What are The 4 Things Employees Should Know About Harassment and Discrimination

With all the media surrounding the recent sexual harassment scandals, everyone is talking about sexual harassment occurring in the workplace, but do people know much about the laws surrounding sexual harassment?  Most people probably picture sexual harassment being your boss grabbing your butt and then there is a big lawsuit, however, it is way more complex than that, and sexual harassment does not always come in the form of touching.  Sexual harassment does not always take place between a male and a female and it is not always women who are victims of sexual harassment, sometimes the victims are men.  While good training can prevent sexual harassment in the workplace news stories and tabloids share the juiciest stories on sexual harassment, it is important to understand the legal side of the issue. A Work Lawyer is the type of legal professional who handles sexual harassment issues and should be the type of legal counsel an employee with a sexual harassment issue should seek advice from.
 

1.  Sexual harassment and discrimination

Did you know sexual harassment is a type of discrimination?  Sexual harassment is sex discrimination, which means a person is treated adversely specifically because of their sex.  An employee’s sex is recognized under the law as a type of class that is protected, just like race and religion or even sexual orientation. Having a written sexual harassment prevention policy can help stop sexual harassment in the workplace

 
2.  Making a complaint is protected

By law, an employee has the right to make a complaint about sexual harassment without being fired or punished for making the complaint. For example, Linda was a sales representative for a pharmaceutical company.  She had been having issues at work regarding another coworker Henry.  Henry had been sending Linda emails and text messages containing sexual innuendos and suggestive photos of himself. Recently Henry’s attempts to get Linda’s attention escalated when he began waiting for her in her car after work.  This frightened Linda and made her feel afraid to go to work.  Linda made a complaint to her head manager about Henry’s behavior but nothing was done to address the issue.  A few days after Linda made the complaint she was terminated without reason.  Here, Linda may have a claim for sexual harassment against her employer because they are liable for Henry’s behavior. In addition to her sexual harassment claim, Linda may also have a claim against her employer for retaliation.  
 

3.  Can any kind of harassment give me the right to sue? 
 

Harassment is only considered illegal if it is based on the employee belonging to a protected class.  For instance, because gender is a protected class, technically if you are a man or woman employee you are considered as belonging to a protected class. But this does not mean that if you are picked on at work or fired, you automatically obtain the right to sue. For harassment to be considered unlawful, you must be treated adversely because of the protected class you belong to or the protected characteristics you possess.  So in the gender example, if you are fired or picked on because you are a man and your boss doesn’t like you because you are a man, that may be considered unlawful harassment.
 
Every case has different facts but each one can still reach the same cause of action for harassment (for more info look at your company’s sexual harassment prevention policy). 

An employee may be able to prove that the harassment was based specifically on the employee belonging to a protected class or possessing a protected characteristic if other employees who also belong to the same protected class or possess the same protected characteristic also endured adverse treatment.  By providing this evidence, a pattern of targeting a particular class may be established.
 
With the help and guidance of a sexual harassment lawyer, an employee may be able to pursue a claim against their employer for harassment and possibly a claim of employment discrimination based on a protected class.

 
4.  Does sexual harassment only happen in a romantic pursuit?
 

When you first hear “sexual harassment” you automatically assume it took place between a man and a woman or it is romantically motivated such as person A being attracted to person B and person A is not interested.  Although this is the most talked about type of sexual harassment, another type of sexual harassment that is recognized by the law is same-sex harassment. For example, Sarah, a female server at a restaurant began having issues with her new female manager Pam.  Upon Pam’s hire, she began picking on Sarah as well as the other female servers and only female servers. Pam would often call Sarah and the other female servers “her little sluts” and sometimes she specifically called Sarah “the main slutbag”.  These nicknames made the female servers uncomfortable.  In addition to the inappropriate name-calling, Pam made a work policy that no female employees could wear pants, only shorts and skirts.  Often Pam would conduct “uniform checks” which consisted of Pam making sure the female server’s shorts or skirts were short enough for their buttocks to be revealed. Fed up, Sarah called the Human Resources Department at the restaurant’s headquarters and made a formal complaint against Pam.  Here, Sarah and the other female servers may be categorized as being victims of same-sex sexual harassment because they were treated adversely specifically because of their gender. They may be able to prove that they were being treated unfairly based on being female because of the inappropriate nicknames and because Pam only behaved this way towards the female employees.  Therefore the Human Resources Department may be obligated to start sexual harassment investigation to decipher whether the female employees were victims of same-sex sexual harassment and/or sex discrimination. If you find some signs someone is sexually harassing you and the Human Resources Department does not address the issue, the next step would be to contact a Work Lawyer.
 
                Today, many employment law firms provide a free sit-down with a Work Lawyer who can tell you whether or not you have a claim worth pursuing.  Because there are free consultations available, an employee should not feel reluctant to discuss their issue with a Work Lawyer who can tell them what rights they have in the workplace as an employee.  Initiating legal proceedings can be an overwhelming and daunting process but having a diligent Work Lawyer can make all the difference.  Contact an employment law firm as soon as possible if you feel that you are being sexually harassed at work or were fired because you complained about being sexually harassed at work or complained about sexual harassment outside the workplace. 

What are famous employment discrimination cases or job discrimination cases?

In many ways, employees today are in a much better position than those from decades ago. U.S. workers have seen many of their rights expanded. These rights have come in the form of legislation, especially for California state employees, but also through significant court rulings. The judicial branch, while not always pro-worker, has on occasion been a great boon to the nation’s workers, particularly when it comes to protection against unlawful discrimination. Let’s look at some of the most significant job discrimination cases from the past several decades.

