San Diego Employment Discrimination Lawyer
Everyone deserves a respectful workplace free of discrimination. But discrimination comes in many forms and continues to this day.
Discrimination could be anything from offensive comments and micro-aggressions to blatant harassment and retaliation. Your employer’s harassment could cost you promotions in your career. You may suffer great mental and emotional pain because of discriminatory behavior.
And because most of us need a job to survive, you may feel powerless to fight the people who sign your paychecks.
But you don’t have to take any of that. We’re here to defend you from this type of unacceptable behavior – and we have the law on our side.
If you’ve faced discrimination at your job, you need an advocate to fight for you and your career. Don’t suffer in the shadows while your employer’s illegal behavior goes unchecked.
Your first consultation is free. Call Harlan Law at (619) 870-0802 to talk to an experienced employment law attorney today.
- What Are the Laws That Protect Against Discrimination?
- What Are Some Examples of Discrimination in the Workplace?
- Racial Discrimination in the Workplace
- Age Discrimination in the Workplace
- Disability Discrimination in the Workplace
- Cancer and Major Illness Discrimination at Work
- Gender and Sex Discrimination in the Workplace
- Gender Identity Discrimination in the Workplace
- Sexual Orientation and LGBTQ Discrimination at Work
- Pregnancy Discrimination in the Workplace
- What Should You Do If You Experience Discrimination at Work?
- Can I Sue for Discrimination?
- How Do I Sue for Discrimination?
- How to Prove Your Discrimination Claim
- Calculating Damages in Employment Discrimination Cases
What Are the Laws That Protect Against Discrimination?
There are both state and federal laws to protect you from workplace discrimination. California is an especially employee-friendly state, perhaps the most protective in the country.
But not all unfair treatment breaks the law. You must be part of a protected class to have a legal action for discrimination against your employer. Whatever discrimination you suffered has to be on the basis of that protected identity.
What Is a Protected Class?
Protected classes are groups that have historically faced discrimination. These groups now receive special protection under the law.
Federal Anti-Discrimination Laws
Anti-discrimination laws have been passed over time for civil rights and public policy, to ensure that everyone’s rights are protected. These laws prohibit discrimination based on:
- Title VII of the Civil Rights Act (CRA) – race, color, religion, sex, national origin, including membership in a Native American tribe
- The Pregnancy Discrimination Act (PDA) – pregnancy, childbirth, or any related conditions, including termination or miscarriage
- Age Discrimination in Employment Act (ADEA) – age over 40 years old
- Americans with Disabilities Act (ADA) – disability
- The Equal Pay Act (EPA) – gender
- Immigration Reform and Control Act (IRCA) – citizenship status or national origin
- The Civil Rights Act of 1866 (Section 1981) – race or ethnicity
- The Genetic Information Nondiscrimination Act (GINA) – genetic information
Federal discrimination laws are mostly enforced by the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ).
The legal requirements depend on each law. For example, the Equal Pay Act is broad and applies to nearly all employers. The ADA is more specific and applies to local governments, employment agencies, labor unions, and private employers with 15 employees or more.
An experienced employment and labor law attorney can help you understand your rights.
At Harlan Law, we are committed to fighting discrimination. You may have even more rights depending on the state you live in, especially if you or your employer is in California.
California Anti-Discrimination Laws
California has some of the strongest employee protections in the country. California state laws build on the protections granted under federal law. The Fair Employment and Housing Act (FEHA) adds even more protected classes, such as:
- Physical or mental disability
- Marital status
- Sexual orientation
- Gender identity and expression
- AIDS/HIV status
- Medical conditions
- Political activities or affiliations
- Military or veteran status
- Status as a victim of domestic violence, assault, or stalking
FEHA applies to employers with at least 5 employees. The state law is enforced by the Department of Fair Employment and Housing (DFEH), which processes complaints.
Where Should You File a Discrimination Lawsuit?
Location matters when it comes to filing a discrimination lawsuit. Any claims that happen on federal property – such as military bases – will be heard in federal court under federal law. That means the protections may not be as strong as in state court.
States like California are much friendlier to employee plaintiffs than federal courts. A jury in a federal civil trial must reach a unanimous verdict for the lawsuit to succeed. But California state courts require only that 3/4 of the jury agree to your claim.
Some cities even have local laws that include additional protected classes. San Fransisco, for example, forbids discrimination on the basis of height and weight.
Harlan Law covers all types of employment discrimination cases in California. Call us at (619) 870-0802 and let’s get you started on the path to just compensation.
What Are Some Examples of Discrimination in the Workplace?
Unlawful discrimination happens when you experience negative effects or unequal or unfair treatment based on your protected characteristics. Discrimination can take many forms: direct or indirect, intentional or unintentional.
Direct discrimination occurs when your employer targets you specifically because of your protected characteristic. This could involve:
- Firing you or terminating your contract
- Demoting you or deciding not to hire you
- Refusing you training or safety equipment
- Denying you promotions or writing you up for discipline
- Forcing you to quit or pushing you out
- Paying you less, reducing your salary, or denying you equal pay or benefits
- Creating a hostile work environment with offensive comments and jokes
With indirect discrimination, company policy doesn’t target any group specifically but has the effect of disadvantaging someone because of their protected class.
Examples of Indirect Discrimination at Work
- Your employer assigns a new dress code that discriminates against certain hairstyles
- All employees may be required to work on your religion’s day of rest
To prove indirect discrimination, you must show not only that (1) you’re a part of a group affected by the policy, but also (2) the policy puts you personally at a disadvantage.
