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

A hostile working environment can be a form of sexual harassment, which is illegal sex discrimination under Title VII federally and under the Fair Employment and Housing Act (FEHA) in California. However, many companies don’t know how to protect employees from sexual harassment and many people do not understand exactly what do and do not constitute a hostile work environment under the law, understandable given the complexities of legal matters. Importantly, hostile conduct does not necessarily need to be sexual in nature to be considered as creating a hostile work environment and thereby a form of unlawful sex discrimination. In fact, there are many cases where this idea has been upheld. If any of the following scenarios sound familiar to you, you may be a victim of sexual harassment. If so, consider speaking with a discrimination attorney to discuss your rights.

1. Gregory v. Daly
   In this case, After Theresa Gregory talked to a sexual harassment lawyer she alleged that her executive director subjected her to sexual ridicule, advances, and intimidation. Additionally, after she complained, he punished her further by undermining her ability to complete her work, depriving her of job duties and salary increases, and terminating her in the end. Initially, her case was dismissed due to the defense that the complaint was “nothing more than accusations of demeaning comments,” [internal quotes omitted] which essentially pointed to a lack of connection between the plaintiff’s sex and the hostile conduct. The Second Circuit Court of Appeals did not agree, however, saying that a work environment can be considered hostile (and thereby a form of sex discrimination) even when the conduct lacks a sexual component or explicit reference to the sex of the victim. They discussed the need to look at the entirety of the evidence and said that the “sex-based character of much of Daly’s behavior permits the inference that the remainder of his harassing conduct was also due to Gregory’s sex.” In other words, just because certain incidents in isolation might not appear to be sex-based discrimination, taken together, they can be inferred to be related to sex.
2. Smith v. Sheahan
   In Smith v. Sheahan, Valeria Smith was violently assaulted by a fellow guard, Ronald Gamble, at a county jail. This was preceded by unpleasantness towards his female colleagues generally. While Smith complained internally, little was done by the department to rectify the wrongs. Due to the inaction of the Sheriff’s Department after her complaints, after a free consultation with a discrimination attorney Smith filed a lawsuit for sex discrimination in the form of a hostile work environment under Title VII. The district court initially ruled that the harassing behaviors were too isolated to be considered sex discrimination under Title VII, but the Seventh Circuit disagreed. To show that Gamble’s actions were not random violence and were instead motivated by the sex of his victims, Smith presented “me too” evidence, providing affidavits from six other women at the county jail that showed Gamble’s pattern of offensive behavior with female coworkers. For instance, one woman described two incidents with Gamble, one when he made sexual comments about her body while scanning her at the jail’s entrance; when she objected to this, he became hostile and called her a “bitch,” and coworkers had to intervene to prevent escalation. In the other incident, Gamble made a demand without proper authorization and when refused, he again became hostile and called her a “bitch,” going so far as to threaten to “kick [her] ass.” Again, another officer had to intervene and try to calm down Gamble. While this incident was reported, nothing was done about it. Together, there were seven incidents where Gamble became verbally abusive and threatened physical assault, five of which were reported. When Smith filed a criminal complaint against Gamble and he was found guilty of criminal battery, the Sheriff’s Department promoted him. More than that, they effectively demoted Smith by transferring her to an undesirable position. Fortunately, the Seventh Circuit found that Gamble’s violent assault of Smith, even though it was not sexual assault, could qualify as an action that created a hostile work environment given the broader context of his patterned negative attitude towards women.
3. EEOC v. National Education Association, Alaska
   In a similar case, EEOC v. National Education Association- Alaska, the EEOC filed a case of sex discrimination on behalf of three women whose manager, Thomas Harvey, abused them daily. Harvey screamed at female staff with little or no provocation, often employing profane language and castigating them publicly. Additionally, he intimated the women physically by doing things like sneaking up on them to watch them work without reason and shaking his fists at them while within striking distance. They feared he might attack them. One woman described working with him as feeling like “working with a ticking time bomb” that “raises the hairs on your neck because you just don’t know what you’re going to get.” Moreover, although high up management officials knew about the harassing conduct, no action was taken to stop it and in fact, Harvey was actually promoted. Initially, the case was dismissed because the behavior was deemed to be not overtly sexual and thereby not sex-based harassment. As in the aforementioned cases, the Court of Appeals, this time the Ninth Circuit, disagreed. The Ninth Circuit said harassing behavior need not be motivated by lust or blatant misogyny to be considered unlawful sex discrimination. In this case, the conduct was targeted at women specifically and therefore can be considered discriminatory. Ultimately, the case was settled for $750,000 in damages and an agreement by the defendants to expunge plaintiffs’ negative employment records associated with the discrimination as well as provide annual training to all employees about how to address issues of discrimination. In these three cases, the final say was that nonsexual hostile conduct can still create a hostile work environment for women. Such conduct can include verbal abuse (e.g. calling women “bitches”), violence, and intimidation, among other things if the behavior is targeted at people because of their sex. Of course, sex discrimination can happen to men or women, as well as to non-binary people. In any case, it is a serious matter that needs to be addressed promptly. If you believe you have suffered from sex discrimination in the workplace, if you have been retaliated against for protesting such discrimination, reach out to a discrimination lawyer and figure out what your options are. You may be entitled to monetary damages.

