse to hire you because you were pregnant, even though you could perform all necessary job functions?
Refuse to adjust your duties so that you could keep working, such as giving you different assignments or modifying your responsibilities?
Fail to give you unpaid disability leave?
Force you to go on leave even though you could still perform your job?
Require that you to stay on leave until your baby were born or that you stay away from work for a certain amount of time?
Exempt pregnancy-related health expenses from your health insurance plan, refuse to reimburse such expenses, or require a larger deductible as compared to other non-pregnant employees?
Claim that you are not entitled to benefits because you are not pregnant, even though you are married to someone who is?
Withhold pregnancy-related benefits because you are not married?
Refuse to provide pregnancy-related benefits to you even though it provides benefits to your non-pregnant coworkers on leave?
Bypass you for the awarding of a more senior position because you were on pregnancy leave?
Alter the way your vacation, pay, or benefits are calculated because you were on pregnancy leave?
If any of these situations apply, or if you were discriminated against due to your pregnancy status in another way, you may have a viable discrimination claim.