1. Griggs v. Duke Power (1971)
   In this groundbreaking case for racial discrimination, a group of African-American employees sued their employer, Duke Power Company, for a policy that required a high school diploma as well as satisfactory scores on two general aptitude tests for an employee to advance. Duke Power Company had a history of openly discriminating against African-American employees by only permitting them to work in the worst-paid division of the company. However, this was before the Civil Rights Act became effective in 1965. Among other things, Title VII of the Civil Rights Act officially prohibited employment discrimination based on race. After it was put into effect, Duke Power could no longer openly discriminate against African Americans. Instead, they instituted the aforementioned policy, one that required employees to meet the degree and test criteria before they could be promoted to higher divisions within the company. The required aptitude tests did not assess job-related skills. Duke Power’s new policy resulted in a disproportionate number of African Americans being unable to obtain positions with higher pay, so they were sued, the petitioners alleging that the policy violated the Civil Rights Act, specifically Title VII.
   The case eventually made it to the Supreme Court, which sided with the plaintiffs. The Court decided that the policy, as it was not linked to job performance and was disqualifying African-American employees at a higher rate than white employees, violated Title VII. Moreover, the Court asserted that Title VII bars employers from implementing facially neutral policies, but discriminatory in effect. By asserting that unintentional discrimination is also unlawful, Griggs v. Duke Power laid the foundation for disparate impact cases in the future, and its legacy continues to protect workers today.
2. Price Waterhouse v. Hopkins (1989)
   Another Supreme Court case, Price Waterhouse v. Hopkins, was revolutionary for sex discrimination and mixed-motive cases. Ann Hopkins, the plaintiff, sued the accounting firm that had employed her, Price Waterhouse, for violating Title VII. She claimed that they denied her partnership two years in a row based on her failure to conform to gender stereotypes. After working there for five years and securing a $25 million government contract, she was proposed for partnership, but it was put on hold until the following year. The following year, the board refused to put her up for partnership, which is when she sued. At Price Waterhouse, there were exactly 7 women who were partners- out of 622 partners. The process of selecting new partners relied on recommendations from current partners, some of whom made it clear they did not want women in advanced positions. Furthermore, the accounting firm admitted that Hopkins was qualified, and she likely would have been proposed for partnership if she had done things like wearing more makeup and jewelry or speaking and moving more femininely. They claimed she needed to work on her interpersonal skills.
   Ultimately, the Court recognized that sex stereotyping could be considered illegal under Title VII. In this case, the company was in the wrong for using sex stereotypes to inform their decision about the plaintiff’s promotion to partnership. More generally, it was held that no employment decisions can be based on sex stereotyping, like the idea that women must not be aggressive. Furthermore, the case dealt with the issue of mixed motives. Price Waterhouse cited interpersonal skills as a reason for not promoting Hopkins. There was evidence that the decision not to allow her promotion was based on both that reason and her failure to conform to gender stereotypes. Hence, the case was complicated by the existence of mixed motives. The Court held that the employer has the burden of proving that the adverse employment action would have been the same if sex discrimination had not occurred. In this case, Price Waterhouse failed to prove that. This case, then, set a precedent for thousands of future cases about not only sex stereotyping but also mixed motives.
3. E.E.O.C. v. Abercrombie & Fitch Stores, Inc. (2015)
   More recently, the Supreme Court made strides for workers suffering from religious discrimination in hiring. In the case of the Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, the E.E.O.C. sued on behalf of Samantha Elauf, a Muslim-American woman, alleging a violation of Title VII, which prohibits religious discrimination in employment decisions. At 17 years old, Elauf applied for a job at an Abercrombie & Fitch store. During her interview, she was wearing her headscarf, a common religious garment worn by Muslim women. The person who interviewed Elauf was impressed with her but worried about her headscarf because the store had a dress code policy prohibiting hats. The interviewer let the manager know that she believed Elauf wore the scarf for religious reasons, and the manager responded by declining to hire her, citing the dress code policy.
   A big issue in the case was that Elauf had not explicitly requested a reasonable accommodation to be made for her. She had not asked for the store to make an exception to the dress policy for religious reasons. However, in the end, the Supreme Court ruled in favor of Elauf, holding that she did not have to explicitly ask for accommodation to be protected by Title VII. Essentially, it was deemed wrong for the manager to refuse to hire her because of what was thought to be a religious practice, even though that thought was not confirmed by the plaintiff. Knowledge of the need for religious accommodation, in other words, is not required for protection under Title VII, as motivation matters in a way actual knowledge does not. In the future, workers will have this decision to refer back to if their rights are ever violated similarly. While those are a few highlights of landmark cases, they are certainly not the only cases that have advanced workers’ rights over the years. However, they do illuminate how the law can be interpreted in different ways and how it can be complicated to determine how the law protects workers. When in doubt about whether or not discrimination law protects against a certain situation, employees can contact an experienced employment lawyer to help them figure out their rights. If those rights have been violated, an employment lawyer can help them seek justice in the same way Elauf, Hopkins, and Duke’s employees did years ago, and perhaps they too will leave a laudable legacy for future workers to take refuge in.

This day in age, it is hard to believe that being accepted to college, hired at a job, or being generally accepted in the community used to be solely based on sex, race, nationality or religion. These factors simply do not provide reasoning for the worth of a person. From primary school, we are taught to love one another despite physical differences because we are all human. Most Americans have ancestors from other countries and religions. These ancestors would take pride in coming to the United States and adding their culture to the “blending-pot”. With that said, a person and their value to a college, workplace, or community should be based solely on their abilities. In Title VII of the Civil Rights Act of 1964 discrimination in the workplace and at colleges and universities was prohibited. This Title was the beginning of workplace equality. It marked a shift in the worth of an employee to an employer from physical appearance or religion to mental and physical capability. It also marked a shift between students who made the college look “good” and students who actually brought value to the community.

1- Discrimination before Title VII

Before Title VII of the Civil Rights Act was enacted life as a minority, a female, a recent immigrant, and religious person was difficult. Making a living was far from easy because an employer could undercompensate, refuse to compensate, layoff, or even fire anyone for illegitimate reasons. Life was lived paycheck to paycheck and fear of termination would keep these employees quiet and complain less towards unrealistic job expectations. The discriminated people would essentially be threatened by their employers into doing anything they asked.

