Articles Posted in Employment Law

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.

In the wake of the sexual harassment scandal that rocked several prominent figures in Hollywood and the media, and the #metoo movement that followed, many various institutions began taking a fresh look at making changes when it comes to sexual harassment. Legislative bodies are among these groups. Some states, like New Jersey and California, have considered bills that would ban the use of non-disclosure agreements in sexual harassment or discrimination cases. Also here in California, the state legislature is weighing additional actions to afford greater protection to employees who are victims of harassment. If you think you’ve been a victim of harassment at work, you should reach out to a knowledgeable California sexual harassment attorney to ensure that your rights and your entitlement to compensation are properly represented and protected.

The new bill currently under consideration in the state Assembly is one that would create a dramatic shift in the way certain cases are allowed to proceed in court. Currently, employees who want to pursue harassment claims under the Fair Employment and Housing Act have only one year after the last act of harassment. If passed as proposed, AB1870, the Stopping Harassment and Reporting Extension Act, would extend that limitations period from one year to three years, the San Jose Mercury News reported.

One of the bill’s co-sponsors told the Mercury News that the longer statute of limitations is needed to address some of the unique problems facing victims of workplace harassment. “We have found that many of the victims fear retaliation. There’s also this shame that they feel,” Assemblywoman Eloise Gómez Reyes stated. All of these things can cause a victim to delay pursuing her or his rights and initiating a legal case.

Sometimes, in sports, one may hear a coach state that it is sometimes possible for players to learn more from a loss than a victory. Something similar is sometimes true in legal actions. Sometimes, another person’s unsuccessful case may offer more useful information for others than some plaintiffs’ successful lawsuits. As one recent California sexual orientation discrimination case served to remind workers, there are certain things you need in order to achieve a successful result, and, without them, your case cannot win. To make sure that your discrimination case is supported by the right amount and right type of proof necessary to prevail, make sure that you work with an experienced employment discrimination attorney.

The plaintiff in this sexual orientation discrimination case, Shawn, was a “program business leader” analyst for the County of Santa Barbara. In the wake of a budget shortfall, the county laid off 35 employees, including Shawn. After her layoff, Shawn sued her former employer. Her lawsuit alleged sexual orientation discrimination. Shawn disclosed publicly that she was a lesbian in 2003, and her employer regarded her as a lesbian when it decided to end her employment in 2009, she argued.

This employee ultimately lost her case, with both the trial court and the Court of Appeal ruling against her. Despite this woman’s defeat, there is much that other employees can learn from her case and use as guidelines when pursuing a discrimination case or, alternatively, pursuing a case based upon a supervisor or co-worker’s use of offensive slurs or epithets.

There are many different forms of workplace discrimination that violate the Fair Employment and Housing Act. Sex discrimination, race discrimination, national origin discrimination, religious discrimination, and disability discrimination are just a few. When it comes to disability discrimination, there are a variety of conditions that qualify. Many illnesses, whether physical or mental, may entitle a worker to the anti-discrimination protections of the law. If you think you’ve suffered from disability discrimination at work, you should contact a knowledgeable California disability discrimination attorney promptly.

While conditions ranging from diabetes to bipolar disorder, and MS to PTSD, are covered, what about obesity? A recent case from the Bay Area addressed that exact question. The employee, Ketryn, had worked at a tennis club since 1997. She had also struggled with her weight since childhood. By 2012, she weighed 350 pounds and had a body-mass index in excess of 55, placing her in the category of Class III, or extreme, obesity.

The woman’s employment with the club was successful, with positive performance evaluations, merit bonuses, and raises for roughly a decade and a half. Then, in 2012, the club hired a new general manager. According to Ketryn, the new manager mocked her size, asked her “out of the blue” about whether she’d considered weight-loss surgery, did not consider her for extra hours of work, refused to consider her for promotions, and also paid her less than a newly hired (and petite) college student, even though Ketryn had more than a decade of experience with the club.

When you start a new employment position, it is often an exciting time filled with a sense of accomplishment (at landing the job) and anticipation (of potential future career growth and advancement). You’re probably not thinking about all of the “fine print” in the employment agreement paperwork you’re signing. That fine print, however, can be very important, especially if it includes a mandatory arbitration clause. Sometimes, though, you may be able to sue in court and avoid arbitration in your wrongful termination case, even if your contract had an arbitration provision. If you’re been a victim of a wrongful termination, it is important to contact a skilled California employment attorney right away, especially if an arbitration clause is involved.

A recently decided case demonstrates how you can get past an arbitration clause in your wrongful termination case. The case involved Khrysta, who worked for a rent-a-car agency. In September 2015, the employer terminated Khrysta after nearly four years on the job. The employee sued for wrongful termination. Based upon the arbitration policy the employer had instituted (and that the employee had acknowledged by signing a copy of it), the agency asked the court to order the parties to arbitration.

Arbitration, of course, can be a very useful alternative means of resolving a dispute. The key, of course, is to use arbitration only if you think it will be helpful. There are many reasons why you might prefer a court trial to an arbitration hearing. If you and your legal counsel believe court is the best place to resolve your dispute, you should make sure you don’t get improperly forced into arbitration.

Employers may engage in many techniques to prevent employees from suing and winning in cases of discrimination in violation of the Fair Employment and Housing Act. One way of doing that is by stopping employees from suing at all, through the use of mandatory arbitration agreements. While these agreements are generally allowable, California law imposes some restrictions on them. If your employer has demanded that you sign one, it must not impose certain restrictions on you, or it is unenforceable. An experienced California employment attorney can help you analyze your case if an arbitration agreement is involved.

One Bay Area action in which the employee got to pursue her lawsuit despite such an agreement was the case of Maya. Five years after Maya began her employment with an asset investment services company, another entity bought Maya’s employer, and she became an employee of that company. The new employer demanded that all of its employees sign a form that, among other things, included an agreement to resolve employment disputes through a process laid out by the employer. Employees had to sign the form or else lose their jobs. Not wanting to lose the job into which she’d invested half a decade, Maya signed.

By 2011, Maya had risen to a supervisory position. At that point, she objected to certain employee evaluation forms that included age, race, and gender coding, believing that such a practice was discriminatory. Two years later, while she was out on approved medical leave, the employer terminated Maya, who was African-American, and according to her complaint, gave her job to a white male colleague.