5 Disabilities that May Be Protected By Employment Law

Disability discrimination is where an employer refuses to acknowledge your impairment as a disability and treats you adversely based on your disability.

The type of company you work for, the number of coworkers you have, your type of disability, and the nature of your claim, will factor into which legislation may assist you in protecting your job. As legislation at the State, as well as Federal level, progressively, recognize certain impairments as a type of disability, the more employees with these disabilities are given job protection.

Did you know that employees with a disability have numerous rights?  Not only do these particular employees have rights, but also there are a set of rules that the employer must comply with in terms of accommodating the employee’s disability.  But what exactly is considered as a disability in the eyes of the law?  Is ADD considered a disability?  What about being an addict?  Or what about some conditions that are not indefinitely a physical or a mental disability such as chronic fatigue?  Is an employee with a sexual dysfunction protected under employment law?

1. Cosmetic Disfiguration?

An employee who has a cosmetic disfiguration may be categorized as having a disability. One particular piece of legislation identifies certain individuals as having a disability if he or she has an existing impairment. An existing impairment pertains to physical and/or mental deficiency that immensely restricts the individual from primary life activities. A cosmetic disfiguration would fall under the physical category.  So if an employee has a cosmetic disfiguration that limits their ability to perform life activities but can carry out their duties at work or can carry them out with reasonable accommodation, an employer must provide those adjustments.  Should an employer refuse to make reasonable adjustments for the employee, or fires the employee because they request the adjustments, that employee may have a claim for disability discrimination as well as wrongful termination.

2. Alcoholism? 

If your boss fires you based on the fact that you were an alcoholic or you are currently in recovery, you may have a claim for wrongful termination and disability discrimination.

Alcohol abuse is an addiction that many Americans struggle with today.  What seems to perpetuate the problem is when former addicts try to put their lives back together but can’t seem to live down their old habits.  An employer who treats an employee adversely based on the fact that he or she is a former alcoholic may be liable for discrimination.  For instance, if an employee suffers from particular health issues or a disability that was created by a prior addiction to alcohol, the employer must accommodate the employee within reason.  Some factors may be taken into consideration such as if the employee has been or is currently participating in a rehabilitation program or is attending a rehabilitation program and has not consumed any alcohol or drugs for a substantial amount of time.   Also, if an employee needs to take time off to receive medical treatment from a rehabilitation facility, the employer may not be able to terminate the employee for taking that time off.  For example, if an employee disclosed to their boss that he or she needed to take a period of time off to participate in drug rehabilitation, the employer might be liable if they fire the employee based on taking the time off.

The circumstances of this particular issue are crucial in determining whether or not an employer has discriminated against an employee.  It is essential to keep in mind that an employee is not automatically protected from being fired just because he or she was a former addict or that he or she has enrolled in a particular drug-treatment center.  An employee must show that he or she has been free from use for an extensive amount of time as well as the reason for mistreatment was based on the fact that he or she either was an addict and/or requested time off for treatment.

3. Sexual Dysfunction?

Under the particular legislation, in order to be considered as an employee who has a disability, it must be shown that he or she has an actual physical impairment. Remember that it may be essential to establish that the employee’s condition is debilitating in such a way that it may restrict them from a major life activity.

While it has not been ligated many times, sexual interactions may be characterized as a major life activity, thus a sexual dysfunction may be measured as a disability.  If the sexual dysfunction arises from an employee’s poor mental health, this may provide evidence to support he or she indeed has a legally recognized disability.

4. Obesity?

Whether or not obesity is considered a legally recognized impairment is an ongoing debate, but it is not totally ruled out. Factors to be taken into consideration would be what body of law the claim would fall under, possibly the cause of obesity, and the percentage of access weight in comparison to the average weight.  There have been some cases that did consider obesity to be impairing where cardiovascular issues were the source of obesity. But again, depending on the particulars of an employee’s case, obesity may be considered a protected disability in which an employee would be considered a victim of discrimination should he or she be terminated because of their diagnosis.

5. Mental impairments?

As mentioned previously, there is specific legislation in place that recognizes certain physical and mental impairments as a disability.  There is a variation of mental impairments that are recognized such as learning disabilities like dyslexia and attention deficit disorder.  Depression is also recognized in certain cases as well as obsessive-compulsive disorder.  There are also some conditions that may be recognized yet can neither be categorized as mental or physical such as chronic fatigue.

There are several mental impairments that may be acknowledged and protected under certain legislation; it mainly comes down to the individual’s circumstances and the facts of their case.  Again, in certain situations of mental impairment, the employer is obligated to make reasonable adjustments for an employee at the workplace.  Should an employee with a mental impairment find themselves being treated adversely based on their mental impairment, they may have a discrimination claim against their employer.

For more info please contact a wrongful termination lawyer same as Stevens & McMillan Employment Lawyers

More Articles about ADA and disability discrimination at the workplace:

• How The American Disability Act (ADA) has protected disabled workers?
• How ADA Can Protect Millions of American lives
• 4 Things an Employee Should Know About Filing a Disability Discrimination Claim
• 5 Important Questions Asked about Disability Discrimination and Wrongful Termination
• 5 Ways an Employer May Be Liable For Disability Discrimination
• 6 Nuances of Disability Discrimination Law in California
• 8 Things You Need To Know About Disability Discrimination
• 8 Main Disability Discrimination Questions
• 9 Things Job Hunters With a Disability Should Know

Retaliation is a type of practice that is deemed unlawful under employment laws.  An employee may experience retaliation when he or she makes a complaint about sexual harassment, discrimination, or some kind of illegal activity.  The way an employer may exercise retaliatory behavior is by punishing an employee for making the complaint.   Punishing an employee for making a complaint may be expressed through demotion, reduced pay, reduced work hours, removal from the work schedule, denial of employment benefits, reprimanding the employee for fictitious reasons, and termination.  Again, to retaliate against an employee after he or she makes a complaint, may result in legal proceedings being brought against the employer. If an employee does feel as though they have been retaliated against after making a complaint, he or she should contact a retaliation lawyer to discuss their potential claim against their employer. Below are a few situations where an employee may find themselves retaliated against.

