What are My Rights When Facing Mental Illness Discrimination in the Workplace?

Mental illness, like many common physical disabilities, can impact every area of your daily life–including the way you approach your work responsibilities, deal with your coworkers, or handle challenges that you may face in the workplace. However, mental disabilities, like physical ones, are protected by the Americans with Disabilities Act, which was passed in 1990.

If your employer has 15 or more employees, it cannot discriminate against you because of your mental illness. That means the company cannot refuse to hire you, fail to provide you with advancement or training opportunities, or let you go as a direct result of your mental illness. Furthermore, the company may have to make reasonable accommodations that will allow you to handle your job in spite of your mental illness. 

Have you suffered discrimination in the workplace as a result of your mental illness? A lawyer can help go over your rights and pursue the compensation you may deserve for those illegal actions. 

Direct vs. Indirect Discrimination

The ADA notes that both direct and indirect discrimination against individuals with mental illnesses is illegal in the workplace. Direct discrimination includes actions that the individual knows result directly from the mental illness. They might include, for example, refusing to allow a mentally ill employee to take advantage of certain training opportunities, or firing a mentally ill employee because of needed accommodations for that mental illness. Indirect discrimination, on the other hand, may not be quite so obvious. It might, for example, include a company policy that discriminates unintentionally against mentally ill individuals, or the employer’s decision to promote individuals based on attributes that have nothing to do with their actual job responsibilities. 

Types of Workplace Discrimination Against Mental Illness

Workplace discrimination against mental illness can take several different forms. If you have questions about whether you may have faced discrimination, or what type of discrimination you may have faced, consult an attorney as soon as possible to learn more about your rights and whether you may deserve compensation for the challenges you have faced.

Hiring Discrimination

An employer cannot legally ask about mental illnesses during the hiring or interview process. However, you may need to disclose information about your mental illness before formally accepting a job, since you may require accommodations to help you manage your work or the challenges that come along with your mental illness. If an employer turns you down for a job you had previously been offered after finding out about your mental illness, you may have faced hiring discrimination in the workplace.

Harassment

Some people do not deal well, or fairly, with signs of mental illness in others. Harassment can take many forms, but at its root, it calls attention to or makes fun of the behaviors that often go hand-in-hand with your mental illness and the challenges you may face every day. An employer or coworker might call you names or use inappropriate language regarding your mental illness, including language that makes you feel uncomfortable or threatened. You might also find someone mimicking your behaviors. 

Opportunity Denial

There are some opportunities that you might turn down because of your mental illness, or areas in which you might require accommodation because of the way your mental illness affects you. If, for example, you have severe PTSD that may be triggered by flying, you might choose to turn down the opportunity to attend a conference or event that occurs far enough from home that you would need to fly in. On the other hand, that is a decision that you should have the right to make alongside your employer. Likewise, if you have severe anxiety, and stress makes it worse, you might choose to forego a promotion into a position that would cause you additional stress, but your employer cannot deny you the ability to move up because of depression, anxiety, or other signs of mental illness. If you have been turned down for those opportunities directly because of your mental illness (rather than because of performance issues or other concerns about your work), you may have suffered mental illness discrimination in the workplace.

Termination or Demotion Because of Mental Illness

Your mental illness may cause challenges to crop up that you have to deal with. For example, you may need to  miss time at work while adjusting to the side effects from a new medication–or even miss work because of the effects of that mental illness. However, you should not be terminated or demoted because you have to deal with mental health issues. If your employer does terminate you because you needed to take time to deal with mental health concerns, from medication to a day when your mental health was more challenging than usual, you may have faced discrimination.

What Should You Do When Facing Mental Health Discrimination in the Workplace?

Have you faced mental health discrimination in the workplace?

Do you suspect that you may have suffered discrimination in the workplace due to your mental health, but lack the certainty you need to move forward with a claim?

Make sure you protect yourself as soon as possible.

Document any evidence of discrimination.

Sometimes, that may mean saving emails and other office communications. Make sure you save them on a personal storage device or account, rather than just leaving them in your work email, since some employers will act fast to delete your work accounts if they have to dismiss you for any reason. Other times, you may need to write down specific instances of discrimination.

Contact a lawyer as soon as possible.

Whether you simply suspect possible discrimination or know that it has occurred, a lawyer can help you determine your next steps, including how to protect yourself against possible retaliation. 

Have You Faced Mental Illness Discrimination in the Workplace?

If you have faced mental illness discrimination in the workplace, an employment lawyer can help you protect your rights and even seek compensation for that discrimination. Contact Perkins Asbill, A Professional Law Corporation at 916-446-2000 to learn more.

What Is Considered Circumstantial Evidence in Discrimination Cases?

Illegal employment discrimination only rarely happens out in the open. More often, employers and supervisors try to conceal the discriminatory purpose of the adverse employment actions they take against employees and prospective employees. Rather than telling a woman she’s been let go because of her pregnancy, they come up with excuses about downsizing and poor performance reviews. Instead of saying they don’t want a trans person waiting on customers, they cast a job reassignment as taking advantage of that person’s “strengths”. 

Employees often know they’ve been targeted by illegal discrimination, but worry that without direct evidence of discriminatory intent, they might not succeed in making a claim for damages. That’s an understandable concern, but it’s misplaced. As experienced employment discrimination lawyers know, most claims rely heavily on circumstantial evidence as proof of illegal discrimination.

In this blog post, we take a closer look at what constitutes circumstantial evidence of illegal employment discrimination, and how lawyers can use it to build a strong case.

Circumstantial Evidence Overview

Let’s start with some basic concepts. Evidence consists of any unit of information a lawyer can use to prove a fact in court. The law generally recognizes two categories of evidence: direct and circumstantial. 