Indirect discrimination is more difficult to prove than direct discrimination. Your employer could defend themselves by:
- Arguing that their policy was objectively justified with a real business need, such as a health or safety issue, and
- Proving their policy was a proportionate way to achieve their goals.
Click here to read more about how to prove a discrimination case.
The outcome of each discrimination case depends on the specifics. Discrimination can come in the form of micro-aggressions, which may be hard to prove in a trial. Discriminatory behavior can be an institutional problem or a company-wide pattern. Sometimes a culture of discrimination starts from the very top, with managers who model and reinforce bad behavior.
Facing such odds can be daunting. You may be tempted to keep your head down for the sake of your career. But you shouldn’t have to endure this type of abuse at your workplace. We’re here to help you put a stop to it and get you the compensation you deserve for your suffering.
Call us at (619) 870-0802 and let’s get started on your case.
What are some common types of discrimination cases that we handle here at Harlan Law?
Racial Discrimination in the Workplace
Racial discrimination in the workplace is outlawed under Title VII of the Civil Rights Act of 1964. This is a federal law that covers every state in the United States.
Title VII makes it illegal for employers to:
- Refuse to hire someone
- Discipline or fire an employee
- Pay an employee less or provide fewer benefits
- Fail to provide opportunities or promotions to employees
- Improperly label or separate employees or applicants
Because of their race, color, national origin, or ancestry. This could involve the way someone looks, their birthplace, or their heritage.
You may have filled out a form with racial information while applying for or starting a job. That’s because employers can ask about race for affirmative action programs. This is legal as long as you don’t have to answer and no decisions are made based on the information you give.
Title VII generally applies to employers who have 15 employees or more. It includes local, state, and federal governments, and private and public colleges.
Under Title VII, employment agencies cannot base their referrals and work assignments on race. Labor unions also cannot make membership decisions based on race. The law also makes it illegal to discriminate against you based on the race of your spouse.
Title VII covers both intentional discrimination and neutral policies that result in discrimination. These are otherwise known as direct and indirect discrimination.
California Law Against Racial Discrimination
California state law covers companies that may not be covered under federal law. That means employees have greater protections in California.
The California Fair Employment and Housing Act (FEHA) makes it illegal for any employer with 5 or more employees to discriminate based on race, color, or ethnicity.
Ethnicity covers cultural characteristics based on where you were born or where your ancestors came from. This includes tribal affiliation for Native Americans. This could cover:
- Your name
- The languages you speak
- The religion associated with your culture
The FEHA also makes it illegal to harass any employee, applicant, contractor, or unpaid volunteer based on their race or color.
Types of Racial Discrimination
Direct discrimination is when you’re treated differently because of your race. This is also called disparate treatment. Examples of direct racial discrimination include:
- A hiring manager passing over job candidates with certain types of names
- Being excluded from projects or groups because you “wouldn’t fit in”
- Your coworkers make comments about the way you dress or your customs
- Company employees using racial slurs or telling racist jokes
Racial harassment that creates a hostile work environment is also illegal.
Examples of Indirect Racial Discrimination
Indirect racial discrimination can happen even when employees don’t mean to discriminate.
Sometimes, treating everyone the same way can create a disadvantage for a specific group. A company policy could be “fair” on the surface but harmful when applied.
- A company-wide dress code could conflict with your cultural attire
- Hiring requirements could have the effect of disqualifying certain racial groups
Not all cases of discrimination are clear. People rarely admit that they acted because of discrimination. Your employer could make up another excuse, putting your work ethic or character in question. This could hurt your reputation and cost you other jobs in the future.
What if you weren’t even hired because of your race? Where do you even begin? In most cases, you probably don’t have a smoking gun like an email or recorded message.
Proving Racial Discrimination in the Workplace
To prove racial discrimination, you could show that:
- Your employer’s hiring trends have a racial bias
- Someone less qualified than you got hired or promoted over you
- Your track record and performance reports contradict your employer
- Other employees of the same race have had similar experiences
Click here to read more about how to prove discrimination at work.
It’s important to keep a record of any discriminatory actions whenever you can. This is especially true in cases where the behavior is embedded in the company culture. Written evidence is best but coworker witness testimony can also help.
You want to start gathering whatever evidence you can as early on as possible. You don’t want to give your employer time to destroy anything. Emails and files may be deleted and hard to recover. If you get fired, you may lose access to your employee accounts.
This can be complex legal territory, especially with trade secrets and non-disclosures involved. That’s why you should talk to someone who knows the law – and fast.
Our experienced discrimination attorneys can guide you in putting together the best case with the strongest evidence. Call us at (619) 870-0802 to get started now.
Racial Discrimination Lawsuit Settlement Amounts
The amount of damages you can get depends on where you file your case. Federal cases have limits on compensatory and punitive damages, but California state cases do not.
Click here to read more about how to calculate damages in employment discrimination cases.
Age Discrimination in the Workplace
Are you over 40 years old? Has your employer started treating you differently because of your age? Do you suspect you were passed over for a job opportunity because your employer thought you were too old to learn something new?
This could be age discrimination – and age discrimination in the workplace is illegal.
The Age Discrimination in Employment Act of 1967 (ADEA) protects anyone older than 40 from employment discrimination based on their age.
You’re protected against age discrimination between employees over 40, too. For example, a 60-year-old cannot be discriminated against in favor of a 50-year-old.
The ADEA applies to private employees with 20 or more employees, employment agencies, and labor organizations.
The U.S. Equal Employment Opportunity Commission (EEOC) is in charge of the ADEA.
What About Younger Employees?
The ADEA does not cover workers younger than 40. Some states have additional laws to protect younger employees, but California does not.
In fact, the ADEA allows employers to favor an older employee over a younger employee, even if both are over 40.
