Age Discrimination – What Older Workers Need to Know

Elon Musk is no stranger to controversy. He has received plenty of attention and criticism for his recent acquisition of Twitter and the changes he has made to the social media platform. But his other companies, Tesla and SpaceX, have been peppered by accusations and lawsuits.

A new accusation of age discrimination has occurred in another of Musk’s companies, SpaceX. A 62-year-old optics engineer claims he was pressured into resigning from the rocket company in July. He alleges upper management retaliated against him for filing complaints with COO Gwynne Shotwell and the human resource department regarding being passed over for promotions.

The engineer claims a hostile work climate was created as he was continuously harassed, denied opportunities, and ignored by HR, despite working seven days a week, 10-12 hours per day in SpaceX’s California office. He was told the responsibilities of his position had changed. He felt forced out and quit.

The former engineer says he always received glowing performance reviews. But in 2019, he took a few days off to recover after back surgery. He claims he never missed a day while undergoing physical therapy, but over the next year, his job responsibilities slowly went to younger engineers with less experience he was forced to train. 

His complaint mentions his advancement being curtailed after he was marginalized, humiliated in meetings, had his abilities questioned, his contributions minimized, and his access to upper management limited.

Other Complaints Against Musk-Owned Companies

Earlier this year, a jury ordered Tesla to pay $137 million to a California auto worker who claimed the automaker allowed for a hostile work environment to exist where he was racially discriminated against. The award was later slashed to $15 million by a federal judge. In June, a shareholder filed a lawsuit due to Tesla’s failure to address their alleged hostile and discriminatory work environment.

Just weeks before the age discrimination case, a group of former employees filed complaints alleging unfair labor practices against SpaceX. The complainants reported to the National Labor Relations Board that they were fired after publicly criticizing Elon Musk. During this same period, another former engineer leveled allegations of sexual harassment against SpaceX.

Over at Twitter, at least three lawsuits have been filed since Musk took over ownership and management. The lawsuits arose in the wake of mass layoffs and ultimatums demanding employees to work long, “high intensity” hours at the office or quit. These allegations have been leveled by full-time workers, contractors, and employees with disabilities.

The Effects of Age Discrimination 

Age Discrimination

In 2018’s Multicultural Work and Jobs Study conducted by the American Association of Retired Persons (AARP), 61% of adults over the age of 45 report they have seen or experienced age discrimination in the workplace. Age discrimination was seen as a widespread practice by 38% of the respondents. 

In the survey, approximately 35% of American workers were 50 years old or older. Despite seniors taking up a substantial portion of the labor force, this survey reinforces the existence of the same issues that spurred the Age Discrimination in Employment Act of 1967 (ADEA) to be passed. The ADEA was set in place to regulate all employment aspects, including:

  • Hiring
  • Training
  • Assignments
  • Compensation
  • Benefits
  • Promotions
  • Firing
  • Layoffs 

Workers aged 40 and up are protected under the ADEA. To determine if age discrimination has occurred, the following criteria must be proven:

  1. The claimant who was employed or seeking employment has to be in the protected age class
  2. Employees must have experienced an unfavorable employment action solely because of their age
  3. Qualified to do the job
  4. The position or employment opportunity was given to a younger candidate

The act was set in place to refute several negative assumptions concerning age and job performance. These assumptions include: 

  • Older workers resist change 
  • Older workers are less productive 
  • Older workers get sick more and raise healthcare costs  

Age discrimination is often difficult to prove because employers frequently hide their actions by providing other reasons besides age for that action. More than 90% of the survey’s respondents would support efforts to strengthen age discrimination laws. Almost 60% strongly believe a change should occur, and 32% agreed something should be done to improve the laws. 

In California, the median age of the workforce is 36.7. This is only a few years down the road from the protected age. Californians are also protected by the California Fair Employment and Housing Act (FEHA). The ADEA applies to employers that have 20 or more workers. Under FEHA, the law covers even smaller employers with a minimum of five workers. 

The survey also showed women, African Americans, Hispanics, and older unemployed individuals who were seeking jobs were more inclined to feel like they had been or would be subject to age discrimination.

Even though age discrimination is so common, little has been documented because few people ever make official complaints. Only 3% of the survey’s respondents had filed claims about age discrimination.

The New Workforce, Same as the Old Workforce 

There was a significant increase in ADEA lawsuits in 2022. The reasons for the litigious uptick rely on two major changes in the workforce: 

  1. An increase in the average retirement age
  2. Technological changes and digital skill requirements often associated with younger candidates

People are living longer, and with advancements in medical technology, this trend will continue. A workforce that lives longer will need reliable jobs to both support themselves and thrive in the future. More than 40% of the American workforce are aged 45+ and a long way from retiring. 

There are several reasons for people working longer. In some cases, workers need to support family members. Sometimes, they need to save more money for retirement. Some people just want to work because it keeps them mentally and physically active. 

Working past retirement age also allows for a less financially restrictive lifestyle. More than 25% of those surveyed think they will never fully stop working.

Older workers also create continuity and stability in the workforce. More than a third of older workers will stick with their current job longer than younger workers. A third of those surveyed thought the reason they may get laid off is because of their age, and 45% thought if they were laid off, they would not be able to secure a new position because of their age. 

Let an experienced lawyer from Perkins Asbill help you understand your legal options. Contact us online or by calling 916-446-2000.

Understanding Accent Discrimination in the Workplace

An accent is the noticeable difference in the way a person pronounces a language relative to a native speaker of that language. Certain sounds may not exist in one language, making it hard to pronounce them while speaking another. These noticeable differences in the way people speak can become the basis for treating employees who have accents differently than employees who are native speakers. 

The Two Ways Accents are Recognized

There are two ways accents are recognized when people speak. People are said to have a ‘foreign’ accent when the language they are speaking is not their native language. A second language may contain sounds not familiar to the speaker, who may compensate by using sounds from his native language. We refer to the collaboration as the speaker’s accent. 

The second way an accent is identified is within a population speaking the same language but having groups of people in different areas pronouncing some of the words differently. In the United States, we may say someone has a New York accent or a southern accent. Accents may not only be linked to the places people are from but can also be associated with certain traits and characteristics. 

Why Accents are a Basis for Discrimination

Accents identify the speakers as being different. And sometimes, people attach perceptions to those differences. If the perception happens to be negative, it can create an unfair bias against the person who speaks with the accent. Recent studies have shown that there is indeed discrimination against persons who are perceived to speak with accents. 

Persons seeking employment who speak with non-native accents can find it harder to land a job because they may be perceived as:

  • Less qualified
  • Lacking credibility

One explanation for the negative connotations that can be attached to the mere presence of an accent suggests the bias may be related to cognitive ability. A person speaking with an accent may be harder for native speakers to understand. When something is hard to understand, our brains must work harder to decipher the meaning. This increased mental difficulty may translate into a negative perception. 