  • Direct evidence proves a fact in and of itself, without the need to draw an inference. Looking outside and seeing rain falling is direct evidence that it is raining outside. 
  • Circumstantial evidence proves a fact by supporting a reasonable inference of that fact. Looking outside and seeing wet pavement and people carrying open umbrellas is circumstantial evidence that it’s raining outside. 

We rely on circumstantial evidence to make reasonable inferences about facts constantly in our everyday lives. And yet, there’s a popular misconception that circumstantial evidence is somehow less convincing than direct evidence, and that a case built on circumstantial evidence is inherently weak. But, that’s simply not true. In the hands of a skilled lawyer, circumstantial evidence can be just as compelling as direct evidence. Just about every winning case relies on circumstantial evidence in some form or fashion. 

Common Circumstantial Evidence of Illegal Employment Discrimination

Employment discrimination cases rarely rely primarily on direct evidence, such as that an employer stated an explicit discriminatory intent out loud or in writing. It might happen on occasion, but it’s not the norm — which is why you should never assume that a lack of direct evidence means you have not been discriminated against.

Instead, we tend to know that discrimination has happened in the workplace by observing circumstances, environments, and behaviors, and then drawing reasonable inferences from them. Here are just a few examples of what circumstantial evidence supporting an inference of illegal discrimination at work might look like. 

Disparate Treatment

A pattern of unequal or different treatment affecting an individual or group of similar individuals in a workplace can reflect illegal discrimination. For example:

  • An office where qualified Asian employees consistently get passed over for promotions in favor of less qualified non-Asians. 
  • A fast food chain that routinely assigns white employees to the order counter, and people of color to the kitchen.
  • A boss who only ever seems to work with attractive young women who flirt with him.  
  • Male and female employees with identical jobs and seniority receiving unequal pay.  

Perhaps these practices have innocent explanations. However, reasonable people might also infer from them that the person responsible for the disparities in treatment had a discriminatory intent. 

Suspicious Timing of Adverse Employment Actions

We might also infer discriminatory intent from the timing of an adverse employment action, in relation to when an employer learns something about an employee.  An unfortunately common example of this is when a female employee loses her job or a job opportunity soon after her employer learns she’s pregnant. Other examples might include a hiring manager revoking an employment offer after meeting a minority job applicant face to face for the first time, or an employee’s impending promotion getting put on hold days after he brings his husband to a work party for the first time. 

Weak Explanations for Adverse Employment Actions

Employers do not necessarily need an objectively good reason to take adverse employment action against an employee. However, whatever reason they do have, it cannot be a discriminatory one. Sometimes, an employer’s seeming inability to give a clear, understandable, rational, or consistent explanation for a decision that adversely affects an employee can support an inference of discriminatory intent. Minority job applicants might reasonably infer discriminatory intent, for example, from hearing multiple, contradictory explanations for being turned down for a position for which they’re qualified. 

Problematic Workplace Norms and Cultures

Harassment that creates a hostile work environment can itself constitute a form of illegal discrimination. However, a lawyer does not necessarily need to prove harassment for evidence of problematic workplace norms and cultures to support a reasonable inference of an employer having acted with discriminatory intent. An officewide expectation that employees should not speak of or call attention to their religious beliefs at work, for example, could support an inference of discrimination against an employee who observes religious dress or grooming practices.

How Lawyers Use Circumstantial Evidence to Build a Case for Employment Discrimination

Experienced employment discrimination lawyers understand that most cases they pursue on behalf of employees rely heavily, and sometimes exclusively, on just the sort of circumstantial evidence described above. A lack of direct evidence does not bother them. They trust that judges and jurors can recognize discrimination when presented with its telltale signs. 

Lawyers also know that the circumstantial evidence they know about at the beginning of a case might well represent the tip of the iceberg. Through the process of civil discovery, lawyers can often accumulate more circumstantial evidence until the inference of discriminatory intent against their client becomes simply overwhelming. On occasion, lawyers can also deploy circumstantial evidence as a means of uncovering direct evidence of discrimination. For example, in a deposition, a skilled trial lawyer might confront a manager with circumstantial evidence in hopes the manager will admit to having received instructions to discriminate against one or more employees. 

In other words, employees who believe they have suffered harm from illegal discrimination at work need not, and should not, wait until they have direct evidence in hand before speaking with a lawyer. Circumstantial evidence is enough to get a case started, and often, to win it as well. 

If you have circumstantial evidence of illegal discrimination at your work, contact the skilled employment litigation attorneys at Perkins Asbill today or call us at 916-446-2000 to speak with a member of our team. 

How to Recognize and Combat Disability Discrimination in the Workplace

Across the world, over 1 billion people are currently living with some form of disability. The World Health Organization reports this number is increasing every single day. Unfortunately, people with disabilities don’t just face everyday challenges related to their disability, often, they are subject to workplace discrimination. If you believe you or someone you love has been the victim of workplace discrimination due to a disability, contact Perkins Asbill at 916-446-2000 to talk to one of our legal professionals. 

What is disability discrimination?

On July 26, 1990, President George W. Bush signed the Americans with Disability Act. The law mandates people with disabilities enjoy the same rights as other Americans in terms of employment, purchase of goods, and participation in state and local services. The ADA defines a person as disabled if they have a physical or mental disability that “substantially limits one or more major life activities,” they have a history of such a disability, or if they are perceived to have a protected disability. 

Under the law, employers cannot discriminate against a person because of their disability. This law applies to persons applying for a job and those who already hold a position. If an employer violates the Americans with Disabilities act, they may be subject to an investigation by the U.S. Equal Employment Opportunity Commission and civil damages.