What Qualifies as Age Discrimination in the Workplace?
Employers are not allowed to discriminate against you because of your age. What are some examples of age discrimination?
- Your company lets you go then hires a younger worker in your place for less money.
- You stop getting promotions, raises, or any big ticket assignments.
- You get removed from good client accounts or reassigned to unpleasant tasks.
- You start hearing comments and questions about your age and retirement plans.
- Your company starts pushing early retirement offers.
- Your performance reviews suddenly take a turn for the worse even though the quality of your work hasn’t changed.
Under the ADEA, it is also illegal for employers to make hiring decisions based on your age. This includes asking about your age during your employment application OR calculating your age based on your experience and education and discriminating against you for it.
During the hiring process, an employer can only ask about your age if it’s a reasonable question that’s essential to the operation of the business.
Age Discrimination in Employer Policies
Age discrimination can happen even if your employer doesn’t single you out. You can suffer discrimination even if it’s not on purpose. For example, when a company policy applies to everyone but negatively affects employees over 40 years old.
Age discrimination is a big concern during company layoffs. Even if the company doesn’t target older workers to be laid off, they have to be careful. If layoffs affect a disproportionate number of older employees, your employer could be guilty of age discrimination.
Your employer can still defend themselves by showing that its layoff decisions were based on a reasonable factor other than age – such as your performance reviews.
So how do you prove age discrimination?
Can You Sue Your Employer for Age Discrimination?
Like other types of discrimination, age discrimination is not always clear on the surface. How do you prove your claim when your employer could make up another excuse?
If you’re thinking of filing an age discrimination lawsuit, your first stop should be your lawyer’s office. Call Harlan Law at (619) 870-0802 and we’ll guide you through what you need to do for your claim.
Disability Discrimination in the Workplace
Every 1 in 4 adults in the United States has a disability. This statistic only increases with age – 40% of people and older report living with a disability.
The Americans with Disabilities Act of 1990 (ADA) protects employees from workplace discrimination based on a disability. This federal law applies across the entire United States to employers with 15 or more employees. Many states including California have laws that apply similar protections to smaller companies.
Both the ADA and California law protect workers with disabilities by:
- Making it illegal to discriminate against workers based on a disability, and
- Requiring employers to provide reasonable accommodations to employees with disabilities.
Your employer could be liable for disability discrimination if they:
- Take negative action against you because of your disability, or
- Fail to provide a reasonable accommodation for your disability.
Illegal disability discrimination can put a toll on your career and your mental health. But you have options for protecting your rights.
Who Is Covered Under the ADA?
As an employee, you’re covered under the ADA if you:
- Currently have a disability, or
- Have a history of impairment or a previous disability.
The ADA also covers you if your employer sees you as having a disability – even if your employer is incorrect and you actually don’t have a disability.
The ADA protects you during the interview and hiring process, too. During this time, an employer cannot ask you about your medical history or require you to go through a medical exam to identify your disability.
You Must Be a Qualified Worker to Be Covered Under the ADA
To be a qualified worker you must be able to perform the essential duties of the job, with or without reasonable accommodation by your employer.
Your essential duties are those that are fundamental to your position.
For example, you may not be a qualified worker if your disability makes it impossible for you to do your job even with an accommodation.
What Is Considered a Disability Under the ADA?
Under the ADA, a disability is a physical or mental impairment that substantially limits a major life activity. What counts as a major life activity?
- Basic tasks like walking, reading, and communicating
- Major bodily functions, including immune system function
In order to prove your disability, you might have to provide copies of medical records or reports from your doctor.
Keep in mind that the ADA comes with strict privacy and confidentiality requirements. Your employer must keep your medical records private and secure, somewhere separate from your general personnel file. Your employer also isn’t allowed to disclose your disability to anyone except in certain situations – such as to supervisors and managers when providing accommodation.
The only way to really know if your condition qualifies for a disability is to speak to an experienced lawyer. Call Harlan Law at (619) 870-0802 for a free consultation about your case.
Examples of Disability Discrimination in the Workplace
Disability discrimination can come in many forms. Some examples include:
- Creating a hostile work environment with harassment and offensive remarks
- Refusing to consider you for certain positions because of your disability
- Asking if you have a disability during your interview then disqualifying you for it
- Passing you up for promotions or projects because of your disability
The ADA doesn’t just protect against discrimination. It also requires employers to make reasonable accommodations for disabled employees. If your employer fails to make reasonable accommodations for your disability, you can sue them for breaking the law.
A reasonable accommodation is an adjustment or modification that lets you do your essential job duties. Examples of reasonable accommodation include:
- Providing aids
- Relocating your work area
- Changing your job duties or work schedule
- Giving you leave for medical care
Your employer must provide an “interactive process” for you. This is a dialogue where you can request a reasonable accommodation for your disability. Your employer doesn’t have to provide the specific solution you ask for as long as they provide something else that works.
Unless your disability is obvious or your employer already knows, you must start the process – your employer is not responsible for guessing your disability.
Your employer must provide an accommodation unless it causes an undue hardship.
What Is an Undue Hardship?
Undue hardship is a significant difficulty or expense for your employer. If accommodation is an undue hardship, your employer is not required to do it.
Whether an accommodation is an undue hardship depends on the facts of your case. Specifically:
- The kind of accommodation required and the cost associated with it
- Your employer’s financial resources (a larger, more successful employer could afford to take on more than a small business)
- The size, structure, and nature of your employer’s business
- Other accommodation costs already paid by your employer
If the cost threatens your employer’s financial existence, then it’s probably an undue hardship. This could happen if the company is too small or cost of accommodation is too high.
