SAN FRANCISCO EMPLOYMENT LAW BLOG

When you walk into a job interview, whether for a new position or for a potential promotion, you may find yourself asked an unexpected question. These out-of-the-box questions may allow employers to learn more about how you solve problems, your approach to working with others on the job and your long-term career aspirations. However, some of these unexpected questions may cross a line.

What questions might be a form of discrimination?

Do you plan on having children?

While this may seem like an interviewer is attempting to build a personal connection, it can also be a sign that they will factor your intent to have children into their hiring choice. Even if you don’t plan to build your family now, employers that base a hiring choice on the idea that an employee may become pregnant in the future are acting on a form of pregnancy discrimination.

What religious holidays do you observe? Do you go to church?

While most employers want to know about your availability and schedule, asking directly about your religious practices could lead to unfair treatment. Employers may base their hiring decision on your religious beliefs rather than your actual availability.

Are you a U.S. citizen?

While employers will need documentation that an applicant is authorized to work in the country or about the languages they speak, they cannot focus specifically on an applicant’s citizenship. This can be a subtle indicator that the interviewer will make decisions in part about an applicant’s national origin.

If an interviewer asked these or other unfair questions in your job interview, you may want to speak to an attorney about your legal options.

Mental illnesses are illnesses just like any other. If you were suffering from a broken leg, your employer wouldn’t be allowed to discriminate against you or harass you because of this. The law stands exactly the same for a mental illness, whether that’s depression, anxiety or another condition.

Those suffering from a mental health issue may be more vulnerable to discrimination and harassment because their illness is not visible. If you believe that you are being discriminated against or harassed because of a mental health condition, it is important that you understand the law and that you take legal action if appropriate. The following is an overview of your legal rights as an employee suffering from a mental health condition.

You cannot be fired because you have a mental health condition

If you are suffering from depression or anxiety, it is likely that you are struggling in some aspects of your work, or that you need to attend doctor’s appointments and therapy. Regardless, it is illegal for your employer to fire you, reject you for a promotion or ask you to leave, unless they have objective evidence that you are unable to perform your job role.

You don’t have to declare your condition to anyone

You never have to tell your employer about your condition if you do not want to. Similarly, your employer cannot ask questions about your health, physical or otherwise, except for some situations. Your employer can ask medical questions in the event that you ask for a reasonable accommodation if they are asking everyone in the same job category the same questions when they start the company, when they are engaging in affirmative action for people with disabilities or when there is objective evidence that you cannot perform your job.

If you believe that your employer may have broken the law regarding the way that they have treated you in relation to your mental health condition, assert your legal rights and protect yourself.

Employees at a company are almost like components in a machine. They all need to fit into their specific role properly and must perform certain tasks in order for the rest of the machine or employee group to function optimally. When one person does not come to work for multiple weeks, that can be a major hindrance to a company’s productivity or standard workflow.

Such problems are one reason that most companies have strict attendance policies. However, there are life circumstances that necessitate taking a leave of absence. Receiving medical care, helping a loved one heal or having a new child are scenarios where an otherwise diligent employee may need to make a reasonable request for an extended leave of absence.

Under the Family and Medical Leave Act (FMLA), those who welcome new family members into their household, including expected mothers, have the right to take up to 12 weeks of unpaid leave. Can your employer demote you or try to pay you less when you come back from your maternity or FMLA leave?

You should have the right to resume the same work as before

Under the FMLA, a qualified worker who takes necessary leave has the right to return to the same job with the same compensation. Employers should not discriminate against workers who require leave, including women who take a full 12 weeks off following the birth of their child.

Some companies try to push pregnant workers to quit by claiming they don’t offer maternity leave. While the federal government does not mandate that your employer provide you with paid leave of any sort, the company does not have to offer paid maternity leave for you to be able to take FMLA leave and return to the same job.

Demoting you or cutting your pay is an example of discrimination

Pregnancy is a protected medical condition that an employer should not use as a basis for any sort of employment decisions. A woman having a child in no way impacts her ability to continue performing her job or developing her career.

When companies penalize workers for taking a leave of absence, the workers facing negative repercussions may be able to take legal action against their company for their discriminatory practices.

Although federal law requires women to receive equal treatment to men in the workplace, many still notice a gender-related wage gap. The nonprofit Equal Pay Today reports that according to United States Census data, American women earn an average of 88 cents on the dollar to male earnings for the same job in 2020.

If you are a woman affected by unequal pay in the workplace, you have options.

Get the facts

Transparency about salaries can help eliminate wage discrimination. Federal law prohibits policies that forbid nonsupervisory employees from discussing their salaries. The company cannot legally discipline you for asking a male colleague what he earns.

Gather evidence

Before approaching your supervisor about the discrepancy, make sure you can show that you are truly on the same level as male coworkers who earn higher salaries. You should provide details about how long you have been with the company, how many years of industry experience you have and your responsibilities. Employers can legally pay increased wages to some employees based on their increased value to the business.

Consider your options

If you have a strong case for equal or greater value than your counterpart, you may be able to negotiate an equal salary with human resources and your manager. If negotiations are unsuccessful, however, you may consider filing a discrimination lawsuit. Depending on the circumstances of your situation, the judge may award compensatory damages and punitive damages. If your employer let you go over the wage issue, the court can order your reinstatement and require the firm to pay back wages.

You may also file an Equal Pay Act complaint with the U.S. Equal Employment Opportunity Commission. You can do so online, in person, by phone or by mail, but you only have 180 calendar days from the date on which you learned of the equal pay violation. The EEOC will investigate your claim and schedule a follow-up interview with you.

Like many other expecting mothers in the Bay Area, you take your career seriously. While you expect your employer to reasonably accommodate your pregnancy, you plan to work hard until and after your baby comes into the world. Unfortunately, though, your employer may use your pregnancy as a reason to discriminate against you.

If your employer terminates your employment immediately after you confirm your pregnancy, discrimination is likely to blame. Still, some signs of pregnancy discrimination are harder to identify. With many women, isolation and exclusion are the first red flags that something may be amiss. You must realize, though, that discrimination-related exclusion may take a variety of forms.

Social exclusion 

You probably work with management, colleagues, clients and others virtually every day. If doing your job effectively requires social interaction, exclusion may be disastrous. That is, if your manager excludes you from important meetings, sales events, conferences or networking functions, achieving professional success may become virtually impossible.

Information exclusion 

For good reason, organizations limit access to information. While you may have relevant information to do your job, you probably do not know everything about your company. During your pregnancy, though, your managers or colleagues may discriminate against you by excluding you from the information that you need to perform job tasks. If you suddenly lose access to meetings, internal data or training opportunities, your employer may be engaging in impermissible workplace discrimination.

Opportunity exclusion 

Because your career is important to you, you may be constantly on the search for additional responsibilities or other opportunities. If your employer refuses to offer you chances for professional growth during or after your pregnancy, you may be the victim of discrimination. This is particularly true if you had an opportunity for advancement before your pregnancy.

While pregnancy discrimination is sometimes clear-cut, it is often subtle. As such, you must watch closely for disparate treatment. If you notice the warning signs of exclusion, you likely must act quickly both to protect your career and to take advantage of available legal remedies.