2- Discrimination stoped at the workplace after Title VII enacted  

Now that Title VII of the Civil Rights Act has been enacted for over 50 years the results are interesting. America, generally, has begun to let go of discrimination and focus on accepting one another. This can even be seen through recent things like the legalization of gay marriage, which is an example of America realizing the importance of standing with discriminated people. One might fantasize of a world where such anti-discrimination laws would not even be necessary, but the law is commonly broken. This is unfortunate, but it is always worthwhile to speak up and address the discrimination in the workplace. Title VII was enacted for a reason and everyone should have the decency to respect the law, and if not the employee has the right to bring the offender up on charges. These are serious cases because being safe, comfortable and respected is very important in today’s culture, and rightly so.

3- Title VII of the Civil Rights Act also applied to private and public colleges

Title VII of the Civil Rights Act also applied to private and public colleges and universities. Before Title VII, colleges and Universities would only accept white male applicants. As a minority, woman, or religious follower of non-Christian denomination no matter how much more capable you were, you could not outrank a white male applicant. The image of the college or university would not continue being accepted by surrounding communities. This practice taught the young men accepted to college or university that they were above all minorities no matter how unqualified. These people often studied and glided their way into powerful positions in companies or businesses that employed people who were often discriminated against. This practice of boosting future employers’ egos could have very well lead to greater discrimination of employees later in time. All of the actions which shape the younger generations have a snowball effect onto the even more distant generations. Before Title VII was enacted these effects went unseen. Now as we look back onto the past fifty years we see how those actions really effected different groups of discriminated people and how Title VII began to reverse those actions.

From my experiences, I believe Title VII of the Civil Rights Act has provided the most change in discrimination rates among colleges and universities. As a college student who experiences a blend of such different people on a daily basis, I find it hard to believe colleges used to be filled with “cookie cutter” profiles. In my time, so far at college, I have found meeting new people with different perspectives on things like religion, sexual orientation, and culture has helped educate me and broaden my horizons to the different types of people in the world. I am the first person in my family who grew up mainly in the United States. I was blessed with the ability to have been to Europe multiple times and engage in my culture for extended periods of time, and that has made a big part of who I am today. I find for many students in the United States they have not had these opportunities to experience anything besides their home life. Thankfully, colleges and universities across the county encourage their students to study abroad and experience and respect other cultures. I think having diversity in colleges and universities has helped greatly shape the perspectives of future employers and allowed them to respect and admire different people within their community.  With that said, I find that Title VII has been most visibly effective in colleges and universities. Just like in the workplace, Title VII prevents the discrimination of applicants for admissions, but Title VII has changed the education of students in America for the better. It teaches students that the most important thing about themselves is their abilities and contributions to the community rather than their race, color, or religion.

4- Title VII making workplace and education area discrimination free

Title VII of the Civil Rights Act was the beginning step in making United States workplaces, colleges and universities a better place for discriminated people. As we progress as a nation I expect to see the levels of discrimination in these places decline overall. I strongly believe now that colleges and universities are embracing equality and celebrating culture our generation will begin to churn out well rounded and respectful leaders of the future. These leaders will bring their knowledge and acceptance of all people to their future workplaces making the United States working force strong together.

Author: Constantina Murphy from Merrimack College in North Andover, Massachusetts

4 Ways You May Become a Victim of Wrongful Termination

Wrongful termination is where an employer fires an employee for an illegal reason. Some illegal reasons may be if an employer fires an employee based on an employee belonging to a protected class or if an employee reports illegal activity. There are many ways in which an employee may experience wrongful termination, but many of the ways are motivated by discrimination.  Below are four examples of ways in which an employee may become a victim of wrongful termination and in some situations, the termination is fueled by discrimination.

1. Age is just a number

Even though life expectancy has increased over the years, employees over a certain age are still targeted for age discrimination.  In California, employees who are over the age of 40 are a protected class. This means an employer cannot mistreat an employee because he or she is over the age of 40 years old. An example of this would be if a boss urged their employee whom recently turned 50, to retire.  Upon the employee’s refusal, the employer found a phony reason to fire the employee. This may be an example of age discrimination as well as wrongful termination.

2.  White men can’t jump

Although we can all laugh freely at the 90’s film White Men Can’t Jump, now that we approaching 2019, it is not something we can joke about in the office.  In California, a person’s race is considered a protected class.  This means that if an employee is being picked on, singled out, or mistreated because of their race, it is considered as unlawful behavior.  If an individual is fired based on their race, this is considered as wrongful termination.

Wrongful termination based on race is not found where an employee was fired for a work-related reason, but because the employee was of a certain race could claim wrongful termination.  That’s not how the law works. The claim for wrongful termination based on race has to be found on the very basis that this individual was fired because they are a particular race.  For example, Linda who identifies as Hispanic experienced constant teasing from her boss for her accent as well as frequent poor performance reviews based on bogus reasons.  Eventually, Linda was fired for her “numerous poor performance reviews”.  Here, Linda may be able to make a claim for wrongful termination based on race.  Her boss’ teasing in combination with baseless poor performance reviews may point towards her boss singling Linda out based on her race.  Other factors may assist Linda’s claim such as if Linda was the only Hispanic employee at her job and/or that other Hispanic employee in the past who were fired or who were teased for their accent.  So here, because Linda was fired potentially because of her accent, even though the official reason was for her poor performance review, she may be able to sue her employer for wrongful termination as well as discrimination.

But what if we slightly changed the facts of the above example and let’s say Linda had been coming into work late every day and had received several verbal and written warnings regarding her tardiness.  In that set of facts, it may be argued by Linda’s employer that she was fired based on her constant tardiness rather than race.  Here, it would be difficult for Linda to claim that she was fired because of her race.

3.  Blow the Whistle

“Blow the Whistle” is a throwback that is gladly embraced for any good dance party, yet Too $hort didn’t mention the dark side to actually blowing the whistle on your employer.

It can be a brave but scary task to report something shady that is going on at work.  In California, there are laws in place to protect whistleblowers.  A whistleblower is an employee who reports certain illegal activities or practices that are going on at their place of employment. These laws provide a shield to employees from particular types of retaliation an employer may attempt to invoke in their position of power. For instance, if an employee had first hand-knowledge of their boss only firing the men and replacing them with all female employees, the employee may be able to report this with the protection of the law.  In this example, the employee would be reporting their boss exercising illegal termination and hiring practices.