Laws Against Employment Discrimination Based on Accent

It is against both federal and state laws to base employment decisions on a person’s accent in most cases. Making employment-related decisions on the basis of the way a person talks discriminates unfairly unless a person’s language directly impacts the duties of a job or an employer’s business.

The California Civil Rights Department (formerly known as the Department of Fair Employment and Housing) enforces the state’s employment discrimination laws. In California, it is illegal for employers with 5 or more employees to discriminate on the basis of certain protected characteristics that might be used to unfairly differentiate employees. One such protected characteristic is ‘ancestry or national origin.’ 

Regulations enacted in 2018 regarding national origin discrimination specifically prohibit discrimination against job applicants or employees based on accent. There is an exception where an employer can prove that an accent ‘interferes materially with the applicant’s or employee’s ability to perform the job in question.’ The regulations also ban discrimination on the basis of a person’s English proficiency unless English proficiency is justified by business necessity.

Accent Discrimination is a Form of Language Discrimination

Accent Discrimination Lawyer

Accent discrimination is a type of language discrimination. Language discrimination is unfair treatment for any reason relating to a person’s language, manner of speaking, or vocabulary. Language discrimination can occur when companies have ‘English only’ policies and prohibit employees from using a different language while at work.

California law prohibits employers from restricting the use of any language in the workplace except under the following circumstances:

  • Business necessity justifies the language restriction.
  • If justified, any language restriction is as minimal as possible.
  • The affected employees know when the language restriction is to be imposed and the consequences for not abiding by it.

Accent discrimination is not about a different language being spoken. It is about the manner in which the native language is being spoken. The only justifiable basis for treating an employee with an accent differently is when the accent itself significantly interferes with the effective performance of the job duties. 

How Big a Problem is National Origin Discrimination in California?

Recent statistics show the number of national origin discrimination claims filed in California under both federal and state laws is a similar percentage of the total number of employment discrimination cases filed in each jurisdiction.

According to the Equal Employment Opportunity Commission (EEOC), national origin discrimination claims made up about 15% of the 4,130 federal employment discrimination claims filed in California in 2020. In the annual report of the Department of Fair Employment and Housing (DFEH) for 2020, national origin discrimination (including language restrictions) claims were approximately 14% of the 4,422 claims filed under California law.

The problem may actually be more pervasive than the statistics suggest because it is believed many instances of employment discrimination go unreported. Two recent studies reveal accent discrimination happens frequently enough that persons with accents perceive their accent as a potential career-limiting characteristic. 

A study published by The Sutton Trust, a foundation focused on promoting social mobility in the United Kingdom, found that there is a social stigma associated with having a particular accent. Differing accents correlated to a social status hierarchy, and negative beliefs about an accent relating to a particular social status were deeply held and rarely changed. People with accents reported they worried throughout their lives about how their accents would affect their opportunities for success. 

In a survey of 2,000 immigrants done by the UCLA Center for Health Policy Research, 70% of Latino and Asian immigrants thought that California immigrants experienced discrimination in the workplace due to their accents. California houses 25% of the nation’s immigrant population, with Latinos and Asians making up the two largest immigrant groups within the state. 

In most instances, discrimination by an employer based on an employee’s accent or other language characteristics is illegal. An employee who is treated unfairly because they have an accent may be able to file a claim to make an employer stop the discrimination and to collect compensation for the damage caused.

Let an experienced lawyer from Perkins Asbill help you understand your legal options. Contact us online or by calling 916-446-2000.

Walgreens Faces EEOC Lawsuit for Pregnancy and Disability Discrimination

Expectant working mothers must understand their protections under the law. Pregnancy can be a time of great joy and anticipation when women undergo physical and emotional changes. While a happy time, it can also be a time of great stress and trepidation if accommodations for the health of the mother and child are ignored. 

A Walgreens employee who struggled with diabetes and hypoglycemia faced a difficult choice at the hands of the pharmaceutical giant. She suspected her pregnancy might be jeopardized when she began spotting at work. When she spoke with her manager, she was told she would have to wait to seek medical attention until they found someone to take her place at work. She was not allowed to leave since the manager did not find a replacement for her. Her employer informed her that she had already asked for too many accommodations.

The pregnant woman faced an impossible choice: her baby or her job. It was a choice no one should have to make. But, on her doctor’s advice, she was forced to resign for her baby’s health. 

The U.S. Equal Employment Opportunity Commission has since taken up the case and filed suit against the pharmaceutical company. Management at Walgreens did not do their part to prevent the loss of her child.

The Pregnancy Discrimination Act (PDA) 

The Pregnancy Discrimination Act ensures that an employer does not penalize an employee for miscarrying or for complications she might face due to her pregnancy. Often pregnant women are encouraged to keep their pregnancies private until they have passed their first trimester since most miscarriages occur in the first trimester. 

Although, a miscarriage is defined as the loss of a pregnancy within the first twenty weeks. Whether the pregnant employee has announced her pregnancy or not, she is entitled to protection under the law.

Spotting during pregnancy is common and can have many causes. According to the Cleveland Clinic, 10-20% of known pregnancies end in miscarriage. So, pregnant women need to take that symptom seriously. The March of Dimes suggests that when spotting occurs, a pregnant woman should take time off work and their feet. Depending on the amount of bleeding, hospital stays are sometimes necessary. 

The possible causes of the bleeding could be more life-threatening as well. The risk of uterine tears or even uterine rupture should be ruled out. The life of the baby and the mother are factors when bleeding during pregnancy occurs. A doctor or medical professional should examine the pregnant woman and evaluate the situation. 

Employers cannot legally inhibit their pregnant employees from seeking necessary medical attention. Hopefully, an employee experiencing pregnancy complications will be treated compassionately. But, cases like the sales associates at Walgreens happen, so legal protections are in place to aid the employee at risk of miscarriage.

Overview of Accommodations Pregnant Women can Expect

Pregnant employees are entitled to accommodations that can make their jobs safer for themselves and their babies. While some of these allowances may seem obvious, employers and employees must understand what is expected.

Agencies must not adhere to written or unwritten employment policies that exclude applicants from employment because of pregnancy, childbirth, or medical conditions that accompany pregnancy, such as gestational diabetes or preeclampsia. Pregnant women should be allowed to do their jobs as long as possible without their employers making assumptions about an employee based on the stereotyping of pregnant women. 

Companies may not withhold assignments or promotions because of pregnancy, childbirth, or the conditions surrounding these instances. Protections in the workplace are established to protect employees, but businesses are not required to set up further protections for pregnant staff. 

