Discrimination - San Francisco Employment Lawyer | Bay Area Discrimination Attorney

Gender Discrimination in Hiring: Identifying and Avoiding Bias in the Recruitment Process

On Behalf of Le Clerc Le Clerc LLP
February 5, 2024
Discrimination, Employment Law

In today’s evolving professional landscape, gender discrimination in the hiring process remains a critical issue that both employers and job seekers must be vigilant about. If you’re going through the job application and hiring process, understanding the nuances of gender discrimination, recognizing its occurrence, and knowing the steps to address it are crucial for receiving fair treatment. Below, we’ll break down the definition of gender discrimination, how to identify if you’ve experienced bias and the process of pursuing a discrimination claim.

What Is Gender Discrimination in Hiring?

Gender discrimination in hiring occurs when a job candidate is treated unfavorably or unfairly in the recruitment process due to their sex, gender identity, or expression.

Gender discrimination in hiring is not only unethical but also illegal. Laws like the U.S. Civil Rights Act of 1964 prohibit discrimination in employment, including the hiring process. Employers are required to ensure that their hiring practices are fair and non-discriminatory, providing equal opportunities to all candidates regardless of genders.

How Does Gender Discrimination Manifest in Hiring?

There are many ways that gender-based discrimination can infiltrate the hiring process, such as:

Biased Job Advertisements: Job postings may explicitly or implicitly indicate a preference for a certain gender. For instance, using coded language like “strong male candidate” or “female preferred” can discourage qualified applicants from applying.
Unequal Treatment During Recruitment: This can occur in various stages of the hiring process, including application screening, interviews, and candidate evaluation. For example, if male and female candidates with similar qualifications are treated differently during interviews or are asked different types of questions (such as personal or family-related questions directed more at women), it constitutes discrimination.
Assumptions Based on Stereotypes: Employers may make assumptions about a candidate’s abilities, interests, or commitment to the job based on stereotypes. Examples can include assuming that a woman might not be interested in or capable of handling physically demanding tasks, or that a man might not be suited for roles traditionally seen as ‘feminine’.
Differential Compensation Offers: Offering different salary packages, benefits, or terms of employment to candidates based on their gender is also a form of discrimination. This might include lower salary offers to women as compared to men for the same role with similar qualifications.
Lack of Gender Diversity in Hiring Practices: An overall lack of diversity in a company’s workforce, especially in leadership roles, can be indicative of bias in the hiring process.

In general, if it appears that people of different genders are being treated differently during the hiring process, discrimination may be occurring.

Identifying Gender Bias in Your Hiring Experience

Identifying gender bias in your hiring experience requires a keen observation of the recruitment process and an awareness of the subtle (and sometimes not-so-subtle) signs of discrimination. Here are steps and indicators to help you identify if you have experienced bias during the hiring process:

Analyze Job Advertisements: Look for language in job postings that might suggest a gender preference. Terms or phrases that seem to lean towards a particular gender or imply stereotypical roles can be a red flag.
Observe Interviewer Behavior: Pay attention to the behavior and attitude of the interviewer(s). Did they make assumptions based on your presentation? Were there any offhand comments or jokes that seemed to stereotype or diminish your gender?
Compare Treatment with Other Candidates: If possible, observe or find out how candidates of different genders were treated. Were there noticeable differences in demeanor, questioning, or time spent with candidates of another gender?
Assess Evaluation Criteria: Consider whether you were evaluated based on stereotypes. For example, were you judged on criteria that are traditionally associated with your presentation, or were there assumptions about your capabilities or interests?
Review Feedback and Communication: Analyze any feedback or communication you received during or after the process. Look for hints of bias, such as comments on your appearance, demeanor, or lifestyle choices that are unrelated to job performance but linked to cultural norms.
Examine Compensation Offers: If you received an offer, compare it with industry standards or, if possible, with offers made to other candidates of a different gender for similar roles. Significant discrepancies in salary, benefits, or job level can indicate bias.
Consider the Overall Company Culture: Research the company’s culture, diversity, and inclusion policies. A lack of diversity, especially in leadership roles, or a history of related complaints can be indicative of systemic bias.

If, after this evaluation, you believe you have experienced bias, it’s important to document specific instances and seek advice from professionals, such as employment discrimination attorneys, especially if you’re considering taking further action.

Pursuing a Discrimination Claim for Experienced Bias

If you believe you have been a victim of discrimination in hiring, you can pursue a claim through the following steps:

Document Everything: Keep detailed records of your application, interview notes, correspondence, and any comments made that suggest bias.
Seek Legal Advice: Contact an employment attorney who specializes in discrimination cases to understand your rights and the strength of your case.
File a Complaint: You can file a complaint with the Equal Employment Opportunity Commission (EEOC). They will investigate your claim and determine if there has been a violation of employment discrimination laws.
Consider Legal Action: Based on the outcome of the investigation and advice from your attorney, you may decide to pursue legal action against the employer.

Experienced Legal Counsel for California Gender Discrimination Claims

Gender discrimination in the hiring process not only affects individuals but also undermines the integrity of our workplaces. Awareness and proactive measures are key to identifying, preventing, and addressing this form of bias.

