Discrimination

Do You Have A Discrimination Case?

Whether the discrimination is based on gender, age, disability or some other protected class, here’s a general breakdown of how things work and what to look for if you might have a workplace discrimination case.

As always, feel free to call us at any point for a 100% free consultation – we’re here to help! 

Step One

ARE YOU A MEMBER OF A PROTECTED CLASS OR ACTIVITY?

California’s Fair Employment and Housing Act (“FEHA”) makes it illegal for an employer to discriminate against you because of your legally protected class and/or protected activity. Below is a list of both.

Legally Protected Classes In California Under The FEHA:

Legally Protected Activity Under The FEHA:

  • Reporting discrimination outlawed by the FEHA
  • Refusing to participate in discrimination outlawed by the FEHA
  • Asking for a reasonable accommodation for your disability or serious medical condition
  • Taking a medical or “disability” leave of absence
  • Taking a FMLA or CFRA medical leave of absence
  • Taking a leave for pregnancy and/or childbirth

While there are definitely other laws that govern workplace conduct, the FEHA-based discrimination and harassment is generally limited to these above categories. Importantly, an employer or supervisor can discriminate against you for anything else that’s not explicitly covered by the FEHA (i.e. your political views, sports team preference, body art or tattoos, drug use, etc.).

This is why it’s important to note that not all harassment and discrimination is illegal – it must be covered by the FEHA in order to be prohibited by law.

Step Two

DID YOU SUFFER AN “ADVERSE EMPLOYMENT ACTION?”

This one is pretty simple. Adverse Employment Action is just another way of saying “did your employer do something bad to you?”

  • Being Terminated, fired, or “laid off” from your position
  • Being demoted
  • Being passed-over for a promotion
  • Losing privileges such as health insurance, vacation days, etc.
  • Taking away job duties or authority

If any of the above have occurred, then you many have suffered an “adverse employment action” under the law.

 

Step Three

WAS IT BECAUSE OF YOUR PROTECTED CLASS OR ACTIVITY?

This is, by far, the most important step – you must show that there is a reasonable inference that your employer took adverse employment actions against you because of your protected class or protected activity.

  • Here are some examples of how that can be accomplished in a discrimination lawsuit:
    • Showing a close proximity in time between the protected activity (i.e. taking a medical leave) and the decision to terminate your employment
    • Showing that other employees who are in the same protected class were also treated the same (i.e. fired, demoted, passed over for promotion)
    • Showing preferential treatment to other employees who are not in in the same protected class as you
    • Showing words or conduct from the employer or decision maker that were critical of your protected class or activity (i.e. derogatory comments about being from a particular minority group, religion, race, etc.)
    • Witnesses or documents that can corroborate the employer’s discriminatory animus against your protected class or activity

Step Four

IS YOUR EMPLOYER’S “NON-DISCRIMINATORY” REASON FOR TERMINATION JUST PRETEXT?

In a court of law, once you’ve shown the above factors, the Employer will then be able to offer a “non-discriminatory reason” for why they fired you.

Most of the time, employers will claim that you were fired for “poor performance” and may point-to written warnings, write-ups, sales data, Performance Improvement Plans and even testimony from ex-coworkers to claim that you were a “poor performing” employee.

However, after the employer offers their non-discriminatory reason(s) for termination, you must then prove that this reason is “pretext” for a discriminatory action – i.e. it’s a false, fabricated reason meant only to cover-up the employer’s true discriminatory motive in terminating you.

Obviously, your employer is never going to admit they discriminated against you. Thus, absent a fantastic, Hollywood-style confession on the witness stand like Col. Jessep from A Few Good Men, discrimination cases are usually proven by indirect or “circumstantial” evidence – the more the better.

“Pretext” Can Proven By Showing Any Or All Of The Following: 

  • No Evidence – That there is a lack of evidence to support the Employer’s claims that you were a bad employee (i.e. no write-ups, discipline or other documents to show that you had performance or other problems).
  • Bad Evidence – That the evidence of poor performance is flawed, fabricated or exaggerated.
  • Looking the Other Way – That other employees who committed the same errors or performed at the same or worse level were not terminated or punished like you were.
  • Deviation from Normal Policy (aka “Jumping the Gun”) – That the employer disregarded its progressive discipline policy (i.e. verbal warning, then written warning, then final warning, etc.) and terminated your employment at the first available opportunity
  • Close Proximity in Time – Showing you were terminated shortly after the employer became aware of your protected class or activity.
  • Sham Investigation – That the employer purposefully did a poor job investigating your claims of discrimination in order to exonerate themselves from any illegal activity. [Fun fact]: 99.9% of employers who investigate themselves ultimately conclude they haven’t done anything wrong. What are the odds?!
  • “Me Too” Evidence – showing that other employees of the same protected class experienced the same discriminatory treatment.
  • Increased Scrutiny – That the employer previously ignored the same activity or “poor performance,” only to turn around and fire you for that same performance after becoming aware of your protected class or protected activity.

Step Five

OTHER IMPORTANT FACTORS

Practical Requirements for a Good Discrimination Case:

Aside from the basic legal requirements (above), any good discrimination attorney will also explain “it’s not that simple.” Here are some additional critical factors that aren’t required under the law, but will be important for your case nonetheless:

  1. Evidence: Do you have documents or witnesses to prove you were mistreated because of your protected class or protected activity?
  2. Work Performance: Will it be possible for your employer to claim you were a bad employee? Even if it’s not true, employers will always try to distract the jury and “muddy the water” by claiming you were fired for “poor performance.” Do they have documents and witnesses to prove you were or to confuse the jury with? If so, do you have evidence to show it’s false pretext?
  3. Insurance: Most large employers (50+ employees) carry an Employment Practices Liability Insurance (“EPLI”) policy that will cover them for discrimination lawsuits like yours. This is important when dealing with smaller employers as they may not.
  4. Public Lawsuit: All lawsuits filed in a court of law are kept in the public record, meaning anyone, including future employers, could search for and access the details of your lawsuit after it is filed. This may be an important consideration in deciding to move forward with your case.

In closing, if you think you might have an employment discrimination case, you should definitely contact a discrimination attorney to see if a claim may exist.

Many discrimination attorneys like us will provide a free consultation and will take your case on a contingency fee arrangement – meaning you don’t pay any fees until we obtain a recovery on your behalf. Usually, this is just a percentage of the total recovery, making us highly motivated to obtain the best result possible.

Photo by Tim Mossholder on Unsplash