Articles Posted in Employment Law

As this blog mentioned in June, the state of California has enacted new regulations to strengthen further its public policy commitment to stamping out illegal discrimination, both in housing and in workplaces. The regulations that took effect this past July 1 dealt with one particular form of discrimination: that based on national origin. One of the key aspects of these new regulations expanding the definition of what constitutes national origin discrimination dealt with speech and language. The new rules did not stop there; they went further and provide California workers various avenues for proving that national origin discrimination occurred in their workplace. If you think you’ve been the victim of national origin discrimination on your job, you should take decisive action and reach out to a knowledgeable California discrimination attorney to learn more about the options in your case.

The regulations dealt a variety of hallmarks of national origin discrimination. One was employers’ creation of “English-only” workplace policies. While the policies did not discriminate against any group on their face, the impact was clear. Just like how facially neutral policies like literacy tests had the result of disenfranchising African-American voters in the “Jim Crow” South, these English-only policies had the impact of keeping people of certain national origins out of various workplaces.

Other employers took adverse employment actions against people based only their language accent or dialect. Similar to the “English-only” policies, these rules had the impact of disproportionately harming people of certain national origins for whom English is a second language. In both the cases of language rules and accent rules, the law does not say that the employer can never establish such rules. However, if the employer does create such a rule, the employer must demonstrate that the policy requirement is a business necessity. In 2011, the California courts ruled against Spanish-speaking employees in a case of a “no Spanish at work” rule. The employer only won its case, however, because it had proof that the bilingual employees were using their native tongue to demean other non-Spanish speaking employees and the policy was necessary to stamp out this misconduct.

Most people probably understand that there is federal law and state law and that the two are distinct. What does that mean on a practical level for you? For one, just because you don’t have an employment law case under the federal law, that doesn’t necessarily mean that you automatically don’t have a case under California law. That includes things like disability discrimination law, as the case of one Southern California personal trainer recently illustrated. What you can take away from this case and those like it is that the law has many subtleties, nuances and distinctions and, if you’ve been hurt at work and your employer failed to reasonably accommodate your condition or took an adverse employment action because of your disability, you may have a case for compensation under state law, if not federal law. Contact an experienced California disability discrimination attorney to find out more about your options.

The disabled worker in this case (Court of Appeals Case No. No. B266534) was D.M., whom a gym in the San Fernando Valley hired to work as a personal trainer in 2012. Nine months after starting, D.M. dropped a 45-pound weight on his feet. Out of a sense of professionalism, the trainer didn’t yell or swear. D.M. tried to walk off the injury, but the pain was too severe. Despite extreme pain, the trainer did not miss work, due to his desire to show dedication to his employer. Others, though, including the gym’s general manager, could see the trainer walking with a limp.

Two weeks after the injury, the gym terminated D.M.’s employment. The gym contended that it fired the trainer for failing to meet certain performance goals. The trainer asserted that the employer impermissibly discriminated against him based upon his disability. The employer initially won, with the trial court awarding summary judgment in its favor. The trial judge stated that the trainer did not have evidence of a disability that limited him from working or participating in any other major life activity.

When you are the victim of workplace harassment, wrongful termination, or both, you may suffer certain tangible financial harm as a result, in the form of lost earning. Lost wages, however, may be only a fraction of the total damages that can be available in your case. You may also be able to collect emotional distress damages and, if your employer acted maliciously, you may be entitled to collect punitive damages. In the end, the totality of your damages may be many, many times over the amount of your lost wages, as was the case for one Alameda County storage facility worker. To make sure you get all the damages to which the law says you’re entitled, make sure you have an experienced California employment attorney representing you.

The employee, E.O. worked at a self-storage facility owned by D.B. In late 2011, E.O.’s employment ended. The employee sued, alleging multiple forms of compensable improper conduct by her employer, including sexual harassment, pregnancy discrimination, wrongful termination and failure to pay overtime.

According to the employee’s lawsuit, the owner, after discovering the employee’s pregnancy, called her into his office and yelled at her for a prolonged period of time. The yelling included disparaging statements about the size that E.O.’s belly would be in a few weeks, as well as the prospect of her breastfeeding her child in the future. Shortly after that, the owner greatly reduced E.O.’s hours.

