WORKER RIGHTS | Consumeradvocate

EMPLOYMENT LAW

Worker Rights Page

Wrongful Termination & Public Policy Violations

Workplace Discrimination & Harassment

Retaliation & Whistle-blower Protection

Sexual Harassment & Hostile Work Environment

Violation of Wage & Hour Laws, including

Denial of Pay & Unpaid Overtime

Failure to Accommodate Disability

Exhaustion of Remedies

Negotiation of Severance Packages

Employment Discrimination & Harassment

There are both State and Federal laws that prohibit workplace discrimination and harassment.

Federal Laws:

Employment discrimination under Federal law is prohibited through Title VII of the Civil Rights Act of 1964, which makes it unlawful for an employer to discriminate on the basis of national origin, race, gender, age, sex and other. It’s prohibition also extends to harassment that arises from the employee's status in one of these referenced protected categories.

The Americans with Disabilities Act, the ADA, protects individuals from being discriminated against on the basis of disability and from also being denied reasonable accommodations in employment. Federal Law also prohibits age discrimination of workers over 40 years of age through the Age Discrimination in Employment Act

State Laws:

Under State Law, the California Fair Employment and Housing Act (FEHA) (Gov. Code,1 § 12900 et seq.) embodies California’s public policy against discrimination and harassment in the workplace. The FEHA’s express prohibitions against discrimination and harassment are both comprehensive and expansive in scope.

As provided in Section 12920, “the practice of denying employment opportunity and discriminating in the terms of employment . . . foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general.”

Forms of Discrimination:

These acts become unlawful when they are taken or engaged in by the employer because of the employee’s belonging to any of the following protected categories:

Religion
Gender
Sexual orientation
Race, National Origin
Age (over 40)
Marital status
Disability and/or Medical Condition
Pregnancy and Other

Discrimination occurs where an employee is being treated differently in the terms of conditions of employment. Unlawful discrimination must result in an adverse action being taken against an employee because of their status in a protected category.

Harassment generally arises from severe or pervasive offensive acts and/or words engaged in or expressed by supervisors or even co-workers that result in a hostile work environment.

Hostile Work Environment is a work atmosphere created by ongoing harassment and even continuous discrimination.

Retaliation occurs where an employee is subjected to an adverse action as a result of their having made a protected report of unlawful discrimination, harassment and/or hostile work environment, among other acts.

Importance of seeking legal guidance in a timely manner:

This office is experienced in representing employees who have experienced unlawful discrimination, harassment and/or retaliation in the workplace.

We have favorably resolved discrimination claims based on gender, age, race, disability, sexual orientation and other.

If you believe that you have been the victim of any of the foregoing, it is important that you reach out for legal assistance immediately.

There are applicable deadlines that do apply to any potential claims that may be available under State and/ or

Federal laws.

Disability Discrimination & Failure to Accommodate

The California FEHA establishes separate grounds upon which an employer can be held liable for employment discrimination. The FEHA makes it unlawful for an employer to discriminate against employees because of their disabilities. (§ 12940, subd. (a)). It also makes it unlawful for an employer to fail to provide reasonable accommodations for the disabilities of employees (§ 12940, subd. (m)(1))

As an additional basis for liability that flows from a failure to accommodate claim, the FEHA further adds that it is an unlawful employment practice for an employer to fail to engage in a good faith, informal process with the employee to attempt to identify

reasonable accommodations.

While both categories fall under the broader umbrella of prohibited employment discrimination, the elements needed to establish a claim for failure to provide reasonable accommodations can be distinguished from those needed to establish a claim specifically for disability discrimination.

An important distinction is that a failure to accommodate claim does not require the employee to show that that the discrimination is connected with an adverse action. The adverse action showing is a critical element in other forms of both discrimination and retaliation.

In the context of failure to accommodate for a disability, however, the employer’s very act or sequence of actions that result in the employee not being sufficiently accommodated for a qualified disability can, in and of itself, be considered the actionable violation of the FEHA, even though an “adverse action” in the ordinary discrimination sense did not occur.

If you are having difficulty with disability accommodation issues in the workplace, it is important that to seek legal guidance immediately. We are experienced in handling all forms of discrimination issues on behalf of workers.

Constructive Discharge

Employment Law violations that occur in the work setting are certainly not always well defined nor readily identifiable.

In fact, while the employee continues to work under highly stressful and even demeaning circumstances, it may be very difficult to pinpoint the specific conduct that can be clearly deemed as unlawful.

This is certainly the case where the employee is enduring some form of ongoing harassment or continuing discrimination, but has actually not been terminated from the position.

Fortunately, the reach of California’s protective measures is expansive enough to allow an employee who has endured working conditions so intolerable that they are forced to voluntary quit to still proceed in maintaining an action against the employer for wrongful termination.

As the Courts have recognized, the conditions giving rise to a resignation may be “so sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244–1245 [32 Cal.Rptr.2d 223, 876 P.2d 1022])

This form of termination is referred to as a constructive termination. “Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a ﬁring rather than a resignation.” (Turner, supra, 7 Cal.4th at p. 1251.)

Too often employees will continue to endure a significant level of emotional distress arising from working conditions, yet overlook their right to seek experienced legal advice and guidance for their situation.