If you believe you’ve faced discrimination during the hiring process, we encourage you to get in touch with the experienced employment attorneys at Le Clerc & Le Clerc LLP. Our skilled team has spent years helping victims of hiring discrimination pursue justice against California employers. Together, we can work towards a more equitable and fair hiring landscape.

Accommodating Family Status: An Employee’s Guide to California’s Laws

On Behalf of Le Clerc Le Clerc LLP
February 5, 2024
Discrimination

In the bustling landscape of California’s workplaces, employees often find themselves juggling various responsibilities. From the demands of their jobs to the needs of their families, it’s crucial to strike a balance.

However, what happens when your family status becomes a source of discrimination in the workplace? Let’s explore California’s marital status laws, examine family status discrimination, understand the protections for parenthood, and learn how to seek help if you encounter it in the workplace.

What Is Family Status Discrimination?

California family status laws aim to protect employees from discrimination based on their marital status. Marital status discrimination occurs when an employer treats an employee unfairly due to their marital status, parental role, or other familial responsibilities. This type of discrimination can manifest in various ways, such as:

Refusing to hire or promote someone because they are a parent.
Subjecting employees to different terms and conditions based on their marital status.
Making derogatory comments or jokes about an employee’s family responsibilities.
Failing to provide reasonable accommodations for an employee’s family-related needs.

Is Parenthood a Protected Class in California?

No, parenthood is not a protected class in California. While the state recognizes that being a parent is a fundamental aspect of many people’s lives, being a parent is not a protected class the way marital status is. As such, it is not illegal for employers to discriminate against employees or job applicants based on their role as parents alone.

Certain local jurisdictions have regulations protecting people who are responsible for caring for another person. These are known as family responsibilities discrimination laws or caregiver protection laws. For example, in San Francisco, employers may not prohibit against people due to their role as caregivers. Still, this does not apply to parents specifically, as the law defines a caregiver as someone responsible for caring for an adult family member with a serious medical condition.

Despite this, there are laws prohibiting certain actions against current or prospective parents, including:

California Pregnancy Discrimination Act (CPDA): In California, employers are required to provide reasonable accommodations to pregnant employees under the CPDA. This means that if you are pregnant, your employer must make reasonable adjustments to your job duties or provide you with leave if necessary.
Lactation Accommodations: Every employer must offer nursing workers a “reasonable amount of break time” and a safe, healthy, and private location to express milk for their infant children.
California Family Rights Act (CFRA): The CFRA is a stronger version of the federal Family and Medical Leave Act (FMLA), giving parents the right to protected unpaid leave if they need to care for their children’s serious medical condition.
New Parent Leave Act (NPLA): This law ensures that eligible employees can take time off work to bond with a new child, whether through birth, adoption, or foster care placement.
Reproductive Loss Leave: This law guarantees workers the right to limited protected time off to recover from a reproductive loss such as a miscarriage or failed adoption.
Leave to Participate in School Activities: Eligible employees may receive up to 40 hours a year to respond to emergencies at their children’s school or daycare or to find and enroll their children in new institutions.

While parenthood itself isn’t protected, these laws provide working parents with a variety of protections in the workplace.

When Gender, Marital Status Discrimination, and Parenthood Intersect

While parenthood isn’t a protected category, marital status and gender are. Many instances of potential discrimination against parents are barred by gender or marital status protections. For example, an employer cannot discriminate against a female employee because she is pregnant (gender discrimination), and they cannot treat her unfavorably because she is a married or unmarried parent (marital status discrimination). This ensures that working mothers receive equal opportunities and protections in the workplace.

Getting Help for Family Status Discrimination in California

If you believe you have experienced marital status discrimination in California, you have several options for seeking help:

Document Everything: Start by documenting any incidents of unfair treatment related to your family status. This includes noting dates, times, locations, individuals involved, and any witnesses. Keep copies of relevant emails, memos, or other written communications.
Speak with your employer: Consider discussing the issue with your immediate supervisor or the Human Resources (HR) department within your company. They may not be aware of the situation and might be willing to address it through internal channels. Be clear about your concerns and provide any supporting documentation. In some cases, addressing the issue directly with your employer may lead to a resolution.
File a complaint: If discussing the issue with your supervisor or HR does not lead to a resolution, you may need to file a formal complaint within your organization. Follow your company’s established procedures for reporting discrimination. Ensure you keep copies of all correspondence related to your complaint.
Consult an attorney: If your employer does not take appropriate action to address the problem, or if you believe your case is not adequately resolved, consider consulting with an attorney who specializes in employment discrimination cases. They can provide legal advice, assess the strength of your case, and guide you on the best course of action.

Professional Representation for Family Status Discrimination

In California, family status discrimination is illegal, and employees have rights to protect themselves from unfair treatment based on their family responsibilities. Understanding these rights and the laws that safeguard them is crucial for maintaining a healthy work-life balance and a discrimination-free workplace. If you encounter marital status discrimination, remember that help is available, and you have legal protections under California employment laws. At Le Clerc & Le Clerc, LLP, we specialize in helping parents pursue justice for the discrimination they face in the workplace. We encourage you to get in touch if you think you’re facing parental discrimination by your employer. We can help you determine if you have a case and pursue compensation for the harm you’ve suffered.

