While we do not live solely to work, we have to work in order to support ourselves and our families. But cases of employment discrimination are all too common. Discrimination in the workplace can be emotionally devastating and can also negatively affect an individual’s work and career opportunities. However, anti-discrimination laws have helped thousands of employees to become useful members of society who are financially independent. The state of California has the Fair Employment and Housing Act (FEHA), which protects employees from employment discrimination. Employers generally cannot discriminate in their hiring, promotion, firing, and compensation practices, unless there is a bona fide occupational qualification, which is basically the quality that an individual must have in order to perform their job well.
If you believe that your employer has discriminated against you, you deserve compensation for the illegal actions. Stop Unpaid Wages is a reputable firm recognized for helping California employees stand up against workplace discrimination. We can help you fight for your right to a fair and equal work environment. For prompt and effective legal assistance, call 424-781-8411 or fill out our online contact form to schedule a free, no-obligation consultation.
How to Know If You Were Discriminated Against
In California, it’s against the law for an employer to discriminate against a protected class of job applicants and employees. However, most employment discrimination is subtle because employers understand that discrimination is against the law and could result in a lawsuit. As such, they take steps to ensure that they don’t say anything obvious or put anything in writing when dealing with employees and applicants. Even so, there may be signs of discrimination. This may come in the form of treating certain groups of employees different from others. It could also involve a change in attitude towards a worker when an employer discovers that the employee belongs to a certain protected group.
Signs of possible discrimination in the workplace involve:
- Workload increases or change in work duties
- Sudden changes in job performance reviews
- Reduced pay or reduced hours
- Exclusion from meetings and events
- Making fun of a person's sexual orientation or accent
- Different rule enforcement when employees of different backgrounds are involved
- Failing to consider applicants because they have ethnic-sounding names
- Failure of management to condemn and put a stop to sexist or racist jokes made in the workplace
Also, it’s possible for employees to be discriminated against by employers who belong to the same protected class as the employee. For instance, a female applicant can be discriminated against by a female boss based on her gender. Alternatively, a Mexican-American employer can discriminate against a Mexican-American applicant or employee.
Protected Class in California
As provided by the California Fair Employment and Housing Act (FEHA), it’s illegal for an employer to discriminate against an employee or applicant based on:
- National Origin
- Religious creed
- Medical Condition
- Mental Disability
- Physical Disability
- Gender Identity
- Sexual Orientation
- Genetic Information
- Gender Expression
- Marital Status
- Military and Veteran Status
Discrimination in the workplace is not limited to minorities, it can affect anyone. Employment discrimination based on any or several of the above categories against an applicant or employee in California is unlawful. Federal law under Title VII of the Civil Rights Act of 1964 prohibits most types of discrimination in the workplace. This makes it illegal to pay less, fail to promote, discipline, deny training, demote, or refuse to hire an employee because they belong to a certain group. An employer is also not allowed to adopt a practice or policy that unduly affects a protected class.
Under the FEHA, it’s unlawful for an employer to discriminate against an individual based on their perceived disability, sexual orientation, race, or another protected group. This means that the employer can still be in violation of the law even if they’re wrong about the employee’s status. For instance, during a job interview, an employer thinks that an applicant is gay based on the way that the applicant acts or dresses. On the other hand, the employer does not want to hire an individual who is gay. The employee files a complaint for discrimination based on sexual orientation. But suppose the applicant was not gay, it still means that the employer’s actions are unlawful because they involve discrimination based on perceived sexual orientation.
The FEHA also provides that in any aspect of employment, it’s unlawful for the employer to discriminate against an individual by:
- Refusing to hire or employ
- Firing, discharging, or bearing an employee
- Refusing to select an individual for a training program
- Discriminating against an individual in compensation or in privileges, terms, or condition of employment
Discrimination in the workplace is also prohibited in any aspect of hiring or employment, including:
- Refusing to engage with employees in need of accommodation in a timely and good faith interactive process
- Refusing to provide employees with reasonable accommodation
- Refusing to select for training
- Denying benefits
- Denying reinstatement
- Denying a promotion
- Reducing pay
- Assigning different duties
- Forcing an employee to quit
- Discriminating against an individual in any way
California laws that prohibit workplace discrimination are not limited to employers. They also apply to unions and labor, which are prohibited from restricting, expelling, or excluding membership based on discriminatory groups. Prohibitions on discrimination also apply to employment agencies and apprenticeship training programs.
Discrimination When an Individual Was Never Hired
Employment discrimination is not limited to individuals who are already hired; it also applies to job applicants, job applications, and interview situation that occur before one is hired. One of the signs of potential employment discrimination violations in cases involving individuals who were never hired may be improper job application forms or questions during an interview. As such, it’s unlawful for an employer to ask questions about an individual’s race, nationality, religion, ancestry, marital status, maiden name, sexual orientation, arrest record, mental or physical disability, or requiring a photograph.
