What is discrimination?

Discrimination claims, unfortunately, are the subject of many wrongful termination suits. Both federal and state laws prohibit discrimination in employment. However, I often recommend that, whenever possible, my clients pursue their discrimination claims in a state court under state law. California’s anti-discrimination statute is called the “Fair Employment & Housing Act” (“FEHA”) and it protects the right of all persons to seek, obtain, and hold employment without discrimination based on race, religion, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, sexual orientation, age (at least 40), or pregnancy.

What Employers Are Covered?

FEHA defines “employer” as “any person regularly employing five or more persons, or any person acting as an agent of an employer.” However, there is a caveat to this five-employee requirement. The prohibition against harassment applies to anyone who regularly employs at least one person or regularly receives the services of at least one independent contractor. Public employers, including the State of California, cities, counties, local agencies, special districts, and any other political or civil subdivision, must comply with FEHA regardless of how many people they employ. Religious organizations that are not organized for private profit, however, are subject to special rules for religious organizations that provide health care.

How Do I Establish Discrimination?

There are generally two theories for proving discrimination:

First, disparate treatment occurs when an employer treats an individual less favorably than others because of the individual’s protected status – for example, his or her race, religion, sex, sexual orientation or age.

Second, disparate impact occurs when an employer has an employment practice or a selection policy that appears neutral but has a disproportionate adverse impact on members of a protected group. Is Some Discrimination Permissible? With respect to disparate treatment, decisions to discharge, take other adverse employment actions, or to refuse to hire an applicant for employment may be lawful if the employer was entitled to consider protected status as a job requirement. This defense is known as a bona fide occupational qualification. Under disparate impact, an employment practice or selection policy may be lawful if it is necessary to the employer’s business. What Damages Are Recoverable? In a civil action under FEHA, damages for Discrimination claims form the basis of many wrongful termination suits. There are both federal and state laws prohibiting discrimination in employment.

For a variety of reasons, I recommend that, whenever possible, my clients pursue their discrimination claims in a state court under state law. California’s anti-discrimination statute is called the “Fair Employment & Housing Act” (“FEHA”) and is part of the Government Code. This law protects the right of all persons to seek, obtain, and hold employment without discrimination based on race, religion, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, sexual orientation, age (at least 40), or pregnancy.

What Employers Are Covered?

FEHA defines “employer” as “any person regularly employing five or more persons, or any person acting as an agent of an employer.” There is one important exception to the five-employee requirement: the prohibition against harassment applies to anyone who regularly employs at least one person or regularly receives the services of at least one independent contractor. Public employers, including the State of California, cities, counties, local agencies, special districts, and any other political or civil subdivision, must comply with FEHA regardless of how many people they employ. FEHA exempts religious organizations that are not organized for private profit, subject to special rules for religious organizations that provide health care. What If I Quit? Discrimination, retaliation or harassment in employment often forces an employee to quit because he or she feels powerless to do anything about it or is too upset to continue working in a hostile work environment. Although you may still have a claim for damages due to discrimination, your decision to resign will be scrutinized and will have to be explained. I advise my clients to complain about the wrongful conduct to a person in authority, perhaps Human Resources because the failure to do so will be questioned and even criticized later. Your employer will argue that it never happened or that you never had a problem with it. Thus, it's important to get everything in writing, both through the complaint process required by your employer, as well as through a diary that you document everything in

What if I don't want to sue?

You can always using the Internal Complaint Procedures described in your Employee Handbook, assuming you have one. If you believe that you are have been discriminated against, harassed, or retaliated against, while you are still employed, you may have an obligation to report the misconduct in an effort to stop or remedy the wrongful conduct. You can also contact the Department of Fair Employment and Housing (DFEH). Before pursuing a civil suit under FEHA, a person who believes that he/she is the victim of an employer’s violation of the state’s anti-discrimination laws, must first file a complaint with the state’s Department of Fair Employment & Housing (“DFEH”) in order to obtain the right to sue. For more information about DFEH and its services, visit www.dfeh.ca.gov or call 1-800-884-1684. How long do I have to file a complaint? In general, a complaint must be filed with the DFEH within one year after the date of the alleged unlawful act of discrimination, harassment or retaliation. [Caution: The time limits for filing with the federal EEOC are shorter.]

That's why it's important that you contact an attorney as soon as possible to discuss the merits of your case. Contact Daneshvar Law at 323-850-5801 to discuss your case now!


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AuthorLaw Offices of Hasti Daneshvar