Examples of disability discrimination in the workplace

Disability discrimination comes in many forms. In some cases, it may be obvious what your employer is doing is wrong. Other times, they may use tactics to make it appear they are doing the right thing or have no other choice. This is why it is extremely important you understand what disability discrimination looks like. Examples of discrimination include:

Failure to hire, promote, or train based on disability

An employer does not have to hire you just because you have a disability. If another applicant is more qualified for the position, the hiring manager has the right to choose that person. However, if the only distinguishing factor between you and the other applicant is your disability, the employer may be guilty of disability discrimination. The same applies to promotions and training in the workplace. If your employer passes you over for a promotion you are qualified for or fails to provide training offered to other employees, you may have an ADA claim. 

Failure to make accommodations

Just because you have a disability, that does not mean you are not able to do the same job as other employees every day. It may just mean you need a little assistance. If you have a disability, the law requires your employer to make reasonable accommodations to allow you to continue at your job. This may include:

  • Modifications to the workplace or equipment
  • Reduced work schedule
  • Job restructuring
  • Other adaptive devices or services

An employer must provide accommodations unless they can show it would provide an undue hardship. If your employer refuses to work with you to find a reasonable accommodation, contact a workplace disability discrimination attorney. 

Termination, demotion, or loss of pay due to disability

It is not an employer’s job to determine whether you can no longer do a job because of a disability. Although California is an at-will state, this law does not allow your employer to fire you just because of a disability. Additionally, they cannot demote you, cut your hours, or reduce your pay because of a disability. 

Harassment

Most employers know they are not allowed to fire someone because of a disability. Unfortunately, many turn to harassment, bullying, or embarrassment to try to get around the law. This is illegal. An employer cannot intimidate you or try to make you uncomfortable in an effort to try to get you to leave your position. Further, they cannot ask you about your medical records or have you take a medical exam to stay in your position. Harassment comes in many forms, and sadly, some employers think they can get away with it. You have rights. If you believe your employer is harassing you because of your disability, contact a disability discrimination attorney. 

What to do if you believe you are the victim of disability discrimination

While the law protects persons with disabilities, there is a very specific process you must go through to defend your rights. These rules are in place to make sure you get the help you need and to ensure the employer has the opportunity to remedy the situation. If you believe you are a victim of discrimination, you must go through the following steps:

  1. Report your concerns to your internal HR department: The first step is to let upper management and human resources know what is going on. In some cases, they may genuinely believe a reassignment or reduced hours is what you want. In this case, there may be an easy fix, and you can come to a mutual agreement. 
  2. File a complaint with the Equal Employment Opportunity Commission: If your employer is unwilling or unable to work with you, the next step is to file an official complaint with the Equal Employment Opportunity Commission. The EEOC investigates all complaints related to disability discrimination. The EEOC will set up an interview with you to understand what happened and discuss the next steps moving forward. Do not skip this step; you must file a complaint before you can file a lawsuit against your employer. 
  3. Contact a workplace discrimination attorney: disability discrimination is illegal. If your employer violates the ADA, you may be eligible for lost pay, your old job back, and other damages. An experienced attorney can help you understand your rights and help you pursue your case. 

Know your rights

Disability discrimination is wrong. At Perkins Asbill, we aggressively fight for our clients to help them get the justice they deserve. If you believe you are the victim of disability discrimination, don’t wait. The law allows you a limited time to file a complaint and pursue legal damages. Contact Perkins Asbill at 916-446-2000 or fill out an online request to learn more about your case. 

8 Things Employees and Employers Need to Know About Religious Discrimination in the Workplace

Most Sacramento-area businesses and their workers generally understand that religious discrimination in the workplace is illegal. They may not, however, have full knowledge of the scope of the protections laws and regulations afford to religious practices in connection with employment, and what types of decisions and conduct might constitute religious discrimination at work. 

Here are 8 things every Sacramento employer and employee should know about illegal religious discrimination in the workplace. 

The Law Contains Robust Protections for Religious Beliefs and Practices

California’s principal civil rights laws, the Fair Employment and Housing Act (FEHA) and regulations promulgated under it, and equivalent provisions of federal law, contain broad, powerful provisions protecting employees against religious discrimination at work, and barring businesses from engaging in religious discrimination against customers and others. The law’s protection of religious beliefs and practices (often referred-to as a person’s “religious creed”) has historically deep roots that, to this day, reflect the founding principles of the country and of communities throughout the state. 

The Protections Apply to All Religions and Religious Practices, Not Just Major Faiths 

Californians hold an extraordinarily diverse range of religious beliefs. Civil rights laws aim to protect all of them, major religions and obscure sects alike.

Regulations adopted by the California Department of Fair Employment and Housing (DFEH) to implement FEHA explain that a “religious creed” protected under civil rights law consists of:

any traditionally recognized religion as well as beliefs, observances, or practices, which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions. It encompasses all aspects of religious belief, observance, and practice, including religious dress and grooming practices. 

Most Employment Actions Motivated By Religion Amount to Illegal Discrimination

Any employment action affecting a job applicant or employee, which is motivated by that person’s religious beliefs or practices, or lack thereof, constitutes illegal discrimination under FEHA. Examples include: 

  • Refusing to hire someone because of the religious beliefs they hold or do not hold. 
  • Taking religious beliefs into account when deciding which employees to promote, or how much to pay them. 
  • Firing, demoting, or taking similar adverse action against an employee because of that employee’s religiously-observant attire. 
  • Permitting a workplace environment that subjects an employee to mockery or criticism of that employee’s religious beliefs. 
  • Preventing an employee from working in a job involving contact with customers or the public because of that employee’s religious grooming practices.
  • Segregating employees, or allocating their work responsibilities, according to their religious beliefs.  

These are just a few examples of the wide array of religiously-motivated job actions that can amount to illegal discrimination. As a general rule, any action a Sacramento employer or supervisor takes that has religion as its motivating factor risks violating FEHA and federal law. 

