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

What Do You Know About Pregnancy Discrimination?

It is no secret that pregnancy, while often a blessing, can also be a burden. This is often most true in the context of employment. While there are legal protections prohibiting pregnancy discrimination in many ways, there are still many victims, some who never even realize they were discriminated against. To raise some awareness of what forms pregnancy discrimination can take and help women understand their rights, here is a list of some of the possibly lesser known facts related to pregnancy discrimination.

Lets start from the top:

1- People with pregnancy potential are protected

You likely know that generally speaking, employers cannot refuse to hire women because they are currently pregnant. However, it may be surprising to learn that it is also illegal to refuse to hire a woman because she might become pregnant in the future. Perhaps this makes sense if you understand that pregnancy discrimination is legally considered a form of sex discrimination. If it were not illegal, employers would be free to refuse to hire most women, citing their potential to become pregnant. Really, then, this protects many more women than just pregnant women. What might an example of this form of employment discrimination look like? Let’s see:
Phoebe is a young woman looking for a job in marketing. At one agency, she gets an interview based on her credentials. When she goes in, she is excited initially, but it dampens at some of the questions being asked. She is asked whether or not she has kids at home, which she says no to. Then, she is asked if she plans to do “the family thing” any time soon. She is not sure how to respond to this, so Phoebe just says she is not sure. She is not hired. Disgruntled by the family questions at her interview, Phoebe later looks into the hiring practices of the marketing agency and notices that young men outnumber young women nine to one. She suspects this may qualify as sex discrimination and contacts a discrimination attorney.
Here, Phoebe is adept at seeing the signs of discrimination against women, which seems solely based on a different biological potential between men and women- that is, the ability to get pregnant. Many employers are biased against people they believe will need to take time off for pregnancy and sometimes this bias is so extreme that discrimination will extend not just to pregnant women, but to all women of child-bearing age. Phoebe’s interviewer should not be asking questions about children, current or future, as that is prohibited by state law.

2- Some pregnancies demand protection from disability discrimination

While pregnancy in and of itself is not necessarily considered a disability, sometimes pregnancies are complicated and can result in conditions that are considered disabilities. Legally speaking, disabilities have to limit major life activity. In such cases, employers are required to treat the woman suffering as they would any other person with a disability, which means they are obligated to make reasonable accommodations. A reasonable accommodation is just a change to the employee’s work environment that allows the employee to perform the essential job duties. Sometimes this can entail a leave of absence for up to four months. Moreover, pregnancy leave is unique in that it applies to all female employees of covered employers, which includes employees who are part-time or were recently hired. Examples of conditions related to pregnancy that might be deemed disabling include severe morning sickness, gestational diabetes, preeclampsia, post-partum depression, loss or end of pregnancy, and recovery from loss or end of pregnancy, among others.

3- Breastfeeding /pumping time must be allowed

Employers are obligated to provide lactation breaks, or time for recently pregnant women to express milk by pumping or breastfeeding, as long as the breaks would not seriously interrupt business operations. A specific amount of time is not specified, but it must be reasonable. This means it has to take into account more than just the actual time spent expressing milk; it must also consider a number of breaks needed, the time it takes to get to and from the lactation space, any wait time for the lactation space, and the time it takes to set up and later clean up and store the milk, among other things. Lactation breaks can be taken during normally paid breaks or during unpaid extra breaks. Additionally, as you might have assumed, employers must try to provide employees with a private area for lactation breaks (one that is not a toilet stall). This place can be the employee’s office if it fulfills the requirements (e.g. is private).
While discriminating against a woman because of her need to breastfeed, pump, or treat medical conditions related to breastfeeding is illegal, it does occasionally happen. An example may help illustrate what that could look like:
Blossom recently gave birth and is back at work. However, she is still breastfeeding her new baby and needs time during the workday to pump. Her employer allows her to use a room down the hall for this and, in that room, there is a small fridge in which she can store breast milk. During Blossom’s first week back, she is told four jokes about breastfeeding and breast milk by her coworkers, who are mostly male. Blossom tells them to cut it out, but they don’t take her seriously, so she files an official complaint about it. Unfortunately, the complaint does not amount to any resolution and the jokes continue.
In this scenario, Blossom is being harassed because she is breastfeeding, which is considered unlawful pregnancy, or sex-based, discrimination. In fact, even more, employers are liable for workplace harassment than for discrimination (not all employers are subject to discrimination law). If she wanted to, Blossom could file a lawsuit against her employer.