According to the Equal Employment Opportunity Commission (EEOC), most workplace disability accommodations cost less than $500. This should be a reasonable cost for most employers.
California State Disability Act
The California Fair Employment and Housing Act (FEHA) has similar protections to the ADA and applies to any employer with 5 or more employees.
Other Disability Rights Under Federal and California Law
If you have a disability, you may have additional rights under the federal Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA).
At Harlan Law we serve clients in San Diego and across Southern California. Contact us today at (619) 870-0802 for a professional evaluation of your disability claims.
How to Prove Workplace Disability Discrimination
In order to prove disability discrimination in the workplace, you must show:
- You had a disability, a history of disability, or your employer thought you had a disability
- You were qualified for the job and able to perform your essential job functions
- You experienced a negative job action based on your disability
Sometimes you’re lucky to have written evidence that you were discriminated against. But in most cases, you experience a negative work action with no good explanation. Even worse, your job performance may be falsely called into question as a reason.
In these cases you might have to prove your case with circumstantial evidence.
For example, you could show that:
- A disproportionate number of disabled employees get laid off and shortly afterward the company starts hiring for their positions
- You get fired despite doing a good job and a non-disabled employee gets your position.
Call Harlan Law at (619) 870-0802 and talk to our experienced disability discrimination attorneys about your case today.
Cancer and Major Illness Discrimination at Work
A diagnosis of cancer or another major illness could have a huge effect on your life. The last thing you need during this time is to lose your job because you get sick.
For many people their job is also their source of health insurance, so this could have a double-whammy effect on their life, health, and finances.
Millions of Americans have a history of cancer or other major illness. Fortunately, there are laws that protect your job when you have a serious diagnosis like cancer.
Cancer and Employment Rights
Cancer itself is not considered a disability under the Americans with Disabilities Act (ADA).
However, if your illness or the side effects substantially limits a major life activity, then it meets the definition of disability. Then you are covered under the ADA.
Major life activities include:
- Eating, cooking, working, sleeping, shopping, chores, or child care
You can still be considered disabled under the ADA even if your condition is under control or remission with medication or treatment.
Even when your illness doesn’t limit your major life activities, your employer could still be sued for discrimination if they assume your illness limits your activities.
For example, you may return to work from taking medical leave for cancer treatment. Even though you’re able to perform your job, your employer assumes you’re not and fires or demotes you. Or your employer fires you because they assume you’ll need more time off in the future. This is illegal discrimination.
It’s illegal to discriminate against you for having a history of major illness or if you’re in remission from cancer.
The ADA applies to all employers with 15 or more employees.
Under the ADA, your employer must:
- Not discriminate against you for having a disability caused by a major illness
- Provide reasonable accommodation for your disability
Potential employers also cannot ask about your health history during the hiring process.
Can You Be Fired for Getting Cancer?
If your cancer diagnosis qualifies as a disability, you cannot legally get fired for having cancer. This applies to other major illnesses too.
What If Your Cancer Doesn’t Qualify as a Disability Under the ADA?
You may have gotten a diagnosis of a major illness, but you’re well enough that you can still carry out your major life activities. That means your illness doesn’t qualify as a disability.
You may still qualify for unpaid leave under the federal Family and Medical Leave Act (FMLA).
Cancer and Major Illness Under the FMLA
The Family Medical Leave Act is a federal law that covers employers with 50 or more employees. This includes public agencies, tools, and private employers across all 50 states.
In order to be covered by the FMLA, you must have worked:
- With your employer for at least one year, and
- At least 1,250 hours over the last 12 months.
If you qualify for the FMLA, you have the right to 12 unpaid weeks of leave over a 12-month period. You can take this time all at once or in segments, called “intermittent leave.”
Intermittent leave can come in handy with a major illness diagnosis. You can take FMLA time on days when you have appointments or don’t feel well because of treatment.
Your employer must continue your health coverage even if you take off time under the FMLA.
You have the right to return from FMLA leave to your original job or a job that is equal in pay, benefits, or other conditions.
Always remember, you have the right to privacy even if you take time off under the FMLA. Your medical information is confidential and you can choose to keep it that way at work.
Call Harlan Law today at (619) 870-0802 if you or your loved one has experienced cancer or major illness discrimination at work. You shouldn’t have to worry about your career when you need to focus on your health.
Gender and Sex Discrimination in the Workplace
Sex or gender discrimination at work involves treating someone differently or negatively because of their sex, gender, or gender identity.
Gender and sex discrimination in the workplace can happen to women, men, as well as transgender, non-binary, or gender-fluid individuals. It can happen whether you’re a current employee or applying for a job.
Like other forms of discrimination, sex discrimination is illegal in all aspects of your employment. This includes interviewing, hiring, starting salaries, promotions, benefits, job duties, layoffs, and firing.
Even though the United States is making strides in sex and gender equality, sex and gender discrimination is still a daily reality for millions of people.
Examples of Sex and Gender Discrimination
You could have a case for sex discrimination if your employer:
- Discourages female employees from applying to upper-level jobs
- Refuses to promote women to levels of manager or supervisor
- Gives women fewer responsibilities than their male colleagues
- Pays women less than their male counterparts
- Excludes women from team socializing or other events
- Fosters a “boys’ club” type culture in the office
- Tolerates or even participates in gendered jokes, insults, or microaggressions
- Fails to take action against harassment or a hostile work environment
- Retaliates against you for reporting gender discrimination
- Makes assumptions about your work capabilities based on your gender
Gender-Based Stereotypes and Assumptions at Work
Assumptions have the power to hurt your career, even if they’re never said out loud. A lot of gender- or sex-based discrimination is based on stereotypes or traditional gender roles.