Your Right to Take Time Off for Religious Holidays

On Behalf of Le Clerc Le Clerc LLP
January 15, 2024
Discrimination

Navigating the workplace and personal faith can sometimes feel like walking a tightrope, especially when it comes to observing religious holidays with your family. In California, a state celebrated for its cultural and religious diversity, understanding your rights as an employee to take time off for religious observances is crucial.

Whether you’re celebrating Yom Kippur, Eid, Diwali, Christmas, or any other religious event, it’s important to know that your rights are safeguarded, allowing you to honor your traditions and spend time with your family while maintaining your professional commitments. Let’s delve into the details of these rights and the steps you can take to exercise them.

California’s Laws Regarding Religious Accommodations for Time Off

In California, employers are required by law to provide reasonable accommodations to employees who are unable to work on specific days due to religious holidays or observances. This includes excusing employees from performing duties that conflict with their religious beliefs. These laws come into play in workplaces with five or more employees, aligning with California’s broader employment laws and standards.

Reasonable accommodations, including time off for a religious holiday, are determined on a case-by-case basis. There is no one-size-fits-all solution, and each situation is evaluated individually. Employers must engage in an interactive process with employees to discuss any requests for religious accommodation. This process involves both the employer and the employee working together to find an acceptable solution that respects the employee’s religious needs while considering the employer’s operational requirements.

A reasonable accommodation may include, but is not limited to, job restructuring, job reassignment, modification of work practices, or allowing time off. The accommodation should aim to eliminate the conflict between the religious practice and the job requirements. For example, if an employee has worked extra hours or days, they may be allowed time off equivalent to this amount to observe a religious holiday.

Employers are expected to grant reasonable accommodations unless doing so would result in “undue hardship.” This is a high threshold to meet and implies that an accommodation should be given unless it causes significant difficulty or expense to the employer.

The employee bears the burden of providing notice of the conflict between their religious beliefs and work requirements. This means that employees need to inform their employer about their need for time off for religious observances.

Has Your Right to Religious Accommodations Been Violated?

If you’re not sure whether your rights to accommodations have been violated, here are some factors you can look for:

Refusal to Accommodate: If your employer outright refuses to accommodate your religious practices without consideration, it’s likely discriminatory.
Failure to Engage in Interactive Process: Employers are required to engage in a good faith interactive process to discuss accommodation requests. Failure to do so can be a sign of violation.
Retaliation: If you face negative job actions like demotion, termination, reduction in hours, or harassment after requesting religious accommodations, your rights may be violated.
Inconsistent Policies: If accommodations are granted to some employees but not to others in similar situations, this may indicate discrimination.
Undue Hardship Claim Without Justification: Employers may deny accommodations by claiming undue hardship, but this must be based on concrete evidence, like significant expense or difficulty, not mere inconvenience.

How to Take Legal Action for Workplace Religious Discrimination

Taking legal action for workplace religious discrimination can be a multi-step process. It’s important to understand your rights and the procedures involved. Here’s a general guide on how to proceed:

Document the Discrimination: Keep detailed records of any instances of discrimination. This includes dates, times, places, names of the people involved, and a description of what occurred. Save any related emails, memos, or other written materials.
Seek Legal Advice: Consider consulting with an attorney experienced in employment law. An attorney can provide guidance specific to your situation and can help you navigate the process of filing a charge and a lawsuit, if necessary.
Report the Discrimination Internally: Most companies have a process for filing discrimination complaints. Report the discrimination to your HR department or another designated internal body. Follow your company’s procedures, and keep a record of your complaint and any responses.
File a Complaint with the CRD: If the issue is not resolved internally, you can file a complaint with the California Civil Rights Department (CRD). The CRD is responsible for enforcing federal laws against employment discrimination. You must file a charge of discrimination with the CRD before you can file a job discrimination lawsuit against your employer.
Investigation by the CRD: Once you file a charge, the CRD may investigate your complaint. The EEOC may mediate between you and your employer, ask your employer to respond to your charge, and gather information from your employer and other sources.
Notice of Right to Sue: If the CRD determines that discrimination has occurred, they may take legal action. However, if they decide not to sue, or if you request it, they will issue you a “Notice of Right to Sue,” which permits you to file a lawsuit in a court of law.
File a Lawsuit: If you receive a Notice of Right to Sue from the EEOC, or if the EEOC has not completed its investigation within 180 days, you can file a lawsuit against your employer. This lawsuit can be filed in either federal or state court.

If your case goes to court, be prepared for the legal process. This may include discovery (gathering of evidence), depositions (formal statements made under oath), and, eventually, a trial. An experienced attorney can help you prepare for this process and consider more efficient solutions such as mediation.

Seek Expert Legal Counsel for Your Religious Discrimination Case

Recognizing a violation of your right to religious accommodations requires a clear understanding of the laws, knowing what an appropriate accommodation looks like, and being aware of your employer’s response to your request. If you believe your rights have been violated, it’s important to take the appropriate steps to address the issue, including seeking legal advice.

At Le Clerc & Le Clerc LLP, we can help. Learn more about how we can assist you with your religious discrimination claim by scheduling your free consultation with our San Francisco employment law firm today.