Keep in mind that although whistleblower laws are in place to protect disclosure of illegal activity, it may not stop the employer from retaliating.  The laws are there to tell the employer what they can’t do while also giving the wronged employee the right to make a claim against the employer after the fact.  Whistleblower cases can be complicated, but with the direction and skill of an employment lawyer, an employee may be able to utilize the law for protection.

4.  Cripple, Handicapped, Challenged

Cripple, handicapped, challenged, these are all insensitive and politically incorrect labels used to describe a person who may have or is perceived to have a disability.  Employees with certain disabilities, whether it is permanent or temporary, are a protected class.  In other words, an employee who is picked on, singled out, demoted, denied employment benefits, or fired based on their disability, may have a claim for disability discrimination and/or wrongful termination and he or she can contact to a wrongful termination lawyer for a free consultation.

Employers are required by law to make adjustments for an employee’s disability so as the employee can perform their duties at the workplace. These adjustments must be reasonable as far as costs and the ability for the employer to actually be able to make the adjustment.  For example, an employee may request to work certain shifts such as only shifts in the daytime because the employee’s vision is impaired. Here, it may be considered a reasonable and feasible adjustment for the employer to schedule the particular employee to only work day shifts.

Each case is distinctive in its facts and must be determined on a case-by-case basis.  Depending on the paperwork that was provided to the employer regarding the disability as well as the extent of the request for accommodation, an employee may have a claim against their employer

For more info please look at these articles:

5 Employees who are Targets of Discrimination and/or Wrongful Termination
5 Important Questions about Disability Discrimination and Wrongful Termination

I still remember the day my older sister went to apply for her first job. She was about seventeen and had looked at various employment opportunities around our neighborhood including back and retail stores. However, none of those job application experiences will ever compare to the one she had with Dollar Tree. She walked into the store and the employers wanted to know a little bit more about her. My sister began to give them a little insight into her very active lifestyle. She is Afro-Colombian, held various leadership roles in clubs, was involved in a plethora of school organizations, and was an active member of our church community. To her surprise, when the employers finished talking to her they denied her the job saying that she was an overqualified candidate. 
My sister is a one-in-a-million case of African Americans being denied employment because of an overqualified status. As a matter of fact, according to Forbes magazine, the rate of African-American unemployment is twice as high as the unemployment rate for Caucasian people (2018). This is often due to the systematic racial discrimination of employers and the government which the Civil Rights Act of 1964 was implemented to eliminate. Since the act was signed, it has benefited thousands of African-American employees.
The Civil Rights Act of 1964 (CRA) aimed to eliminate the discrimination of persons based on race, color, religion, or nation of origin (EEOC) with Title VII focusing specifically on employment discrimination. The U.S. Equal Employment Opportunity Commission (EEOC), which is responsible for enforcing the rights promised in the CRA, reported that out of the 76,418 cases filed under Title VII in 2018, 24,600 of them were due to racial discrimination. If you talk to a discrimination lawyer you will find one of the more monumental cases the title is known for protecting was the Hazelwood School District v. the United States case, which has advanced the employment rights of blacks significantly.
In the Hazelwood v. United States case of 1977, the Hazelwood school district was charged with discriminatory hiring practices against African-American teachers. The district was looking to hire new candidates for teaching positions. The personnel offices chose people based on their eligibility for state certification and those who submitted their applications sooner were most likely to be hired. However, the principals used wide discretion when hiring and received little instruction on how or who to hire. Nonetheless, the superintendents and district fully supported their selections (Quimbee). It was at the end of two years when the state recognized that out of all the teachers that were hired only 2% were African American. It was a shocking statistic when compared to the 15.4% of Black teachers that comprised the faculty of other districts in their vicinity. The district was then convicted for prima facie pattern discrimination against black candidates. There were enough academically qualified black teachers in the market at the time to have satisfied an equal hiring opportunity for both races. The results of the case included cautioning employers of all fields to ensure equal hire opportunities for blacks as well as whites.
When the court’s decision on this case is analyzed by discrimination lawyers in the present day, the results are shocking. According to Pew Research Center, in July of 2013, the unemployment rate for Whites was 6.6%, and for Blacks, it was 12.6%, double the percentage of their White counterparts. They acknowledge a common explanation given for this trend that states that blacks are the last to be hired, but the first to be hired. In other words, “the last to be hired in a good economy, and when there’s a downturn, they’re the first to be released,” according to William Darity of Duke University (Desilver, 2013). Forbes Magazine attributed to it by stating that due to the lack of wealth in the African American community, for every $100 a white family owns, a black family would only have $5.04 and that if this trend continues, by 2053 the median wealth for a Black household will be zero (Thompson, 2018).
This signifies that the court ruled that it was necessary to provide fair employment opportunities for both the black and white community, progressing toward eliminating employment discrimination in 3 steps. One, by giving blacks the fundamental right to have equal employment opportunities. Through the Hazelwood School District v. United States case, employers were made aware that they could not systematically reject the black community from entering the working sphere. This then allows African Americans to market themselves freely to employers and receive the same treatment and wages as whites. This rolls into step number two. Through the Supreme Court ruling, we are also ensuring that children will have access to a quality education which will reduce the use of racial discrimination in the labor force.
According to The Atlantic and a group of discrimination attorneys, one of the main causes of the wage disparity between races is because over the years African Americans have been denied access to quality education by the government. This primarily is seen through the Jim Crow era where black schools would receive less federal funding and resulted in poor education for black children. That would later have a ripple effect in the labor market as many employers refused to hire blacks because of their lack of skills which was ultimately created through discrimination. By ensuring equal hiring opportunities, we are steadily and subtly ensuring quality education for both races so that they can compete equally in the market. The final area that the Supreme Court’s decision through the CRA impacted was the wealth and rights of future employees in general. Once we have made sure that our children will be receiving a quality education and that discrimination is no longer a part of the labor system, we are delivering future generations of blacks and other minority employees to secure wealth and establishment for their families.
The Civil Rights Act of 1964 came as an ointment to the oozing sores of America. It eliminated the employment discrimination of persons based on the criteria of race, color, religion, or national origin. Title VII specifically protected the rights of employees in the workspace. The Hazelwood School District v United States was a testament to the effectiveness of the act. It has played a serious role in implying that America should be well on its way to eliminating employee discrimination by ensuring equal hiring opportunities for both races, guaranteeing a quality education to each child to stop employee discrimination at its source, and implying that through continued efforts the wealth gap caused by discrimination will be closed benefiting the lives of all employees for generations to come.

