I Am Being Discriminated Against At Work. What Should I do?

Under both state and federal law, it is illegal for an employer to discriminate against an employee or job applicant for certain reasons. This includes discrimination that is based on race, gender, disability and religion, among others.

If you believe that you are experiencing workplace discrimination, it can be hard to know what to do. In some cases, you may be able to file a lawsuit against your employer to seek financial compensation for any losses that you have suffered. Below, we outline the basics of employment discrimination as well as the steps that you should take if you are being discriminated against at work.

How Do I Know That The Discrimination Was Illegal?

There are many ways that an employee might be treated unfairly at work. However, not all types of unjust treatment are considered illegal.

Under California’s Fair Employment and Housing Act (FEHA), it is illegal to discriminate against an individual based on:

• Race

• Religious creed

• Color

• National Origin

• Ancestry

• Physical Disability

• Mental Disability

• Medical Condition

• Genetic Information

• Marital Status

• Sex

• Gender

• Gender Identity

• Gender Expression

• Age

• Sexual Orientation

• Military and Veteran status

At the Federal level, Title VII of the federal Civil Rights Act of 1964 also forbids discrimination against employees who belong to a protected class. However, California law is much broader than Title VII and includes more protected categories.

Workplace discrimination can happen in a number of ways, such as refusing to hire a job applicant, firing an employee, or refusing to promote an employee or pay them properly.  In some cases, the discrimination may get so bad that the employee feels that they have no choice but to quit. This is known as constructive discharge — and it may also be grounds for a lawsuit.

Importantly, it is also against the law for an employer to discriminate against an employee based on their perception of the worker’s membership in a protected group — even if that perception is wrong.

For Example:

John is a heterosexual man who works at a local manufacturing plant. John’s supervisor thinks or suspects that John is gay, and treats him poorly because he harbors a prejudice against LGBTQ persons. He gives John the worst shifts, makes lewd comments to John, and even demotes him to a less-desirable job. Even though the supervisor’s assumption about John’s sexual orientation is wrong, this would still be considered illegal workplace discrimination and grounds for a possible legal action.

What Should I Do If I Am Experiencing Workplace Discrimination?

Being discriminated against at work can be incredibly stressful. You may be worried about your job, how you can protect yourself, or be feeling anxious about going to work. Still, there are a number of steps that you can take that may help.

First, Try To Focus On The Facts.

It’s perfectly normal to get caught up in the emotional aspects of workplace discrimination. But if you’re planning to file a report with your supervisor or HR, you will need concrete facts to support your position.

Take time to think about exactly what is happening, and how it relates to your membership in a protected class (i.e. age, race, religion, disability, etc.). For example, it isn’t enough to say that your manager “just doesn’t like” you because you are a minority. Instead, focus on the specific things that your manager has done that gives you the impression that (1) you are being discriminated against and (2) that the discrimination is based on your race or heritage.

Second, Make A Record Of The Discrimination.

This doesn’t mean you should make audio or video recording of what is happening as California is a two party consent state. This means that recording your coworker or boss without their knowledge may be a crime. Instead, when something happens, make a note of it. Include the date, time, location, the people who witnessed it, and a description of what occurred.

Third, Consider Talking To Your Manager To Attempt To Resolve The Problem.

This may not be advisable in all cases, and it may even make the problem worse. However, if you believe that your experiences may be due to poor communication or another issue, then sitting down with the person giving you problems may help. You may want to consult with an employment lawyer before deciding whether to try to work it out informally.

Fourth, If The Discrimination Continues, Report It To Your Company’s Management Or Human Resources (HR) Department.

Again, you may want to talk to an employment attorney before making this type of report, as what you say could become an important part of a future lawsuit. However, once you have reported the discrimination, your employer is legally obligated to investigate it. Further, making such a report in writing could be critical to protecting your rights in the future. Doing so will create a clear record that your employer was indeed notified of illegal discrimination and will establish the timing of that notice. The timing itself may become critical if you are later retaliated against and terminated for pretextual (false or misleading) reasons.

Throughout this time, continue to keep notes of what is happening at work. Many workers experience retaliation after filing a complaint about discrimination. If your boss, a coworker, or another person at your company retaliates against you, it may be the basis of a separate complaint.

Fifth, If The Discrimination Continues Or You Are Retaliated Against, You Can File A Complaint With The Department Of Fair Employment And Housing (DFEH)

This may become a necessary step in the process as you cannot file a lawsuit against your employer without approval from either the DFEH or the EEOC in what is called a Right to Sue letter. Your attorney can help you determine whether it is better to file with the DFEH or the EEOC.

If you feel like you are dealing with discrimination at work, please give us a call at (949) 833-7105 or email us at info@odelllaw.com