Failure to Make Reasonable Accommodation for Religion Also Constitutes Illegal Discrimination

Avoiding the types of overt discriminatory actions listed above amounts to just part of an employer’s obligations under civil rights laws. An employer must also make reasonable accommodations for employees’ religious beliefs and practices. Under DFEH regulations

A reasonable accommodation is one that eliminates the conflict between the religious practice and the job requirement and may include, but is not limited to, job restructuring, job reassignment, modification of work practices, or allowing time off in an amount equal to the amount of non-regularly scheduled time the employee has worked in order to avoid a conflict with his or her religious observances

California law and regulations expressly provide, for example, that reasonable accommodations include: 

  • Scheduling interviews, examinations, and other functions related to employment opportunities to work around times of religious observance, such religious holidays or days of rest. 
  • Allowing employees time to travel to and from religious services or observances.
  • Permitting employees to observe religious dress and grooming standards, including wearing of garments, head coverings, jewelry, and facial hair. 
  • Permitting employees to opt out of union membership and/or union dues when religious belief prohibits them.

Making hiring or firing decisions to avoid having to provide reasonable accommodation of religion, or retaliating against an employee for requesting a reasonable accommodation, also amounts to illegal discrimination. 

The Law Applies Not Just to Employees, But Also Apprentices and Interns

In many California job sectors, such as entertainment, law, marketing, manufacturing, and building trades, apprenticeships and internships offer Californians just starting out in the workforce valuable opportunities to gain experience and to lay the foundation for a career.  Some of these positions come with a modest salary, but many are unpaid. 

Neither the age, experience level, job duration, nor pay status of an apprentice or intern matters, however, when it comes to right to be free from religious discrimination. California civil rights laws expressly shield apprentices and interns from illegal religious discrimination to the same degree as full-fledged employees. 

Independent Contractors Also Enjoy Religious Discrimination Protections

Working for a California business as an independent contractor, rather than as an employee, does not amount to sacrificing your rights, either. California civil rights law protects independent contractors from religious discrimination in two ways:

  • FEHA expressly outlaws harassment of independent contractors on the basis of their religious creed. 
  • A separate law, called the Unruh Civil Rights Act, guarantees all Californians, no matter their religion, “full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever”.

Most, But Not All, Religious Entities Are Exempt From Religious Discrimination Rules

State and federal law generally exempts religious organizations and associations, including churches, mosques, and synagogues, from religious discrimination rules.  However, a private, for-profit religious entity may not necessarily enjoy the same exemption, even if it is controlled by an exempt religious institution.  

For example, a church hiring a new youth minister can usually take applicants’ religious beliefs into account in making its selection. However, that church’s separately-incorporated, for-profit, book publishing company may not have the right to discriminate on the basis of religion when screening applicants for an editorial position. 

In addition, religious entities may also face liability for other forms of discriminatory conduct. This is an area of law that routinely stirs controversy, because of the tendency for religious organizations to raise objections on religious freedom grounds whenever a new law aims to regulate their conduct. 

Victims of Religious Discrimination in the Workplace Can Take Legal Action For Damages

Californians subjected to religious discrimination at work often have the right to sue their employers and the individuals who discriminated against them.

A successful religious discrimination lawsuit may achieve an award of money damages that include back-pay, front-pay, lost benefits, and compensation for lost promotions or job opportunities. The law also permits courts to order job reinstatement and other non-monetary relief, and to direct the employer to pay the victimized employee’s attorney fees and costs. 

If you are an employee or leader of a Sacramento-area business, and you have questions about how religious discrimination laws apply to you, then contact Perkins Asbill online or call 916-446-2000 to speak with an experienced business and employment attorney. 

How Can I Prove I am Being Discriminated Against at Work?

Discrimination may occur in many forms and in various ways. The warning signs may be subtle but damaging.  Anti-discrimination laws exist to prevent discrimination against particular groups of people, known as protected groups or protected classes. Various anti-discrimination laws differ in regard to protected groups and the prohibited type of discrimination.

Discrimination means that the person receives less favorable treatment. Treating people negatively and differently because of a specific characteristic they have is discrimination. California’s Fair Employment and Housing Act (FEHA) protects individuals from discrimination in the workplace based on their sexual orientation, gender, religion, race, veteran status, disability, and age. These protections typically apply to employers with at least five employees. In addition, federal discrimination laws protect workers from retaliation for “asserting their rights to be free from employment discrimination.”  

There are protections in place under federal and state law, but it can be difficult to prove that discrimination occurred.

What is discrimination?

Discrimination means an employer treats certain employees differently or with disfavor. The Equal Employment Opportunity Commission (EEOC) shields protected classes of people from employment discrimination when the employee suffers:

  • Wrongful treatment or harassment;
  • Refusal to make reasonable and necessary changes to accommodate the employee’s belief or disability;
  • Inappropriate questions or disclosure of medical information; and
  • Retaliation for filing a complaint.

Anti-discrimination laws

The laws protect those in a protected class or category, which are not always the same.

Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate against someone on the basis of “race, color, religion, national origin, or sex.”

The Pregnancy Discrimination Act, an amendment to Title VII, makes it illegal to discriminate against women because of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.

The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 make it illegal to discriminate against a person with a disability.

The Equal Pay Act of 1963 (EPA) forbids gender-based wage discrimination among those who perform equal work in the same workplace.

The Age Discrimination in Employment Act (ADEA) makes it illegal to discriminate against someone based on how old they are. This law protects people who are 40 or older.

Some laws also make it illegal to discriminate against someone on the basis of sexual orientation, gender identity, immigration status, and more.

Types of discrimination claims

If you believe you have been discriminated against based on your status as a member of a protected class, you may bring a claim for:

Discriminatory treatment or intent, when an employee is treated badly or less favorably worse by an employer because of his or her status as a member of a protected class or category.