How New 2024 Laws Will Impact California Workers

On Behalf of Le Clerc Le Clerc LLP
November 13, 2023
Discrimination, Retaliation

The California legislature prioritized workers’ rights during the summer session, and you’ll likely benefit from it. Governor Gavin Newsom signed a wide range of bills into law in October that will come into effect between now and January 1, 2024.

These new laws cover various topics that should impact every employee in California. Let’s break down the most important employment regulations you should know about for next year.

New Protected Leave Laws

By far the area of law that saw the most expansion is the requirement for protected leave. California employers are already held to some of the most rigorous leave laws in the country, with guaranteed sick leave for most workers, widespread parental leave availability, and family and disability leave options. However, the legislature determined the current requirements did not go far enough. As of October, Governor Newsom signed two additional bills into law expanding the right to leave: Senate Bills (SB) 616 and 848.

SB 616 has been referred to as the Paid Sick Leave Expansion law, and that covers much of what the new law accomplishes. It raises the current required number of paid sick days per year from three days or 24 hours to five days or 40 hours.

Additionally, SB 616 updates the requirements for sick leave accrual and carryover. Companies offering sick leave by accrual must grant employees at least one hour of leave for every 30 hours worked. They must also permit employees to carry over up to 40 hours of sick leave each year. These changes should help employees better care for themselves and their families without sacrificing their financial well-being.

SB 848 is just as important for families. It institutes a new form of protected leave for “Reproductive Loss.” Employers may not deny employees’ requests for protected unpaid time off work after experiencing a reproductive loss. This includes miscarriages, stillbirths, unsuccessful surrogacies or assisted reproduction, and failed adoptions. SB 848 provides workers with time to grieve and physically recover after an often grueling and traumatic loss.

New Retaliation and Discrimination Laws

Two new retaliation and discrimination bills were passed into law this October. The first, SB 497, is invaluable for anyone who has faced workplace retaliation in California. The bill establishes a rebuttable presumption of retaliation if a worker is fired or otherwise penalized within 90 days of engaging in protected activities.

A rebuttable presumption means that the courts are instructed to assume something has occurred until proven otherwise. Under SB 497, state courts will assume that employers are retaliating against employees if they take adverse employment action against them within 90 days of reporting discrimination, retaliation, or equal pay violations. Employers must provide a legitimate reason for the adverse action other than retaliation, or the case will be decided in favor of the employees. This change makes it substantially easier for workers statewide to file retaliation claims successfully.

Another bill that protects workers is SB 700, which institutes new protections for off-the-clock cannabis use. The law prohibits employers from requesting information from applicants or employees about their history of cannabis use to reduce the likelihood of unlawful discrimination against these workers.

It’s worth noting one bill that was not passed. The legislature advanced SB 403, which was intended to make caste a protected class like race or religion. However, Governor Newsom vetoed the bill, stating, “Because discrimination based on caste is already prohibited under these existing categories, this bill is unnecessary.” In other words, he declined to sign the bill into law because caste discrimination is already unlawful.

New Restrictions on Noncompete Agreements

A pair of new bills will make noncompete agreements not just void but illegal. In California, Business & Professions Code §16600 already renders noncompete clauses and contracts invalid and unenforceable. However, it does not prevent employers from including these clauses in new employment contracts, which may have a chilling effect on workers’ willingness to exercise their rights.

SB 699 and Assembly Bill (AB) 1076 change this. AB 1076 adds §16600.1 to the Code, which makes it unlawful to add a noncompete clause in any employment contract and is retroactive to new agreements issued on or after January 1, 2022. Meanwhile, SB 699 states that §16600.1 applies to employment contracts signed anywhere in the country if enforced in California. It also grants employees a private right of action against companies that attempt to place a noncompete in new agreements.

Public Prosecution for Labor Code Violations

Finally, AB 594 has been passed into law. This bill grants city and district attorneys the right to take civil or criminal legal action against employers violating the state Labor Code. Furthermore, it clarifies that employment agreements that prevent class action lawsuits or require arbitration do not affect public attorneys’ right to enforce the Labor Code.

This substantially expands the options for workers facing discrimination, retaliation, or other rights violations. Permitting parties other than the state labor commissioner to enforce the Code increases the likelihood that a given claim is pursued. It also ensures employers can’t avoid liability for labor violations through restrictive employment contracts.

Stand Up for Your New Employment Rights

Over the next few months, the new laws above will be going into effect statewide. You will soon have more options if you have been denied protected leave, face retaliation or discrimination, or have an unlawful noncompete clause in your employment contract.

No matter what mistreatment you’re facing at work, the skilled employment law attorneys at Le Clerc & Le Clerc LLP can help. Our team is dedicated to advocating for the rights of California workers. We can help you better understand your rights, determine if you have a case, and represent you in court. Schedule your consultation with our San Francisco law firm today to learn how we can support your rights.

Retaliation Claims May Succeed When Discrimination Claims Do Not

On Behalf of Le Clerc Le Clerc LLP
November 6, 2023
Discrimination, Retaliation

California’s laws regarding workplace discrimination have just become more employee-friendly. On October 8, Governor Gavin Newsom officially signed the Equal Pay and Anti-Retaliation Protection Act into law. This bill, officially titled Senate Bill (SB) 497, makes it substantially easier for employees to establish a retaliation claim in court successfully.