1. You make a complaint about sexual harassment.

Although it is considered unlawful behavior, sexual harassment is the most common form of harassment in the workplace.  Sexual harassment can be exercised through comments, visuals, rumors, or physical contact.  According to the law, an employee has the right to report sexual harassment without any repercussions.  This means that an employee’s position at work is protected in the event that he or she makes a formal complaint regarding sexual harassment. For example, Nina worked for an advertising company.  Recently a new director was hired to oversee her department named Larry.  Soon after Larry was hired, he gave extra attention to Nina; attention that Nina did not welcome.  Often Larry would make comments about Nina’s breasts to other male employee’s, making jokes that Nina’s breasts were bigger than her brains.  Nina was afraid of Larry as he had cornered her in the copy room a few times and asked her if she would ever consider dating anyone in her department.  Most recently, Nina had asked if she could apply for a promotion and in reply, Larry asked “what do I get?” and winked.  Fed up and overwhelmed, Nina made a formal complaint to the head supervisor of the company.  A few days after Nina made the complaint, she was demoted and moved to a smaller office but still remained under the supervision of Larry and his tormenting.  Nina sent several emails to the head supervisor complaining of the continued harassment but each one went unanswered, Two weeks later Nina was let go from her job without reason.  Here, Nina may have been a victim of sexual harassment but was also then made a victim if retaliation after she spoke up.  The timeline follows that after Nina complained, she was demoted, placed in a smaller office and then let go.  These actions can all be construed as punishment for making the complaint about Larry sexually harassing her on multiple occasions. If Nina were to take her situation to an Employment Lawyer, she may have a claim against her former employer for sexual harassment, retaliation, and wrongful termination.

If an employee feels as though he or she is being sexually harassed he or she should make a formal complaint which entails details of who was the harasser, what occurred, when it took place, and list any witnesses.  It is required by law that employers have an anti-sexual harassment policy in place, so after an employee makes a complaint, there should be steps in place within the policy that should be followed.  An employee can make a complaint to a manager, supervisor, or Human Resources Department.  The complaint does not even need to be made to that particular employee’s direct supervisor or manager, it just needs to be made so that the next step in the policy can begin which is usually that all managers or supervisors are taking the formal complaint to their supervisor or directly to the Human Resources Department.

2. You take or request a leave of absence

Employees have the right under certain employment laws to take a leave of absence for particular reasons.  Some of those reasons may include a medical leave, disability leave, or a leave to care for an ill family member or for incidences regarding pregnancy.  If an employee requests to take an approved leave or actually takes an approved leave, an employer does not legally have the right to punish that employee for taking the leave.  For example, in some circumstances, an employer must reinstate an employee their job upon their return from their leave.  An employer who fires an employee or lets an employee go after he or she takes a leave or requests for a leave may be found liable for retaliation. An employee who takes a leave or requests a leave of absence and feels that they have been retaliated against for that very reason should call an Employment Lawyer.

3. You make a complaint about discrimination

There are employment laws which prohibit discrimination. Discrimination against an employee based on their age, race, religion, sexual orientation, creed, gender, sex, marital status, military status, veteran status, disability, medical condition, or pregnancy is prohibited by law.  Depending on the specific circumstances, if an employee were to complain about being discriminated against and they were treated adversely thereafter, he or she may have a claim in retaliation. An employee who was discriminated against and terminated for complaining about being discriminated against should call an Employment Lawyer.

4. You report something illegal

There are laws in place that protect certain employees who report illegal activity in the workplace. These types of employees who report such things as unsafe work conditions are called whistleblowers.  If a whistleblower reports illegal activity such as poor work conditions and is then fired, he or she may have a retaliation claim against their former employer.  A whistleblower who was terminated should call an Employment Lawyer to discuss their potential retaliation claim as well as wrongful termination.

Employees should not tolerate any kind of retaliation and should contact a wrongful termination attorney who offers free consultations.

1.  Where do my rights come from?

When it comes to disability discrimination, there are a few different sources of rights an employee may use to defend himself or herself from mistreatment.  Depending on what type of employee and employer the scenario involves will determine what body of law to apply.  The Americans with Disabilities Act (ADA), the Rehabilitation Act, and the California Fair Employment and Housing Act (FEHA) are the sources of rights for employees with a disability.  Although all three are very similar, FEHA, unlike the other two Acts, is not a federal Act. This means it applies at a state level and is less likely to be interpreted via federal decisions.  The good thing about FEHA is that provides more protection for employees. 

2.  What legislation provides rights to me specifically? 

The answer is not straightforward and may depend on the facts of the particular case, but the Rehabilitation Act will apply to you if work for a federal agency, a federal contractor, or you receive federal financial support.  You may have rights under the ADA if you are one of more than 15 employees at your job.  However, for those employees at a smaller company, FEHA will protect an employee who is one of five or more employees. 

3.  Are employers required to take into account my disability when hiring?

Affirmative action is a particular type of hiring policy enforced by employers to afford equal opportunities to legally recognized minority groups.  Per the Rehabilitation Act, federal contractors are required to incorporate affirmative action in their hiring practices.  This means an employer must consider an employee’s disability when choosing a candidate to fill a position.  However, employers that fall under the ADA and FEHA are not required to apply affirmative action when hiring. For example, an employer would not be obligated to take into account the fact that an employee belonged to a minority group and hire them as a means of representing an underrepresented group. 

4.  Do I have a legally recognized disability?

  Not all conditions, illnesses, or impairments are identified as a “disability” under the law.  It can be frustrating for some employees of interviewees who are entitled to benefits from the government for their disability because this does not automatically deem he or she as an employee with a disability under the ADA.  An employee or interviewee would need to discuss with an employment lawyer as to whether he or she has a legally recognized disability by a particular Act. 

5.  Are my eyeglasses or contact lenses considered a disability?

  Usually, the law determines whether an employee’s disability is legally recognized which is measured by whether the disability impairs an individual’s ability to carry out a major life activity.  But what about if an employee or candidate has poor eyesight, is that considered as a disability? In most cases, an employee or candidate who has poor vision will only be considered as having a disability if the impairment cannot be corrected with prescription eyeglasses or contact lenses. 

