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Articles Posted in Employment Law

The state of California set a bleak milestone recently as it surged past 300,000 total cases of coronavirus, according to Deadline. The Mercury News reported that, on July 12, Alameda County was added to the state’s coronavirus “watch list.” There are many ways that coronavirus can hurt you, but one way you perhaps hadn’t considered is the possibility of contracting the virus and recovering, only to be faced with discrimination when you try to return to work (due to your having had the virus.) If that happens to you, California’s discrimination laws may have options for you to obtain compensation for the harm you suffered, so be sure to contact an experienced Oakland employment attorney right away.

One of the first things that you should understand is, if you have tested positive, there are certain things that California’s law forbidding certain forms of workplace discrimination (the Fair Employment and Housing Act) says your employer can do, and other things it cannot.

The law in California may allow an employer to make certain demands of employees in order to ensure that the employee in question is capable of doing the job and doing it safely. These are called “fitness for duty” exams, and they typically include a medical examination and a certification from a medical professional that any safety concerns related to that worker’s return to the job no longer exist.

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In California, you have the right to go to work and do your job while free from sexual harassment. You also have the right, if you are the target of sexual harassment, to seek to stop that harassment without suffering reprisals from your employer. That means that you are entitled to say “no,” to complain to your employer’s HR department or to file a harassment lawsuit or claim with the Department of Fair Employment and Housing (DFEH) and your employer cannot punish you for it. That means no firing you, no demoting you, no reassigning you to less desirable work and no cutting your hours. If your employer does engage in these types of actions, you should reach out to an experienced Oakland employment attorney promptly, because those punishments may mean that your employer is liable to you for impermissible retaliation.

S.E. was a teenager working at a drive-in restaurant whose lawsuit presented a case of exactly that sort of retaliation. According to the employee, who was still a minor, her manager made sexual advances toward her and, when she did not accept those advances, he altered the teen’s work schedule to reduce her hours (and, by extension, reduce her income.) The teen informed the employer of the manager’s advances and his retaliation against her after she said no. The employer fired the teen.

That, of course, is one of every workplace sexual harassment target’s nightmares, isn’t it? Too many victims look at their harasser and think that he has far more “pull”/”juice”/power/etc. within the organization than they do, and so they suffer in silence, fearing what would happen to them if they did dare to speak up.

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The law in California requires a worker to file an administrative complaint for discrimination with the Department of Fair Employment and Housing (DFEH) within one year of the discriminatory actions. The good news for workers, though, is that there are circumstances where the law may give you extra time to file a complaint with DFEH or file a lawsuit with the court. One way this can happen is through something that the law calls “equitable tolling.” Another legal concept that may help your case is something called a “continuing violation” of the Fair Employment and Housing Act. These tools can help you present to the court a fuller and more persuasive case and potentially entitle you to a larger sum of compensation. The key thing is to make absolutely sure that you don’t wait too long, as that could cost you your case entirely. Contact a knowledgeable Oakland employment attorney to learn more about your options and deadlines.

J.B. was a Northern California worker whose discrimination case focused heavily on those deadlines. J.B. was an openly gay man who worked for the California Highway Patrol from 1996 to 2016. During those two decades, J.B. allegedly suffered through many injustices, including “derogatory, homophobic comments,” being “singled him out for pranks” and having his mailbox “repeatedly defaced.” On top of those things, other officers also allegedly “refused to provide him with backup assistance during enforcement stops in the field.”

Eventually, the discrimination and harassment took their toll, according to J.B. He filed a workers’ compensation claim in January 2015. In that action, he stated that he had begun having “headaches, muscle pain, stomach issues, anxiety and stress.” He was also allegedly suicidal due to problems at work. J.B. won his workers’ comp case. That ruling came down in October 2015 and, four months later, he left his job. Several months after leaving, J.B. filed a claim with the DFEH and filed a discrimination lawsuit the next day.