An employer cannot ask an applicant to take a psychological or mental exam if other applicants are also not subjected to take the same exams or if the exams are not related to the job and are not consistent with business necessity. But it’s within the lines of the FEHA for an employer to ask applicants about their ability to perform certain functions and also how they would perform them. If a job is offered but on a condition that the applicant should answer medical questions or pass a medical exam, then that should only be done if all the new employees expected to perform similar job duties have to take a medical exam or answer these questions.
Difference between Employment Discrimination and Workplace Harassment in California
Under the FEHA, the difference between employment discrimination and workplace harassment is:
Workplace harassment is bias and occurs when an individual in the workplace mistreats another on the basis of sexual orientation, race, gender, religion, national origin, or other prohibited category. It’s expressed through interpersonal relations and falls outside the job description of the harasser. It’s a form of workplace bullying.
Conversely, employment discrimination occurs when an individual who has a higher rank in the workplace treats employees differently based on prohibited categories, through official employment actions. This means that the person committing discrimination performs acts that are part of the job description. Put simply, employment discrimination consists of behavior that’s part of a job performance while workplace harassment involves behavior that’s external to the harasser’s actual job.
Let’s look at some examples that illustrate the discrimination-harassment distinction:
Example 1: Jonathan is hotel manager responsible for assigning employees to their shifts. His mother left abandoned him when he was young and seems to hold a grudge against all female employees. Jonathan regularly gives female employees the worst night shifts and makes them work late at night and on holidays. Male employees, on the other hand, get the best, easiest shifts. In this case, Jonathan is committing employment discrimination based on gender. Assigning work shifts is one of his official duties but then, he performs that duty in a manner that shows his animus against a protected class of individuals.
Example 2: Kate is a single mother and an employee at the hotel. She’s systematically given night and afternoon shifts, which makes it hard for her to spend quality time with her children after school. Kate asks Jonathan to assign her to more morning shifts, but Jonathan tells her that he would only do that if she went out on a date with him. In this case, Jonathan is committing sexual harassment against Kate. Giving employees work benefits and conditioning them to go out on dates is not part of his job duties as a manager. This explains why this is a case of workplace harassment.
Example 3: Ali is an Iraqi-American information security analyst at a startup internet marketing company. Annette is his co-worker. Annette usually makes ethnically insensitive comments about immigrants from Iraq and says that she hopes the government will eventually “send all of them back to their country.” She makes such comments that Ali can hear at least every work day. The owner of the company hears also hears the comments but does not take any step to stop them. Ali may be experiencing a hostile work environment on the basis of his national origin. This is an example of harassment and not discrimination because Annette’s disparaging comments are not connected to her job duties.
Steps an Employee Facing Employment Discrimination Can Take
Although California and federal laws may prohibit employment discrimination on the basis of belonging to a certain group, it may still be unclear what to do when you’re the subject of employment discrimination. Here are the steps that you can take to assert your rights under California’s FEHA:
- Inform the Employer of the Discrimination
The first thing that an employee who is discriminated against should do is to make the employer aware of the situation. It’s likely that many unlawful acts of discrimination in the workplace go unrecognized and unpunished because victims are afraid to speak out and let the employer know of the unacceptable and unwelcome conduct. Of course, based on internal politics and the supervisory structure of the company, this may be easier said than done. Rare is the case where employers will openly and readily admit to employment discrimination and help you navigate the legal process. But knowing that you’re talking to the right person after a discrimination ordeal can be a great comfort.
Under California employment law, employers are required to have a written anti-discrimination policy and communicate the policy to employees. It should also indicate to whom complaints of discrimination should be directed. Attempting to resolve instances of workplace discrimination through your employer can help put an immediate end to the harassment. But if your complaint to the employer does not bear any fruit, it will strengthen your argument if you file a discrimination lawsuit, in two ways: by allowing you to argue that your employer failed to take appropriate steps to prevent discrimination and by blocking the employer’s arguments that you failed to take advantage of its anti-harassment measures.
It’s also worth noting that the law protects employees against retaliation for complaining about employment discrimination. As such, fear of workplace retaliation should not deter you from raising a complaint to your employer first. The FEHA protects employees who face retaliation for:
- Reporting employment discrimination against other employees
- Opposing employment discrimination or harassment
- Opposing workplace harassment
- Helping with government inquiries or DFEH investigations
An employer cannot fire an employee for filing an employment discrimination claim. But if you experience retaliation, you’ll have an additional law cause of action against your employer.