6.  What if my disability requires an interpreter or reader?

  For some individuals who have been professionally diagnosed to have a disability may require a reader or an interpreter.  This may arise if an employee or candidate wears a hearing aid or has a processing deficit.  For instance, an employee may be able to carry out a job but on occasion may need someone to read him or her certain paperwork during an annual training seminar or for a person who is undergoing a test in an interview for a position.  Depending on what legislation is relevant to the particular employee or candidate will determine whether the employer is obligated to provide this kind of accommodation.  If an employer is required to provide this type of accommodation to an employee and in which cases refuses, that employer could be liable for disability discrimination. 

7.  What if my disability is irregular?

  For an employee or interviewee, it can be difficult to explain to an employer that their disability impacts them sporadically. does an employee or interviewee tell their employer that their disability is unpredictable?  In other words, the individual can have periods of being in a well state followed by random spells of their disability impacting their health.  Some examples of this may be HIV, epilepsy, diabetes, or remission for cancer. Flare-ups or a spike of impairment does not mean an employee does not have a disability and should not be entitled to accommodation in the workplace. Disabilities are not always predictable and the legislation recognizes individuals who experience sporadic impairments. 

 In certain situations, depending on the specific disability and how the disability affects the employee or interviewee’s ability to perform key life activities, may be considered a disability under California legislation. 

8.  The name disability is not listed under the legislation

  Just because the medical term used to diagnose your disability is not specified under the legislation or perhaps your employer has never heard of it, does not mean you are not entitled to protection under the legislation. In order ensure that most disabilities are recognized, the legislation does not look to the name of a disability or condition but rather to how it impacts an employee or interviewee’s ability to perform key life activities.  Examples of key life activities include bathing, walling, seeing, hearing, speaking, breathing, etc.

9.  How do I know if I was discriminated against based on my disability?

  Many laws in California protect employees with a disability as well as individuals who are participating in job interviews.  Although the laws are there to provide protection, the laws are complicated so employees may not know their rights and employers may not be abiding by their obligations.  The best way to know if you are being discriminated against by an employer to meet with an employment lawyer who specializes in representing employees against their employers.

A good place to start in your search for a discrimination lawyer would be to search for a firm that offers free consultations. 

More Articles about ADA and disability discrimination at the workplace:

• How The American Disability Act (ADA) has protected disabled workers?
• How ADA Can Protect Millions of American lives
• 4 Things an Employee Should Know About Filing a Disability Discrimination Claim
• 5 Important Questions Asked about Disability Discrimination and Wrongful Termination
• 5 Disabilities that May Be Protected By Employment Law
• 5 Ways an Employer May Be Liable For Disability Discrimination
• 6 Nuances of Disability Discrimination Law in California
• 8 Things You Need To Know About Disability Discrimination
• 8 Main Disability Discrimination Questions

Under California state law, workers with a disability are protected against several forms of discrimination in employment practices. Employers subject to this legislation cannot base employment decisions like hiring, firing, promoting, paying, or training on an employee’s disability status. Moreover, employers are legally obligated to make reasonable accommodations for workers who have a disability so that they can perform their job duties. Employees who are protected under state law include those who suffer from physical and mental disabilities, as well as medical conditions. Physical disabilities include physical impairments affecting a major bodily system and limiting a major life activity. Some conditions have been explicitly named as protected under state law: blindness, deafness, missing limbs, mobility impairments requiring wheelchair use, cerebral palsy, and episodic or chronic conditions like epilepsy, seizure disorder, diabetes, multiple sclerosis, HIV/AIDs, hepatitis, and heart/circulatory disease. Mental disabilities in this context include mental or psychological conditions that limit a major life activity (e.g. autism, bipolar disorder, obsessive-compulsive disorder, clinical depression, cognitive disabilities, etc.). Medical conditions refer to genetic characteristics associated with a disease or health impairment related to a diagnosis of cancer; they often come up in disability discrimination because of increased risk of future medical issues. These definitions may seem vague or unclear, giving a glimpse into how complicated disability discrimination law can be and how Employment Law Measures Disability Discrimination. Let’s look at a few things that are good to know about the coverage and limitations of disability discrimination law in California.

1. California law specifically excludes particular mental health problems

            While California law has broader protections for workers with a disability than federal law, there are explicitly excluded categories of mental health problems that are not protected at all from discrimination in employment practices. These include compulsive gambling, kleptomania, pyromania, and particular sexual behavior disorders, including pedophilia, voyeurism, and exhibitionism. Additionally, substance abuse disorders resulting from the current, unlawful use of drugs are not protected. Consequently, employment discrimination based on any of these problems is legal.

2. Mild, temporary disabilities are not protected

            This probably makes intuitive sense to most people. What it means is that employees suffering from conditions that have minor or no long-term effects do not qualify as a protected class. For instance, Perry has the flu. He asks his boss for a reasonable accommodation to his temporary disability in the form of a week off of work. His boss tells him he can use sick days. This example illustrates that it really wouldn’t make sense for colds, flu, and the like to allow people special accommodations when there are alternative ways to deal with those relatively mild problems. Other conditions not protected include sprains, muscle aches, bruises, soreness, minor scrapes, non-migraine headaches, and minor gastrointestinal disorders that are not chronic. If employers want to fire someone for getting the flu, they can technically do that, assuming at-will employment, and most courts will not cry foul unless the sick person had a pretty severe reaction. 

3. Reasonable accommodations must be, well, reasonable

            Yes, employers must make reasonable accommodations for employees with disabilities. What does that mean exactly, though? “Reasonable” in this context means the accommodation does not impose an undue hardship on the employer. Undue hardships would involve substantial expense and difficulty for the employer and can be determined by looking at things like the employer’s financial resources, the size of the business, the nature, and cost of the necessary accommodation, and the impact the accommodation is likely to have on the employer’s business operations. Given that, it is usually possible for employers to come up with reasonable accommodations. Installing ramps, providing screen reader software or closed captioning at meetings, printing materials in large print, and adjusting work schedules are all examples of common, relatively simple solutions to problems posed by certain disabilities.