4- Medical benefits during maternity leave must remain

During pregnancy disability leave and family leaves of absence (e.g. time to bond with the new child), your medical benefits should be the same as they were before. Employers are not legally allowed to change the contribution rates during such time off. Moreover, it is illegal for employers to make new requirements for a woman returning from pregnancy-related time off to receive benefits. Were that allowed, employers could retaliate against women for taking maternity leave.

Laws relating to pregnancy discrimination can be quite complicated, and this list touches only on a few. If you think you may have been discriminated against based on your sex, pregnancy, or other protected characteristic, you should contact a Pregnancy Discrimination Attorney to discuss your rights and find a solution.

Many people are excited at the prospect of a new job, and most do not predict it will lead to anything but income and perhaps some satisfaction at work well done. People do not usually expect for their employment to lead to litigation. However, as any employment lawyer could attest to, sometimes the unexpected happens and a lawsuit becomes the best chance at justice. When employers violate the rights of their employees, they open themselves up to potentially severe legal repercussions. Of course, even the most sincere, wronged employees might not win their case if they cannot provide evidence for their claims. For that reason, it is vitally important to get things in writing whenever possible. The following list provides some of the best reasons to do this, and the accompanying examples should demonstrate the potential significance of the advice.

1. Written complaints go a long way
   When something objectionable happens in the workplace, such as discrimination or sexual harassment, the number one thing employees can do to protect themselves from it happening again is to file a formal complaint. Employers should have policies laying out how to navigate the complaint process, and they must have a way to go around the immediate supervisor in case that person is the problem. Of course, the hope is that an official grievance will lead to a satisfactory resolution, but when that is not the case, the written complaint will serve as evidence that the employee notified the employer, meaning the employer can be held responsible for not addressing the issue. The following example illustrates this idea:
   Kyle works for a paper company. His supervisor, Thomas, has always been a little inappropriate at work. One day, Thomas makes a sexually explicit joke about Kyle’s fiancée. Kyle does not find this funny and lets Thomas know, but Kyle’s reaction seems to encourage Thomas’ behavior. Kyle files a formal complaint with human resources about these jokes. A human resources employee speaks with Thomas, but his behavior does not change. Kyle talked to a sexual harassment lawyer and files another complaint and, again, Kyle continues to suffer Thomas’ crude jokes as nothing changes. Kyle hired a sexual harassment attorney and files a sexual harassment lawsuit against the paper company and his multiple written complaints help convince the judge that the company is liable.
   Also important to note is that, though it may seem intimidating to file a complaint at work, employers cannot legally retaliate against an employee for doing so. If an employee is fired for making a complaint in good faith, the employer can be sued for wrongful termination. In these cases, it is clear how the written complaint is useful for the wronged employee.
2. Contracts can be oral but they probably shouldn’t be
   When being hired for a new job, employees should generally try to make sure that their employment contract is in writing. This practice is so common that many people may not know that contracts not in writing can actually be legally binding. However, oral or other unwritten contracts can and do occur. Of course, they are much more difficult to manage when it comes to breaches of contract. While not impossible to sue for breach of contract with a non-written contract, it is much easier, legally speaking, to win a breach of contract as an employee when the contract was written. An example of this can help demonstrate the significance:
   Rosalie works as an internal decorator. She decides to take on a new client who wants their new house decorated in a particular style. Rosalie consults with an employment attorney and writes up a contract that specifies the terms of their agreement, including the kind of work she will do and the payment she will receive. Her employer, Kris, signs the contract and Rosalie begins working. Rosalie begins to decorate the place in the requested rustic style. However, Kris tells her he has changed his mind, that he wants it decorated in a modern style. Rosalie has already done significant work in the rustic style and lets Kris know that it is too late to change his mind. Kris is angry but allows Rosalie to finish. However, he then refuses to pay Rosalie because he claims she did not do what they had agreed upon. Rosalie speaks with an employment lawyer and ultimately, Kris is required to pay Rosalie for her work thanks to the terms of their written contract.
3. Emails summarizing important meetings might be even more important later
   Another good habit for employees to get into is to recap oral meetings via email so that there is no confusion later about what was said. This habit can come in handy in the event of disputes, like in the following example:
   Valencia just exited a meeting with her boss, wherein she was congratulated for being a good leader and handling conflicts professionally. Valencia immediately sends an email to her boss, recapping what they discussed, including that she should continue to handle conflicts in her department as she had been doing, by following formal procedures. Months later, Valencia talked to a professional wrongful termination lawyer then she is in the midst of a lawsuit against her employer for wrongfully terminating her after she notified authorities of illegal activity her company was engaging in, namely fraud. The defense tries to say that she was fired not for whistle-blowing, but for being too aggressive with her subordinates during conflicts. The defense points to the incident that precipitated that meeting she and her boss had months ago, claiming that she was reprimanded for being too aggressive in conflict resolution. Valencia does not recall this and checks her records to see what really happened. Fortunately, she has a record of that email sent to her boss after the meeting noting that she was handling conflicts well, and the defense’s argument fails to convince anyone.