For example, it would be illegal discrimination for your employer to assume that:
- As a woman, you’re not as physically strong or technically proficient as men
- You won’t travel or put in long hours because of domestic responsibilities
- You don’t have the same level of ambition as men
- You can’t exercise authority because of your gender
- Employees won’t listen to you because you’re a woman
Some companies have tried defending claims of sex discrimination by arguing that they are just reflecting the assumptions and beliefs of society. For example, airlines have argued that they were unable to hire men because the public expects female flight attendants.
This argument has failed in court.
In fact, it doesn’t matter whether your employer acts out of a negative bias. Sex discrimination is illegal even if your employer thinks that they’re just following social norms.
Gender Discrimination Laws
Sex and gender discrimination is illegal in all 50 states under Title VII of the Civil Rights Act of 1964.
Title VII makes it illegal for your employer to discriminate against you on the basis of your sex or gender identity. The definition of “sex” under Title VII includes pregnancy, childbirth, and related conditions. Title VII also makes sexual harassment illegal.
Title VII covers both private and public employers, state and local governments, and educational institutions with 15 or more employees. It also applies to employment agencies, labor organizations, and other types of labor-management committees.
Many states have their own sex and gender discrimination laws in addition to Title VII.
California Sex and Gender Discrimination Laws
California’s Fair Employment and Housing Act (FEHA) is one of the most powerful anti-discrimination laws in the country.
FEHA outlaws sex and gender discrimination for all employers with 5 or more employees.
Your career should not suffer because of discrimination. Jordon Harlan is an aggressive California-based employment lawyer who is passionate about getting justice for his clients. Call Harlan Law at (619) 870-0802 today for your first, free consultation.
Gender Identity Discrimination in the Workplace
There is no federal law that outlaws discrimination based on gender identity – at least, not in those exact words. However, the Equal Employment Opportunity Commission (EEOC) includes gender identity under Title VII’s definition of “sex.”
As a result, it is illegal under Title VII to discriminate against someone in the workplace for their gender identity. Gender identity is currently a protected class in all 50 states.
At least 20 other states plus the District of Columbia have additional laws protecting against gender identity discrimination.
California Gender Non-Discrimination Act
Recently, The California Gender Non-Discrimination Act expressly added gender identity as a protected class. Although California law already protected against gender discrimination, the Gender Non-Discrimination Act made the language even clearer.
What Is Gender Identity Discrimination?
Your gender identity is the gender that you identify yourself. This could be different than the gender you were assigned at birth.
You may show your gender identity through gender expression – mannerisms, styles of dress, language, or other personal characteristics. For some people, their gender identity does not necessarily match their gender expression.
Unfortunately, gender identity discrimination is still a problem today. Transgender, gender-fluid, and gender non-conforming individuals are at high risk for discrimination and harassment.
Examples of gender identity discrimination in the workplace include:
- Teasing, jokes, slurs, or threats about your gender or gender identity
- Singling out transgender or gender-nonconforming employees for different treatment
- Refusing to hire someone who is undergoing a gender transition
- Refusing to promote someone who uses a gender non-conforming name or pronoun
- Refusing to address you by your proper name or pronouns
- Failing to stop gender identity harassment when it happens
- Requiring workers to wear uniforms based on the wrong gender identity
- Forcing employees to use the bathroom based on the wrong gender identity
- Firing an employee who dresses, grooms, or behaves in a way that doesn’t conform to their perceived gender
Click here to read about how to prove your discrimination claim.
If you’re facing gender identity discrimination, you should talk to an experienced local employment lawyer. Harlan Law is an experienced employment law firm based in California. We can help protect your career. Call us at (619) 870-0802 today for a free consultation.
Sexual Orientation and LGBTQ Discrimination at Work
Just like sex discrimination, sexual orientation, and LGBTQ discrimination is still a major issue in the United States. At Harlan Law we believe everyone deserves an equal workplace free from discrimination, no matter their identity or sexual orientation.
LGBTQ discrimination statistics show that:
- A majority of LGBTQ employees have been verbally or physically abused at work,
- Up to 43% have experienced some type of discrimination in the workplace, and
- 17% have reported being fired because of their sexual orientation or gender identity.
LGBTQ Employment Discrimination Laws
The Equal Employment Opportunity Commission (EEOC) includes sexual orientation under Title VII’s definition of “sex.”
A federal appeals court recently found that Title VII of the Civil Rights Act of 1964 protects LGBTQ employees from workplace discrimination. As of this writing, the Supreme Court is currently hearing this case.
But there are decades of laws and policies that protect LGBTQ individuals at work. Plus, 22 states including California have their own LGBTQ workplace protections. Over 90% of Fortune 500 companies have policies that prohibit discrimination based on sexual orientation.
That means you have rights.
Examples of LGBTQ and Sexual Orientation Discrimination
- Comments, jokes, or microaggressions based on your sexual preference
- Being denied promotions because of your sexual preference
- Being treated differently by a manager after they discover your sexual orientation
- Your employer denying you benefits or insurance because of your sexual orientation
- Your employer failing to take action against harassment and discrimination at work
- Retaliating or firing you for reporting discrimination in the workplace
Sexual orientation discrimination is illegal whether it’s based on someone’s actual or perceived orientation. If your employer acts against you because of your sexual orientation – even if they get it wrong – that is still discrimination and you could have a case to sue.
If you’ve experienced LGBTQ or sexual orientation discrimination at work, you should speak to an employment attorney who is passionate about protecting your rights.
California LGBTQ Discrimination Lawyer Near You
California has strong LGBTQ rights coded into law.