However, preventions to avoid complications due to illness or disabilities related to pregnancy should be implemented. These could include slight modifications, frequent bathroom breaks, eating more often, being allowed to carry a water bottle, and providing a place to sit if necessary. 

State laws may allow for more accommodations.

How to Take Leave During Pregnancy

Here is an overview of what expectant mothers are entitled to legally if they need to take time off due to pregnancy complications.

  • Employers must hold a job for a pregnant employee who must take leave for the length of time employment would be held for any other worker who requires sick leave. 
  • The employer cannot dictate the length of time a pregnant worker must wait before returning to work after childbirth.
  • If the pregnant woman has worked for the company for at least 12 months, the Family Medical Leave Act of 1993 (FMLA) allows for 12 weeks of paid or unpaid maternity leave to be taken after childbirth. 
  • Miscarriage is considered a serious health condition by FMLA. When an eligible mother faces a significant health risk such as miscarriage, she has the right to take unpaid leave. To be eligible, after twelve months of employment,  the employee must work for a business with 50 or more employees within a 75-mile radius of the company. During those 12 months, the employee must have clocked in 1,250 hours.
  • FMLA allows for 12 weeks of leave per year. So, suppose an eligible employee found themselves at work, experiencing a possible miscarriage. In that case, they are entitled to use the time they take off to care for this severe condition as part of their 12 weeks. 
  • Individual state laws concerning sick leave vary. But, a worker experiencing a miscarriage might be entitled to sick leave pay or time off.
  • Some states provide temporary disability wage replacement. And these provisions may benefit an employee experiencing a miscarriage.

Protections Provided by the Americans with Disabilities Act(ADA)

Disability Discrimination Law

Though often a physical hardship, pregnancy isn’t considered a disability. But some of the conditions that accompany pregnancies can be. The ADA provides certain protections if a pregnant staff member is experiencing these conditions.  

Conditions That Qualify for ADA Protection

Many conditions can cause suffering and compromised health during pregnancy:

  • Preeclampsia 
  • Gestational Diabetes
  • Anemia
  • Sciatica
  • Morning Sickness
  • Swelling in Feet and Legs
  • Carpal Tunnel
  • Depression

Health is the Goal

The goal of the employer and the pregnant employee should be managing the pregnancy and all of the health issues surrounding it to ensure the employee’s optimum health for herself and her baby. This can be done by taking a few common sense steps.

Sadly, the Walgreens employee’s needs went unmet. She was likely uninformed about the protections to which she was entitled. She resigned on the advice of her healthcare provider. She miscarried at the end of the day.

Let an experienced lawyer from Perkins Asbill help you understand your legal options. Contact us online or by calling 916-446-2000.

Nike and Gender Discrimination – What to Know

When it comes to gender discrimination, some are saying Nike just did it. The biggest sports apparel brand in the world is facing a class action gender discrimination lawsuit. It is alleged that Nike did not provide the same opportunities to women as are provided to men and tolerated discriminatory practices. 

In addition to compensation, present and former female employees are asking the court to monitor Nike’s hiring and compensation practices to ensure future legal compliance. If the court grants the requested relief, it could set a precedent marking a significant advancement for enforcing gender equality in the workplace. 

What Triggered the Lawsuit Against Nike?

In 2018, some female employees at Nike’s corporate offices in Beaverton, OR, took it upon themselves to make known the disparate and illegal treatment they had been receiving for some time while working within the Nike organization. The women had previously experienced and reported numerous incidents of unequal treatment and harassment by male co-workers but their complaints had been generally ignored by the company.  

The female employees conducted an informal survey among themselves to find out whether there had been experiences with discrimination and the outcome of those experiences. The results of the survey were presented to then-Nike CEO Mark Parker. The information presented to the CEO resulted in the immediate departure of at least six of Nike’s top male executives, including the man thought to be the likely successor as CEO. 

As more information became known, The New York Times interviewed at least 50 women who were current or former Nike employees. The women described a corporate culture where women were ignored, demeaned, or harassed and routinely passed over for promotion. 

In August 2018, former Nike employees Kelly Cahill and Sara Johnston filed a class action lawsuit against Nike on behalf of 500 women who are claiming discrimination on the basis of sex. The allegations include unfair pay, lack of opportunity for advancement, and tolerated sexual harassment. At this time there has been no resolution of the issues raised in the lawsuit.

Laws Prohibiting Gender Discrimination by Employers

Gender Discrimination Law

Gender or sex discrimination is prohibited by both federal and state laws. Treating a person unfavorably for a reason relating to gender or sex is prohibited in any employment context for employers of 20 or more employees. The right of men and women to receive equal pay for equal work at the same establishment is guaranteed by the federal Equal Pay Act. Only legitimate pay differences based on seniority, merit, or incentive are legally allowed. 

The employment discrimination laws in California provide even greater protections for employees. The state’s laws apply to employers with 5 or more employees. California’s Equal Pay Act prohibits employers from basing wage differences on race or ethnicity in addition to gender or sex. Employers may not use prior salary history to justify differences in wages and the law covers public as well as private employers. 

How Nike has Responded to the Allegations

Nike’s initial response to the widespread allegations of gender discrimination was damage control. Several top male executives left the company, some female employees got upward adjustments to their salaries and promotions, and the CEO promised the mistakes were not intentional, and things would change. 

In spite of the actions taken in response to the discrimination complaints, the company has denied that discriminatory practices are systemic within the organization. Nike maintains that while they need to do better, the instances complained of were isolated and not evidence of a corporate culture promoting discrimination. 

Why the Outcome of this Case Could be Significant

Freedom from discrimination in the workplace has been the law of the land for well over half a century. Yet despite awareness campaigns and the appearance of a commitment to equality and diversity, employment discrimination remains an ongoing problem in businesses across the country. 

According to the Equal Employment Opportunity Commission (EEOC), there were over 61,000 reports of workplace discrimination in 2021. Approximately 30% of those claims were for discrimination on the basis of sex. Only Florida and Pennsylvania had more filed charges of sex discrimination than California. 

Worker rights advocate Economic Policy Institute says workplace discrimination persists due to the disparity of power between employers and employees and a system of enforcement that places the burden on workers rather than employers. Holding employers accountable for creating and implementing anti-discrimination policies and procedures is one approach thought to reinforce the rights of employees. 

Accountability for preventing discrimination is one of the measures of the relief sought in the Nike lawsuit. The women are not just asking the court to order Nike to stop discriminating. They want Nike to come up with a plan establishing standards for making employment decisions, and they want the court to make sure Nike carries out the plan. 