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The COVID-19 pandemic is disrupting lives and, more importantly, has cost the lives of more than 1,000 Americans. While the pandemic has led to the institution of many extraordinary measures, there are some things that remained unchanged. For example, California employers’ obligations to avoid illegal discrimination and harassment remain in place and are as strong as ever. In fact, given the racial/ethnic component of the virus’s presumed origin, employers should be even more vigilant than ever to avoid improper practices. If, in this era of COVID-19 pandemic, you’ve been harmed at work because of your race, ethnicity or national origin, you may have legal options under the Fair Employment and Housing Act. Reach out to a knowledgeable Oakland employment attorney to find out more.

The Department of Fair Employment and Housing recently released an “Information” document about COVID-19 and employers’ FEHA obligations. The very first topic that the document addressed was the harmful practice of discrimination or harassment “because of race or national origin.” This kind of discrimination or harassment can take many forms. In the context of the current COVID-19 pandemic, the victims of illegal discrimination or harassment may be targeted because of actual or perceived Chinese ancestry.

Note that you don’t actually have to be of Chinese origin or ancestry. Illegal discrimination or harassment can stem from one’s actual national origin or the perpetrator’s perception of your national origin. So if, for example, your facial appearance, your manner of speaking or your name makes your supervisor think you’re of Chinese origin – and your supervisor harasses or discriminates against you because of it – it doesn’t matter if your heritage is Chinese, Korean, Vietnamese, Japanese or something else entirely. The fact that your supervisor believed you were of Chinese origin and took adverse action against you because of that belief is enough.

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Sometimes, your wrongful termination case may have overwhelming evidence on your side… a case where you are obviously entitled to a judgment in your favor. A lot of times, though, that’s not what happens. In many lawsuits, the cases are of the type often referred to as “he-said-she-said,” or as lawyers call them, “swearing contests,” which refers to the fact that the sworn testimony of witnesses make up the vast majority of the evidence, and the outcome rests on which side the jury finds more believable. If you’re involved in a case like that, the more evidence you can give the court beyond just your own testimony, the more credible your testimony may become and the stronger your case may become. To be sure you are identifying, obtaining and utilizing all the evidence you need for your strongest case possible, make sure you have an experienced Oakland wrongful termination attorney working for you.

D.W.’s was a case like that. He had risen through the ranks at the call center of a major telecommunications company. By 2012, he was named the interim acting director of the call center. He routinely received high-performance review scores and praise for his leadership skills. He applied to be named the director of the call center but was not chosen. The company selected a white woman to be the new director. Unlike D.W., the woman did not have a bachelor’s degree, which the employer listed as a “preferred qualification” for the position of director.

D.W.’s former supervisor, after having been reassigned, told him that she attempted to get the company to choose D.W., but that he had three key things working against him: he was a former employee of a competitor company, he was not white, and he was not female. Just four months later, the company fired D.W.

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In most any case, it is important to ensure that your complaint names all the defendants potentially liable to you and includes all potentially viable claims for a judgment in your favor. Making sure that you’ve done your pre-trial “homework” to identify all of the entities potentially liable to you is important to ensure that you get the full benefit of the sum awarded by the jury. Including all of the possible claims is important because, the more avenues for the court to find the defendants liable, the greater your chances for success. As you face the possibility of pursuing a discrimination and/or retaliation case in court, be sure you are getting the legal advice you need from a knowledgeable Oakland employment attorney to ensure your court filings are giving you that maximized chance of success.

As an example, there’s the case of J.M., who worked in a maintenance position for a conference center in Santa Cruz. That conference center was a subordinate unit of a Missouri-based church. At one point during J.M.’s employment, a younger male co-worker showed J.M. some messages M.G., the center’s executive director, had sent to the younger man, which he considered suggestive and inappropriate.

The messages were eventually shown to a member of the conference center’s board, who took the messages to the church’s general legal counsel. The employees followed this path of escalation because they feared retaliation from M.G.