Between SB 497 and California’s existing laws, it may be easier for employees to demonstrate retaliation than to prove discrimination. Below, we discuss how retaliation and discrimination differ, how the new law may make retaliatory actions easier to prove, and what you can do if you believe your employer has retaliated against you for a protected activity.

Retaliation vs. Discrimination: How Are They Different?

Retaliation and discrimination are both ways that a company can violate its employees’ protected rights. However, the two violations occur in different contexts.

Discrimination is taking adverse employment action or creating a hostile workplace because of someone’s protected characteristics. California law considered protected characteristics to include:

Sex, gender, and gender identity
Sexual orientation
Race, ethnicity, and national origin
Religion
Marital status
Disability
Citizenship
Primary language
Familial status and pregnancy

An employer cannot choose to fire, demote, cut hours or pay, or otherwise treat someone poorly because of these characteristics. If it does, it commits discrimination, and the victim has the right to submit a claim against them.

In contrast, retaliation is taking adverse action against someone because they exercised a protected right or engaged in a protected activity. The person’s characteristics don’t matter, just their behavior. Protected activities include:

Participating in religious events
Requesting or taking family leave
Requesting reasonable accommodations for a disability or pregnancy
Submitting a whistleblower complaint for discrimination or safety concerns
Filing a discrimination lawsuit against the company

If a company penalizes an employee in any way for these activities, it may be retaliatory, and the victim could file a lawsuit.

Why Retaliation Claims May Be More Successful

Proving discrimination in court is often a complex process. Most employers are well aware that discriminating against employees for protected characteristics is illegal. As such, employers that discriminate are often doing so unintentionally, which can make collecting evidence to prove a claim more difficult. Instead of collecting direct statements, plaintiffs may need to gather substantial evidence from the company to establish a trend of discriminatory actions or the creation of a hostile workplace.

Historically, this was also true for retaliation claims. Workers had to build a strong prima facie case for their claim before it would be considered. This frequently made it difficult for employees’ claims to be taken seriously.

However, SB 497 should make it significantly simpler to establish retaliation in court. The new law creates a “rebuttable presumption of retaliation” if a worker is penalized or fired within 90 days of engaging in specific protected activities. Covered activities include:

Filing a claim under the Equal Pay Act
Filing a complaint with the California Civil Rights Department
Reporting legal and regulatory violations to supervisors or other employees
Submitting a whistleblower report to a government agency

If you do any of the above and your employer fires or punishes you for any reason in the next 90 days, SB 497 instructs the court to assume that it was a retaliatory action automatically. The responsibility to prove otherwise falls on your employer, which must prove that the action was a reasonable and non-retaliatory reaction to unrelated circumstances. Only then will you need to demonstrate that the action was retaliatory despite your employer’s reasoning. This makes it significantly easier to establish your case in court and seek compensation for your losses.

Furthermore, a retaliation claim can succeed even if a discrimination claim does not. You do not need to win or even pursue a discrimination lawsuit in court to experience retaliation. Regardless of the outcome of your discrimination claim, any punitive action your employer takes against you as a result is considered retaliatory and may be grounds for its own lawsuit.

Proving Workplace Retaliation Claims in California

If you suspect you’re experiencing retaliation, it’s worth taking action. Your employer’s actions have likely cost you wages, benefits, and career opportunities. You deserve compensation for these losses, and a retaliation lawsuit can help you pursue justice.

SB 497 makes this easier. However, if your employer provides a reasonable non-retaliatory reason for the adverse action taken against you, you will need to prove that you experienced retaliation. Depending on your circumstances, you may accomplish this by:

Collecting written communications: The strongest evidence for retaliatory action is a written statement by your manager or employer. These may include texts, emails, or other written messages. If you have received any threats or other communications stating that you will be punished or fired for engaging in a protected activity, save them immediately for use in your claim.
Talking to your coworkers: Another valuable form of evidence is eyewitness testimony. Even if your employer has not written anything down, your colleagues are likely aware of what’s going on. If you were verbally warned in front of others, or if your coworkers have noticed that you’re being treated differently, they can testify on your behalf.
Demonstrating a change in behavior by your employer: You can further support your case by showing that your employer began treating you differently after you engaged in a protected activity. If your hours were cut, your performance reviews dropped significantly, or you were fired shortly after requesting family leave, that strongly suggests retaliatory action.

If you believe you have experienced workplace retaliation, SB 497 now makes it easier to hold your employer accountable. We encourage you to reach out to the experienced employment attorneys at Le Clerc & Le Clerc LLP to discuss your situation. We can help you determine whether you have a case and the best path forward to achieve compensation for your losses. To learn more about how we can advocate for you, schedule your consultation with our California retaliation law firm today.

California Supreme Court Sets New Precedent for Employment Discrimination

On Behalf of Le Clerc Le Clerc LLP
October 20, 2023
Discrimination

In a landmark new opinion, the California Supreme Court has declared that employers are not the only parties directly liable for employment discrimination. In the case Raines v. U.S. Healthworks Medical Group, the Court ruled that an employer’s “business entity agents” can also be held directly liable for discriminating against workers in certain circumstances.