The kind of employer reform sought in the Nike case goes beyond what courts have so far been willing to do to enforce anti-discrimination laws. If the requested relief is granted, it will put employers on notice that employees have the potential to force policy change and may encourage employers to take a more serious stand against discrimination. 

How Employers can Close the Gap of Unequal Pay Based on Gender 

Worldwide, women continue to be paid, on average, about 20% less than men, according to the International Labor Organization (ILO). The average pay gap in the United States is slightly lower than the world average. The ILO says closing the pay gap would benefit the economy and encourage more women to enter the workforce. Some steps companies can take to work toward gender pay equality include:

  • Develop a business culture promoting equal pay for equal work
  • Base salaries on the current position and not an employee’s previous salary history
  • Implement an equitable wage or salary structure that applies to men and women
  • Review employee salaries to determine if gender-based discrepancies exist
  • Establish objective criteria for performance reviews to minimize the potential for gender bias

As women continue to be a significant presence in the workforce, companies are encouraged to make concerted efforts to create work environments that support gender equality and do not tolerate discrimination. 

Let an experienced lawyer from Perkins Asbill help you understand your legal options. Contact us online or by calling 916-446-2000.

Tesla Facing Another Racial Discrimination Lawsuit in California

On June 30, 2022, in Alameda County, California, 15 former and current Tesla factory workers filed a racial discrimination lawsuit against Tesla for alleged “rampant” racial discrimination while working for the electronic vehicle manufacturer. Tesla, no stranger to employment discrimination claims, is facing several other lawsuits in the months ahead.

Tesla’s Current Racial Discrimination Lawsuit

According to the complaint, the 15 current and former employees suing Tesla are all current and former, male and female, African American factory workers alleging some form of racially motivated discrimination. Below are a few examples of the alleged conduct.

Use of Racial Epithets

Several employees alleged that Tesla factory superiors employed the continued use of racial epithets when addressing minority employees. Several employees related instances where non-African American superiors or co-workers would address African American employees as the “n-word” or other forms of racial slang. Further, some plaintiffs alleged finding words and symbols like the “n-word,” KKK, and swastikas on bathroom and break room walls.

Altercation at Elon Musk’s Home

One of the plaintiffs in the suit described a situation at the home of Tesla founder Elon Musk. The plaintiff alleges while working on solar panels at Musk’s home, another Tesla employee accused the plaintiff of “protecting and/or favoring” other racial minorities. The plaintiff’s employment was then terminated within two hours of the altercation. According to the plaintiff, Tesla’s human resources department stated the decision to terminate the plaintiff came from a superior and refused to investigate the matter.  

Biased Discipline and Termination

Several plaintiffs alleged Tesla’s management routinely disciplined and terminated minority employees for alleged misconduct, whereas non-minority employees engaging in the same misconduct were not. For example, one plaintiff alleged multiple incidents where he would be reprimanded for wearing headphones or a hat while working at Tesla’s facilities. However, non-minority employees would not be reprimanded for the same actions.

Other employees alleged Tesla superiors constantly reminded minority employees that their jobs were “on the line” for no apparent reason. As a result, many of the plaintiffs were threatened with termination, and some experienced a lack of willingness from the human resources department to prevent this behavior or investigate alleged wrongful termination claims.

Tesla’s Previous Employment Discrimination Lawsuits

The most recent lawsuit is only several other lawsuits that alleged some form of employment discrimination within Tesla’s facilities. Other suits include gender-related adverse employment actions and an investigation by the State of California regarding Tesla’s employment practices.

Owen Diaz’s Racial Discrimination Case at the Tesla Freemont Factory

Although large companies like Tesla face countless forms of employment-related lawsuits and administrative filings every year, Owen Diaz’s stands out. Mr. Diaz filed an action against the electronic vehicle manufacturer in 2017, alleging a consistent pattern of racial discrimination. Mr. Diaz, an elevator contractor, alleged approximately 30 instances where a Tesla employee used the “n-word” in front of or about Mr. Diaz.

In one of the most significant single-plaintiff employment discrimination lawsuits in U.S. history, a San Francisco jury awarded Mr. Diaz a $137 million jury verdict in 2021. However, the judge overseeing the trial reduced the damages award to $15 million, which still represents an uncommonly large damage award in a single-plaintiff employment discrimination case. Mr. Owen rejected the reduced award and vowed to retry the case for a higher award amount.

Sexual Discrimination at the Tesla Freemont Factory

In 2021, six women filed separate sexual discrimination lawsuits against Tesla for alleged gender and sexually motivated discrimination at its Freemont, CA factory. The women contend they faced daily sexual harassment, including catcalling, gawking, and derogatory gender-related language describing female employees. The women also alleged Tesla routinely failed to address allegations of sexual harassment when reported to the human resources department. The six lawsuits came on the heels of another lawsuit filed a month prior, where a female employee alleged “nightmarish conditions” of persistent sexual harassment fueled by male co-workers.

California Department of Fair Employment and Housing Lawsuit

In February of 2022, the State of California’s Department of Fair Employment & Housing (the state’s administrative agency for addressing discrimination in employment and housing) filed suit against Tesla for numerous violations of California’s anti-discrimination and wage and hour laws. DFEH stated that African American workers were subject to racial segregation in the workplace, relegating workers to lower-level positions with few avenues for promotion or access to executive-level positions. DFEH also received hundreds of complaints from current and former employees about racial discrimination at Tesla’s facilities. Finally, Tesla allegedly failed to address numerous complaints of discrimination.

Understanding California Employment Discrimination Law

Like nearly all states, California’s Fair Employment and Housing Act (FEHA) parodies Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of several characteristics (including race) in employment.

Protected Groups and Categories

Under FEHA, employers with five or more employees are prohibited from discriminating against current employees and job applicants on the basis of the following characteristics:

  • Race.
  • National origin.
  • Religion.
  • Creed.
  • Age for employees aged 40 and above.
  • Mental and physical disability.
  • Sex and gender, specifically pregnancy status, childbirth, breastfeeding, and other gender-related medical conditions.
  • Sexual orientation.
  • Gender identity.
  • Medical conditions.
  • AIDS/HIV status.
  • Political affiliation.
  • Genetic information.
  • Marital status.
  • Military and veteran status.

Prohibited Discriminatory Practices

Although employment discrimination is banned in virtually all forms of employment practices, both statutes and case law outline several areas uniquely identified as areas covered employers are strictly prohibited from engaging in discrimination, which includes:

  • Advertising job postings and positions.
  • Employment applications, screening candidates for employment, and applicant interviews.
  • Conditions of employment, including hiring practices, transferring employees throughout departments, employee promotions and terminations, and separation of employees.
  • Working conditions, including employee compensation, benefits, and physical conditions.
  • Employee training and apprentice, employee organization, and union representation.