4. Employers who do not know cannot be held liable 

            Employees with a disability typically have a responsibility to make their employers aware of any need for accommodations. Legally, employers cannot be held responsible for discriminating based on disability if they were unaware of the disability. For instance, employers are not liable for failing to accommodate someone they did not know needed to be accommodated. There are several things employees need to know about disability discrimination because most employees with disabilities who might need reasonable accommodation should inform their employer about their condition, assuming the disability and limitations are not very obvious. It is a good idea for employees to give notice of their disability in writing, whether through email, text, or dated letter. Documenting this notice can protect the employee later if the employer tries to deny knowledge of it. Sometimes, employees must provide medical documentation confirming their disability or need for accommodation and in those cases, failure to do so can preclude any claims of illegal disability discrimination.

5. Some employers must accommodate people suffering from alcoholism and/or drug addiction

            Employers with 25 or more employees must provide reasonable accommodations for employees with addictions to drugs or alcohol. However, employees are only eligible if they voluntarily enter and participate in a drug or alcohol rehabilitation program, which the employer must permit as long as the leave of absence would not pose an undue hardship. The period of leave is unpaid unless the employee uses accrued leave, like sick days. Moreover, the employer has a duty to try to protect the privacy of any employees who do choose to participate in the rehabilitation program. These protections only extend so far, though. Employers are within their right to discipline or fire employees who show up to work under the influence of drugs or alcohol, as well as employees whose performance is negatively affected by their alcohol or drug use.

6. Mixed-motive claims can get tricky

            If an employer takes an adverse employment action against an employee and part of the reason is based on said employee’s disability or the employer’s perception of a disability, then that should be grounds for a successful discrimination lawsuit, right? Well, not exactly. If there were multiple motives the employer had in taking the action and they were not all discriminatory, then the law gets a little more complicated. An employer might have legitimate reasons to fire an employee with a disability that is unrelated to the disability. In mixed-motive disability discrimination cases, the discriminatory intent must be a “substantial motivating factor” in the adverse employment decision. If an employee file a disability discrimination claim and employer can show that a legitimate, non-discriminatory motive by itself would have led to the same decision, then their liability is significantly reduced.

            Clearly, there are many nuances of the law when it comes to disability discrimination. Because the law can be so complicated, employees who think they have a claim or have a question about disability discrimination and want to understand their rights better are urged to contact a discrimination attorney. Together, they can work towards equality for people of all abilities. 

More Articles about ADA and disability discrimination at the workplace:

• How The American Disability Act (ADA) has protected disabled workers?
• How ADA Can Protect Millions of American lives
• 4 Things an Employee Should Know About Filing a Disability Discrimination Claim
• 5 Important Questions Asked about Disability Discrimination and Wrongful Termination
• 5 Disabilities that May Be Protected By Employment Law
• 5 Ways an Employer May Be Liable For Disability Discrimination
• 8 Things You Need To Know About Disability Discrimination
• 8 Main Disability Discrimination Questions
• 9 Things Job Hunters With a Disability Should Know

While it is often challenging for any employee navigating work life to be a member of the LGBTQ community, transgender people tend to face the most severe problems, particularly in terms of discrimination. In 2016, the National Transgender Discrimination Survey found that 16 percent of transgender people had lost a job due to bias and that the unemployment rate among respondents was 15 percent, which was three times as high as the rate of unemployment in the U.S. population. In addition, in the year leading up to the survey, 30 percent of transgender respondents who had a job reported facing mistreatment at work due to their gender identity or expression This prejudice is present not only in employment but in society in general. Transgender people face pervasive mistreatment and violence. In the same aforementioned survey, it was found that almost half (47%) of transgender respondents were sexually assaulted at some point in their life. Fortunately, California has been working to strengthen the rights of transgender employees and transgender folks do have several legal protections. This article will go over some of those rights. If you think that your rights have been violated, speak with an employment or discrimination attorney to figure out what you can do about it.

For those unaware, transgender is a term used to describe people whose gender identity is different than their biological sex. It is separate from sexual orientation, which refers to who a person is attracted to. For instance, a transwoman can be bisexual, heterosexual, homosexual or have a different sexual orientation. California regulations define gender expression as an individual’s gender-related behavior or appearance, or the perception of such behavior or appearance, whether or not stereotypically associated with the person’s gender assigned at birth. These regulations define gender identity as an individual’s internal understanding of their gender and notes that gender identity does not need to match gender assigned at birth. Moreover, someone’s gender identity might be female, male, a combination of female and male, or neither female nor male. People who do not identify as only male or only female are typically considered non-binary and are afforded the same protections as transwomen and transmen. Furthermore, transgender people are protected during their transition at any stage, as well as if they do not decide to transition at all. Transition refers to both social and physical aspects of a person deciding to live as the gender they truly identify with. Social transition is the process of aligning one’s gender in social areas of life to the internal gender identity. It can include coming out as transgender to friends, family, and other people, as well as dressing or grooming in alignment with gender identity. Social transition also often includes changing name and personal pronouns, which are important changes to respect. Physical transition involves changing the body with medical treatments, such as hormone treatment, so that an individual physically aligns with their gender identity. With these definitions in mind, let’s review how California has tried to protect its transgender workers.

1. The right to appropriate facilities

Employers have to allow employees to use facilities like bathrooms that correspond to their gender identity or expression regardless of sex assigned at birth. Single occupancy facilities should be labeled with gender-neutral signs, like “Unisex” or “All Gender Restroom,” or even just “Gender Neutral.” While this right might seem trivial to some, it has been the cause of significant strife in the transgender community, and there has been a significant public debate on a national level regarding this so-called bathroom issue. Unfortunately, harassment is fairly common for transgender people who try to use the facilities aligned with their gender identity. Legal protections are an important step to addressing this problem.

2. The right to appropriate dress codes

Additionally, employers must be mindful when it comes to gendered dress codes. While these are not inherently illegal, employers cannot command an employee to conform to a grooming or dress code that is inconsistent with the employee’s gender identity or expression. Exceptions occur for the sake of business necessity, but they are not common. This right is particularly important during social transition, and a person changing from one gender’s dress code to another is protected.