This is a significant step forward for victims of workplace and employment discrimination statewide. The new ruling makes it easier to hold the correct parties accountable for discriminatory practices by expanding liability for these claims. Let’s break down how this may affect you.

Understanding the Raines v. U.S. HealthWorks Medical Group Ruling

The case Raines v. U.S. Healthworks Medical Group is a class-action lawsuit filed by Kristina Raines against U.S. HealthWorks Medical Group. This healthcare company performs medical screenings on behalf of employers, among other activities. Raines was offered a position at a local retirement community, contingent on passing a health screening performed by U.S. HealthWorks. However, when Raines began the screening process, she was instructed to complete an extensive health history questionnaire covering her current prescriptions, pregnancy status, HIV status, menstrual issues, and more.

Raines refused to complete the questionnaire, believing it to be overly intrusive. However, her job offer was revoked because she was reported to have failed the screening by refusing to complete it. In response, she filed a class-action lawsuit against U.S. HealthWorks, arguing that requiring her to answer all questions or fail the screening violated her rights under California’s Fair Employment and Housing Act (FEHA).

This law prohibits employers from making employment decisions based on medical conditions that do not affect a person’s ability to do the job. It also prohibits medical inquiries not “consistent with business necessity.” Raines argued that many of the questions she was asked were irrelevant to her job, and requiring her to answer them violated her right to privacy and freedom from gender and disability discrimination.

A federal judge in San Diego initially dismissed the lawsuit, arguing that FEHA only holds employers directly responsible for discrimination. The judge cited a previous ruling exempting supervisors from direct liability for discrimination in the workplace as grounds for the argument.

In response, California Attorney General Rob Bonta filed an amicus brief to revive the lawsuit because the court’s initial ruling undermined FEHA’s intended broad protections against discrimination. This led the Court of Appeals for the Ninth Circuit to submit the question to the state Supreme Court. It responded that “an employer’s business entity agents can be held directly liable under the FEHA for employment discrimination in appropriate circumstances when the business-entity agent has at least five employees and carries out FEHA-regulated activities on behalf of an employer.”

As a result, Raines’ class-action lawsuit can move forward. More importantly, people with similar experiences can hold discriminatory business entity agents accountable for the harm they cause.

What Counts as a Business Entity Agent?

A business entity agent is any party that meets the following three criteria as defined by the state Supreme Court:

Size: The entity must consist of at least five employees, matching FEHA’s existing employment discrimination requirements.
Responsibilities: The entity must carry out “FEHA-regulated activities” for an employer, such as screening prospective employees, developing or administering compensation plans, or formulating minimum job standards.
Independence: The entity must be a separate party as opposed to a subdivision of the employer, as in that case, it would not be independent for liability purposes.

If these criteria are met, the entity counts as an agent of the business and may be held liable for its discriminatory practices.

Examples of Employer Discrimination by Business Entity Agents

The Raines ruling raises the question of what may constitute discrimination by a business agent. In the Raines case, the potential bias consists of making it mandatory to answer medical questions unrelated to the job in question. Other discriminatory actions may include:

Deeming someone capable or incapable of a job based on irrelevant health characteristics
Removing someone from consideration for a role when screening resumes based on their protected characteristics
Creating compensation or benefit plans that treat people differently based on gender, ability to become pregnant, or need to take protected leave
Setting minimum standards for a role that include discriminatory restrictions, such as height, weight, or unnecessary lifting requirements

These types of discriminatory practices would clearly be unlawful if performed directly by an employer. Raines means the agent performing the discriminatory practices can now be held liable instead of or in addition to the employer itself.

Proving Employment Discrimination by Agents of an Employer

Proving discrimination can be a complicated process. Whether seeking to prove discrimination by an employer or its agents, you must collect evidence to support your claim. This evidence may be direct or indirect.

Direct evidence is the strongest type, but also the least common. It consists of explicit statements from members of the business that a decision was made based on protected characteristics or other unlawful reasons.

Indirect or circumstantial evidence is significantly more common. This may include copies of overly invasive medical questionnaires, patterns of discriminatory behavior, noticeable hiring trends, or strongly correlated actions. For example, the revocation of Raines’ job offer after she refused to answer invasive questions by U.S. HealthWorks is an example of circumstantial evidence.

The most effective way to collect necessary evidence and build your case is to work with an experienced employment law attorney. At Le Clerc & Le Clerc LLP, we are dedicated to advocating for workers who have experienced discrimination. We are prepared to help you seek justice and hold the correct parties accountable for discriminating against you through California’s newly expanded liability provisions. Schedule your consultation today to discuss your case and learn more about how we can assist you.

Honestly Hostile: What to Do If You’re Under Fire at Work

On Behalf of Le Clerc Le Clerc LLP
September 13, 2023
Discrimination, Harassment, Hostile Workplace

The term “hostile workplace” often conjures images of verbal abuse and dramatic arguments. However, it applies to a much broader range of problematic behavior than many people realize. In fact, a survey performed by the University of California in 2017 found that nearly one in five employed adults may work in hostile or threatening conditions.