Author: Carol Mina from Berry College

Some employees enjoy being challenged in their work while others find pleasure in doing work that doesn’t feel like work at all.  But what about employees who feel like they are being set up for failure? What if you were told you couldn’t work because you weren’t good enough or because you weren’t ‘normal’? What if you were denied an opportunity to work because your physical appearance was different from most people?  There are laws in place that are intended to shield employees or individuals applying for a position who have a disability or who are currently in a position.  But even though these laws exist, discrimination is not an unknown practice in many workplaces. Many employees in California with a disability are made victims of discrimination and wrongful termination. 

This article touches on some important questions to ask if you or someone you know is being discriminated against at work. 

1.  How do I know if I am being discriminated against because of my disability?

Whether an employee is being discriminated against based on their disability is the very question to be tried in a courtroom.  An employee who may decide to go down a legal path of answering this question may base that decision on experiencing intense forms of being singled out based on their disability.  Below is an example of an employee who may claim that she was being treated adversely based on her disability. 

Pam, a partially blind employee at a retail store, began experiencing mistreatment at work when she requested better lighting in the stockroom.  Pam had been working in her position for three years and was able to carry out her duties without any issue, up until they began forcing her to work the night shifts.  Although Pam was happy to work the night shift, she needed better lighting in the stockroom to make up for the lack of daylight that normally came through the windows during her day shifts.  When Pam made her request for better lighting, she elaborated on her need for illumination in all areas in which she would be working to carry out her duties properly and safely.  After a week with no response to her request, Pam was then written up for poor work performance. 

Here, after further investigation, certain facts may reveal that Pam was being discriminated against for her disability and was also a victim of retaliation for her request for better lighting. Some facts may include that the employer/human resources were on notice of Pam’s disability, that adjusting the lighting was a reasonable accommodation, and perhaps that the write-up had no foundation other than it was made right after she made her request. 

This is just one example of how an employee may identify whether they are being discriminated against because disability discrimination can take various forms.  Some other examples of discrimination may be a demotion, denial of employment benefits, name-calling, teasing, and refusal to make reasonable adjustments. 

2.  What is considered a disability?

California employment laws do not recognize every disability.  Most disabilities that are recognized are those that impact an employee’s ability to carry out everyday life activities.  Everyday life activities may include seeing, talking, hearing, walking, or even learning. Some other acknowledged disabilities may also include an employee who is struggling with a past disability such as treatment for a disease or illness.  Lastly, some temporary disabilities can even be legally recognized. 

Each employee’s situation is unique and would need to be examined by a legal professional to determine whether the employee has a legally recognized disability as well as if the facts of the case point to discrimination and or wrongful termination.  Wrongful termination in this situation would be if the employee did have a legally recognized disability and he or she was fired for having the disability or due to reasons that concerned his or her disability. 

3.  How can I protect myself as an employee with a disability? 

As mentioned in the beginning, there are laws in place to protect employees from being treated unfairly and unlawfully at work.  Employees can also take steps to protect themselves.  Some steps may include ensuring that their employer is on notice of their disability, providing all necessary paperwork to the employer confirming the disability, and also putting all complaints and requests for accommodation in writing.  These steps can help keep clear and open communication between the employee and employer. Should there be an issue down the line, the employee will have paperwork to show they made a reasonable effort to communicate their needs to their employer.

4.  What if I was fired for a bogus reason but I know it was really because of my disability?

Going back to the previous example of Pam, she requested to have better lighting made available to her in her workspace.  Soon after she made the request she received a poor work performance write-up.  Based on Pam’s disability, the fact that she requested accommodation if the accommodation was reasonable, and the timing of when the write-up was assigned, Pam may be able to prove that it is more likely than not that she was retaliated against.  This means that Pam is being singled out and treated unfairly because she requested to accommodate her disability. 

5.  How do I know if I should take legal action?

Choosing to pursue legal action against an employer should never be taken lightly. The decision to file an official claim against an employer for discrimination should be informed. An employee or former employee should contact an employment lawyer to discuss the facts of their possible claim against the employer.  The employment lawyer may want to see particular documents and obtain detailed facts about what was said or done at work surrounding the possible discriminatory acts.  Each claim is unique and must be examined 

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 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
• 9 Things Job Hunters With a Disability Should Know

How to deal with sexual harassment outside of the workplace? It is well-settled law in California under the Fair Employment and Housing Act as well as the California Government Code § 12940(k) that an employer owes a duty to their employees to prevent harassment within the workplace. But what if an employee is sexually harassed off-site yet within a work capacity? This may be a situation where an employee is not at work but he or she is carrying out tasks or participating in work-related functions. More importantly, are our employees the only individuals who are covered by the law in this area? What about applicants? In a heavily populated State such as California, the job market can be fierce and highly competitive, making it difficult for job-seekers to get their foot in the door. As a result, these applicants seeking jobs are vulnerable to illegal hiring processes which promote discrimination and sexual harassment. In these situations, employers are liable for the acts of their employees who possess hiring power and abuse this power. When issues such as these arise, reaching out to a local Sexual Harassment Attorney is the best way to find out if further legal action should be taken.