Title VII applies federal anti-discrimination laws to employers with 15 or more employees. But California’s Fair Housing and Employment Act (FEHA) covers employers with 5 or more employees. It also applies to employment agencies and labor organizations.
Under FEHA, it’s illegal for employers to discriminate against workers based on their real or perceived sexual orientation.
If you’ve been the victim of LGBTQ or sexual orientation discrimination in California, including Los Angeles, San Diego, and the greater Southern California area, talk to Harlan Law about your case. Call us at (619) 870-0802 for your first, free consultation.
Pregnancy Discrimination in the Workplace
You have the right to apply for a job without fearing rejection based on your pregnancy.
You have the right to take reasonable pregnancy leave without fear that your employer will retaliate against you by demoting or firing you.
You may have noticed your employer treating you differently after your pregnancy. Maybe your work responsibilities changed with no explanation, you stopped getting competitive projects, or you’ve fallen behind on promotions compared to your colleagues.
Pregnancy discrimination is forbidden in the United States under The Pregnancy Discrimination Act of 1978 (PDA) and Title VII of the Civil Rights Act of 1964.
These federal laws apply to employers – including government employers – with 15 or more employees. It is illegal in all 50 states to discriminate based on not just pregnancy but also childbirth and other related medical conditions.
Your employer is also required to provide reasonable accommodation for your pregnancy-related needs.
California state law offers even more protection in addition to federal law.
What Does the Pregnancy Discrimination Act Cover?
Pregnancy often comes with other health conditions – both before and after childbirth. These pregnancy-related health conditions are also protected under the PDA.
Examples of health conditions covered under the pregnancy discrimination act include:
- Back pain
- Breastfeeding or lactation issues
- Pre-eclampsia, which can cause issues weeks after delivery
- Any condition that requires bed rest
- Gestational diabetes
If your employer fails to provide reasonable accommodation for your pregnancy or a related condition, that could be an act of pregnancy discrimination.
For example, if you can no longer lift heavy objects as a part of your job duties, your employer must accommodate you with a reasonable solution.
Pregnancy discrimination could cause you a lot of stress and even derail your career. You have rights and you have options. Call Harlan Law at (619) 870-0802 for a confidential consultation with our seasoned discrimination attorneys.
Examples of Pregnancy Discrimination in the Workplace
You’re protected against pregnancy discrimination at all stages of work, including hiring.
You’re even protected against discrimination for a past pregnancy. So you can’t get fired after returning from a pregnancy-related issue.
Examples of pregnancy discrimination include:
- Asking you during the hiring process if you plan to have kids
- Firing or refusing to hire you because of your pregnancy-related condition
- Creating a hostile work environment with offensive jokes or assumptions
- Demoting you or changing your job assignments without a valid reason
- Failing to provide reasonable accommodation for your pregnancy-related condition
- Retaliating against you for filing a complaint about discrimination
It’s also illegal for your employer to:
- Limit the amount of pregnancy leave you’re entitled to under the law
- Take negative action against you for going on your legally protected leave
Both federal and state law provides pregnancy leave. Your rights will change based on where you’re employed. California especially is protective of pregnancy and family rights.
Pregnancy Leave Under the Family Medical Leave Act (FMLA)
The federal Family and Medical Leave Act of 1993 (FMLA) gives the right to 12 weeks of unpaid family leave. This law applies to both parents in all 50 states.
The definition of “parent” includes biological, adoptive, step, or foster parent, but does not include parents-in-law.
The FMLA was revised in 2015 to include same-sex spouses.
If you take unpaid family leave under the FMLA, your employer must guarantee your job for you until you come back. But not all employees are covered under the FMLA.
To receive maternity protections under the FMLA, you must:
- Work for an employer who is covered under the law
- Have worked for your employer for at least 12 months
- Have worked over a certain number of hours in the last year
- Work at a location where the employer has 50 or more employees within 75 miles
The law has other limitations, so make sure you talk to a lawyer about whether you qualify.
California Pregnancy and Family Leave Regulations
If you live in California, you have even more rights for pregnancy and maternity leave.
- The California Family Rights Act (CFRA) gives you the right to 12 weeks of unpaid family leave in addition to the 12 weeks you have under federal law.
To qualify for the CFRA, the requirements are similar to the FMLA above.
- California’s New Parent Leave Act (NPLA) has similar protections to the laws above except it applies to employers with 20-49 employees.
- The Pregnancy Disability Leave Law (PDLL) provides an additional 12 weeks of unpaid leave on top of what you get from both the FMLA and the CFRA.
Under the PDLL, a pregnancy disability is a health condition related to pregnancy or childbirth that makes you unable to perform the essential duties of your job. You can also qualify if continuing to perform your job would cause undue risk to your pregnancy.
Pregnancy disability could cover:
- Severe morning sickness
- Prenatal or postnatal care
- Any condition that requires bed rest
- Postpartum depression
- Pregnancy-related hypertension
- Mastitis or other lactation conditions
- Recovering from the loss or end of a pregnancy
In California, you are entitled to the maximum leave time that you can calculate under both federal and state law. That means you could have the right to up to 36 weeks of unpaid leave.
Each of these federal and state laws has its own requirements. Contact Harlan Law today at (619) 870-0802 for a free consultation about your rights.
What Should You Do If You Experience Discrimination at Work?
If you’re experiencing workplace discrimination, you should talk to a lawyer as soon as possible.
In the meantime, you can take steps to protect yourself and your rights.
- Keep a journal or log of any incidents in a safe place outside of work. Make sure to include the names of witnesses as well as those involved.