Other Laws to Consider

Not only does California provide employees with comprehensive protection from employment discrimination, as outlined above, but it also has several other laws prohibiting particular forms of discrimination. Such laws include:

  • California Family Rights Act: covered employers must provide employees with 12 weeks of unpaid, protected leave for a serious health condition for themselves, family members, or bond with a new child.
  • California Equal Pay Act: covered employers are prohibited from discriminating on the basis of gender or ethnicity per an employee’s previous salary.

Do Employers Always Have To Make Accommodations For Employees With Disabilities?

The short answer is no. But it’s a little more complicated than that. The law is trying to level the employment playing field as much as possible for persons who are challenged with disabilities but who are otherwise fully capable of performing the responsibilities of employment. 

An employer’s responsibility to accommodate the needs of an employee with a disability is unique to the employment situation and the employee. California’s laws are to be interpreted broadly with the goal of making employment accessible for all people who are capable of doing the work. 

That is not to say that employers are required to give in to every accommodation request made by an employee. An employer is not obligated to put themselves in a position of extreme sacrifice to accommodate an employee’s disability. Employers with four or fewer employees in California are not subject to employment discrimination laws and do not have to provide accommodations for their employees.

When an employer has failed to provide an accommodation to an employee, and the employee has brought a disability discrimination claim against the employer, the court will consider the employee’s request and how easily the employer could have made the accommodation. It wouldn’t go well for the employer if the employee’s accommodation request had a solution that the employer could have provided without too much trouble. 

What California Law Says Employers Must Do   

The California Code of Regulations requires employers to evaluate job applicants and employees on the basis of their individual skills, knowledge, and abilities and to establish employment practices that result in equal treatment for all persons regardless of:

  • Race
  • Religious creed
  • Color 
  • National origin
  • Ancestry
  • Physical disability
  • Mental disability
  • Medical condition
  • Genetic information
  • Marital status
  • Sex
  • Gender
  • Gender identity
  • Gender expression
  • Age – 40+
  • Military and veteran status
  • Sexual orientation

When is an Employee Considered Disabled?

What counts as a disability is broadly defined for employment discrimination purposes and includes many mental and physical conditions but generally excludes mental conditions associated with criminal conduct and mild physical conditions that do not affect major life activities. 

An employer who is aware of a job applicant’s or employee’s disability must make reasonable accommodations for the disability unless the employer can show that the accommodation would cause the employer undue hardship

The California Legislature has said that an accommodation imposes an undue hardship when it requires significant difficulty or expense after considering the following factors:

  • The nature and cost of the requested accommodation
  • Financial resources of the employer
  • How the accommodation might affect the business
  • The type of business operations 
  • Geographic considerations

An employer also has a recognized defense to an accusation of disability discrimination. No accommodation is necessary if the employer can show that there is no reasonable accommodation that can be made for an applicant’s or employee’s disability that would allow the person to perform the essential job functions without risk of substantial harm to themselves or others.

How Employers Comply With Disabled Employee Discrimination Laws

In order to determine a reasonable accommodation for an employee’s disability, the employer and employee are to engage in an interactive process to identify possible solutions for the employee’s situation. A standardized accommodation may not be a fit for a particular disability so accommodations are to be based on individual needs.  

Employers may accommodate an employee’s disability in any of the following ways:

  • Modifying job duties
  • Modifying work hours
  • Making work facilities accessible
  • Relocating an employee to different work facilities
  • Modifying work equipment or buying additional equipment
  • Flexible leave policies
  • Reassigning an employee to a different position
  • Changing company policies
  • Providing training or assistance

What to do if an Employer is Unwilling to Accommodate an Employee’s Disability

Just because an employee with a disability makes a request for an accommodation does not mean an employer is required to do exactly what the employee has proposed. The employee has begun a dialogue with the employer as to what would be a reasonable solution that would allow the employee equal access to an employment opportunity. 

An employee should make sure that an accommodation request is reasonable given the work location, the employer’s business, and the financial capacity of the employer. Requests should be made in writing and should follow any procedures specified by the employer. Employers should respond to accommodation requests in a timely manner.

If an accommodation request is denied, the next move depends on the reason for the denial. An employee may be able to provide additional information or propose an alternative accommodation. If an employer remains uncooperative or ignores accommodation requests, an employee can file an employment discrimination claim with the California Department of Fair Employment and Housing (DFEH). For employers with 15 or more employees, the option also exists to file a federal claim with the Equal Employment Opportunity Commission (EEOC)

Enforce Workplace Rights with a Sacramento Employment Discrimination Attorney

An employee or job applicant with a qualifying disability has the right to the same employment opportunities as other employees or job applicants without the disability. In order to enforce that right, the law imposes an obligation on certain employers to make the work they need to be done accessible to qualified persons with disabilities. Employers must make reasonable accommodations for employees with disabilities, and those accommodations will vary depending on the needs of the employee. Employers that won’t comply need to be held accountable. 

At Perkins Asbill, our employment discrimination attorneys have over three decades of combined legal experience helping employees in the greater Sacramento area enforce their legal rights against workplace discrimination. Whether an employee needs help preparing a disability accommodation request for an employer or an employer is not cooperating with an employee’s accommodation request, Perkins Asbill can help employees get the fairness they are entitled to. 

Call Perkins Asbill at 916-446-2000 or contact a Sacramento employment discrimination lawyer here.

Understanding the Pregnancy Discrimination Act

Pregnancy discrimination is a particularly awful form of discrimination because it targets a subset of employees and may deter those employees from considering pregnancy. Employers should not interfere with a woman’s right to conceive a child and should encourage pregnancy where appropriate. When facing this type of discrimination, women should understand their rights and protections in the workplace.  

What is the Pregnancy Discrimination Act?

The Pregnancy Discrimination Act of 1978 (PDA) is an amendment to Title VII of the Civil Rights Act of 1964, which provides pregnant women with workplace protections. Title VII prohibits employment discrimination and harassment based on a list of protected classifications, including race, color, religion, sex, and national origin. Since its passage, Congress has passed numerous amendments to include other forms of protected classifications like age, disability, veteran and immigrant status, and pregnancy.

What Constitutes Pregnancy Discrimination in the Workplace?

According to the Equal Employment Opportunity Commission (EEOC), the agency tasked with investigating and adjudicating claims of employment discrimination, the PDA prohibits employers from

treat[ing] a pregnant worker who is temporarily unable to perform some of her job duties because of pregnancy less favorably than workers whose job performance is similarly restricted because of conditions other than pregnancy.