Disparate impact, which is based on the effect of a discriminatory policy or practice. It focuses on the effect of an employment policy or practice rather than the intent behind it. Policies and practices that appear on their face to be neutral may have an unequal adverse effect on those of a protected class. For example, a strength requirement may rule out women or in an interview, or certain questions may rule out those of a different culture.

Retaliation occurs when the employer punishes an employee for filing a discrimination complaint by treating them badly.

Evidence of discrimination

Evidence basically falls into two categories: direct and circumstantial. Direct evidence may include statements by supervisors or others that relate to the discriminatory action. This type of evidence is typically difficult to obtain, as company personnel tend to avoid openly stating their bias, but it may be in verbal statements, or letters, notes, or emails.

Circumstantial evidence is indirect and creates a presumption of discrimination. According to the “McDonnell-Douglas Test,” set forth in a Supreme Court decision, an employee must first make out at least a “prima facie case,” which is a legally required rebuttable presumption. To make out a prima facie case of discrimination, an employee must:

  • Fall within a protected class
  • Be qualified for your position
  • Experience unfair treatment by the employer
  • Be replaced by a person who is not in your protected class

An employee may have enough circumstantial evidence to prove discrimination if they were:

  • Treated differently than someone with the same qualifications and experience who is not in the protected class
  • Subjected to disrespectful or derogatory comments related to work and aimed at your protected class
  • Treatment that is unjust or extreme
  • A history or statistics showing bias by the employer towards persons in your protected class
  • Very few employees of your protected class at your workplace?
  • Other employees in the protected class demoted or receiving adverse treatment
  • Complaints from other employees in your protected class about discrimination in the workplace
  • Treatment that is counter to company policy
  • Less qualified employees who were not in the protected class kept in the same job

 Employer denial of the discrimination claim

The employer can and probably will deny the alleged discrimination. They will have an opportunity to provide a non-discriminatory reason for the actions. Most employers do not have to come up with a “good” reason, so long it is not by reason of your protected status. You will then have to provide additional evidence of discrimination. For example, look for evidence that proves:

  • The reason given is untrue or terribly inaccurate
  • The reason is not sufficient to support the discriminatory act, for example, a discharge
  • Your protected status, rather than the stated reason, is the most likely motivation for the employer’s action
  • Strong direct or circumstantial evidence of discrimination

Remedies for an employment discrimination case

Each case is unique, but common remedies include:

  • Back Pay: Lost wages resulting from the discrimination from the date of the discriminatory act to the date of a judgment.
  • Front Pay: Lost future earnings resulting from the discrimination.
  • Lost Benefits: These may include health and dental care coverage, profit sharing, stock options, retirement benefits.
  • Emotional Distress Damages: These are mental or emotional injuries, also known as pain and suffering, as a result of discrimination.
  • Punitive Damages: In some cases, the court may award punitive damages to punish the employer for particularly egregious conduct.
  • Attorneys’ Fees

Have you been discriminated against at work?

Discrimination at your work can be a stressful and frustrating experience. If you have suffered discrimination at work, you need to protect your rights and understand your legal options. There are limited times to file a discrimination claim. For more information, please contact the experienced attorneys at Perkins Asbill at 916-446-2000 or contact us online.

Five Examples of Pregnancy Discrimination

Pregnancy is usually a time of joy. However, it can be a source of great anxiety if the pregnant woman is experiencing pregnancy discrimination, which may have devastating consequences for women and their families. Women who are discriminated against because they are or might become pregnant can lose essential income. If they are discharged or have their hours cut, they may also lose their health insurance and other benefits just when their expenses are increasing, and the family finances are already stretched.

What is pregnancy discrimination?

The Pregnancy Discrimination Act is a federal law enacted in 1978 as an amendment to Title VII of the Civil Rights Act of 1964. It states that “discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers employers with 15 or more employees, including state and local governments.” Fundamentally it means that women who are pregnant or are dealing with conditions related to pregnancy must be treated the same way as other employees or candidates who have similar work abilities or limitations. Employers are not permitted to discriminate based on the fact that an employee is pregnant, was pregnant, or could become pregnant (or intend to). They are also not permitted to discriminate if the woman has a medical condition related to pregnancy or had or is considering an abortion. The California law applies to more businesses. It prohibits discrimination on the basis of a woman’s pregnancy by employers with five or more employees.⁠ ⁠

Pregnancy discrimination comes in many forms and under many circumstances. A woman suffers pregnancy discrimination in the workplace when her pregnancy, childbirth, or a medical condition related to her pregnancy or childbirth, negatively affects her pay, benefits, promotions, work hours, or ability to take time for medical appointments. It may also occur when others in the workplace make offensive or intimidating comments. The following are common examples of pregnancy discrimination.

Being not hired for or fired from your job because you are pregnant

Being fired is the most common reason women file charges of pregnancy discrimination. An analysis of Equal Employment Opportunity Commission (EEOC) charges from 2011 to 2015 showed that nearly one-third of charges were filed by women alleging they were discharged for becoming pregnant. Firing often happens when an employee notifies an employer of a pregnancy or the employer becomes aware of the pregnancy. The employer may discharge or demote the employee. They may treat the employee differently, make discriminatory statements about the pregnancy, upcoming maternity leave, or the employee’s perceived ability to maintain their work abilities. If you’re experiencing hostility when your employer learns about it your pregnancy, or they fail to hire you because of it, that is pregnancy discrimination.