These are just a few of the reasons to get things in writing when it comes to work. Hopefully, the notes and emails and complaints will never need to be used as evidence in a lawsuit, but in case the unthinkable does happen, these written records may prove to be extremely valuable. For anyone who has been wronged by an employer in some way, whether through breach of contract, discrimination, wrongful termination, or something else, an experienced labor attorney can help.

While most whistleblower cases do not make headlines, some of them do because of the scope of wrongdoing found or the fame of the businesses or people involved. Whistleblower laws protecting people who report wrongdoing from retaliation are critical to ensuring that citizens concerned with truth and justice continue to come forward to expose unethical and illegal activity that harms the public. Here are some of the most famous whistleblowers who have effected positive change in the United States.

• Jeffrey Wigand
  Jeffrey Wigand was the Vice President of research and development at Brown & Williamson Tobacco Co., the nation’s third-largest tobacco company. Given his position, Wigand had important access to the production goals and scientific data of the company. He was fired subsequent to arguments with the CEO about tobacco ingredients. Then, on February 4, 1996, he appeared on the show 60 Minutes and declared that Brown & Williamson had intentionally changed its tobacco blend to make their cigarettes more addictive, which was shocking at the time and concurrent with top tobacco executives testifying to Congress that cigarettes were not addictive. Moreover, Wigand alleged that he was fired because of this knowledge. Unfortunately, he was only punished further after actually exposing Big Tobacco, as he had to contend with a smear campaign, unfounded lawsuits, and ensuing family troubles, not to mention death threats. Wigand is now credited with being the most important witness in successful tobacco reform lawsuits and his story was portrayed in the film The Insider. Since blowing the whistle (or, as he prefers to see it, telling the truth), Wigand has been trying to reduce the number of young people using tobacco through his non-profit, Smoke-Free Kids, and seems pleased with the positive influence he has had on so many people.
• Sherron Watkins and Cynthia Cooper
  Like Wigand, Sherron Watkins was a Vice President at a big company, Enron Corporation. She testified before the U.S. House of Representatives and the Senate regarding her ignored warnings to Enron’s CEO at the time, Kenneth Lay, about accounting inconsistencies in financial statements and ultimately exposed serious corporate misconduct.
  Similarly, Cynthia Cooper exposed significant corporate misconduct when she told the board of WorldCom that the company had covered up $3.8 billion in losses by falsifying the bookkeeping. Both Watkins and Cooper paved the way for corporate law reform, including several laws regulating large corporations and bolstering protections for corporate whistleblowers. In recognition of their efforts and impact, Time magazine named them People of the Year in 2002.
• Colleen Rowley
  Colleen Rowley was also awarded Person of the Year in 2002 for her actions exposing FBI mishandling of information regarding the 9/11 attacks. Rowley testified to the Senate about huge problems facing the FBI and the intelligence community in general. Specifically, she brought to light how mishandled information and failure to take action regarding a suspected terrorist may have left the U.S. vulnerable to the 9/11 attacks the year before. Her testimony led to a major reorganization in the FBI. Since then, she has permanently retired from the FBI after 24 years of service, has run for political office, and has spoken publicly about ethical decision-making in her writing and blogging.