An employer or organization is responsible for and held accountable for the acts of their employees whom they have delegated hiring power within the workplace.  The Court in the case Doe v Capitol Cities, 50, Cal. App. 4^th 1038 had to address this issue of just how far an employer’s liability extends in these “off-site” situations. In that case, the plaintiff was an actor who was applying or rather auditioning for a role that took place on a Sunday at the casting director’s home. During this encounter, the plaintiff alleged that he was drugged and gang raped by the casting director as well as four other men. The plaintiff brought an action against the employer of the company, inter alia, for violating the California Government Code § 12940 (h). Under that regulation, it is illegal for an employer or organization to retaliate against an applicant or employee because the applicant or employee made a complaint against the employer or organization for unlawful practices. The action was brought against the employer who oversaw the casting director because it was ultimately the employer’s responsibility to ensure that the workplace was harassment-free. In this case, the Court of Appeal decided that the plaintiff did have a case if he could provide evidence that his allegations were true, then as a result, strict liability would be placed upon the employer. This meant that the plaintiff in this case only had to prove that the acts took place and that the employer was responsible for the casting director’s acts, and it did not matter what the employer knew or was supposed to have known about the casting director’s tendencies. Today, if an employee was in a similar situation when attempting to apply for a position and was subjected to such treatment, they should reach out to a Sexual Harassment Attorney to discuss their case.

But how could the employer be held liable for what happened at the casting director’s home and on a Sunday? The Court reviewed the facts and evidence of the case and was able to conclude that the casting director was acting within his capacity as an employee because he was locating, discovering, training, and acquiring actors, just as he did to the plaintiff. Therefore, even though the incident did not occur at the actual work site, nevertheless the casting director was acting as an agent for his boss. Importantly, the Court did take into account that the incident took place off-site, and it also occurred outside of work hours. However, the Court found that because the casting director’s acts were so closely related to his position of employment it did not absolve the employer of responsibility. Lastly, it is significant to take note that the plaintiff, in this case, was not an actual employee of the company when the incident took place. The court also took into account that the plaintiff was not an applicant yet decided that this did not matter and the employer of the company remained liable for the casting director’s behavior.  This was because the plaintiff was in pursuit of employment which placed both the plaintiff and the casting director in a work-related context.

Here in California, under the Fair Employment and Housing Act, an employer’s liability for sexual harassment extends to managers, supervisors, and controllers who foster a hostile work environment. Per Title VII, a manager is seen as acting for the employer when generating this hostile work environment, therefore the employer can be held vicariously liable. Under the California Government Code  § 12926(t) and the Fair Employment and Housing Act, the definition of “supervisor” is much broader and considers this title to be anyone who has hiring power, the power to transfer an employee, fire an employee, demote an employee, or even power to reward an employee.

Liability at the federal level is slightly different. In a particular federal case, an employee was a lifeguard and employed by the city. She brought a suit against her employer because she felt that she was being subjected to a sexually charged as well as hostile work environment which was created by her supervisors. The environment at issue was considered hostile because the supervisors were causing the particular employee and other employees to experience unwanted touching. Here the employee made a claim under Title VII of the Civil Rights Act 1964, 42 U.S.C.S. § 2000e et seq for these acts and the environment imposed on her as an employee. The Court, in this case, found that the employee who brought the action had a claim against her employer by extending the employer’s liability to cover the supervisor’s acts Faragher v City of Boca Raton (1998) 524 US 775, 807, 118 S. Ct. 2275, 2292-2293. A Sexual Harassment Attorney would be able to evaluate an employee’s case for free if they have a similar problem at work and may be able to file suit against the company.

1- At the Federal and State level, discrimination against employees with disabilities is prohibited by law. Under the Federal law, the Americans with Disability Act (ADA) prohibits discriminatory actions taken by employers against their employees. The same applies at the State level in California and is regulated by the Fair Employment and Housing Act (FEHA).  Amongst other recognized protected classes and or characteristics, employees with physical or mental disabilities have rights that protect them from being discriminated against based on their disability. Employees with disabilities in California have many rights under FEHA, however it is a matter of knowing your rights as a disabled employee in order to know you have a claim against your employer or organization who has violated those rights.  Call a Disability Discrimination Lawyer to discuss this further.

2- An employee may have a disability discrimination case if they can show that they had a recognized disability, they possessed the skills and qualifications for the position they occupied at the time or applied for, they were subjected to adverse treatment in the workplace, and the reason for this treatment was based on their recognized disability. A Disability Discrimination Lawyer in your area is the professional to contact in this kind of situation,

3- Recognized mental disabilities under FEHA may include mental or psychological disorders such as learning disabilities, associated deficits and disorders, intellectual disabilities, organic brain syndrome, and/or emotional or mental illness. A recognized physical disability under FEHA may include any physical impairment by a physiological disease, disorder, condition, cosmetic disfigurement, or any loss of control of the body. Physical impairments must affect the employee’s body system as well as limit major life activity. Consider speaking to a Disability Discrimination Lawyer to know how Employment Law Measures Disability Discrimination.

4- The burden of proof is on the plaintiff, in this case, the employee, to prove that he or she has been discriminated against by the employer. In order to prove an employee has been discriminated against, the employee must prove that there was a causal connection between their disability and their termination, constructive termination or resignation from their position. This causal connection would demonstrate that the employee was terminated based on their disability.  For example, an employee with a recognized learning disability is asked to sit for an exam for training purposes. This employee’s particular disability required that he have a person read the exam directions and questions aloud to him. When the employee sent a formal request for this accommodation, the employer said they had to let him go because “this company didn’t need the dead weight of someone who couldn’t handle taking an exam without having someone read the instructions for them”. Here, the employer’s actions and words may be characterized as discriminatory  because the employee’s request for accommodation triggered the employer’s decision to terminate his employment (Hoffman v. Caterpillar, Inc., 368 F. 3d 709, 2004 U.S. App.) Therefore, there is a direct causal link between the employee’s disability and the decision to terminate.  In this scenario the employee would be able to draw this link and have a potential action against the employer for disability discrimination under FEHA.  For a clearer understanding of this contact a  Disability Discrimination Lawyer.

5- If the case was to go to trial, the employee in this scenario would have to show that their disability was the substantial and driving force behind the termination.(Horsford v. Board of Trustees of Calif. State Univ. (2005)) Referring back to the employee with the learning disability, let’s say prior to the employee’s request for accommodation he had been caught stealing products from his job-site. Based on those facts the employer may argue that the reason for firing the employee was based on the theft. Therefore, the employee may not be able to prove that his disability was the substantial cause of his termination. Asking a Disability Discrimination Lawyer is the best way to pursue a disability discrimination case.