Sometimes a good training can prevent sexual harassment or discrimination in the workplace

What does it take to transform a simply annoying work environment into a sexually harassing hostile work environment?

People usually asked

• What is a hostile work environment?
• What is a hostile work environment definition?
• Which of the following is a factor the courts consider when they determine whether a work environment is hostile or abusive?
• …

To answer this question, it is important to look at all of the circumstances together. Four primary factors are considered when looking at the totality of the circumstances. To your knowledge, these four factors are described in this article, although it is important to note that no single factor is required for a work environment to be deemed hostile. If you think you might have a claim for sex discrimination in the form of a hostile work environment, contact a discrimination attorney as soon as you can to figure out what you can do about your situation. 

Please look at the four primary factors:

• The frequency of discriminatory conduct
• The severity of discriminatory conduct
• Whether or not the conduct is physically threatening or humiliating or a mere offensive utterance
• Whether or not conduct unreasonably interferes with an employee’s work performance

Let’s start from the top of the list:

1. The frequency of discriminatory conduct

   
   Sometimes, work environments can be deemed hostile because of how pervasive the inappropriate behavior is. Incidents of abusive conduct have to be sufficiently concerted and continuous to be considered pervasive. An isolated inappropriate sexual remark made to a co-worker would not be enough to claim sexual harassment, for example, as was supported by the case, Clark County School District v. Breeden. There are several examples of cases where the plaintiff has not succeeded because the inappropriate behavior was not considered pervasive. In one case, Brennan v. Townsend & O’Leary Enterprises, Inc., the plaintiff alleged that there were four incidents that occurred over four years involving three different employees, and two of the incidents were at Christmas parties that were off of work property. In this case, it was ruled that the evidence did not constitute a concerted pattern of harassment. On the other hand, in Hostetler v. Quality Dining, Inc., only three incidents were considered enough to create a hostile environment. However, in that case, all three incidents happened in one week and included a forced French kiss, a crass comment, and an attempt to unfasten the plaintiff’s bra. While frequency is an important factor to consider, sometimes a single incident is sufficient to establish a hostile environment claim. However, in those cases, the incident must be quite severe.

2. The severity of discriminatory conduct

   
   Severity is one of the other four primary factors that must be considered in hostile environment claims. As mentioned, a single incident can show a hostile environment if it is very severe. For example, physical groping qualified in the case of Myers v. Trendwest Resorts. Physical assault or the threat of physical assault can also be sufficient in isolation, as seen in Hughes v. Pair. In cases like those, the employer can be held liable if their response does not quickly and effectively eliminate the problem (e.g. removing the harasser from the workplace). For example, a single incident of sexual assault followed by inaction on the part of the employer can mean trouble for that employer, as seen in Doe v. Capital Cities and Lockard v. Pizza Hut, Inc. This can be true even when the assaulter is not an employee. Employers can be held liable for their conduct following severe harassment by a third party, such as a client. This was the case in Little v. Windermere Relocation: an employee was drugged and raped by a client and when the employer found out, he cut her pay and told her to move on and clean out her desk after she protested the pay reduction. The plaintiff claimed her employer had made the work environment hostile with his reaction, and the Ninth Circuit agreed with the logic of her argument that the employer’s response following a single, severe incident can be grounds for a hostile work environment claim. In general, the more pervasive the conduct, the less severe it has to be, and the more severe the conduct, the less pervasive it has to be, to be considered a hostile environment. 

3. Whether or not the conduct is physically threatening or humiliating or a mere offensive utterance

   
   In claims of a hostile working environment, it can be helpful for a plaintiff to show that there was some sort of negative effect on their psychological well-being, which could be produced by a physical threat, for example. While this kind of evidence of psychological injury is relevant and helpful, it is not necessary for a plaintiff to demonstrate that they suffered a psychological injury as a result of the sexual harassment. This was upheld in Harris v. Forklift Systems, Inc.