• Mark Felt AKA “Deep Throat”
  Mark Felt, known for a long time as simply “Deep Throat” to maintain anonymity, was instrumental in unearthing the Watergate scandal that brought Nixon’s presidency crashing down. The scandal started when Felt was the Associate Director of the FBI with five men being arrested for breaking into the Democratic National Committee headquarters. Felt leaked classified information to Washington Post reporters Bob Woodward and Carl Bernstein that described how the Nixon Administration was involved and how they covered it up. This ultimately resulted in Nixon’s resignation. Felt’s identity remained secret for 30 years until his daughter convinced him to reveal his identity to the world when he was in his 90s. Felt published two memoirs, The FBI Pyramid and A G-Man’s Life. The FBI released his personnel file in 2012, several years after his death.
• Frank Serpico
  Frank Serpico is famous for exposing pervasive, systematic police corruption within the NYPD (and for being played by Al Pacino in the 1973 film Serpico). Initially, Serpico reported internally to police investigators, but then reported to the New York Times. Following that, the mayor ordered an investigation of police corruption, which ultimately led to huge changes within the NYPD. Not long after the news of corruption broke, Serpico was shot in the face under suspicious circumstances that led some to believe his colleagues wanted him dead. There was never a formal investigation, however. Serpico later spoke about people who seek truth and justice “even in the face of great personal risk,” calling them “lamp lighters” instead of whistleblowers. In 2017, he stood up for Colin Kaepernick, who was protesting a culture of police brutality, and said, “I am here to support anyone who has the courage to stand up against injustice and oppression anywhere in this country and the world.”
• Bunnatine “Bunny” Greenhouse
  Bunnatine “Bunny” Greenhouse was a chief contracting officer for the U.S. Army Corps of Engineers. She exposed fraud and abuse related to Kellogg Brown & Root’s self-dealing, as she strongly objected to the secret contract that would grant KBR a five-year no-bid contract, a no-competition contract as the invasion of Iraq was about to begin. Her objection was ignored, and later Greenhouse agreed to testify before the Senate about the corrupt contracting environment. Right before she did, the Army Corps warned her against it, but she was undeterred and went on to discuss the abuse relating to the Restore Iraqi Oil contract awards. This testimony led to legislation prohibiting such abuse and the Army declared they would not award any more “Sweetheart Contracts to KBR.” The Army Corps then retaliated against Greenhouse by removing her from her position and taking away her top-secret security clearance, as well as giving her unwarranted negative performance reviews and taking other adverse employment actions. Greenhouse hired a wrongful termination lawyer and filed a lawsuit alleging racial and gender discrimination in addition to unlawful retaliation and eventually, in 2011, settled for $970,000 to cover lost wages, compensatory damages, and attorney’s fees. She hopes for better protections for federal worker whistleblowers, saying that “integrity in government is not an option, but an obligation.”