6- As mentioned previously, an employer’s choice of words can be calculated to being discriminatory and contribute to the evidence that the employee was wrongfully terminated. An employer may choose to verbalize, or write words or make remarks that may be discriminatory. This could occur anywhere from being said in an email or in passing in the break room. In some circumstances the remark could be characterized as discriminatory even if the remark was not directed at the employee with a disability (Metoyer v. Chassman (9^th 2007)) For example, referring the employee with the learning disability, prior to his termination his employer may have made jokes at the company Christmas party to other employees about “how lazy people with disabilities are”. Here, even though this comment was made to another employee, the employee with the disability may present this as evidence that their disability was the ultimate cause of his termination. However, keep in mind that it bolsters an employee’s claim if the remarks made by the employer were related to the ultimate decision to terminate the employee otherwise they may be considered “stray remarks” (Waterhouse v. Hopkins (1989)). In California, “stray remarks”, which may be discriminatory remarks made outside of the decision-process to terminate an employee, are still taken into account and considered part of all evidence as a whole (Reid v. Google, Inc. (2010)). With the assistance of a Disability Discrimination Lawyer, an employee can make claim against their former employer.

7- An employee may strengthen their claim if they can prove that their employer did not implement the reasonable accommodation. Depending on the circumstances and the particular disability, in general, an employer would need to reasonably accommodate an employee through modifications and adjustments, facilitate processes that would enable the employee to carry out essential job functions, and provide paid or unpaid leave to the employee while they receive treatment for their disability. Some ways that an employer could accommodate the disabled employee would be by allowing the employee to switch to a part-time position, allow flexibility in scheduling, adjust facilities within the workplace to be accessible to the employee based on the employee’s disability needs, provide extra training to ensure the employee receives an equal opportunity in comparison to all other employees, allow the employee to have support or guide dog accompany them at work,

8- Above all, it is imperative that the employer maintains open communication with the employee in relation to any changes in their needs as a disabled employee, also known as an “interactive process”. It is the organization or employer’s responsibility to ensure that all supervisors who oversee the disabled employee are aware of any accommodations that need to be provided to the employee. For further guidance and find the answer of  questions about disability discrimination , call a Disability Discrimination Lawyer.

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 Main Disability Discrimination Questions
• 9 Things Job Hunters With a Disability Should Know

For some employees, time off from work is difficult to get. They try to save sick days for when they need them and they patiently wait for the time they can finally take a vacation, but it doesn’t always seem like enough, given all of their responsibilities and the challenges life often poses. Well, many employers do not understand or fail to mention all the kinds of leave of absence employees might be entitled to. Most people know about sick days and vacation days, as well as maternity leave and personal time, but there are multiple other kinds of time off that some employees are entitled to. These include (but are not limited to) time off for jury duty, voting, situations related to being a victim of domestic violence, bone marrow, organ donation, and military leave. Let’s dive into the specifics of each of these kinds of time off so you can understand what rights you might have.

1- Time off for jury duty (or other matters of the court)

Under California law, employers are obligated to allow employees time off when they are subpoenaed by a court to be a witness in a case or summoned for jury duty. Moreover, employers cannot punish you for having to take leave for those reasons. This means they cannot fire you, demote you, threaten you, or take any adverse employment action towards you because of this time off. Of course, employees should give as much advance notice to their employer as is reasonable. Additionally, employees should provide proof of their obligation if their employer requests it. That can include the notice of jury duty service, the original subpoena, or a note/notice that the court provides, so it should not be difficult to acquire. The question that is most likely on your mind about this kind of leave is if it is paid.

Unfortunately for employees, California law does not mandate that employers must pay employees for jury duty or for testifying as a witness if subpoenaed. However, some employers have a policy allowing for paid leave in these kinds of cases, i.e. when the leave is non-voluntary and non-personal. Additionally, exempt employees earn a salary and because they are not paid by the hour, they usually do not suffer any loss of compensation for this kind of leave (exceptions can occur occasionally, as when the employee must be away from work for over a week and cannot complete job duties). Furthermore, union agreements or contracts might stipulate that employers must pay for jury duty or related leave. The details of your specific situation should be clarified with the relevant people (i.e. employer or union representative).

2- Time off for voting

California employees are also entitled to time off to vote on election days. Employees can take up to two hours of paid time off (more time if they need it, but the extra time is unpaid) to vote if they cannot vote during non-work hours. They do need to notify their employer at least two working days before the election, though, if they need to take that time off to vote. To further safeguard the right to vote, California employers have to post somewhere visible to employees a notice letting employees know about their rights a minimum of 10 days before an election.

3- Time off for bone marrow and organ donation

Under California law, employers with at least 15 employees have to allow employees time off to donate an organ or bone marrow. Moreover, this leave must be paid, although in some cases, that can be through the required use of sick days, vacation days, etc. Time off for organ donors can be up to 30 business days in any 12 months. For bone marrow donors, the leave of absence can be up to five business days in any 12-month period, which is calculated from the day the leave begins. This rule may sound strange, but it is a protection that relieves a significant burden from many people who only want to save a life. With this protection, they do not need to worry about work; instead, they can focus on healing.

4- Leave related to being a victim of domestic violence

When people are facing domestic violence, often the last thing on their minds is work responsibilities. They need to focus on their safety and potentially the safety of their kids. They might require legal help in getting a restraining order, medical care for injuries, or mental health services like psychological counseling for post-traumatic stress disorder. In California, employers must allow time off to deal with these problems. They can also seek temporary restraining orders for their work if there is a threat of the abuser going there. Of course, for both of these rights to be exercised, the employer has to know something about the situation. It can feel understandably frightening to inform people at work about being a victim of domestic violence, but there are laws protecting victims of domestic violence, sexual assault, and stalking against discrimination and retaliation. Moreover, employers have to maintain privacy and only reveal confidential information about the situation if legally required or to ensure the employee’s safety in the workplace. California law also mandates that employers provide reasonable accommodations for victims of domestic violence if requested. That can include things like changing the employee’s work schedule, installing a lock on their office door, transferring/reassignment to a different job, or changing their telephone number.