Refusing to hire an applicant because she is pregnant or may someday become pregnant is also pregnancy discrimination. Both state and federal law prohibit employers from making hiring decisions based on an applicant’s existing, future, or perceived pregnancy. They cannot ask questions such as “are you planning on having more children in the future?” Unfortunately, this is a very common type of discrimination because so many employers mistakenly assume that pregnant women will not be able to work as hard or commit as much to the job as other non-pregnant employees. Employers can also not make hiring decisions based on whether someone plans on becoming pregnant in the future. If an employer asks you about your plans to start a family during a job interview, this is a sign that they are illegally discriminating against applicants based on their future plans to become pregnant.

As long as a pregnant employee is able to perform the primary tasks required by her job, the employer cannot refuse to hire her.  The Pregnancy Disability Act also forbids discrimination based on pregnancy when it comes to other elements of employment, such as promotions, assignments, or benefits.

Women do not have to announce their pregnancy immediately. They only need to share it when they are requesting reasonable accommodations, a leave of absence, or a job transfer. In California, pregnant women must provide their employers with at least 30 days of verbal or written notice when requesting reasonable accommodations, pregnancy disability leave, or a job transfer.

Frequent or severe harassment due to pregnancy, childbirth, or related medical conditions is a form of discrimination and is also illegal under federal law. Examples of harassment include making offensive comments about someone, mocking, sharing offensive images, physically assaulting someone, or threatening to assault someone.

Failure to accommodate

A pregnant woman may suffer from health complications related to their pregnancy. If such a complication is severe enough to interfere with her work, her employer must treat her the same way that other temporarily disabled employees are treated and reasonably accommodate her needs. Therefore, if the employer would allow a temporarily disabled employee to take an unpaid leave of absence or perform alternate tasks, they must offer the same option to a pregnant woman. They must also permit necessary doctor visits or breaks. However, if an employer asks all employees to submit a doctor’s statement prior to making accommodations, the employer may make the same request of pregnant employees.

Failure to provide maternity leave

Employers may not deny a woman time off for childbirth or medical conditions related to childbirth if the woman is legally entitled to take that time off.

California’s main pregnancy leave of absence laws, the California Family Rights Act (CFRA), The California Family Rights Act (CFRA), Pregnancy Disability Leave (PDL) as well as the Family and Medical Leave Act (FMLA) apply to most employers. You have a right to take maternity leave, although employers are not required to pay employees during maternity leave.

Failure to restore the employee to the same position

Sometimes discrimination issues surface when an employee tries to return to work. Sometimes the employer does not restore you to the same position that you had prior to your maternity leave or to a comparable position. If an individual is on a pregnancy-related leave, the employer must hold their job open for the same length of time that jobs are held open for employees on sick or temporary disability leave.

Pregnant employees are permitted to work as long as they are able to perform their jobs. If an employee has been unable to work due to a pregnancy-related condition and, after recovering, wishes to return to work, her employer may not prevent her return. They also may not require an employee to remain on leave for a set period of time after the birth. 

Discrimination based on lactation needs

When a woman returns from maternity leave, the employer must provide a safe, clean private space for her to breastfeed or pump milk. Discriminatory behaviors related to breastfeeding working mothers include:

  • Refusing to provide a safe, private space for lactation needs
  • Denying reasonable breastfeeding break requests
  • Harassing breastfeeding employees
  • Firing employees for requesting breastfeeding accommodations

Have you been discriminated against or harassed because of your pregnancy? If you have questions concerning your legal options, please contact the experienced, zealous attorneys at Perkins Asbill at 916-446-2000 or contact us online.

What is LGBTQ Discrimination in the Workplace?

Roughly one in five LGBTQ individuals in the U.S. reports having been discriminated against for their sexuality or gender identity when applying for a job, and nearly the same amount report being passed over for a promotion due to their sexuality or gender identity or have received unequal pay as a result. Nearly 60 percent of LGBTQ individuals participating in a study noted that they were less likely to be afforded job opportunities where they live due to their LGBTQ status.

LGBTQ discrimination is a serious problem. It is also illegal, thanks to state and federal laws that prohibit employers from using an individual’s sexual preference or gender identity as a reason to fire, demote, or avoid hiring a qualified applicant. Read on for more information about these laws and how they impact you.

A History of Discrimination

There are approximately 8.1 million LGBTQ workers over the age of 16 in the U.S. Around half of those workers still live in states where there are currently no statutory protections against workplace discrimination involving sexual preference or gender identity. 

In spite of a Constitution that asserts equal rights and services for all U.S. citizens, those of the LGBTQ community are no strangers to discrimination, even from U.S. presidents. For example, President Dwight D. Eisenhower signed an executive order in 1953 that prevented “sexual perversion” in federal workplaces and was used by the military to prevent LGBTQ individuals from serving in the military for the next 40 years.

With the advent of President Bill Clinton’s “Don’t Ask, Don’t Tell” policy in 1993, federal employers were prevented from asking the sexual preference of an employee. However, the policy still required the LGBTQ employee to keep his or her gender preference or sexual identity a secret. This policy remained in place until 2010, when it was officially repealed and LGBTQ individuals were permitted to be open about their sexuality while serving.

Federal and State Protections for the LGBTQ Community

For the estimated 1.94 million LGBTQ workers in California, the California Fair Employment and Housing Act along with Title VII of the federal Civil Rights Act make it illegal in this state for an employer to fire, demote, fail to hire or promote, harass or otherwise discriminate against you in the workplace due to your sexual preference, gender identity, and/or gender expression. Some of the protections you are afforded because these laws are in place include:

  • The protection against harassment by your employer or coworkers that is based on your sexual preference, gender identity, or gender expression. This includes protecting you against a work environment that is hostile, offensive, or intimidating to the point that it interferes with your ability to work.
  • The right to identify and express your gender at work as you wish. California’s law requires your employer to respect your right to express your gender and/or gender identity as you choose, including using your requested pronouns and name, regardless of whether you have legally changed your name or pronouns. 
  • You are granted the right to come out at work, if you choose. You are also granted the right to transition at work, and your employer — once made aware by you of this transition — is prohibited from mistreating you because of that transition.
  • You have the right to use the restroom at work that corresponds with your gender identity and your employer is not allowed to dictate the restroom that you use. If the restrooms in your workplace are single stall, they must be designated as “unisex” or gender neutral.
  • Your employer cannot ask about your sexual preference or gender identity during an employment interview and, if health insurance is provided through your employment, you cannot be prevented from seeking or obtaining gender-affirming care.