4. Whether or not conduct unreasonably interferes with an employee’s work performance

   
   Lastly, it is important to consider if the harasser’s abusive conduct was so severe or pervasive that it actually altered the work environment. In one case, Westendorf v. West Coast Contractors of Nevada, Inc., the plaintiff alleged a violation of Title VII based on her supervisor’s sexual remarks to her at work on four occasions over a three-month period. For example, he told her that she needed to clean a trailer in a French maid uniform and asked if women “got off” using a specific type of tampon. She was also asked by the supervisor and another co-worker if she was intimidated by another woman’s breast size, a woman they called “Double D.” The court decided that these remarks were not severe or pervasive enough to alter the plaintiff’s terms of employment under Title VII. A similar case came to the same conclusion but under California’s Fair Employment and Housing Act (FEHA). In this case, McCoy v. Pacific Maritime Association, the plaintiff’s coworkers made offensive and inappropriate remarks in her presence fewer than ten times across four months. These incidents included shouting and calling the plaintiff “stupid,” making crass comments about female employees’ buttocks, and making crude gestures towards an employee once her back was turned. The court decided that the comments, which were not generally directed at the plaintiff, were not so severe or pervasive that they changed the conditions of her employment.
   Every situation is different and has its own nuances. Sometimes, one court will disagree with another on the facts or legal standards to employ in a given case. For that reason, it is very important when considering litigation for sex discrimination to speak with an experienced employment attorney or consult with a professional sexual harassment lawyer who can navigate the common pitfalls and obstacles posed by such cases and give you a better chance at getting justice.

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Can an employer force you to resign? or is it legal for an employer to force you to quit?

If your boss fires you for an illegal reason, you can assume you should call a wrongful termination attorney to discuss a potential suit against the organization for wrongful termination at the very least, but what if you were forced to resign? Being “forced to quit” or “forced to resign” at first blush sounds a bit out of the ordinary. What does it mean to be forced out of your position, and if you were forced out, do you still have a claim against your ex-employer?  Usually, if an employee finds themselves in this kind of situation, he or she may bring a claim for wrongful termination and or breach of employment contract which came out of an employee’s forced resignation.  Below are five things you may not have known about being forced to quit.
 

• Being forced out of your job is an actual thing
• Were you pressured into quitting or resigning?
• It’s based on an objective standard
• Where is the line drawn?
• “I quit” doesn’t necessarily mean no claim

Let’s start from the top:
 

1.  Being forced to resign and out of your job is an actual thing

 
                Being squeezed out of your employment by your employer is a thing; it’s called “constructive discharge.”  Constructive discharge arises in situations where an employer actively tries to make the particular employee’s employment so unbearable that they are forced to resign or retire, which may be a reason to sue for wrongful termination and or breach of their employment contract. 
 
                In order to pursue a claim against an employer for construct discharge, an employee would need to prove it is more likely than not that their employer purposely made the employee’s work conditions unbearable or the employer knew the conditions were unbearable and did nothing to cease further occurrences.  Again, this is something a wrongful termination lawyer should analyze in order to decide whether there is a potential claim.

2. Were you pressured into quitting or resigning?

                What factors are taken into account in deciding if an employee really was constructively discharged? Although not an exhaustive list, there are certain features an Employment Attorney will consider in deciding if an employee was constructively discharged.  The features include a reduction in rank, a decrease in pay, a decrease in job responsibilities, harassment, including sexual harassment or harassment based on a protected class, and causing extreme humiliation, all of which amounts to forcing the employee to quit.
 
 

3. It’s based on an objective standard

 
                In deciding whether an employee was constructively discharged, the behavior of the employer is observed from an objective standpoint, not subjective. This means the employer’s acts are judged based on what a reasonable employee in that particular position would have found to be intolerable work conditions, not what the particular individual may find to be unbearable. The rationale is to avoid the allowance of overly sensitive employees to make claims but it also does not allow employers to escape a forced resignation lawsuit even if a particular employee is more tolerant than most.
 
                Keep in mind that in applying the objective view, even if the reasonable employee would find certain treatment to be upsetting or disappointing, those feelings are not enough to amount to an unbearable work environment.
 
                An employment lawyer will be able to apply the reasonable person standard to your situation and tell you if a reasonable employee would likely find the circumstances unbearable.