In terms of time off for domestic violence, the rules depend on the size of the employer. All employers have to allow time off to seek relief, which includes things like getting a restraining order. Employers with at least 25 employees also have to allow time off for victims of domestic violence to get psychological counseling and medical treatment for physical injuries, to receive services from a domestic violence shelter or rape crisis center, and to participate in safety planning or relocate. Notice of the need for time off should be given by the employee in advance if possible. If notice is not possible, proof is required, e.g. court order, police report, or doctor’s documentation. Whether or not this kind of time off is paid depends on multiple factors, so discussing it with the employer may be best, but if you have been a victim of domestic violence and you are suspicious your rights regarding time off were violated, contact a work attorney.

If you believe your rights to any kind of leave have been violated and need more info about other types of harassment seek justice by contacting a work attorney, who can help you figure out the next steps to take.

The direct effects of the Civil Rights Act of 1964 have been obvious since the time it was passed, but the indirect effects the Act has had on workers of oppressed groups in America has been less discussed. Specifically, Title VII helped define many of the protections LGBTQ individuals have seen come into law in recent years. None of these policies would have a precedent without Title VII, which made discrimination in the workplace based on sex, among other things, illegal.  Title VII influenced a wave of policies that advanced the rights of LGBTQ people in the workplace. The policies that have come from Title VII in recent years have created more inclusive workplaces all over the country that allow LGBTQ people to feel safe and comfortable where they work.

Some of the most important victories regarding discrimination against LGBTQ people came under the Obama administration and were based on the belief that discrimination based on gender identity and sexual orientation are considered sex discrimination under Title VII. One of the first steps President Obama took to ensure workplace equality for LGBTQ people was repealing Don’t Ask, Don’t Tell, a bill that banned openly gay people from serving in the military, in December 2010. This was an early sign from the administration that the definition of sex discrimination would be viewed differently in the executive branch than it had been in previous administrations.  From 1993 to 2011, gay, lesbian, and bisexual service members lived in fear of being outed because they could lose their job. Since the repeal of Don’t Ask, Don’t Tell, soldiers can live openly as who they are without being subject to legal discrimination from their employers.

In July 2014, President Obama signed an executive order amending Executive Order 11246 to add sexual orientation and gender identity to the list of protected categories.  He also expanded federal anti-discrimination policies and benefits for same-sex partners of federal employees in an effort to set an example for all employers. These policies expanded on existing protections given by Title VII. In this way, Title VII helped LGBT federal employees by granting safety and security in the workplace where previously they could be legally discriminated against because of their identities.

In order to better understand how gender identity and sexual orientation can be classified as sex discrimination under Title VII, we need to look at the court cases that led to that. Price Waterhouse v. Hopkins held that discrimination based on sex stereotypes, such as the way someone of a certain sex should dress or behave, is unlawful sex discrimination under Title VII. Using Price Waterhouse as precedent, Smith v. City of Salem held that Title VII prohibits discrimination against transgender individuals for gender-nonconforming behavior based on gender stereotyping, regardless of the cause of the behavior. This decision was further supported by the decision in Glenn v. Brumby, where the court concluded the plaintiff was discriminated against because she was transitioning from male to female, and that the discrimination was based on “gender-based behavioral norms.” Because everyone is protected by discrimination based on sex stereotypes, transgender individuals cannot be denied those same protections.

President Obama’s policies expanding the definition of sex discrimination to encompass gender identity and sexual orientation, however, only apply to federal workers. Not every state and company chose to follow his administration’s example, which has led to a large disparity in workplace protections for LGBTQ people throughout the United States. In 2016, the Human Rights Campaign released their State Equality Index, which reviewed state legislation from that year that affected the LGBTQ community. According to the Index, only 20 states and the District of Columbia prohibit employment discrimination based on both sexual orientation and gender identity, while two states prohibit employment discrimination based on sexual orientation only.  That means that in more than half the states in this country, it is legal for state and private employees to be fired because of who they love or who they are. Hundreds of thousands or even millions of Americans in these states wake up in the morning afraid of losing their job if their boss found out they are gay or transgender.

Some employers, however, do not follow the laws of the state they are located in. Many employers followed the Obama administration’s lead and implemented their own expanded anti-discrimination policies that often far surpass even federal law. Missouri, for example, has a non-discrimination policy for state employees based on sexual orientation, but no protections for transgender individuals or workers outside of state government. However, the University of Missouri created an expanded version of Title VII’s list of protected classes to include in its non-discrimination policy, which applies to employees, students, and visitors of the university. The list of protected classes has 19 categories, including sexual orientation and gender identity, and the University created the Office for Civil Rights and Title IX to enforce the policy. Other policies have been put into place to protect transgender peoples’ rights to have their preferred name and pronouns respected in the workplace, and a purposeful failure to call someone by the correct name and pronouns is considered a violation of Title IX. Depending on the severity of the violation, the person accused of discrimination can face a pay decrease, suspension, or even termination. The University further contributed to the inclusion of transgender workers by changing the signage on employee restrooms in a dining hall to make them gender-neutral after a transgender employee told Human Resources he did not feel comfortable using the men’s or women’s restroom and it was having a negative impact on his experience working there.

The precedent created by Title VII of the Civil Rights Act of 1964 has allowed for the passage of many positive policies that improve the quality of life for LGBTQ workers. Many of these policies, such as President Obama’s amendment to Executive Order 11246 and the University of Missouri’s non-discrimination policy, were simple expansions of Title VII’s ban on sex discrimination, but LGBTQ workers today would not be afforded the protections they are without the passage of the Civil Rights Act of 1964. Workplace protections for all people have come a long way since 1964, but as evident by more than half the states in the U.S., we still have a long way to go.

Written by Jay Bury, University of Missouri student. This was the winning submission of the 2017 Stevens & McMillan $1,500 Scholarship award.