Evidently, sometimes exposing unethical or illegal behavior can be met with significant challenges, but it can also have a big impact on the world. Employees who are not sure about their protection under the law should contact an employment attorney to discuss the details of their situation. Moreover, those who have been retaliated against for protected activity should talk to an employment lawyer to figure out how they can get restitution.

While individuals who serve in the military often make great sacrifices for their country, many people do not seem to understand or appreciate their service. Oftentimes, veterans struggle to readjust to civilian life, which is only made harder by being discriminated against in the employment sphere. Fortunately, the law is on your side if you are a veteran returning to civilian employment life. In California, veteran status is a protected class under the Fair Employment and Housing Act (FEHA) and consequently, veterans are afforded the same anti-discrimination protections afforded to people who may suffer from discrimination based on their race or color, sex or sexual orientation, national origin, or age, among other characteristics. For employers, this means being attentive to potential discrimination red flags in the workplace. For veteran employees, understanding your rights is the key to being able to defend them. For those who find the following examples familiar and believe an employer to have discriminated against you, contact an employment attorney to discuss your options.

1. Refusal to hire based on actual or perceived military status or affiliation

   
   Under FEHA, an employer cannot refuse to hire someone due to belief or knowledge that the person is a veteran or member of the military, or even that the person is associated with a veteran or member of the military. Personal biases do, however, make their appearance when it comes to some employers, and that can lead to an otherwise qualified veteran being unemployed. Beyond the moral implications of that kind of behavior, it is important to think about the legal ramifications. Employers can get into a lot of trouble for refusing to hire veterans, as they should. However, sometimes it can be difficult to prove discrimination in hiring. Moreover, sometimes people do not even realize they are being discriminated against. Let’s take a look at an example to get a sense of what a discrimination case of this nature might look like:
   Pedro was just honorably discharged from the military and is now looking for a job in the San Francisco area. One job he applies to invites him for an interview. During this interview, he feels everything is going well for a while and his interviewer, Darla, even tells him he seems like a great fit for their workplace. However, when Pedro mentions something about being in the Middle East, his interviewer is curious about what brought him over there. Pedro tells her he was deployed there. When he says this, Darla seems surprised. Soon, they finish the interview. Afterward, Darla reports to the manager about the applicants they have had, and she insists she likes Pedro best, noting that he was a veteran. The manager, Louis, tells her not to hire him because “those military guys can be a real handful,” and he alludes to problems like PTSD that many veterans face.
   Here, Darla could report her manager for discriminating against Pedro based on his veteran status. She might be too scared to report Louis, but reporting criminal violations is a legally protected act and it is illegal for Louis to retaliate against her for doing so. If Pedro suspected anything, he could also sue Louis, but it is difficult for him to know that he is not being hired because he served in the military. From his perspective, it could be any number of things. He did not hear what went on behind closed doors. Unfortunately, sometimes that does happen. Ambiguity in discrimination cases is jumped on by defendants but even circumstantial evidence can be very helpful for the victims to use against them.

2. Denial of accrued benefits like vacation time

   
   Employers must treat employees in similar positions the same when it comes to compensation or terms, conditions, or privileges of employment. They cannot treat employees differently in these ways based on veteran status. An example illustrates how an employer might discriminate in this way:
   Leah recently returned to civilian life after serving as a medical doctor in the military. She plans to return to work in the hospital she was employed in before her service. She reapplies promptly and is rehired because she is protected under federal law for reemployment. A few months after returning to this job, Leah’s significant other proposes to her and she accepts. They decide to plan for a simple wedding at home and a honeymoon in Hawaii. When Leah requests to use the vacation time that she accrued with the hospital over the four years she served, her boss tells her she cannot take time off work “again” until after she has been back for longer. Leah does not know that the law requires her to have the same vacation time she would have had if she had not served in the military and had continuously been employed by her civilian employer. Hence, she accepts her employer’s statement and tries not to be disappointed that she cannot enjoy her honeymoon anytime soon. Later, Leah learns that she is accumulating vacation days at a slower rate than her colleagues in similar positions. These colleagues are not members of the military or veterans. When Leah inquires about this, she is told that she already has more benefits than her colleagues thanks to her veteran status so she should not worry about it.
   In this scenario, Leah’s employer appears to be doing multiple things wrong. Federally, if Leah qualified for reemployment, then she also qualifies for her benefits to having accrued as if she had not gone on military leave. Her employer should not be denying her vacation time that she accrued during her service. Second, her rate of accrual of vacation leave should not differ from her colleagues just because she receives veteran benefits. Providing unequal privileges or terms of employment to an employee based solely on their veteran status is considered unlawful discrimination, and Leah’s employer could get into trouble if Leah hires a wrongful termination lawyer and filed a lawsuit for discrimination.
   Veterans have enough challenges to face without needing to suffer discrimination at the hands of prejudiced employers. If you have been discriminated against because of your military service, know that you are not alone. An experienced employment attorney can stand with you and help you fight back against your transgressor.

Can you get fired for asking for time off? Can an employer punish you for sick leave?

People usually ask:

• can you be fired for using PTO?
• what happens if you have negative PTO?
• can you get fired while on PTO?

Let’s find the answers

Employees have certain rights to leaves of absence from work. When they are entitled to time off, the employer cannot punish them for taking it. When employers do punish employees for legally protected activities like taking time off that they are entitled to, that is known as retaliation, and there are a number of laws, both on federal and California state levels, protecting employees from retaliation. For many employees, it can be difficult to determine if an employment action taken by their employer is considered unlawful retaliation, so this article will shed some light on a few different kinds of retaliation and how they can apply to situations involving leaves of absence. The protections described apply to California employees, although some of the same protections are afforded federally.

• They verbally abuse you
• They spread rumors
• They fire you

Let’s start from the top of the list.