3. The right to be free from discrimination

In California, it is illegal for employers to discriminate at any stage of employment based on gender identity or expression in the same way that it is illegal for them to discriminate based on sex, race, and national origin, among other categories. This means people cannot be fired, for instance, because they are transgender. Additionally, during hiring, employers cannot discriminate against people who are transgender; to help avoid potential bias, there are certain questions employers are legally not allowed to ask an applicant. These include questions meant to ascertain an applicant’s gender identity or sexual orientation, including queries about marital status, spouse’s name, etc. Questions about a person’s body or plans for surgery are also off-limits, unsurprisingly.

The fact that gender identity and expression are protected classes in California is the most important protection transgender workers have here, and the protection of these classes is something that many people are hoping the Supreme Court soon recognizes under Title VII’s prohibition of sex discrimination for the benefit of all the many states that currently allow discrimination against transgender people.  

4. The right to an informed workplace

Employers have a couple of specific obligations that essentially afford transgender people greater protection by disseminating and increasing knowledge of transgender rights in the workplace.

First, employers are legally required to display a poster detailing transgender employees’ rights. This poster has to be visible to all employees, as well as easily accessible. To make this requirement easy for employers, the Department of Fair Employment and Housing (DFEH) made a poster employers can use. This is actually quite important because marginalized groups, including transgender folks, often do not realize what their rights are. This poster gives them power by providing that knowledge. Of course, it also provides that information to potentially ignorant coworkers, which may help preclude harassment.

Second, employers with at least 50 employees are required to provide at least 2 hours of training on sexual harassment to supervisory employees. This training must include information about harassment based on sexual orientation, gender identity, and gender expression. As a result, supervisors are in a better position to ensure a welcoming and safe work environment for all employees, regardless of gender identity or expression.

            Transgender people deserve to be treated the same as cisgender people and, hopefully, that will be the norm one day soon. In the meantime, for those whose rights have been violated, for those suffering from discrimination and harassment at work because of their identity, reach out to an employment lawyer and learn how to fight back.

In 2019, especially in California, society has gravitated to a more forward-thinking attitude towards the way sex and gender is understood.  Ideas of what is considered “normal” or the very concept of normal are increasingly becoming a tired way of contemplating a person’s identity.  However, with this in mind, there are some areas in society that are not so progressive and take a threatened approach to these new ideas.  In particular, the workplace remains a space that challenges these revolutionary perceptions of embracing developing roles in gender and sex.  Sex and gender discrimination continues to run rampant in workplaces all over the United States by employers who idolize dated ideals based on personal reservations.  Employees may also be at fault for imposing their personal beliefs on fellow colleagues, but it is up to the employer to take steps to enforce a zero-tolerance policy for sex and/or gender discrimination. 

Understanding the basics

Sex concerns how males and females are differentiated by their biological makeup such as the distinction between their genitalia and hormones.  Gender is a bit more complicated.  Gender is more of a concept that reflects society’s view of how a person should look and act based on their sex.  For instance, girls should play with dolls and boys should play with toy cars or the idea that women are meant to cook and men are not supposed to cry. The definition of gender is essentially based on social constructs.

Taking into account the differences between sex and gender, a person who considers themselves as transgendered, may not identify with the sex they were given when they were born. Broadly speaking, a person who identifies as transgendered may feel more connected with the opposite sex than the one they were born as. For example, a person born as a male may feel more connected to being female and will, therefore, choose to express themselves physically and emotionally as a female.

1. Discrimination

In California, there are laws created with the purpose of protecting employees from being discriminated against in the workplace because of their sex and or gender.  This means it is unlawful for an employer to single out an employee and treat them negatively because of their gender and or sex. For instance, it may be a violation of particular employment laws for an employer to fire an employee based on being transgendered.  In that situation, that may be considered gender discrimination.  Because there are different types of sexual harassment, an employer who picked on an employee based on their sex, such as a woman being singled out at a predominantly male company may be categorized as sex discrimination.  There may also be situations where an employee experiences both sex and gender discrimination.  In any case, employees have the right to work in a discrimination-free and safe workplace.  If an employee feels they are being singled out or treated poorly because of their sex and or gender, the employee needs to make a formal complaint.  Should an employee be wary of reprisals, they should seek advice from a legal professional such as an employment lawyer.

2. An example of sex discrimination in the workplace

Sex and gender discrimination can be exercised in various ways, all of which can cause feelings of isolation and intimidation.  In some cases, an employee can feel unwelcome or even unsafe in their own place of work.

For example, Joey, a hotel guest services representative, had been employed by the chain for three years.  Joey identified herself as a male but a transgendered female. Throughout Joey’s time as an employee at the hotel, her efforts had been noted in her performance reviews as “demonstrating passion and dedication in delivering quality service to customers”. In the last year, Joey garnered two Employee of the Month awards. Easing into her fourth year at the company, Joey was encouraged by her superiors to apply for a position that had recently opened up in management.  However, Joey’s enthusiasm towards applying for the position took a dive when she recently put a request in for a week off to have gender reassignment surgery, as Joey planned with her doctor to transition from male to female. Once Joey put in this request, she began feeling excluded at work.  She stopped receiving e-invites to staff meetings and her weekly shifts were reduced.  It became evident that Joey’s manager Dave had an issue with her choice to transition when Dave removed Joey from her reception duties to working in the back office.  When Joey asked why she was removed from her regular position, Dave explained that his demeanor and appearance after his surgery might be “off-putting” to their particular clientele. Joey was eventually passed over for the promotion into the management position and was never permitted to return to her position at reception. 

Here, Joey might consider contacting a sexual harassment lawyer to discuss the facts of the events leading up to her demotion.  An employment lawyer may look at the facts such as Joey being removed from her original position coupled with the comments made towards her by the manager and noting her being excluded from staff meetings, all may indicate discrimination. 

3. Facilitating respect in the facilities

There are particular regulations that may oblige an employer to allow an employee to use the restroom in which they identify with.  This would mean that a female employee who identified themselves as a transgendered male should be permitted to use the men’s designated restroom. Keep in mind that this stands regardless of the employee’s sex at birth.