- Report the incidents in writing if you feel safe to do so. Follow your employer’s reporting procedure if they have one, otherwise write to HR or a supervisor. Your report doesn’t have to be formal; an email qualifies as “in writing.”
- Keep records and copies of any documents or emails about the incident.
- Keep records of any positive performance reviews in case your employer tries to retaliate against you.
- Take care of yourself. No one should have to endure discrimination. Reach out to your support system or talk to a professional about your mental health.
Discrimination can lead to a hostile work environment, which can take a toll on your mental health. You may be stressed or frustrated, but quitting your job may make it more difficult to win a lawsuit against your employer.
You don’t have to quit your job to put an end to discrimination. Contact Harlan Law at (619) 870-0802 before you have to take this unacceptable abuse for another day.
Can I Sue for Discrimination?
If you’ve experienced workplace discrimination, you can bring a lawsuit against your employer. Your company could be liable for discrimination depending on how they handled your situation.
Your employer has a duty to address incidents of discrimination in the workplace if they:
- Were aware, or
- Should have been aware of the behavior.
Under federal and state law, employers must have policies in place to make sure such discrimination does not happen again.
But having a handbook is not enough. Employers must actually follow through with their anti-discrimination policies. In many cases, victims of discrimination go to HR and follow their company’s reporting procedures – only for their companies to do nothing.
Perceived Race – Racial discrimination in the workplace is illegal even if the offender is wrong about your race.
Racial discrimination can happen to anyone, not just minorities.
You can suffer discrimination from someone who is the same race as you.
Discrimination by Management
Your company can also be liable for discrimination if managers and other high-level employees act in discriminatory ways. This creates a hostile work environment – where management sets a bad example for lower-level employees.
When managers discriminate, that sends a message to other employees that such behavior is not only tolerated but approved. It could also discourage victims of discrimination from reporting. Because if your boss is the problem, you might not feel safe complaining to them.
Retaliation for Filing a Discrimination Claim
Of course, employers are liable for any actions that they take against you for filing a discrimination complaint. Any type of retaliation is against the law. This includes:
- Harassment or disciplinary action
- Creating a hostile work environment
- Firing you (Read More About Wrongful Termination)
How Do I Sue for Discrimination?
For employment discrimination cases, you must usually file a complaint with the right government agency before you can file a lawsuit.
For federal discrimination claims, you file with the Equal Employment Opportunity Commission (EEOC).
For California state discrimination claims, you file with the California Department of Fair Employment and Housing (DFEH).
Depending on the type of discrimination, you have to file your claim within a certain time limit. This can be anywhere between 180 days to 300 days of the discriminating incident.
Call Harlan Law at (619) 870-0802 – our experienced employment law attorneys can help fill out your forms, complete your discrimination claim, and guide you through the process.
EEOC Investigation Process
The government agency will then investigate your claim. This could involve:
- Interviewing witnesses or visiting your workplace
- Requesting more information from you or your employer
- Inviting you and your employer to a mediation
In rare cases, the EEOC may take your case to court. But in most cases, the EEOC will give you a right to sue letter within 180 days. Once you get this letter you can file your own private lawsuit against your employer for discrimination.
Right to Sue Notices
A right to sue notice allows you to take your discrimination case to court. Once you get it, you have to act fast – within 90 days under federal law.
Sometimes, instead of a right to sue letter, you could get a Dismissal and Notice of Rights. Even if this happens, you could still file a successful claim for discrimination. Similar to the right to sue letter, you have 90 days to file your lawsuit.
It’s crucial to meet this deadline. Otherwise, your case may be thrown out of court and you may lose the chance to defend your civil rights.
If you have a right to sue letter, contact a lawyer as soon as possible. The more time you have to prepare your case, the better. Harlan Law will help you file your claim quickly and effectively.
Requesting a Notice of Right to Sue
If you don’t want to wait for the EEOC to complete its investigation, you can request a notice of right to sue. Call our attorneys at (619) 870-0802 to get started now.
Filing a Complaint with the California DFEH
When you have a claim for discrimination under the California Fair Housing and Employment Act (FEHA), you file a complaint with the state Department of Fair Employment and Housing (DFEH). Generally, you have to do this before you can sue.
The DFEH complaint procedure can be long and complex.
- First, you have to file a pre-complaint inquiry within 1 year of the last incident of discrimination and do an intake interview.
- An investigator will contact you within 60 days to discuss your inquiry.
- If the DFEH decides not to take on your complaint, they will dismiss your case and give you a right to sue letter.
- If the DFEH accepts your complaint, they will deliver it to your employer.
- Your employer will respond to the complaint and the DFEH will review.
- The DFEH will give both parties the chance to negotiate through mediation or alternative dispute resolution. If negotiation fails, DFEH will start an investigation.
- The investigation will decide if your employer violated California law.
- If the DFEH finds a violation, it can take on your case and send it to the DFEH Legal Division to pursue.
- If the DFEH finds no violation, it will close its case and give you a right to sue letter. You are then free to take the court to case yourself.
Usually, you need a right to sue letter from the DFEH before you can sue your employer.
You might have to wait for the state to finish its administrative process. Or, you can call an attorney to file your complaint and get an immediate right to sue. Call Harlan Law at (619) 870-0802 to discuss fast-tracking your case.
How to Prove Your Discrimination Claim
Once you’ve hired an experienced employment law attorney for your case, your lawyer will start compiling evidence that supports your case.
Discrimination claims are fact-specific. Every case is different based on the circumstances. That’s why it’s important to talk to a lawyer experienced in discrimination cases who knows how to build a strong case.