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There are many ways that you can lose an Oakland employment discrimination case. You can lose because you don’t enough evidence to support your case. You can also lose because, even though you have a mountain of extremely persuasive proof, you did not comply with the state’s procedural rules in pursuing your lawsuit. This can happen in a variety of ways, but one of the big ones is missing the deadline for filing a discrimination claim. In the past, the Fair Employment and Housing Act said that you only had one year to file a claim with the Department of Fair Employment and Housing. Wait more than one year – even if it was just 53 weeks – and your case could be thrown out.

Now, it will be harder for employers to dodge liability based on this kind of deadline argument. As of January 1, 2020, the law in California says that you have three years, not one, to take action. So, if you have been the victim of discrimination at work and it happened more than 12 months ago, don’t give up! Reach to an experienced employment attorney right away to discover more about the legal options available to you.

Back in October, with Gov. Newsom’s signature, AB 9 became law. That bill said that, effective Jan. 1, 2020, the limitations period (a/k/a the time period for pursuing legal action) in FEHA discrimination cases would be three years. Until Jan. 1, 2020, the law said that that time period was just one year. (These deadline periods refer to the period of time you have to file an administrative charge with the DFEH. The filing of that administrative charge is something that you must do first before you are entitled to sue in court, and it is mandatory.)

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Every employer has policies regarding employees with disabilities. For example, many employees whose disabilities leave them unable to do the essential duties of their job, even with an accommodation, may face termination. This may be legally allowable because discrimination law does not require employers to retain employees who cannot perform the mandatory duties of a position.

So, what happens when you lose your job because your employer made an honest mistake and erroneously misapplied its generally legal policies regarding employees with disabilities? Does the fact that the policy was legal and the mistake was a good-faith one mean that you cannot win a disability discrimination case in California? The answer, as it turns out, is “no, it doesn’t.” Bad faith or an illegal policy isn’t required. As always, be sure to consult an experienced Oakland disability discrimination attorney to find out how best to proceed if you’ve been fired due to your disability.

A recent case from Southern California offers very good news for workers who suffer discrimination, even when that discrimination comes in the form of a good-faith gaffe in applying a permissible policy. In that case, J.G. was a pharmaceutical sales rep for a major pharmaceutical company. Like many pharmaceutical sales reps, J.G.’s job required him to drive extensively.

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Chances are reasonably high that, if you are an employee in California, you know that you can take legal action if you’ve been the victim of discrimination, harassment or retaliation. However, what do you do if you’ve been harmed in one or more of those ways but you’re just a temporary worker? Does that “temp” status change what rights you have or whom you can sue? For customized answers to these and other questions based on your specific circumstance, be sure to consult an experienced Oakland employment attorney.

E.J. was a temporary worker caught in a circumstance like that. She worked at a shoe care goods manufacturer’s facility, but she did not work for the manufacturer. E.J.’s employer was a temporary staffing firm. The temp agency hired E.J., paid her, tracked her time and paid her any benefits to which she was entitled. After five years of working at the facility, E.J. was fired. Following that termination, she sued the shoe care goods manufacturer for FEHA violations, including sex/gender discrimination, harassment and retaliation.

The manufacturer’s defense was fairly straightforward. It argued that a worker can only recover FEHA damages from a person or entity who is the harmed worker’s employer, that it was not E.J.’s employer and, therefore, it couldn’t possibly be liable to E.J. for any harm she suffered as a result of any FEHA violations.

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The #metoo movement exposed many of the humiliating, hurtful, disrespectful and damaging things women often face in the workplace when it comes to discrimination and sexual harassment.

While it occurs less often, bias and discrimination that harms male workers is a real thing, too. California lawmakers have sought to maintain gender fairness in many statutes, including things like parental leave laws. Sometimes, employers or supervisors may be less enlightened. When that happens and you are the victim of discrimination, you may have options within the legal system. Contact an experienced Oakland employment law attorney to find out what’s available to you.

As an example, there’s the case of J.V., an employee of a property management company and also a first-time expectant father. J.V. put in a request for 12 weeks of parental leave, as allowed by California law. Reportedly, J.V.’s female supervisor expressed her disapproval. The employee received such biased questions as “Why can’t your wife stay home and take care of the child?” and “Will you be doing anything … or just sitting and watching T.V. all day?”

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