4. Dress the part…or not

According to new employment regulations in California, an employer cannot require an employee to dress or groom themselves in a way that is inconsistent with the gender or sex in which that employee identifies themselves as. For example, it may be considered a violation of the regulation for an employer to enforce a rule upon all female employees to dress a particular way as opposed to the male employees such as wearing a skirt and red lipstick. Of course, employers can, within reason, enforce a dress code for their staff as long as it is for the sole purpose of employment discrimination.  This means an employer can enforce particular dress code standards as long as they do not infringe upon the gender in which an employee considers themselves to be.

Pre-Employment Screening and how its can violate your rights! With the job market being at one of its worst states ever in American history, the number of people looking for jobs are growing. In light of this, employers know they are in a better position to be selective and demanding in their application process and hiring criteria. However, employers must be careful not to cross certain boundaries that may amount to unlawful hiring practices. Certainly, employees should also be cautious of the pre-employment screening questionnaires they come across and be aware of the information they choose to divulge. Below are some (out of the many) modern issues that arise in the context of hiring and selection.

Laws on Pre-Employment Screening

The importance of knowing your rights when it comes to Pre-Employment Screening. California disabilities law restricts the use of a job applicant’s medical information. Note that this is a restriction, not an outright prohibition. During an interview or through an employment application, employers may ask about an applicant’s ability to perform the specific functions/tasks of the job. However, the employer cannot ask about the applicant’s health or medical history; this includes whether the applicant has ever filed a Workers’ Compensation claim. An example of a permissible inquiry would be, “Are you able to stand continuously for at least 5 hours per day?” An example of an impermissible inquiry would be, “Do you have any health condition that may prevent you from performing the job for which you are applying?”

Effective January 1, 2013, employers are prohibited from requiring or requesting applicants to disclose information regarding their personal social media accounts. Social media accounts can include Facebook, LinkedIn, Twitter, Myspace accounts, blogs, etc. Employers cannot ask applicants for their log-in information (e.g., username and password), require applicants to login to their own account in the presence of the employer or divulge any personal social media information. However, as would any other person in the general public, an employer may independently or through a use of an investigator search for and browse the employee’s social media account.

Employers are also prohibited from asking questions about marital status and/or children. An employer cannot ask an applicant if she is pregnant, has children or is planning to have children. Additionally, even if the employer already knows that applicant has children, the employer cannot ask if he/she has made provisions for childcare.

Under the Fair Employment and Housing Act, medical examinations of applicants are only allowed after a conditional job offer has been made. (A conditional job offer is an offer that is contingent upon the satisfaction of certain requirements). However, such post-offer medical examinations are permissible only if it is directly related to and pertinent to the position being applied for or directly related to whether an individual would endanger himself/herself or others. Such exams cannot be arbitrarily given and must be a requirement for all entering employees in similar positions.

The decision about whether to employ any person cannot be based on general beliefs about his/her disability, e.i., Pre-Employment Screening. Each person must be judged solely on whether his/her particular medical history and condition presently prevents him/her from performing the job safely and efficiently. Any medical standard or employment policy which automatically excludes entire groups of people (e.g. all people with high blood pressure, diabetes, AIDS, or back problems) is usually improper.

Note that if an employer decides not to hire (or promote) an applicant because of his/her disability, then the employer must allow the applicant the opportunity to submit an independent medical opinion. It is illegal for the employer to refuse the employee’s ability to do so.

If an employer refuses to hire (or in certain cases, promote) an applicant based on an illegal reason or selection criteria, the employee may have an employment claim against the employer. With that being said, applicants who have been subjected to any of the unlawful pre-employment inquiries discussed above should contact an employment attorney immediately to discuss his/her rights.

Wrongful termination settlements is said to have occurred when an employer has fired/laid off an employee in direct violation of their existing legal rights. If the wrongful termination law has been violated, the terminated employee can file his/her wrongful termonation settlements employment termination complaint with the government agencies. Alternatively, a private lawsuit can also be filed with the help of a wrongful termination Settlements lawyer.

The “At-Will” concept

All states have now adopted the doctrine of employment “at-will” to a certain degree. This means that employees can typically leave their jobs at any given time without any cause or advanced notice. In addition, it means that the employer can also typically fire / lay-off their employees at any given time without a specific reason. In many instances, employers legitimately ask employees to sign certain agreements or contracts that effectively document & enforce all the terms of this “at will” employment and this shows up in the company’s policy manuals.

The Exceptions

Of course, there are certain exceptions to the rule. Employees as well as employers are not permitted to breach the employment agreements/ contracts or even violate regulations, laws, constitutional provisions/ public policy when they are terminating employment. Exceptions such as intentional emotional distress, breach of implied contract and reliance on an employment offer do exist. “At will” employees can also be fired for certain job-related problems/ non-job-related reasons like personality conflict or the boss not liking the employee’s jokes.

These employees who have been wrongfully terminated have gone ahead and challenged the rules in court and won wrongful termination settlements and compensation. Though there is no fixed figure that can be attached to this kind of a settlement, it can sometimes be substantial. This settlement covers the lost wages and attorney’s fees & punitive damages are covered only under certain circumstances

The Right Legal Help

If a person has been wrongfully terminated and wishes to file a lawsuit against the employer, he/she will have to hire the services of a wrongful termination settlements lawyer. The person will provide the litigant all the details of this kind of filing and help with all the technicalities and legalities. Having a good lawyer can also result in a higher termination settlement and they will also be able to guide the person through the legal system. Since there are no hard and fast rules when it comes to winning a wrongful termination settlements, having the right legal help is top priority.

Call the Law Office of Stevens & McMillan Today (800) 738-3353 to get you the highest Wrongful termination settlements!

The law is an ever-evolving entity in a symbiotic relationship with its citizens; it shapes us, and we shape it. Here is the list of the most prominent court cases in the United States that have, inevitably so, shaped our lives for years to come. The Law Offices of Stevens & McMillan are forever indebted to such cases, and work to honor them everyday! For all your Employee Rights needs, give us a call at (800) 738-3353.