4.  Where is the line drawn?

                “Intolerable” or “unbearable” working environments are usually measured by how often the acts in question occur. For example,  the more frequent the conduct or harassment, the more likely it is considered insufferable. Also, employment law will likely classify a work situation as “intolerable” if it is abnormally antagonized. For example, Pam worked at a retirement home as a nurse. For several months, her boss had been continuously transferring her to different positions, placing her under the supervision of other employees who were less qualified than she was and also much younger.

Often, her boss would violently scream and torment her in front of other employees to the point where she could not get her work done because it was so distracting. Finally, Pam was forced to resign from her position because the constant disruption of being transferred as well as harassed daily was intolerable. Here, because the acts were continuous over an extended period of time, Pam’s Labor Attorney may be able to file suit against her employer for constructive discharge.
 
 

5.  “I quit” doesn’t necessarily mean no claim

                It would seem rational to assume that if an employee quits their job, they can’t turn around and sue their boss but that’s not always the case.  An employee quitting may be the end result of their employer’s behavior towards him or her in the workplace. If an employee decides to quit or resign due to the way in which they have been treated by their employer, under the forced resignation law the resignation may be classified as a termination. For example, George, an agent at a real estate company made a complaint to his boss about illegal practices conducted by the company. After he made the complaint, George was demoted to a lower-paying position and was forced to move his desk into the break room.

This put George at an extreme disadvantage on many levels, and above all, he felt humiliated, ultimately leading him to quit. Here, George was entitled to make a complaint about illegal practices at the workplace. Therefore, the demotion and moving his desk to the break room may all be forms of retaliation. George may also show he was constructively discharged because he was subjected to the demotion and lower pay, and his demotion was put on display for the whole agency to see in the break room. A discrimination attorney may be able to decipher whether George has a claim against his employer.
 
                Although it seems like an employee may not have a claim against their employer because they quit their job, depending on the circumstances he or she may be classified as “fired” regardless. If the employer subjected the employee to an unbearable work environment, the employee must consult a legal professional.  An employee who suspects they are heading toward constructive discharge should contact an employment attorney to discuss the facts of their case.

Can a company make you resign in California? or what is it called when you are forced to quit your job?

Can a company force you to resign? California law recognizes constructive firing (also known as constructive discharge or constructive dismissal). This is when an employer creates or knowingly allows such inhospitable conditions for employees that the worker feels no choice but to resign.

What should you do if you have to resign?

These are the steps you should take if your company made you resign.

1. Take a look at the alternatives. …
2. Ask about the options. …
3. Ask if you can renegotiate your resignation. …
4. Understand your benefits. …
5. Get a recommendation. …
6. Consider the situation an opportunity. …
7. Find out if a claim can be made.

What can I do to make my boss resign?

An employer may request that an employee resign voluntarily rather than being terminated. … Companies cannot force employees to quit. A company that is trying to avoid firing an employee can make it difficult for the employee to stay in their current job in the hope that the employee will eventually leave.

If you resign, can you sue for constructive disqualification?

If an employee resigns because their employer has seriously violated their employment contract, they can file a constructive dismissal claim. Examples include not receiving the agreed amount of pay without good cause.

How can you prove forced resignation?

Reports from co-workers about instances in which you were discriminated against because of the behavior of certain employees or your employer are one of the best forms of evidence.

Is forced resignation equivalent to being fired?

The employee decides to quit his or her job. This is often called quitting. The employer may terminate the employment. This is also known as being fired, terminated, or laid off.

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What is considered an invasion of privacy in the workplace?

People usually ask:

• Can I sue my employer for breach of privacy?
• What constitutes a violation of privacy?
• What can I do if my privacy is invaded at work?
• Do employees have a right to privacy in the workplace?
• What is the penalty for violating the Privacy Act?
• What is an example of a violation of privacy?

Unlike other states, California has a special protection of privacy written into its constitution, which says citizens have certain inalienable rights, including “pursuing and obtaining safety, happiness, and privacy.” Different statutes also provide specific privacy protections for California employees. For instance, employers cannot demote, suspend, or terminate employees for participating in conduct that is not illegal during off-duty hours (given that the behavior occurs away from the place of work). Employees have the right to sue employers for violating reasonable expectations of privacy, as measured by objective and widely accepted social norms.  This article describes a few of the ways in which employers are not allowed to invade the privacy of their employees. If you find that your legal rights in the workplace are being violated, it is a good idea to consult with an employment attorney, as the law can be complex and difficult to navigate for people who are not experts.