In order to win a disability harassment case under the FEHA, you, as the employee, must prove that the harassment you suffered was severe or pervasive. In other words, you can succeed by showing that the harassment you endured included a substantially large number of incidents or, even if the harassment occurred only a very few times, was extreme in its nature. To make sure that your case has everything you need for success, reach out to an experienced California employment attorney.

An example of a successful disability harassment case from recent weeks was the lawsuit pursued by A.C., a corrections officer at a state prison in Chino. A.C. had a speech impediment. Specifically, the officer stuttered. Over a period of approximately two years, other prison employees mocked A.C.’s speech impediment at least a dozen times. One of the employees who engaged in the mocking was a supervisor.

The officer eventually brought a lawsuit against the supervisor and the state Department of Corrections and Rehabilitation. He asserted that he was the victim of disability harassment and failure to prevent disability harassment in violation of the FEHA.

Sometimes, a worker’s unfortunate and unsuccessful outcome in his legal action can offer some clear lessons for those who come after. For example, a pizza delivery driver recently lost the opportunity to pursue a discrimination case in civil court because he signed an extremely broad release document as part of the settlement of his workers’ compensation claims. The outcome is a reminder to make sure that you understand exactly what you are signing before you ever put pen to paper on a legal document. As part of that process of considering settlement, if you think you have suffered disability discrimination, you should talk to a knowledgeable California employment attorney upon whom you can confidently rely.

The employee in the case, A.E., was a delivery driver for a major national pizza chain. A.E., who was in his 60s, eventually grew frustrated with his supervisor reducing his hours and stealing his tips. As a result, he filed an age discrimination lawsuit under the FEHA against his employer and his supervisor.

The driver also had suffered physical and psychological injuries while he was at at work. At the same time that the driver’s discrimination case was underway, A.E. also had several claims for workers’ compensation proceeding. The driver and his employer eventually decided to settle the four workers’ compensation claims that were pending. The driver agreed to accept two payments each, the sum total of which was just slightly less than $25,000. In exchange, the driver agreed to release his claims against the employer.

Last month, the California Office of Administrative Law approved new regulations that will be a substantial help to workers who are victims of national origin discrimination on the job. The new regulations strengthen protections already in place by establishing a new, broader definition of what constitutes “national origin” as related to discrimination. These new regulations serve as an important reminder that the law is ever-changing, and California’s laws protecting workers from improper discrimination are broad-based to achieve the policy goal of stamping out discrimination in the workplace. If you think you have suffered from disability discrimination, you should talk to a knowledgeable California employment discrimination attorney without delay to learn more about the options that may be available to you.

In its original definition within California law and regulations, national origin (as it related to national origin discrimination) regarded only “the individual’s or ancestors’ actual or perceived place of birth or geographic origin, national origin group or ethnicity.” Under the new regulations, national origin discrimination can occur when an employer discriminates in various ways. These ways can include discrimination based upon the “physical, cultural or linguistic characteristics” that are generally connected to a national origin group. It also applies when the discrimination is based upon a worker’s marriage to, or association with, people of a particular national origin group. Other bases are tribal affiliation; being a member in, or associated with, a group that is identified with, or that seeks to promote, the interests of a national origin group; attending or taking part in schools, churches, temples, mosques, or other religious institutions generally connected with people of a national origin group; and your name if that name is associated with a national origin group.

Obviously, as you can see from this list, there are several ways that an employer can run afoul of these new regulations, from discrimination based on your name to where you attend church to your tribal affiliation. One of the more common workplace occurrences that these regulations greatly restrict is “English-only” language policies. In the past, California employees have encountered problems with their employers imposing such policies, demanding that they speak only English on the job, including while on their breaks.