• Brown v. Board of Education

On May 17, 1954, the Supreme Court unanimously declared state laws that established separate public schools for black and white students unconstitutional, saying they had a detrimental effect on minority children. Though the decision helped spur the civil rights movement and paved the way for integration, it was not welcomed overnight. In 1957, Arkansas Governor Orval Faubus used the National Guard to block nine black students from entering Little Rock High School. In 1963, Alabama Governor George Wallace personally blocked a door at the University of Alabama to prevent two black students from enrolling. In both cases, the incidents resulted in interventions from the highest level — in Little Rock, President Dwight D. Eisenhower deployed the 101st Airborne Division to integrate the school, while in Alabama, President John F. Kennedy sent in the National Guard to remove George “segregation now, segregation tomorrow, segregation forever” Wallace from the university doorway.

• Roe v. Wade

Roe v. Wade divided the country into those who believed in an unborn child’s right to life and those who believed in a woman’s right to choose. It raised issues of morality and privacy and is still hotly debated today. In the early 1970s, Norma McCorvey (alias Jane Roe) was a single Texas mother. Pregnant for a third time, McCorvey decided she did not want to bear a third child, but Texas state law prevented her from having an abortion. On Jan. 22, 1973, the U.S. Supreme Court ruled that the constitutional right to privacy extends to a woman’s decision to have an abortion. The decision came too late for Roe, who was impregnated in 1969 (she had the child and gave it up for adoption), but it guaranteed the right of women nationwide to terminate unwanted pregnancies through abortion by obliging all 50 states to legalize the divisive medical practice.

• Miranda v. Arizona

That most television-friendly of Supreme Court cases,Miranda v. Arizona, was decided in 1966. Under Chief Justice Earl Warren, the court determined 5 to 4 that the police had to follow certain procedures to ensure the protection of a criminal suspect’s Fifth Amendment privilege against self-incrimination. The ruling included the stipulations that suspects be told they have the right to remain silent, that anything they say could be used against them and that they have the right to an attorney. Without these Miranda warnings, the court deemed, prosecutors could not use statements made by defendants under interrogation. The decision reversed the conviction of Ernesto Miranda, who had been found guilty of kidnapping and rape in Arizona after he had confessed during police questioning without being informed of his rights.

• Marbury v. Madison

Before vacating the Oval Office in March 1801, John Adams appointed a number of Federalists to judicial openings in an attempt to handicap President-elect Thomas Jefferson’s incoming Democratic-Republican Administration. But because Adams’ Secretary of State, John Marshall, failed to deliver all of the appointees’ commissions, and because Jefferson subsequently directed his new Secretary of State, James Madison, not to deliver the remaining notices — a number of employees were unable to assume their new positions.

One frustrated appointee, Federalist William Marbury, petitioned the Supreme Court to force Madison to deliver his commission. On Feb. 23, 1803, the court handed down a unanimous decision that Madison was not required to deliver the agreement because the law requiring such action — the Judiciary Act of 1789 — conflicted with a piece of the Constitution. Marshall, by that time Chief Justice, argued that the Judiciary Act was unconstitutional and therefore void, thus establishing the basis for judicial review and solidifying the role of checks and balances in American government.

• District of Columbia v. Heller

It had been 70 years since the Supreme Court had last tackled the central conundrum of the Second Amendment: Does the right to bear arms apply only to militias? This 2008 case specifically challenged Washington, D.C., gun-control legislation that generally prohibited carrying a pistol without a license and also required that all firearms be kept unloaded. In a split decision, the often conservative-leaning Roberts court concluded that the Second Amendment does protect an individual’s right to possess a firearm unconnected with service in a militia. It was possibly the most important government statement regarding guns in the U.S. since the Second Amendment was ratified in 1791.

• Citizens United v. Federal Election Commission

In January 2010, the Supreme Court upheld the right of corporations to spend money influencing political campaigns, ruling that these entities ought to have the same First Amendment rights as individuals to engage in “political speech.” The historic — and, in some quarters, infamous —Citizens United v. Federal Election Commission decision fell to a tight 5-to-4 vote. Its implications are huge: superseding earlier understandings, the court deemed corporate money, funneled by lobbyists and special-interest groups into politics, equivalent to any individual donation — even though, by many people’s reckonings, a corporation with its resources and focused agenda is hardly the same thing as an individual person. President Obama, for one, was scathing about the verdict, saying “this ruling strikes at our democracy itself.” But such prominent First Amendment advocates as Floyd Abrams — often associated with defending journalists’ rights — argued vociferously that the court did the right thing by preserving the guarantees of the amendment.

• Plessy v. Ferguson

Long before Rosa Parks refused to move to the back of the bus, Homer Plessy refused to move to a “blacks-only” railway car. Plessy, who was seven-eighths white and one-eighth African American, was arrested in accordance with Louisiana’s Separate Car Act. In 1896, the Supreme Court ruled the law did not contradict the 14th Amendment’s equal-protection clause. And while the majority opinion didn’t include the exact phrase “separate but equal,” that’s the concept it sanctioned. According to the court, the Constitution guaranteed legal, but not social, equality: segregation was constitutional. There was just one dissenting opinion, from Judge John Marshall Harlan, who wrote, “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.” More than half a century would pass before the Supreme Court ruled on “separate but equal” in Brown v. Board of Education.

• Bush v. Gore

In Bush v. Gore, the Supreme Court decided one of the closest presidential elections ever. With both former Texas governor George W. Bush and Vice President Albert Gore needing to win Florida to claim the presidency, polls closed with just 537 votes separating them. The closeness of the race merited a machine recount of ballots under Florida law. Due to highly-publicized controversy over whether the design of the ballots confused voters or whether machines would miscount incorrectly completed ballots, the Florida Supreme Court ordered manual recounts in several counties. But the U.S. Supreme Court immediately ordered these recounts halted the following day, declaring that counting certain ballots by different methods than others violated the Equal Protection Clause of the Fourth Amendment. The Court found that the recount ordered by the Florida Supreme Court was invalid, and that no alternative recount could be performed within the state’s legal time limit. On 12 December 2000, the Supreme Court ruled that the original Florida results would stand, effectively naming Bush the next President of the United States.