1. They verbally abuse you

   
   One way employers might retaliate against you is by physically or verbally abusing you after you take time off. For many, hopefully, it is difficult to imagine a boss treating employees that way, but for others, it is all too familiar. To help paint a clearer picture of what this kind of situation might look like for those who are unsure, let’s look at an example:
   Hayden is a construction worker who has been working with the same employer for two years in Southern California. He has not taken any time off before, but when he gets the stomach flu, he decides to cash in two of the sick days that he has accrued. He gives proper notice to his employer and does not think too much about work while he recovers, although he later learns that one of his coworkers screwed up something that Hayden would have been doing had he been there and the mistake was costly for their employer. When Hayden does return to work, he notices that his boss, Darryl, is harsher with him than normal. Over the next few weeks, whenever Darryl sees Hayden, he insults him or calls him a name, like “pansy.” Many of the insults are related to the idea of Hayden being weak, and Darryl refers to his flu in tones suggesting he does not believe Hayden was really sick. Having provided a note from his doctor, Hayden is not sure what else he could have done to avoid the situation he is now in. He no longer enjoys going to work because he is constantly worried his boss will be around making cruel comments and encouraging his coworkers to be similarly hostile.
   In this situation, Hayden took a sick leave he had earned and was punished for it in the way of verbal abuse. Darryl should not be acting this way towards his employee and could be liable for unlawful retaliation.

2. They spread rumors

   
   Maybe the last time you thought about rumors was in high school, back when for a lot of students, alleged scandals about delinquency or sexual activity were the nail in the coffin to a punishing social life. Hopefully, rumors have been less of a problem since then, but if your employer still has the instincts of the stereotypical high school bully, then you may end up suffering once more at the spread of vindictive gossip. One way some employers might retaliate against you if they are angry about you taking time off is by spreading rumors to turn your coworkers against you. Let’s take a look at an example scenario:
   “Garfield works as a masseuse at a resort in Northern California. One day, he is contacted by an organization he once signed up for that matches people to sick children who need bone marrow transplants. They discovered that he was a match for someone in San Diego. Excited at the prospect of saving a child’s life, Garfield requests time off from work to donate bone marrow. The organization recommends that he take as many days as he can so he can recover as much as possible before returning to work, so Garfield checks state law and asks for the maximum required five days off. When Garfield comes back to work after his leave, he notices that his coworkers are treating him differently. Eventually, he asks someone what’s going on and discovers that someone has been telling everyone at work that his leave of absence was to interview for other jobs because he didn’t like his coworkers. Shocked, Garfield asks around and eventually figures out that the person who started the rumor was his boss.”
   In this situation, it is possible that Garfield’s boss is spreading this rumor because he is upset about Garfield taking time off. If an easier resolution cannot be found, Garfield may end up resorting to a lawsuit against his employer for retaliation.

3. They fire you

   
   Perhaps one of the clearest forms of retaliation, firing an employee for taking protected time off is also often one of the most detrimental actions an employer can take to punish an employee. Let’s look at how a scenario like this might play out:
   “Greta has been working part-time as a legal assistant at a law office in Los Angeles with nine other employees for just a few months. She was pregnant when she was hired, but was not yet showing. When she started showing up, her employer did not seem very happy. At Greta’s last doctor’s appointment, she was told she needed to be on bed rest for the rest of her pregnancy due to some complications. Greta follows the proper protocol in informing her employer of her need to take pregnancy disability leave and providing the required documentation from her doctor. She estimates that she will be gone for about four months, about two months before the birth and about two months post-partum. Her employer, Greta, is upset about this and tells her she no longer has a job with him. He rants at her about trying to trick him and not telling him she was pregnant when he hired her. She leaves, seven months pregnant, and finds an employment attorney to discuss her options.”
   Greta’s employer, under California law, must provide her up to four months of pregnancy disability leave since he has more than 4 employees; it does not matter that she is a recent hire or that she works only part-time. He cannot legally fire her for requesting this time off, and because he fires her immediately after her request and rants at her about pregnancy, Greta could be very successful in suing him for wrongful termination.

If any of these situations sound familiar to you or if you believe you have been retaliated against in some other way for taking time off or for other legally protected activity, contact a labor lawyer. With their help, you may be able to get restitution.

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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For the past few years, there have been some disappointments for workers when it comes to their rights and their protection. Fortunately, where federal law fails, California has taken strides to ensure its workers have the rights and protections they deserve. Let’s take a look at some of the reasons California employees have to celebrate:

1. Wage-and-hour increases

There has been a lot of discussion about minimum wage lately. Federally, it has not increased since 2009, when it rose from $6.55 to $7.25 an hour. However, in California, the minimum wage is set to increase to $15 an hour by January 2, 2023. Right now, the minimum wage in California is $12 or $11 an hour, depending on the number of employees an employer has. However, some cities have higher local minimum wages, including Pasadena, Los Angeles, San Diego, and Berkeley. For many workers, this is something to commend.