There are many different ways to discriminate against an employee or potential employee. Certainly, if a candidate applies for a job, interviews, and is ultimately denied employment because she was a member of a protected group, that is very likely illegal discrimination. However, what if the would-be candidate never applied at all because the employer engaged in deception to keep her from applying? According to a recent Court of Appeal ruling, that can still amount to illegal discrimination in violation of the Fair Employment and Housing Act. As this case reminds us, there may be many different actions or inactions that could constitute impermissible discrimination, so, if you think you were a victim of discrimination, take action. Talk to a skilled California employment attorney right away.

The would-be employee in that recent Court of Appeal case was Ada, who, in the spring of 2015, began an unpaid dental assistant externship at a dental office in Napa. Generally, the office hired its unpaid externs in paid positions after the conclusions of their externships.

At the time, Ada was pregnant, but she told no one at the office about this fact. The pregnancy was only discovered after Ada’s supervisor saw a bottle of prenatal vitamins in the extern’s purse. The supervisor allegedly told a different employee that, if Ada was pregnant, “it would not be convenient for the office.”

There are various ways that an employer can be in violation of the workplace anti-discrimination provisions of the Fair Employment and Housing Act. With regard to employees with disabilities, the employer can become liable by failing to provide the employee with a reasonable accommodation of the disability. The employer can also be liable if it does not engage with the employee in a good-faith interactive process toward working out a reasonable accommodation. California law has certain clear requirements regarding what is demanded of employers when it comes to making reasonable accommodations and engaging in the interactive process. If you think you have been subjected to discrimination due to your disability, you may have a case and may be entitled to compensation, so you should reach out to a knowledgeable California disability discrimination attorney right away.

An example of an employee who did not get a reasonable accommodation was Marisa, an administrative assistant for a community college in Orange County. Marisa started on a probationary basis, with her employment agreement calling for evaluations at her three-month, seven-month, and 11-month anniversaries. At her one-year anniversary, the employee’s employment would become permanent.

Eight months into her current employment, and with the employer’s permission, Marisa took an absence from work in order to have surgery on her injured knuckle. The leave called for Marisa to return to work right around her one-year anniversary. Shortly prior to that date (and while the worker was still on leave), the college fired Marisa, allegedly due to a lack of performance reviews.

In any civil case, you, as the plaintiff, obviously seek a verdict in your favor. If you should not get a successful outcome at trial, there may still be options. The facts of your situation may dictate that you are entitled to a new trial. There are many reasons why you might be allowed to retry your case. One of these is if the jury made mistakes in carrying out its duties. In any of these areas, a skilled California employment attorney can help explore your options and protect your rights.

One example of jury errors and how they trigger a new trial was the case of Jacqueline, a worker employed by a food service entity. She had held multiple positions, including manager of the entity’s flagship restaurant and manager of its catering business. In 2012, she reported to her employer some gender-based pay inequality issues, as well as certain forms of sexist conduct. The next year, the employer fired the woman. She sued, alleging that the employer had violated the Fair Employment and Housing Act because it had terminated her because she was pregnant and in retaliation for making complaints.

The employer, in its defense, argued that the woman’s job performance had dropped dramatically starting in the summer of 2012 and that no one in a decision-making role knew that she was pregnant until after she had already been fired.

Sometimes, your case may fail because you simply didn’t have enough proof to back up your claims. Other times, civil lawsuits fail because the plaintiff decides to go forward without counsel and fails to meet court-ordered discovery or other procedural obligations. If you think you’ve been a victim of wrongful termination or discrimination at work, you shouldn’t go forward alone but instead contact an experienced California employment attorney.

An example of how a case can go wrong was the wrongful termination lawsuit launched by Dymos, a Southern California truck driver who worked for a transportation company. After the employer fired Dymos, the trucker sued the employer for wrongful termination. His lawsuit alleged several forms of damages he suffered, including “humiliation, emotional distress, mental anguish, physical anguish, and physical pain.”

When the trucker began his lawsuit, he had an attorney who represented him. At some point, the trucker and his lawyer parted ways. What the trucker probably should have done is seek out new counsel to represent him in his pursuit of damages. He could have even asked the court for a delay in his case. Courts will sometimes give parties extra time when their attorneys have withdrawn, and the party is in the process of securing new counsel.