• Lawrence v. Texas

In a landmark decision for the gay rights movement, 2003’sLawrence v. Texas declared unconstitutional a Texas law prohibiting sodomy. The case arose when police, after receiving a tip of a domestic disturbance, arrested two men found engaged in homosexual activity. When the case eventually made its way up to the Supreme Court, the 6-3 decision also struck down similar sodomy laws in 13 other states, thus legalizing consensual same-sex sexual activity in all U.S. states and territories. On behalf of the majority, Justice Anthony Kennedy maintained that the right to privacy protected such sexual acts, overruling the Court’s previous view that had resulted in the opposite verdict over a similar 1986 case, Bowers v. Hardwick. Justice Antonin Scalia wrote a dissenting opinion, arguing that states should be able to legally enforce moral opposition to homosexual conduct. But only two fellow justices backed him, and the case soon became an iconic victory for gay rights activists across the nation.

• Dred Scott v. Sanford

Dred Scott, a slave who had lived in the free state of Illinois and the free territory of Wisconsin before moving back to the slave state of Missouri, appealed to the Supreme Court in hopes of being granted his freedom. Instead, in 1857, in the case of Dred Scott v. Sanford, the United States Supreme Court declared that all blacks — regardless of whether they were slaves or free men — were not and could never become citizens of the United States. The court also ruled that the 1820 Missouri Compromise was unconstitutional. The decision meant that slavery would be constitutionally permitted throughout the entire country and its territories.

Led by Chief Justice Roger B. Taney, a staunch supporter of slavery, the court’s majority held that, because of Scott’s color, he was not a citizen and therefore had no standing to sue. Taney wrote in the Court’s majority opinion that the framers of the Constitution believed that blacks “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it.”

While the Declaration of Independence clearly includes the phrase “all men are created equal,” Taney argued that “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration.”

Abolitionists were appalled by the court’s decision. However, some, including Frederick Douglass, hoped that the ruling would put a spotlight on the issue of slavery and would ultimately result in its destruction.

Pregnancy Leave and Employment Laws

            Women should not be discouraged from pursuing their dream of having a family while also maintaining their careers. There are laws in place that provide security for women who are pregnant or have pregnancy-related medical conditions. While laws are in place, women should be familiar with their employee rights and have the phone number of a Pregnancy Discrimination Attorney handy to ensure these rights are enforced. Below are a few things women may not have known about their pregnancy and the way pregnancy interacts with employment laws.

1.  Pregnancy is considered as protected

            There are employment laws in California that strive to create equal opportunity in the workplace for all employees.  More specifically, the employment laws prohibit any kind of adverse treatment towards employees because of their religious beliefs, age, ethnicity, sex, sexual orientation, gender, marital status, veteran or military status, and pregnancy.  The law recognizes that employees come from all different walks of life and those differences should not welcome negative treatment when it comes to employment opportunities or a current employee’s work environment.

Whether the individual is a current employee or an applicant, if they fall under one of those categories and they are treated adversely based on the fact or even the presumption that he or she belongs to one of those classes, it is considered as illegal. Using pregnancy as an example, if a woman is denied employment or is terminated from her current position because she is pregnant or is terminated because of a pregnancy-related reason, this may be considered as unlawful behavior.  In that example, if the employee wanted to pursue legal proceeding in the matter, she would likely hire an Employment Lawyer to sue her employer for discrimination and possibly wrongful termination.

Keep in mind that all employees in California are considered at-will employees.  This means that an employer can fire an employee or let them go for any reason or for no reason at all, just as long as it is not for an illegal reason.  Basically, a boss is permitted to fire any of their employees at whatever time or for whatever reason, even if they just decide he or she doesn’t like the person.  In contrast, if an employer tells an employee “this job is not for someone in your condition.  Pregnant women are too emotional”, this may engage discrimination laws and give rise to a suit against the employer.

Now, we know that it is considered unlawful behavior for an employer to terminate an employee based on an illegal reason, but an employee will need to show that the termination and the discrimination are connected.  For instance, an employee who has falsified her time card and then claims she is fired due to her pregnancy may not have a claim for discrimination.  The sole reason for the termination needs to be based on an illegal reason. In this example, the employer may be able to claim that the reason for termination was based on the dishonest behavior of the employee. 

An Employment Lawyer may be able to advise an individual on their employee rights should they feel as though they were discriminated against for pregnancy or for anything pregnancy-related.

2. You may be entitled to time off

            In California, an employee may be entitled to certain rights for a pregnancy disability leave.  This means that an employee who is pregnant and is rendered disabled in some way, temporally or permanently, may be entitled to a pregnancy disability leave from work.  The law requires that if an employee qualifies for a pregnancy disability leave, they are entitled to up to four months of a leave.  The employee’s doctor may make a specific recommendation of how much time the employee needs off to recover, but regardless, the employee is entitled to up to four months.  An employer or organization that fails to comply with that law may be vulnerable to a lawsuit against them for violating the rights of the employee.

Not only is the employer required to provide a qualified employee with up to four months of a pregnancy disability leave, but the employee is also entitled to take up to four months leave sporadically.  In other words, an employee who is entitled to pregnancy disability leave may take up to four months of leave but it does not need to be taken consecutively.

In addition to the four months leave for pregnancy or for medical conditions that are pregnancy related, an employee may also qualify for a leave under different laws in California that recognize particular injuries or medical conditions.  These additional laws also obligate employers to provide time off for an employee, should they have any additional medical conditions. Of course, these laws can be complicated, therefore an employee would need to contact an Employment Lawyer to find out if the additional leave is available to that individual in particular.

3. Taking a pregnancy leave does not mean you lose your position

            Normally if an employee takes medical leave, there are certain aspects of the law that do not require the employer to reinstate an employee back to their original position.  However, if an employee takes pregnancy leave, the employer is obligated by the law to reinstate that employee back to their original position.  For example, if Suzy was a manager and took a pregnancy leave, upon her return, her boss could not tell her that she was being demoted to a junior manager position.  Every case is different though so it is important to run the facts of a case by an Employment Lawyer. 

4. You may not be guaranteed paid leave

            Common concern employees have when taking a pregnancy leave is whether they will be paid while they are on leave.  The answer is that it just depends.  Each employee’s circumstances are different but there are certain possibilities available for an employee to take a paid leave. One possibility may be if the employer has a company policy that says they pay employees who take a disability leave.