Employment Law

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.

I Was Discriminated Against While Working as a Temp. Can I Sue the California Entity Where I Was Actually Working?

November 26, 2019 | by Stephen M. Fuerch

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.

California Court of Appeal Revives a New Father’s Gender Discrimination and Parental Leave Case

October 29, 2019 | by Stephen M. Fuerch

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?”

A California Job Applicant Allegedly Rejected Based on to Race Doesn’t Include a FEHA Claim in His Lawsuit, and Loses

October 16, 2019 | by Stephen M. Fuerch

In any kind of situation where you’ve suffered a legal wrong, you only have limited time to act. Wait too long and you may have your options for achieving success and much-needed compensation narrowed substantially – or you may lose all your options entirely. If you’ve been the victim of discrimination at work or in applying for a job, don’t wait! Reach out to an experienced Oakland employment law attorney today.

W.W. was someone who, on the surface, seemed to have pretty strong case of discrimination. He was a caterer who, for 15 months, catered meals to both the visiting and home team players at the home field of the Sacramento minor league baseball team. W.W. eventually applied for the job of assistant clubhouse manager. At the time, W.W. was already performing some of the functions of an assistant clubhouse manager.

Additionally, the manager of the visitors’ clubhouse, who was also the man who hired W.W., recommended him for the job. Despite those credentials, the employer hired a teenager who was still in high school and who reportedly “did not meet any of the qualifications for the job.” W.W. was African American; the teen was white.

A California Paint Store Employee Fired Due to Her Disability Recovers a $974K Judgment

September 30, 2019 | by Stephen M. Fuerch

In California, there are several ways that an employer can fire an employee that is against the law. One of those ways is if the employer terminates the employee based on the employee’s disability without first engaging in a good faith effort to make a reasonable accommodation for that worker’s disability.

The Fair Employment and Housing Act demands that employers provide reasonable accommodations to employees with disabilities. The law requires many employers, in crafting the employee’s accommodation, to engage that employee in an “interactive process” in a good faith way. If you were fired because of your disability, and you were not afforded a reasonable accommodation or a good-faith interactive process, then you may be entitled to compensation and you should consult a knowledgeable Oakland employment law attorney promptly.

The case of paint store employee E.C. (Los Angeles Superior Court Case No. BC620114 / JAMS Arbitration Case No. 1210033499) is a good example. E.C.’s position required workers to lift heavy loads up to 72 pounds. The worker’s job application stated that she had a disability and could lift no more than 20 pounds.