3 Examples of Invasions of Privacy in the Workplace:

• Drug testing in some cases
• The imposition of medical exams or questions about medical information
• Invasions of privacy related to social media

Let’s start from the top of the list:

1. Drug testing in some cases

Job applicants can be drug tested once they have received conditional offers, as long as they are all drug tested and it is not an issue of discrimination. For instance, an employer who only obliges African American applicants to take drug tests as a condition of employment would be in blatant violation of federal and state discrimination laws. For most jobs, random drug testing of current employees is typically considered unreasonable. Exceptions, of course, do exist and include employees who work in safety or security-sensitive roles. Employers who have reasonable suspicions about illicit drug use can do a drug test; it is random ones that are unannounced and not previously consented to that are most problematic. If you talk to a discrimination lawyer you will find out that Employers should have written policies about drug testing, which can be important to set employee expectations (recall that it is illegal for employers to violate their employees’ reasonable expectations of privacy).

2. The imposition of medical exams or questions about medical information

            Employers are not allowed to discriminate based on a medical condition or disability status. To this end, they generally cannot oblige employees to disclose the medications they are taking or to provide information about the internal state of their bodies. Generally speaking, employers cannot ask job applicants to reveal confidential medical information or to submit to medical examinations. However, once a job offer is made, an employer can make it conditional upon you passing a job-related medical examination (e.g. a fitness test for a firefighter that assesses specifically job-related duties). Of course, that means all entering employees in that kind of position must be required to do the same. One person cannot be singled out due to the employer’s belief that they have a disability, as that would be illegal discrimination. Additionally, even if a disability is revealed during such a medical exam, if the individual can perform the essential functions of the job with a reasonable accommodation (one that does not pose an undue hardship on the employer) then the employer cannot refuse to hire them. 

Moreover, medical records that an employer might have about employees for health insurance claims, workers’ compensation claims, or disability or medical leaves must be kept confidential. Your boss cannot go around telling all your coworkers that you have diabetes, for instance, if you only told your boss because you needed to take leave because of it and do not want that information shared with others. It is best for employers to keep medical documents separate from personnel files and kept in a secure location that only designated staff members can access.

A professional discrimination attorney can help you stop discriminating based on a medical condition or disability status

3. Invasions of privacy related to social media

            With the pervasiveness of social media in today’s world, it is likely no surprise that privacy concerns can be a huge issue for people who use it. Most employees do not want their bosses snooping on their social media accounts. Where else would they complain about their micromanaging and silly habits? To help address this issue, California enacted Labor Code Section 980 in 2013. Generally, it limits employers from accessing employee social media. The law bars employers from asking or demanding that an employee or job applicant do a few different things. For example, your boss cannot request or order that you tell them your username or password so they can access your personal social media.

Your boss also cannot require you to access your social media accounts in their presence (they don’t need to see that you complained about them twice last week!). Employers also cannot retaliate against an employee for refusing access to personal social media. However, employees who do not want their employers looking at their information online should ensure that their privacy settings hide their information from people whom they have not explicitly granted access to (e.g. Facebook friends).  

A related issue that comes up in the context of discrimination is employers using social media and having access to information that they are not legally permitted to use in the hiring process, like age/race/sex. Wittingly or unwittingly, people who make hiring decisions may discriminate against people based on membership in protected categories if they look up the social media profiles of applicants. Even if only your profile picture is available to the public, that can still tell employers your approximate age, gender, and race, which could bias their decisions. To avoid this problem, employers should employ a hiring system that erases the problem. For instance, a third party could be asked to look up the social media profiles of applicants and scrub all the details about things employers are not allowed to ask of applicants and then give only the relevant details to the person or people making hiring decisions.

            Do any of these situations sound familiar to you? If so, you may be a victim of a workplace privacy violation. If you think your reasonable expectations of privacy in the workplace have been violated or you have been wronged at work in some other way (e.g. discriminated against, sexually harassed, or retaliated against for protected activity), you may want to contact a labor attorney to see what you might be able to do about your situation.   

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

The Supreme Court will soon be deciding on a matter very personal to people who are part of, or allies of, the LGBT (or LGBTQIA+) community. The major issue they are expected to rule on in three upcoming cases is the protection of gay and transgender people against discrimination in the workplace. Specifically, the issue concerns the meaning and implications of the word “sex” in Title VII of the Civil Rights Act of 1964, which protects certain classes, including race, color, religion, sex, and national origin, from discrimination in employment practices: does discrimination against workers based on their LBGT-status qualify as discrimination based on sex?

