Employment Law

I Was Harassed on the Job But Didn’t Report It at Work. Can I Still Win a Harassment Case in California?

August 14, 2020 | by Stephen M. Fuerch

Workers who suffer discrimination and harassment on the job respond to it in different ways. Some may confront the harasser directly, others may approach their immediate supervisor, others may take the problem to their employer’s human resources (HR) department while still others may say nothing to people at work. If you are someone who falls into that last group, does your failure to speak out at work automatically mean that you cannot win a Fair Employment and Housing Act (FEHA) case? No, it doesn’t… not even if your employer has policies about reporting discrimination and harassment! So, if you’ve been the target of workplace discrimination or harassment – whether or not you reported it or confronted it internally – you may be entitled to significant compensation, so be sure to reach out an experienced Oakland employment attorney without delay.

As an illustration of this aspect of California law, there’s the recent case of R.M., a worker at a major aerospace company’s El Segundo facility. The worker, during his nearly two decades with the company, allegedly endured comments and jokes that were blatantly racist. These included crass and offensive things like jokes about R.M. missing work to go to the zoo and visit his relatives there.

R.M. allegedly did not report the offensive comments to supervisors or to HR. He allegedly reached a breaking point one day in 2017 when a white coworker threw a piece of rope at him that was tied into the shape of a noose.

What You Can Do in California if Your Employer Has Punished You for Being a Caregiver for Family Members

July 27, 2020 | by Stephen M. Fuerch

With the challenges that have been created by the current pandemic, more and more people are wearing the dual “hats” of employee and caregiver for children or seniors. Whether you are a man or a woman, it is possible to face employment discrimination because you care for those family members, whether they’re your kids, your grandchildren, parents or other elders. While the Fair Employment and Housing Act does not currently list family responsibilities discrimination as a specific cause for suing and collecting damages, that doesn’t mean that you cannot win a case based on the workplace discrimination you suffered due to your family responsibilities. There potentially may be avenues available under the FEHA, so be sure to reach out to an experienced Oakland employment attorney about your situation.

D.R. was someone who allegedly faced this difficulty. She was an account executive for an insurance brokerage firm in San Diego, and was also a mom to two young children. According to a New York Times report, when the governor issued a statewide stay-at-home order, the executive began working from home. At home, she managed her work duties and also tended to her children (for whom she could not find childcare due to the stay-at-home order.)

Allegedly, the executive’s supervisor was not happy with D.R.’s juggling work and kids, and took several discriminatory actions, such as assigning her several tasks with “rush” deadlines (even though those tasks weren’t actually urgent) and frequently scheduling conference calls during the lunch hour, even though the supervisor knew that D.R. would be either nursing her youngest, feeding her oldest or putting the younger child down for a nap. The supervisor allegedly did this even after the executive stated that afternoon calls would be better as the younger child would be napping during that period, according to the Times report. D.R.’s supervisor reprimanded her after her children were heard on a call with a client, calling it “unprofessional,” and later told D.R. to “take care of your kid situation,” in addition to making many other sexist statements that demonstrated a clear bias against mothers, according to the mother’s lawsuit.

Coronavirus and How Your Employer’s Response May Have Violated Workplace Disability Discrimination Laws in California

July 14, 2020 | by Stephen M. Fuerch

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.

What You Can Do If Your California Employer Fired You for Resisting or Complaining About Sexual Harassment by Your Supervisor

May 27, 2020 | by Stephen M. Fuerch

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.

What ‘Equitable Tolling’ and ‘Continuing Violations’ Are and How They Can Help You in Your California Workplace Discrimination Case

May 13, 2020 | by Stephen M. Fuerch

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.

California DFEH Reminds Employers: COVID-19 Pandemic Doesn’t Reduce Employers’ Obligations to Avoid Discrimination and Harassment

March 27, 2020 | by Stephen M. Fuerch

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.

Overcoming Hearsay Objections to the Evidence in Your California Wrongful Termination Lawsuit

March 14, 2020 | by Stephen M. Fuerch

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.

How Asserting Multiple Causes of Action Can Help You Maximize Your Odds of Success in Your California Retaliation Case

February 13, 2020 | by Stephen M. Fuerch

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.

Effective Jan. 1, 2020, You Now Have 3 Years in California to Pursue Your Discrimination or Harassment Claims Under FEHA

January 14, 2020 | by Stephen M. Fuerch

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.)

Winning a Disability Discrimination Case in California, Even if Your Case is Devoid of Proof of Employer Malice or Bad Faith

December 16, 2019 | by Stephen M. Fuerch

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.