- File a Discrimination Complaint with DFEH
If you receive no response from your employer, consider filing a charge of discrimination with the California Department of Fair Employment and Housing (DFEH), which has the responsibility of overseeing compliance for anti-discrimination laws. Filing a complaint with DFEH is required before an employee can file an employment discrimination lawsuit in California. DFEH’s website offers an online pre-complaint inquiry form for individuals who are planning but not ready to submit a full complaint as well as a form for submitting a retaliation complaint.
An individual planning to file a discrimination charge with DFEH can do so within 1 year of an occurrence of discrimination or retaliation. Conversely, if filing the charge under the federal Equal Employment Opportunity Commission (EEOC), it should be done within 180 days of the unlawful act. But this deadline can be extended to 300 days if a local or state agency enforces discrimination laws on the same basis.
These deadlines can be complicated because it may not be clear just when the problematic or disruptive behavior reached the legal definition of discrimination, and thereafter when the clock started ticking. In addition, the discriminating behavior may come and go, and the victim may assume that it has come to an end, only for it to come up again later.
It’s not uncommon for victims of employment discrimination to miss the DFEH complaint deadline because they have made the complaint to their employer and are waiting for the management to complete the investigation and take action. With this in mind, it’s of utmost importance for an employee to consult with a California employment discrimination attorney at this stage in the process. An attorney can review the details of your case and make an educated guess as to when the DFEH deadline may be and can as well help you take the necessary steps to protect your rights in your employment discrimination case.
File a Discrimination Lawsuit against Your Employer
Under the FEHA, a California employee has to get a “right to sue” notice from the DFEH before filing a lawsuit against their employer for discrimination. However, the DFEH won’t investigate your complaint if you seek an immediate right to sue notice. Alternatively, you have the option of waiting until the DFEH find no violation or dismisses your case before taking it to court. Proceeding directly to court without letting the DFEH investigate your case is only advisable if you have a lawyer. An attorney can get the right to sue notice and file the case in the county where the discrimination took place.
Once you file the lawsuit, your employer and any other individual named in the lawsuit will be served with the complaint. The defendants are required to respond to the allegations with a formal answer and the case may then proceed through litigation. It may take a long time for a civil employment discrimination lawsuit to make its way through the courts, but then, chances of settling out of court increase as the case gets closer to trial. However, the employer and employee can negotiate a settlement at any point before the end of the trial.
To Sue the Employer or the Individual who Discriminated Against You?
Many people who are victims of discrimination at the workplace are often confused as to whether they should sue their employer or the person who discriminated against them. The laws involving employment discrimination are complex and it’s, therefore, best to consult with an experienced California employment attorney. This is important for two reasons:
Your employer is likely to have more money available to compensate you for the discrimination and the suffering you experienced and also helps determine how much responsibility your employer bears for the discrimination. For instance, if you experience employment discrimination at the hands of your supervisor, the responsibility for the discrimination falls on your employer. If you were discriminated against by a non-supervisor coworker, then your employer is only liable if they were negligent. This means that they failed to respond to the discrimination once it occurred and/or failed to take proper measures to prevent the discrimination.
Damages in a California Employment Discrimination Lawsuit
There are several factors that determine the damages available in an employment discrimination lawsuit, including whether you were subject to any harassment, the type of harm to the job applicant or employee, and the extent of the discrimination. This may include punitive damages, money damages, and equitable remedies. Money damages may include losses from front pay, back wages, reduced pay after a demotion, loss of income from a missed promotion, pension benefits, emotional distress, pain and suffering, bonus payments, and other benefits. An employment discrimination victim may also seek equitable remedies. This may force the employer to take certain necessary actions. For instance, if discrimination was the reason behind a job applicant not being hired, the court can require the employer to hire that individual. The employer may as well be required to make reasonable accommodations to the employees.
In most employment discrimination lawsuits, employees or applicants who’ve been victims of employment discrimination can seek damages for court costs and attorney’s fees. And if the employer’s behavior is malicious or egregious, the employee who’s been discriminated against may be eligible to receive punitive damages. These may also be used by the court as a way to dissuade the employer or other employers from engaging in similar behavior in the future.
Finding Help for an Employment Discrimination Attorney Near Me
Use of epithets, stereotypes, different standards for different workers, and unlawful workplace rules are some of the factors in employment discrimination claims. Employees who are discriminated against at the workplace suffer wage inequity, denials of promotion, wrongful termination, irregular shifts and other serious consequences, including serious emotional distress.
Employers are required to take measures to prevent discriminatory practices and provide a safe working environment for all employees. If you’ve been a victim of discrimination at the workplace or while seeking a job, you have rights and deserve to be compensated for the employer’s illegal actions. The California employment discrimination attorneys at Stop Unpaid Wages have the knowledge and experience to successfully prove discrimination. We pursue every remedy available to you, including money damages, attorney fees, and punitive damages.