According to the Public Religion Research Institute (PRRI), nearly 70% of Americans support broad legal protections against discrimination for lesbian, gay, bisexual, and transgender people. Furthermore, a Quinnipiac University national poll in April 2019 revealed that 92% of American voters think employers should be prohibited from firing people due to their sexual orientation or gender identity. On the other hand, according to a recent Reuters/Ipsos poll, nearly half (45%) of Americans incorrectly think federal protections against discrimination already exist for the LGBT community. The lack of awareness hurts this cause that, evidently, the majority of Americans care about. Perhaps some of the confusion among the general public comes from the differences in state and federal laws, as well as the conflicting viewpoints presented by different federal authorities.

While the Equal Employment Opportunity Commission (EEOC) has declared that Title VII does guarantee protections to gay and transgender people, the Department of Justice has stated the opposite, leaving only state laws to provide protections against LGBT discrimination. In states like California, LGBT workers do not have as much to worry about because they are legally protected from discrimination on the basis of sexual orientation, gender identity, and gender expression, but in 28 states, there are no statewide laws at all that prohibit discrimination based on sexual orientation or gender identity in employment, housing, or public accommodations. This means, for instance, that many employers can fire workers just for being gay. Hence, the implications of these three upcoming Supreme Court cases are far-flung and greatly significant to workers across the nation.

One of the cases that will be heard is Altitude Express Inc. v. Zarda, which concerns protections for the LGB part of the LGBT community, or the protection against workplace discrimination based on sexual orientation. Donald Zarda worked as a skydiving instructor at Altitude Express in Long Island, New York. Following him trying to reassure a female client about being strapped tightly to him during a tandem dive by telling her he was “100 percent gay,” Zarda was fired. His claim was that he was fired because he was gay and did not conform to the “straight male macho stereotype.” While Zarda lost initial rounds and then tragically died in a base diving accident in 2014, his estate pursued his case. The latest decision on it by the Second Circuit was in favor of sexual orientation is a protected characteristic under Title VII, as it is covered under the term “sex.” The court used the landmark sex stereotyping case Price Waterhouse v. Hopkins as precedent; in that case, it was ruled that Title VII prohibits employers from discriminating against people because of non-conformity to sex stereotypes (e.g. a woman must not be aggressive or a man must be macho).  

Also concerning protection from employment discrimination based on sexual orientation, the case of Bostock v. Clayton County will soon be heard alongside Zarda’s case. Gerald Lynn Bostock worked as a child welfare services coordinator for the Georgia county for ten years. Then, he joined a gay recreational softball league and was criticized at work in front of his supervisor for his participation in it as well as his sexual identity in general. Bostock was promptly fired by Clayton County for “conduct unbecoming of its employees.” He filed with the EEOC for discrimination under Title VII for being fired because of his sexual orientation. Unlike the other two cases that will be heard with it, the latest decision on Bostock’s case was against the plaintiff, as the Eleventh Circuit approved of the lower court’s dismissal of Bostock’s Title VII claims.

The last case that will be heard concerning LGBT employment discrimination issues is R.G. and G.R. Harris Funeral Homes v. EEOC and Aimee Stephens. Stephens worked as a funeral director for R.G. and G.R. Harris Funeral Homes in Michigan for six years and had an excellent work record. For most of her adult life, Stephens considered herself a transgender woman, but throughout most of her employment as a funeral director, she lived and presented to others as a man. The disparity caused her significant emotional distress, so in 2013 she decided to come out to friends and family that she was transgender, and she planned to soon undergo reassignment surgery. Stephens was fired promptly after informing her employer she would be transitioning from male to female. The EEOC, on her behalf, filed for sex discrimination under Title VII and the latest decision, made by the Sixth Circuit, ruled that the termination based on her transgender status did qualify as sex discrimination and thereby violated Title VII. When the Supreme Court hears the case, they will be answering the question of whether or not Title VII prohibits discrimination against transgender employees on the basis of either their status as transgender or sex stereotyping under Price Waterhouse v. Hopkins.

The Supreme Court will begin hearing these cases on October 7^th, 2019. Of course, no one can say for sure what the Supreme Court will decide. Some worry that the conservative-leaning court will rule against LGBT anti-discrimination protections. However, it seems that the majority of Americans, across party and demographic divides, are on the side of LGBT workers’ rights in this matter. Perhaps the Court will be, too.  

For more information about employment discrimination based on sexual orientation or gender identity or expression, contact a discrimination attorney.