If so many workers are mistreated, why don’t they take action against their employers? It’s often because employees do not realize that hostile workplaces violate their rights. You may fall into this category if something seems seriously off about your workplace. Here’s what you need to know about hostile workplace laws, how these environments are created, and what you can do to pursue fair treatment at work.

What Is a Hostile Work Environment?

According to California’s Fair Employment and Housing Act (FEHA), a hostile work environment occurs when someone in your workplace is subject to harassment by colleagues or supervisors based on a protected characteristic.

In many cases, the harassment or bullying that leads to these types of environments comes alongside workplace discrimination. However, under FEHA, discriminatory behavior is defined as treating employees differently due to protected categories while performing job-related actions.

As a result, discrimination is most frequently committed by supervisors and management. In contrast, harassment is committed when it falls outside of the employee’s work duties, so anyone within an organization may commit it. A hostile workplace only coincides with unlawful discrimination when someone with authority over the victim participates.

What Characterizes Hostile Workplaces

Unlawful harassment is different from simple bullying. A colleague or supervisor who is mean or dislikes another person can make rude jokes or yell at others without necessarily creating a hostile workplace. The defining factor is that a protected characteristic causes hostility. Someone who bullies everyone regardless of race, gender, or religion may make a workplace unpleasant, but they are not violating the law.

Additionally, only “severe or pervasive” misconduct qualifies to create a hostile workplace. A single incident may be enough to qualify if it is particularly severe, such as a physical assault or a credible threat. However, smaller microaggressions may also accumulate into a hostile situation if they occur often enough for a long time. Examples of negative workplace behaviors include:

Slurs or hate speech: Using negative words and phrases related to someone’s race, gender, or religion, even if not directly aimed at that person, can contribute to hostile work environments
Unwanted sexual comments regarding someone’s gender identity or presentation: While compliments and consensual interactions are not a problem, unwanted sexual comments that continue after requesting they stop are a common kind of harassment.
Unwanted physical contact related to racial hairstyles, religious apparel, or gender characteristics: Unwanted contact can quickly escalate to assault, especially if it is related to protected characteristics.
Targeted aggressive behaviors: If a coworker or supervisor is frequently angry with or shouts at people with certain characteristics, they may be committing harassment.
Focused pranks and ridicule: Similarly, if one person or group is frequently subject to unwanted or humiliating comments, teasing, or practical jokes, the perpetrator is likely harassing them.
Quid pro quo sexual harassment: Offering someone better treatment at work for sexual favors is explicitly named as a type of harassment covered under state and federal workplace protection laws.

If these behaviors stop after one instance or are halted by management after the victim asks for help, they do not constitute workplace harassment. However, they can quickly lead to a hostile work environment if permitted to continue.

These work environments often form when management or HR turns a blind eye to someone’s behavior. Sometimes, there is a single biased person at the top of the department or organization setting the tone for company culture or demonstrating negative bias against certain classes of people. In others, though, the parties responsible for maintaining a hospitable work environment failed to take action when the first signs of harassment appeared, and the situation spiraled out of control. Regardless of the reason, people experiencing workplace harassment may be able to take legal action if their employer refuses to address the issues.

How to Get Help If Your Workplace Is Hostile

The first step to addressing harmful behaviors at work is to try to resolve the issue internally. You may talk to the people harassing you directly if you feel comfortable. Otherwise, you should bring it up with your manager or HR. Either way, it’s best practice to use email to bring up your issues. Email establishes a clear paper trail of when and how you tried to get the behavior to stop.

If the harassment continues and your employer refuses to address it, you may have grounds for legal action. Save copies of your emails and document as many instances of harassment as you can remember. With that information in hand, talk to an experienced workplace discrimination attorney. Your lawyer can help you determine if you have a case, ensure you understand your rights, determine what information and evidence you need to collect, and help you file a legal claim.

Talk to the Expert Hostile Workplace Attorneys at Le Clerc & Le Clerc LLP

Being trapped in a harmful professional environment can wear you down. However, if you’re being mistreated at work, you can get help. The experienced workplace harassment lawyers at Le Clerc & Le Clerc LLP are dedicated to advocating for the employee rights of clients like you. If you believe you’re facing harassment or a hostile workplace, schedule your free consultation with our San Francisco employment law office today to learn how we can help you take a stand.

91% of Workers Suffer Workplace Discrimination: How to Tell If You Are

On Behalf of Le Clerc Le Clerc LLP
August 15, 2023
Discrimination

A recent survey found that up to 91% of US workers have experienced workplace discrimination. Just 9% of employees did not report discriminatory behavior from employers or colleagues because of their race, gender, religion, or other identifying characteristics.

The survey, run by the major hiring website Monster, explored a wide range of topics related to discrimination in the workplace, including the types of bias harming people, when this bias is most commonly experienced, and how many people are willing to report discriminatory behavior to their employer.

The results were largely negative. 50% of all surveyed workers reported having experienced ageism while applying for jobs, while 40% reported racism. Other reported issues included gender, disability, and religion-based discrimination.

This is despite strong laws in the US intended to allow workers to fight against discriminatory workplaces. The struggle is that most respondents do not feel comfortable reporting this behavior to their employers.

The survey found that just 44% of people were comfortable reporting discrimination to an anonymous reporting source if their employer provided it. That number drops even further once they can no longer be anonymous. Only 33% of people would feel comfortable making a report to HR about something they had experienced or witnessed, and just 21% felt comfortable reporting it directly to a manager.