Agricultural workers also have cause to rejoice because, in 2019, California just made it easier for them to receive overtime, or time-and-a-half, pay. Previously, these workers did not receive overtime pay until they reached 10 hours a day, or 60 hours a week. Now, there will be phased-in changes that, by 2025, will require all employers of agricultural workers to pay their employees for overtime after the much more standard 8 hours a day, or 40 hours a week.  For now, only agricultural employers of more than 25 employees will be affected, and they will be required to pay overtime when their employees work more than 9.5 hours a day, or 55 hours a week.

2. Improved protections against national origin and ancestry discrimination

While the California Fair Employment and Housing Act (FEHA) gave some protection to applicants and employees who are discriminated against based on their national origin, last July ushered in more expanded protections by broadening the definition of “national origin” and defining what counts as national origin discrimination.

The new definition of “national origin” encompasses a myriad of new elements, including marriage to or association with a national origin group, tribal affiliation, physical/cultural/linguistic traits associated with a national origin group, attendance/participation in schools or religious institutions typically employed by persons of a national origin group, membership in or association with an organization identified with or seeking to promote the interests of a national origin group, and name that is associated with a national origin group.

Furthermore, the updated definition of national origin discrimination includes, with some exceptions, the following: language restriction policies, discrimination based on accent or English proficiency, height and weight requirements, recruitment or assignment of positions/facilities/geographical area based on national origin, and inquiring into immigration status or discriminating based on immigration status.

3. Increased training on human trafficking and sexual harassment

For employees who are likely to come into contact with victims of human trafficking, employers must now provide at least 20 minutes of defined training and education about human trafficking. This will apply to employees whose jobs entail recurrent interactions with the public, like hotel receptionists and cleaners. This is something everyone can rejoice, including the employees who end up saving people from human trafficking situations.

In addition to human trafficking training, there are also new requirements concerning training about sexual harassment. By the beginning of 2020, all employers with at least five employees will be required to satisfy particular sexual harassment training requirements. Supervisors must receive two hours of training within six months of being in their position and then receive it again every two years. Employees who are not supervisors are mandated similarly, except the length of their training is one hour instead of two.

4. Improved protections against sexual harassment

There has been much recent legislation passed that was prompted by the MeToo movement. For example, one new law prohibits companies from demanding secrecy when it comes to settlements related to sexual harassment/assault and sex-based discrimination. That means victims will be able to speak out against abusers if they want to and will not be subject to non-disclosure provisions in settlement agreements. Hopefully, this law will help end repeated abuse by the same people with different victims, as harassers will not so easily continue to offend.  

5. More women on corporate boards

In some particularly exciting news, California is the first state in the U.S. to legally require gender diversity. By the end of 2019, publicly traded companies with headquarters in California will be required to have at least one woman on their boards of directors. Moreover, by the end of 2021, boards with five directors must include two women minimum, and boards with six or more directors must include three women minimum. This is good news not just for women, but for everyone, as substantial research indicates that companies perform better and turn a bigger profit when women are on the boards (e.g., Credit Suisse, Catalyst, Peterson Institute for International Economics, University of California Davis, etc.). Moreover, this new legislation does not require men to lose their board member positions, as companies are permitted to increase the number of board members.  

6. More accountability for worker safety

While at the federal level, employees are seeing less protection against workplace injuries and illnesses, in California, recent developments further protection for workers. Among other things, the Division of Occupational Safety and Health, also known as Cal/OSHA, now has five years, instead of only six months, to give citations to employers who fail to record injuries or deaths accurately. That means increased accountability for employers and increased protection for workers.

            Hopefully, this list provided some comfort or satisfaction to California employees. Workers constitute the backbone of a society, and the current California legislators seem to realize this. Under Governor Gavin Newsom’s leadership, it can be expected that worker protection will continue to be a priority.

Of course, despite legislation, there are still violations of rights and because of this, it is vital for employers and employees to understand the laws that affect them. If you think your rights as an employee have been violated, you should talk to an employment attorney to see what can be done to rectify the injustice.

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

Understanding the basics

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

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

1. Discrimination

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

2. An example of sex discrimination in the workplace

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

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

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

3. Facilitating respect in the facilities

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

4. Dress the part…or not

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