Daneshvar Law

DISCRIMINATION 101

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!

Comments (2)

  • anonymous

    I had a situation that occurred a year and a half ago which may be considered discrimination. I believe my former boss was having an extramarital relationship with someone in another department who coveted my role, and eventually took my role. I don't have any proof of the relationship, but certain things were out of place. For example, they would "hang out" at the office alone until late at night with no one else there and with no real work to be done. My boss would give this person privileges and take away some of mine. He would withhold vital information from me, but share it with this person, thereby hampering my ability to do my job. Ultimately, my former boss told me there was another opportunity for me outside the company, and since there was no room for growth in my position, that I should take the opportunity. I read between the lines, and left for the other opportunity, and guess who got my job, and guess who found out that this new role outside the company was a dead end. At the time, I made the decision to leave quietly because I feared I would be fired or "let go" for a multitude of reasons he could have invented or trapped me into. I didn't want to make waves because he was pretty senior in the company, the relationship would have outed him as a homosexual, and finding proof would require the involvement of my co-workers which would have put their jobs in jeopardy. So there's a really fine line with reporting these things. Ultimately, I decided that my reputation was more important to me as I am just starting out in an industry where everyone knows everyone. Call it survival skills I guess. I didn't want to be known as a whistle blower, and it's very hard to go after employers who hold biases against you because most of the time, they wont say why they won't hire you. They could assign it to something else when questioned. All in all, I'd be curious to know if what I experienced was discrimination and if I had a case, and if so, what I should have done.

    reply
  • Law Offices of Hasti Daneshvar

    Sorry to hear about your bad experience. I definitely understand the situation you were put in. Believe it or not, what you went through is not uncommon. In fact, I also once worked somewhere where my female boss was dating a male co-worker of mine, who was at the same level I was. I'll never forget the day my boss revealed to me that she was dating my co-worker. She ended it with "You don't mind, right?". I'm not really sure what the point of her asking me was. It wasn't like I had a choice in the matter. I, along with my other co-workers, felt extremely uncomfortable about this. We were put in a spot where we felt like our jobs weren't safe because we were basically eating with what we felt could be a spy. Not to mention, this male employee received preferential treatment. Anyhow, no one at the office ever made a complaint about it even though we all really hated the situation we had been placed into. I felt similar to you, I didn't want to make a scene and knew that I worked within a small community and I could get a lot of heat for saying anything.
    With respect to your situation, I can't really give you a concrete answer since I don't know the specifics of your story. However, there are cases where this could be grounds for gender discrimination. In the end, I think you were smart though, just based on what you told me, it sounds like a lot of guessing and hearsay and that's always hard to prove in court. The fact that you are guessing that they were together makes it very hard to prove.
    I will say this though… filing a lawsuit is not something that should be taken lightly. It's not an overnight thing, especially when it comes to employment law. That's why you always have to ask yourself whether you think you are strong enough to commit to the legal process. Once discovery starts, lots of things come out into the open and your performance at work is criticized. I think engaging in a legal suit can be difficult for some, so it's important to figure out just how much criticism you can handle, and just how much you stand to gain from it.

    reply

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