Common forms of pregnancy discrimination can include terminating a woman for becoming pregnant or expecting her to become pregnant during her employment or the failure to:

  • Hire a woman for being pregnant or expecting her to become pregnant during employment.
  • Provide a recent mother a safe and clean environment to lactate.
  • Accommodate a reasonable request for a change in working conditions during a pregnancy (i.e., lifting restrictions of 20 lbs. or less).
  • Provide the employee maternity leave as required by law.
  • Provide a formerly pregnant employee with the same or similar position upon returning from maternity or medical leave.

Who Enforces the Act?

Before an employee can file a lawsuit for pregnancy discrimination against their employer, they must file a claim with the EEOC or a similar state agency. Under federal and state law, addressing allegations of discrimination against an employer must go through an administrative process first before the employee can file an action in court.

To begin the claim process, an employee must first file a complaint form with the EEOC describing each instance of discrimination. The EEOC will then open an investigation into the complainant’s employer by reviewing relevant evidence to determine whether the employee’s allegations meet civil rights violation standards.

The standard for employment discrimination is whether similarly situated employees have also been treated the same. For example, a pregnant employee requested light duty and was denied because the employer could not accommodate her request. If the employer can prove they have rejected the request to other pregnant employees for the same reason, then the employee’s discrimination claim will most likely fail.

Once an investigation concludes, the EEOC will determine whether to file a complaint on the employee’s behalf. Filing a complaint does not necessarily mean the employee violated the law. Instead, filing a complaint allows the case to proceed with the complainant’s permission. The EEOC will then require both parties to engage in mediation to resolve outstanding issues, including resolving the matter through a financial settlement, granting the employee’s request for accommodation, reinstating the employee after their termination, or adopting new policies to address concerns raised by the action.

Finally, after mediation, the EEOC may still not continue the complaint process and not file a lawsuit. However, once this determination has occurred, the employee can request a right-to-sue letter granting a court jurisdiction (the ability to review a legal matter) over the case.

I Just Found Out I’m Pregnant. What Should I Do Now?

As all mothers know, some pregnancies are planned well in advance, while others can be a bit of a surprise. Regardless, one of the most important things a woman can do is notify her employer of her pregnancy. Providing notification is a courtesy to employers and helps both expecting mothers and their employers plan for the future.

There is no actual legal requirement for someone to notify their employer of pregnancy in most cases. However, it is good practice to notify your employer sooner rather than later and notification will commence the process to utilize leave time. For example, pregnant employees should provide a supervisor or manager with written notification of their pregnancy and ask to speak with that person about the next steps.

At this point, most employers will likely want to talk to the employee about the next steps, including the potential use of the employer’s materiality leave policies, reasonable accommodations for the employee, and a general timeline of the expected due date. Employees should always keep detailed records of correspondence or other documents to communicate with their employer about any issues that may impact their ability to perform their job duties.

How Should an Employee Address Discrimination Based on their Pregnancy Status?

Employment lawyers know first-hand the incredible impact discrimination can have on an employee’s morale. It can be an emotionally draining experience for many. Once a woman faces discrimination in the workplace due to a pregnancy, they should do the following to address it directly and prepare for future legal proceedings:

  • Review the employer’s workplace policies on maternity leave, family and medical leave, and discrimination.
  • Communicate with upper-level management or human resources about discriminatory actions by immediate supervisors or fellow employees.
  • Document, in detail, instances of discrimination, including the time and location of the event, and any witnesses involved in the interaction.
  • Contact an experienced pregnancy discrimination with the details of the discrimination as discrimination claims have a strict statute of limitations (180 days for the EEOC and three calendar years for the California Department of Fair Employment and Housing).

What Other Laws Protect Pregnant Employees in the Workplace?

Although the PDA protects women from discrimination based on their pregnancy status or an expectation of becoming pregnant, women can look to other laws for additional protection—in some cases, violations of these laws can also constitute pregnancy discrimination. Such laws include:

  • Americans with Disabilities Act (ADA): pregnancy is not considered a disability, but medical issues related to pregnancy can be regarded as disabilities.
  • Family Medical Leave Act (FMLA): pregnant employees can use FLMA to take additional 12 weeks of unpaid leave within a 12-month period for childbirth and other childcare-related issues.
  • California Family Rights Act (CFRA) and the Pregnancy Disability Leave Act Act (PDL): provide additional leave rights for pregnant employees.

Workplace Vaccination Mandates – A Dilemma for Employers and Workers

Since the U.S. Food Drug Administration (FDA) issued Emergency Use Authorization (EUA) or full authorized use for three COVID-19 vaccines (Moderna, Pfizer, and Janssen), a question has troubled employers: are we or should we mandate COVID-19 vaccinations for our employees?

The question tries to strike a balance between ensuring employees’ safe working conditions; complying with local, state, and federal guidelines; and respecting an individual’s freedom of choice and medical circumstances. Thus, as of January 21, 2022, there is no clear answer, but recent developments may have shed light on the issue to help California employers make an informed decision for their employees.

New OSHA Rule Stalled in the Courts

Late last year, the Biden Administration announced it would direct the U.S. Occupational Safety and Health Administration (OSHA), the federal agency tasked with regulating and enforcing workplace safety laws throughout the U.S., to promulgate an emergency temporary standard (ETS) requiring businesses with 100 or more employees to implement COVID-19 vaccination mandates as a condition of their employment or require a health or religious accommodation for those employees.

Unsurprisingly, this decision was challenged in federal court by numerous covered private companies and interest groups against the OSHA ETS. On January 13, 2022, the United States Supreme Court struck down OSHA’s authority to promulgate such a rule unless the employee was a nursing home facility that received Medicare or Medicaid funds.

Estimates show that the rule would have prompted some-80 million employees across the U.S. to become fully vaccinated. In addition, under the rule, employers would have had to ensure compliance amongst their employees or face financial penalties from OSHA.

California’s Position on Vaccination Mandates

With the Supreme Court’s ruling comes new issues facing many California employers and employees, including whether employers should implement a COVID-19 vaccination mandate given that OSHA can no longer enforce the bulk of their vaccination ETS.

Currently, the California Department of Industrial Relations has created its own rules for addressing COVID-19 in the workplace. Under the current rules, set to expire next month, employers can request employees to submit proof of vaccination and require employees to be vaccinated. However, the decision to establish a mandatory vaccination policy is at the employer’s discretion and not a requirement by the State of California. If an employer has implemented or is seeking a COVID-19 vaccination mandate, below are some considerations employees should know when experiencing this process.

Mandating Vaccinations in the Workplace

Very little prevents an employer from mandating COVID-19 vaccinations for their employees. In fact, the underlying policy of requiring private-sector employers to mandate vaccinations is likely one of the most surefire ways to ensure as many Americans as possible receive a vaccine. However, while President Biden’s OSHA vaccination rule remains blocked by the Supreme Court, private companies are likely considering implementing their own mandates (if they have not done so already).