There are a number of other provisions included in these laws, such as the prohibition of employers from preventing a LGBTQ employee from seeking health insurance coverage for his or her same-sex spouse or domestic partner, and preventing employers from retaliating against an employee for filing a complaint about mistreatment in the workplace.

In California, if you file a complaint against an employer for LGBTQ discrimination with the state’s Department of Fair Employment and Housing within three years of when the alleged discrimination took place and it is discovered you were, in fact, discriminated against, you can be entitled to lost earnings, both past and future; reinstatement at your job; promotion; payment of out-of-pocket expenses; policy changes; training; reasonable accommodations; compensation for emotional distress that was suffered as a result of the discrimination; punitive damages; and the fees associated with hiring an attorney to represent your case. Those who wish to file their own employment discrimination lawsuit rather than using the Department of Fair Employment and Housing investigations process are able to obtain a right-to-sue notice from the department in order to engage in that legal process.

Exceptions to the Law

There are very few exceptions to the state and federal laws prohibiting discrimination based on gender identity, gender expression, or sexual preference in the workplace. Those exceptions include:

  • Certain employees of religious institutions such as churches or mosques.
  • Employees of very small businesses. The state protections against discrimination apply only to employers with five or more employees and federal protections are applicable to employees of businesses who have at least 15 employees.

Perkins Asbill, a Professional Law Corporation Can Help

Suffering discrimination in the workplace due to your gender identity, gender expression, or sexual preference is a frightening and frustrating experience. Let our experienced employment attorneys help you to understand the process of holding discriminatory employers accountable while retaining your right to equality in employment and the wages and benefits that you worked hard to earn. We will explore the option of a DFEH investigation as well as an independent lawsuit against your employer to determine the process that is right for you. Contact us online for more information or by calling 916-446-2000.

What Is the Difference Between Retaliation and Unfair Treatment in a California Workplace?

All retaliation is unfair treatment in the workplace, but not all unfair treatment is retaliation. The primary difference between retaliation and unfair treatment in the California workplace is the presence of unlawful conduct. Unfair treatment, although often morally reprehensible, is not always illegal. On the other hand, retaliation against an employee always has legal consequences for an employer.

With a clear understanding of the difference between unfair treatment and retaliation, you can protect your rights in the workplace and have a better idea of when you have recourse against your employer for unlawful conduct. Below, we delve deeper into the idea of unfair treatment in the California workplace, specifically outlining when unfair treatment crosses the line into unlawful contact. Then, we take a closer look at the different scenarios that might prompt an employer to retaliate against employees in the California workplace.

What Is Unfair Treatment in the Workplace?

At some point in your employment history, you’ve likely experienced unfair treatment at your workplace. Maybe you didn’t get the promotion you deserved because of office politics or your boss played favorites. Nepotism—privileging family members—is another common occurrence in some workplaces. Unfair treatment can also include supervisors and managers who verbally abuse employees by yelling or screaming or falsely accusing employees of violating company policies.

Although the above examples result in frustration and sometimes anger for employees, unfair treatment is not illegal. California is an ‘at-will‘ employment state. At-will employment is a legal description of the relationship between an employer and an employee. In at-will employment states, employers can terminate an employee at any time without reason and an employee can leave a job for no reason; neither party has legal consequences. Additionally, employers can also demote, transfer, and discipline an employee without legal consequences.

Yet, even in employment-at-will states, like California, employers cannot take adverse action against an employee for illegal reasons. In these cases, unfair treatment becomes unlawful conduct.

When Does Unfair Treatment in a California Workplace Become Unlawful Conduct?

Title VII of the Civil Rights Act of 1964 protects all workers in the United States from discrimination based on race, color, sex, religion, or national origin. The United States Supreme Court extended the law to protect gay, lesbian, and transgender workers in June 2020. Further, the Americans with Disabilities Act (ADA) prohibits employers throughout the nation from discrimination based on disability. California employers that discriminate against employees and treat them unfairly based on the above protections are engaged in unlawful conduct.

Additionally, California employees have the right to file a complaint when their employers are breaking the law when they treat them unfairly. Federal law also protects employees who need to take time off for family or medical reasons under the Family and Medical Leave Act (FMLA). The Whistleblower Protection Act (WPA) protects federal workers in California who report illegal activities in the workplace. In some cases, employers choose to retaliate against workers whose absence falls under FMLA. Similarly, federal employers sometimes retaliate against whistleblowers.

What Is Retaliation?

On a broad level, retaliation refers to the notion of taking revenge against someone for actions that have harmed you or actions of which you don’t approve. In legal terms, retaliation specifically refers to the unlawful and unfair treatment of employees as a response to a protected action. According to the Equal Employment Opportunity Commission (EEOC), employers are engaging in unlawful conduct when they retaliate against employees for:

  • Filing an EEO complaint or lawsuit against an employer
  • Talking with management about discrimination or harassment
  • Cooperating with an investigation about harassment or discrimination
  • Refusing to follow orders that result in discrimination
  • Refusing sexual advances
  • Intervening to protect other employees from harassment
  • Requesting accommodations for religious reasons or for a disability

Whistleblowers also have protection from retaliation and employers cannot discriminate or take unlawful action against an employee who needed time away from work under FMLA.