To prove intentional workplace discrimination, you must show that:
- You’re being discriminated against based on a legally protected characteristic
- Your employer is covered under state or federal anti-discrimination law
- Your employer took negative action against you (this is called an “Adverse Employment Action”)
- The motivating factor behind the negative action was discrimination
- You suffered harm because of your employer’s negative action (such as emotional distress or lost wages)
If you can prove these four points, you have a strong workplace discrimination claim against your employer. Contact Harlan Law at (619) 870-0802 to get started on your case.
But what if the discrimination you deal with isn’t intentional? Sometimes company policies may seem neutral on their face but have a discriminatory impact on a specific group.
Proving Unintentional Discrimination
Unintentional discrimination can also be called disparate impact discrimination.
Disparate impact means that an employment policy has a disproportionately negative effect on members of a protected class, even if the policy seems harmless on paper.
Disparate impact cases are even more complicated than intentional discrimination cases. Proving your claim could require statistics and expert witnesses.
Winning a Disparate Impact Case
- First, you must provide enough evidence to show a presumption that your employer’s policy has a discriminatory effect on a protected class.
- Next, your employer can show that the policy was a job-related business necessity.
- You can still win if you show that your employer refuses to adopt a non-discriminatory policy that achieves the same business purpose.
If you’re a victim of workplace discrimination, the sooner you talk to an attorney – the better.
The effect of discrimination on your career could be catastrophic. A misguided manager could derail your climb up the ladder. An ill-considered policy could put you unfairly behind your colleagues and cost you the promotions you deserve.
When it comes to your paycheck, a lot of money could be at stake. If the discrimination is especially malicious, outrageous, or harassing, a lawsuit could end up in a large settlement.
Calculating Damages in Employment Discrimination Cases
If your employer is found guilty of either direct or indirect discrimination, you may have a right to compensation for the damages you’ve suffered.
The specifics of your case will determine how much you can get in damages. If your case goes to trial, a judge or jury will determine what kind of compensation you’ll get. Your case may also be settled out of court, where your employer might make you a settlement offer.
If you get a settlement offer from your employer, you should talk to a lawyer before you sign anything. Settlement offers and contracts can be complex and you may end up signing away your rights. The experienced attorneys at Harlan Law can help you navigate these high stakes negotiations.
What Types of Damages Can Be Awarded Under Title VII?
Damages exist to “make you whole” after the harm you’ve suffered. The goal is to put you in the same position you would’ve been in had the discrimination not happened.
For example, if discrimination cost you a job or promotion, your remedy could be:
- Placing you into the job position you had been denied,
- Paying you any salary or benefits you may have missed, and/or
- Covering your legal fees, court costs, or expert witness fees.
These are actual damages you have suffered because of unlawful discrimination.
Sometimes placement isn’t possible because the lawsuit has turned your company into a hostile work environment for you. Damages could include future pay you lose as a result.
If your employer is found guilty of discrimination, they must also stop the discriminatory practice and make changes to prevent it from happening again.
Compensatory and Punitive Damages in Employment Discrimination Cases
For federal cases under Title VII – If your employer is guilty of intentional discrimination, you might be able to get compensatory or punitive damages.
This covers discrimination based on: race, color, national origin, religion, disability, sex, pregnancy, gender identity, sexual orientation, and genetic information.
Compensatory damages cover you for any:
- Out-of-pocket costs (such as job search and medical expenses) and
- Emotional harm you suffered because of the discrimination.
Emotional harm could be any mental anguish, inconvenience, or loss of enjoyment in your life.
Punitive damages exist to punish your employer. You could get punitive damages if your employer acted maliciously or recklessly in their discrimination.
Compensatory and punitive damages are harder to get because they’re harder to define. How do you measure emotional distress in a dollar amount?
That’s why the facts of each case are so important. If your employer’s behavior is especially bad, sustained over a long time, or combined with harassment or retaliation – you could have a case for compensatory and punitive damages.
Federal Limits on Compensatory and Punitive Damages
The EEOC limits compensatory and punitive damages. That means if you filed your lawsuit in federal court, you can only get so much depending on the size of your employer.
500 employees or more
The attorneys at Harlan Law can help you decide between the benefits of filing a state versus federal claim. Especially if you live in California, filing a lawsuit in state court has its advantages.
Employment Discrimination Damages in California
California state law has no limit on punitive damages. That means that some state discrimination lawsuits could end up with damages in the millions.
The possibility of high punitive damages can also make your employer more likely to settle and offer a higher amount in their settlement. This can be a point of negotiation – the more reprehensible your employer’s actions, the more punitive damages could be on the table.
To win punitive damages in a discrimination case in California, you must show with clear and convincing evidence that your employer (or a “managing agent” within the company) acted in malice, oppression, or fraud.
If you’re able to show malice, oppression, or fraud, the court may allow the jury to consider your employer’s wealth to calculate punitive damages.
The more severe and egregious your employer’s conduct, the more your case may be open to punitive damages. Call our California local attorneys today at (619) 870-0802 and let’s talk about your options.
About Harlan Law
Our San Diego law firm is dedicated to providing the best advocacy possible for clients nationwide. Call our experienced personal injury and employment lawyers today at 619.870.0802 for your first free consultation.
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“Jordon Harlan at Harlan Law, PC, earns a 5-star evaluation from me. I was in an accident and suffered injuries. It was difficult to deal with the insurance company to even obtain coverage for basic medical expenses. Jordon listened to my concerns and wishes and took care of everything. He obtained a settlement that I was pleased with and without the necessity of going to court. I hope not to be in similar circumstances in the future but if that were the case, Harlan Law is who I would contact immediately. Jordon Harlan has my full confidence.”