Compliance with the ADA

The Americans with Disabilities Act provides a framework for employees with disabilities to obtain reasonable workplace accommodations based on their ailments. The U.S. Equal Employment Opportunity Commission, the administrative body charged with handling workplace discrimination claims, including disabilities-related discrimination, has provided comprehensive guidance to employers required to provide their employees reasonable workplace accommodations under the law.

As COVID-19 vaccines have become widely available to most Americans, employers must consider two forms of workplace accommodations for employees that cannot obtain a COVID-19 vaccine, including health and religious accommodations.

Health Accommodation

Under a health accommodation, an employer must engage in what the EEOC refers to as the “interactive process” to provide an employee with reasonable accommodation. Under the interactive process, employees need not disrupt their employer’s business operations to accommodate them. Instead, they must provide the employee with reasonable accommodation based on the request. Under a health accommodation, an employer may allow an employee unable to take the vaccine to work from home, work in an area in the facility that is socially distant from other employees, wear a face covering, and engage in weekly testing for COVID-19.

Religious Accommodation

Like health accommodations, an employer may need to make a religious accommodation per Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on an employee’s religion. Per EEOC guidance, an employee need not utter the “magic words” describing their requested religious accommodation. Instead, they need only notify their employer that their sincerely held religious belief prevents them from taking a vaccine. Like an ADA accommodation, the employer must determine how the employee can still perform their essential job functions and not take the vaccine based on their religious beliefs.

Employees Represented by a Union

Under Sections 8(d) and 8(a)(5) of the National Labor Relations Act, employers are required by law to bargain in “good faith” with the representative of a labor union. This can include bargaining the impact or effect of current workplace policies. Although employers have a fundamental right under the NLRA to make business decisions that impact the workplace, unions have a right to inquiry and bargain over their policies’ effect on their workers.

An employer that employs unionized employees can consider and adopt a mandatory vaccination policy for workers. However, to avoid receiving an unfair labor practice charge (a charge that the employer or union violated the law), an employer should notify the collective bargaining represented during the process of considering a vaccination mandate or when the policy has been adopted. This allows the employer and the union to engage in impact bargaining over how the policy will affect employees.

Again, a union cannot prevent the employer from adopting such a policy. Still, the union can bargain over how that policy impacts employees, including paid time off to get a vaccine or acquire testing, periods for employees to become fully vaccinated, and providing additional accommodations for employees unable to get vaccinated.

You May Need to Speak to an Attorney

Employers adopting a vaccination mandate should maintain the confidentiality of their employees by storing vaccination information in a separate file from the employee’s personnel file. Further, employers should continue to implement and enforce state and local COVID-19 mitigation measures, including wearing face coverings, providing proper sanitation, and enforcing social distancing, if required.

Perkins Asbill’s Sacramento business litigation attorneys have experience addressing a wide variety of employee discrimination. With a constantly changing workplace environment due to COVID-19, it is crucial to have legal representation. Contact (916) 446-2000 for a discreet consultation to get started on your case or discuss your options.

Does the ADA Cover Psychiatric Disabilities?

The Americans with Disabilities Act (ADA) is a law that prohibits discrimination against individuals with disabilities in all areas of public life, including schools, transportation, jobs, and all public and private places that are open to the general public. The purpose of this law is to ensure that those with a disability have the same opportunities and rights as everyone. Just as rights and liberties are provided to individuals regardless of race, national origin, sex, age, and religious beliefs. The ADA enacts civil rights to individuals with disabilities.

Who is Covered Under the ADA?

A person with a disability is defined as an individual who:

  • Has a mental or physical impairment that substantially limits one or more of their major life activities.
  • Has a record of such an impairment, or 
  • Is regarded as having such an impairment.

A psychiatric condition that substantially limits a person’s major life activity, including sleeping, working, or thinking, may be regarded as a disability under the ADA. And employers may have an obligation to reasonably accommodate workers with this disability. If they do not, it can be considered disability discrimination. 

However, not everyone with a psychiatric disability will qualify for ADA protection. If an individual is too severely disabled to perform the essential job functions, with or without a reasonable accommodation, they may not be qualified for the job. If this is the case, the employer can fire the employee or refuse to hire the candidate. 

What is a Psychiatric Disability?

A psychiatric disability is defined by the ADA as a mental impairment that substantially limits one or more of the major life activities of an individual. According to the Equal Employment Opportunity Commission (EEOC), a mental impairment includes any mental or psychological disorder, such as an emotional or mental illness, including:

  • Panic disorders
  • Obsessive-compulsive disorders
  • Post-traumatic stress disorder
  • Bipolar disorder
  • Major depression
  • Schizophrenia
  • Personality disorders
  • Other phobias such as eating disorders, agoraphobia, borderline personality disorder, and antisocial personality disorder
  • Dissociative disorders such as depersonalization disorder and dissociative identity disorder

What Do Reasonable Accommodations Mean For a Psychiatric Disability?

If an individual has a psychiatric condition that qualifies as a disability under the ADA, they may be able to receive reasonable accommodations if these accommodations are required to perform a function of their job.

These reasonable accommodations may include:

  • Job restructuring, modifying work schedules, and reassignment to a different vacant position
  • Changes to the workplace that can help the employee concentrate better, including modifying equipment, adding partitions, soundproofing a workspace, adjusting policies, or moving an employee to a less noisy area
  • Providing more frequent reminders of tasks and due dates
  • Increasing the number of short breaks an employee can take or allowing them to work from home
  • Allowing the employee to take doctor appointments when needed and allowing them to have a water bottle to take their medications when required
  • Allowing the employee to attend meetings remotely

In addition, if a worker has issues communicating or responding to directions because of their psychiatric disability, it may be reasonable under the ADA for a supervisor or manager to adjust their communication style or management techniques, such as sending more instructions through e-mail or strictly using voice messages. These changes may be considered reasonable, even if the method is not the supervisor’s preferred style of providing instructions to their workers. 

Accommodations are typically triggered when the supervisor or manager becomes aware of the employee’s disability and realizes that the individual needs an accommodation. Unfortunately, individuals with this disability are often too fearful of disclosing their impairment because of the social stigma that is often associated with psychiatric disabilities.

Notifying the Employer of the Psychiatric Disability 

An employee with a psychiatric disability will usually have to notify the employer of their impairment and ask for the accommodations they need. Additionally, managers can also ask their employees to identify the specific disability they have to figure out whether any accommodations are necessary. 

However, if an individual with a psychiatric disability does not request for an accommodation, their employer is generally under no obligation to provide one. But if the employee asks for an accommodation but does not specify what type, then management and the employee should work together to develop the right solution. 