Filing a Claim Against Your Employer for Unlawful Discrimination or Retaliation

You do not need a lawyer to file a claim against your employer; however, it’s often in your best interest. A lawyer can file a claim on your behalf, protecting your identity. This is especially important for sexual harassment claims and whistleblower claims. Employers, especially specifically targeted members of an organization, can take drastic measures when they feel desperate. An experienced attorney knows the ins and outs of the EEOC claims process and can ensure your meet required deadlines and fulfill criteria.

As a California resident, you can file a claim with the Equal Employment Opportunity Commission (EEOC) or California’s Department of Fair Employment and Housing (DFEH), the state equivalent of the EEOC. DFEH will automatically share information with the EEOC, so you need not report to both agencies. If you are a federal whistleblower or have suffered retaliation as a whistleblower, you must file with the EEOC because the State of California does not have jurisdiction over your claim. Regardless of the situation, you cannot file a lawsuit against your employer before your file a claim with the EEOC. You can begin an  EEOC claim online and make an appointment or you can file a claim with a state or local agency like DFEH.

Contact an Experienced Employment Attorney If You’ve Been a Victim of Unlawful Conduct in a California Workplace

The skilled legal team at Perkins Asbill have the knowledge and resources to advocate for employees who have been victims of unlawful conduct in a California workplace. If your employer has illegally discriminated against you, sexually harassed you, or retaliated against you for taking action against them, you need a competent and diligent lawyer in your corner.

At Perkins Asbill, A Professional Law Corporation, we take pride in client service and holding employers accountable for their illegal practices. Contact us today online or at 916-446-2000 for a confidential case evaluation to determine your eligibility for compensation and learn the best way forward for your individual circumstances.

YOU DESERVE TO WORK IN AN ENVIRONMENT FREE FROM DISCRIMINATION

Whether you apply for a job or already have one, your employer must provide you with an application process and work environment free from discrimination. Here in California, the Fair Employment and Housing Act enforces those protections.

FEHA applies to employment agencies, private and public employers with more than five employees, and labor organizations. If you suspect your employer, or a prospective employer, of discrimination, you may benefit from understanding your rights and legal options.

Who does California law protect?

FEHA prohibits a prospective or current employer from discriminating against you based on the following:

  • Genetic information
  • Gender
  • Age
  • Religion
  • Race
  • Color
  • National origin
  • Sexual orientation
  • Medical condition
  • Marital status
  • Physical or mental disability
  • Gender identity
  • Military or veteran status
  • Gender expression

If you fall into one of these categories and the evidence shows that your employer discriminated against you as a result, you may be able to file a complaint. The law further prohibits your employer from retaliating against you for filing such a complaint, which includes firing you.

When does California law prohibit discrimination?

FEHA prohibits employers from discriminating against current or prospective employees during any of the following:

  • Applications
  • Interviews
  • Screening
  • Advertisements
  • Hiring
  • Work conditions
  • Promotions
  • Transfers
  • Compensation
  • Separating employees
  • Terminations

Employers may not discriminate against anyone when it comes to internship programs, apprenticeships, unions or employee organizations.

What legal remedies does California law provide?

Upon proving a discrimination claim, the law allows you to pursue the following legal remedies:

  • Past lost earnings
  • Future lost earnings
  • Reinstatement
  • Hiring
  • Reasonable accommodations
  • Out-of-pocket expenses
  • Promotion
  • Policy changes
  • Training
  • Punitive damages
  • Damages for emotional distress
  • Attorney’s fees and costs

Depending on your case, you may receive one or more of these remedies. Of course, you must prove your claim before the court will consider awarding you any damages. This often requires a thorough investigation into your claim. Gathering written or electronic communications, talking to potential witnesses such as co-workers, and a review of your employer’s policies and procedures is often a good place to start.

Even though you are filing a claim in connection with your own experiences, you may discover that the discrimination your employer subjected you to also extended to other employees or applicants. If so, you may help make positive changes for others who suffered as you did by pursuing your claim.

YOU SHOULDN’T FACE DISCRIMINATION BECAUSE OF YOUR DISABILITY

Living with a disability can be challenging enough without other people judging you for it. For this reason, the state of California enacted several laws that provide you with the protections you need in order to live your life free from the preconceived notions and discrimination of some employers.

Just because you live with a disability doesn’t mean that you aren’t qualified for a position or that you can’t perform the duties of a job. As long as any reasonable accommodations you need don’t present an undue hardship on an employer, you deserve to be treated like anyone else. Sadly, not all employers feel this way and violate the laws meant to protect you.

What does the law say?

Under the Disabled Persons Act, California Fair Employment and Housing Act and the Unruh Civil Rights Act, all provide you with the following protections from discrimination due to your disability:

  • An employer may ask you about your ability to perform the duties of the job for which you are applying.
  • An employer may provide you with a response to your request for an accommodation.
  • An employer may ask you for a certification from your doctor regarding your need for a reasonable accommodation.
  • An employer must consider you for the position despite your known or perceived disability.
  • An employer may not require you to undergo a physical or psychological evaluation that is not required of all prospective employees.

Your current or prospective employer should have a good faith discussion with you regarding whether any accommodation you need is possible. These conversations need to determine the essential functions of the position, along with whether any accommodations you would need place an undue hardship on the employer.

What do you think?

If you feel that a prospective or current employer failed to give you a fair chance due to your disability or refused to provide you with a reasonable accommodation, you may have a claim for discrimination. If you fail to receive a satisfactory resolution within your company, you may need to go outside of it for a resolution to your issues. When you do, you may find that your employer will begin retaliating against you, which the law also prohibits.

You do not have to simply accept the situation. If reasonable accommodations are possible, but your employer refuses to provide them to you, you have every right to speak out about it. You also have the right not to go through this alone. Help is available.