Undue Hardship and Reasonable Accommodations 

Title I of the ADA requires that organizations and employers provide reasonable accommodations to qualified individuals with a disability who are applicants or employees of the company unless providing this accommodation would cause an undue hardship

Under the ADA, undue hardship means significant difficulty or expense for the organization. Generally, this hardship focuses on the resources and the circumstances of the particular employer in relation to the cost or difficulty of providing the specific accommodation. As a result, this undue hardship not only refers to financial difficulty but also makes it clear that if the reasonable accommodation is unduly extensive, substantial, disruptive, or would fundamentally alter the nature or operation of the business, it can also be considered an undue hardship.

That is why an employer must assess each reasonable accommodation on a case-by-case basis to determine if it would cause the company an undue hardship.

Psychiatric Disability Discrimination in the News

Psychiatric disability discrimination is nothing new. For instance, take the recent case where a staffing company fired an employee with a psychiatric disability instead of providing them with reasonable accommodation. 

According to the EEOC’s lawsuit, the employee worked as a marketing coordinator and needed to take leave because of a psychiatric disability. However, the company denied the employee’s request and fired her when she was medically cleared to work after a hospitalization.

The EEOC is now seeking monetary relief, including compensatory damages, back pay, and punitive damages for the employee, as well as injunctive relief to prevent future disability discrimination by the company.

Get the Legal Help You Need Today

If you have a psychiatric disability and believe that you have been discriminated against at work for this condition, make sure to contact Perkins Asbill, A Professional Law Corporation, today for a discreet consultation or call our office at 916-446-2000. 

Transgender Rights in the Workplace

Individuals whose gender identification and/or expression differs from their sex assigned at birth or from typical cultural standards of male and female gender roles are referred to as “transgender.” Transgender persons, like non-transgender people, can be straight, lesbian, gay, bisexual, or asexual. Transgender people face discrimination in many areas of their lives, including the workplace.

It is illegal to terminate, refuse to hire, harass, or otherwise discriminate against you because of your gender identity, gender transition, sex assigned at birth, or transgender status, according to federal laws against sex and disability discrimination. If you have faced any sort of discrimination within the workplace, it is important to know your rights and also know the obligations your employer owe you, as a protected individual. 

Your Rights at Work 

For transgender or transitioning people, employment is one of the most legally and personally problematic areas. Many people define themselves by work because it is a necessary means to life. We spend a significant amount of time devoted to our jobs and cannot earn a living or afford health insurance without it. In a recent transgender study, 90 percent of respondents stated they had experienced workplace discrimination or maltreatment, and 26% said they had lost their jobs as a result of their gender identity or presentation.

Losing your job through termination is particularly damaging to someone who is already dealing with workplace conflicts or abuse. Transgender survey respondents who had lost a job were four times more likely to become homeless, 70 percent more likely to have drinking or drug issues, and 50 percent more likely to be incarcerated than those who had not lost a job.

Recently, there has been some success in protecting transgender rights by applying federal sex discrimination law and state disability law. Ordinances are also being enacted in several states and localities. 

Employer Obligations 

Your employer cannot prohibit you from disclosing your transgender status or gender identity, nor may you be fired for doing so. If your workplace has policies prohibiting personal talks with coworkers, clients, or customers, those policies must be implemented equally to all employees and cannot be used to discriminate against transgender people. Your employer is also prohibited from disclosing your transgender status without your permission.

Additionally, every employee has a right to a secure and appropriate restroom and locker room. This includes the right to use a restroom or locker room that is gender-neutral, regardless of the employee’s designated sex at birth. Furthermore, where practicable, a business should provide an easily accessible unisex single stall bathroom for use by any employee who wants more privacy, regardless of the cause. It should always be a personal choice to use a unisex single stall restroom. 

In a gender-appropriate facility, no employee should be forced to use one as a matter of policy or due to harassment. All single-user toilet facilities in any business or corporation, place of public accommodation, or state or local government agency must be designated as all-gender toilet facilities unless exempted by other provisions of state law.

An employer cannot put forth any policy or rule that would discriminate only against transgender individuals at a workplace a no other working. You are owed the same rights and treatment as any other working at any organization or workplace. 

Common Transgender Workplace Issues

You have the right to be treated with decency and to be free of harassment. When sex-based harassment is serious or widespread, and an employer does nothing to stop it, it is illegal. Harassment based on a person’s gender can take several forms, including:

  • Harsh and demeaning remarks or jokes about transgender people
  • Use of the incorrect name or pronouns on a regular basis with malice or done on purpose
  • Personal queries that are intrusive and disrespectful may also be considered harassment

Another common and more prevalent issue is when a person is transitioning while still remaining employed in the same role. The transition may or may not include surgery, but it will almost certainly necessitate management’s assistance with the employee’s adjustment in the workplace, as well as with coworkers’ concerns during the process.

What Laws Protect My Rights? 

Over the last 15 years, federal appellate courts have increasingly acknowledged that discrimination against transgender people is a kind of sex discrimination that is illegal under federal law. These court victories set the way for the federal Equal Employment Opportunity Commission’s (EEOC) historic 2012 decision in the case Macy v. Holder, which found that such discrimination is illegal under Title VII of the 1964 Civil Rights Act. 

The EEOC’s Macy decision is binding on the federal government and shows conclusively that federal transgender workers are entitled to Title VII protections. It also supports transgender employees, both public and private, across the country who believe they have been subjected to workplace discrimination by allowing them to file complaints with the Equal Employment Opportunity Commission (EEOC), which will investigate complaints and, if found valid, pursue settlements and, in some cases, file lawsuits.

In 2014, 18 states and the District of Columbia, as well as over 130 cities and counties across the US, expressly prohibited discrimination based on gender identity. In addition, an increasing number of private companies have anti-discrimination policies that encompass bias towards transgender persons.

Despite the fact that the federal Americans with Disabilities Act expressly excludes transgender persons from its protections, some campaigners have succeeded in filing state disability claims on their behalf. Many people are fight for the rights of transgender individuals and we hope to see even more progression and protection within the next few years. 

Contact an Employment Law Attorney Today to Know Your Rights

If an employee can show that he or she has been discriminated against because of their status as a protected class, California employment discrimination laws may allow them to sue the employer.

An attorney can help you clarify your goals and evaluate the potential benefits and costs of filing an employment discrimination lawsuit, whether you are seeking financial compensation, personal vindication, or simply to ensure that this type of discrimination does not happen to others in the future.

Perkins Asbill’s Sacramento employment law attorneys have more than 30 years of experience navigating the complexities of the California Labor Code, the federal Fair Labor Standards Act, and other related statutes. To get started on your case, contact (916) 446-2000 for a discreet consultation.