There appear to be two factors contributing to this discomfort with making reports. First, many people worry that reporting abuse will make them a bigger target. Second, people are not always clear on what behavior constitutes unlawful discrimination.

The best way to protect yourself against abusive and discriminatory behavior at work is to be confident you can recognize it. Below, we discuss what constitutes workplace discrimination, how to identify it, and what you can do once you’re spotted it.

Definition of Workplace Discrimination

As defined by the US Equal Employment Opportunity Commission (EEOC), discrimination is treating someone differently or less favorably for some reason. This can include harassing and treating you unfairly, denying reasonable requests, asking invasive questions, or retaliating against you for doing the right thing.

People discriminate for many reasons, but US employment law focuses on protected categories. These include:

Race
Color
Religion
Sex, gender identity, sexual orientation, and pregnancy
National origin
Disability
Age
Genetic information

Under laws like the Civil Rights Act and the Americans with Disabilities Act, all residents have the right to freedom from discrimination in the workplace due to these characteristics. Furthermore, the law protects workers from discriminatory or retaliatory action because they participated in protected activity like requesting or taking time off under the Family and Medical Leave Act (FMLA).

Subtle Signs of Workplace Discrimination

Good studies about the prevalence of discriminatory behavior rarely ask, “Do you think you’ve faced workplace discrimination?” Instead, they ask respondents about specific types of behavior or treatment without mentioning abuse or discrimination. This approach is because most people are unaware of how much supposedly normal behavior constitutes abuse.

There are many subtle and lesser-known types of workplace abuse, harassment, and bias that may constitute discrimination. Some of the most common include:

Unequal Treatment and Opportunities

Some people consider talking about your pay or performance reviews rude, and many employers discourage it. However, this can make it hard to identify the most common type of discrimination: unequal treatment. Talking about these matters is crucial to determining if you are treated fairly. If a company routinely offers white or male workers more money than other people with similar performance records, they are discriminating.

The same goes for growth and promotion prospects. If the company routinely grooms certain types of people for leadership positions but doesn’t offer others the same opportunities, it discriminates against them.

Microaggressions and Biased Language

Microaggressions are minor instances of bias that can add up over time. One of the most common types of microaggression is biased language, such as texts that assume all employees are men or dress code policies that fail to account for religious apparel or Black protective hair styles.

They can also extend into stereotyping, offensive remarks, insensitive questions, and failing to respect your bodily autonomy. For example, jokes about a person’s accent, education, gender, or race are often microaggressions. So is touching a pregnant person’s stomach or a Muslim woman’s hijab without permission. Even if they are “just” jokes, if these behaviors continue after you ask them to change, they are a form of discrimination.

Isolation and Exclusion

Discrimination is often missed when it looks like exclusion. Your exclusion could be discriminatory if you aren’t invited to important planning meetings, social gatherings, or networking events. It may constitute barring you from equal opportunities, which is explicitly unlawful.

Ostracism and isolation may also be discriminatory. If your colleagues or manager fails to include you in email threads, talk over you, or generally ignore your contributions in favor of people with other characteristics, you may face discrimination.

Legal Recourse and Remedies for Workplace Discrimination

Subtler examples of discriminatory behavior can be easy to miss. However, once you spot them, you have options. The first step is to notify your HR department or management about what you’re experiencing. Ideally, this will resolve the issue. If it doesn’t, or if you face retaliation for reporting the behavior, it’s time to get help.At Le Clerc & Le Clerc LLP, we are there for you. We have years of experience helping California victims of workplace discrimination hold their workplaces accountable for the harm they suffered. We can help you file reports with the EEOC or the California Civil Rights Department. Our expert workplace discrimination attorneys will help you negotiate a settlement or represent you in court. Learn more about how our firm can support you by scheduling your consultation today.

Can Employers Require Parents to Work Overtime?

On Behalf of Le Clerc Le Clerc LLP
July 10, 2023
Discrimination, Wage and Hour Claims

When you become a parent, certain working conditions begin to matter more. For example, having a regular schedule that allows you to spend time with your kids becomes crucial. Before, you may not have minded a few extra hours on your paycheck, but now, it interrupts your schedule and can create serious issues with finding childcare.

That leaves many new parents wondering whether their employers can require overtime at all. The answer is complicated – in some cases, your company can require extra time, but not in all. Here’s what you need to know about the overtime rules for parents in California and what to do if your employer discriminates against you for scheduling issues.

Overtime Rules in California

Three sets of rules may impact the type and amount of overtime your employer can require. First, the federal Department of Labor (DOL) sets some basic requirements in the Fair Labor Standards Act (FLSA).

According to the FLSA, all employers must pay nonexempt workers at least time and a half for working more than 40 hours in a 168-hour workweek or 8 hours in 24. However, the DOL does not limit total working hours for people 16 and older. Employers can require workers to perform as much extra time as they want as long as they do not discriminate against people for federally protected characteristics or violate OSHA safety rules.

California adds additional restrictions on mandatory overtime. It defines standard overtime as working more than 6 days a week, 40 hours a week, or 8 hours a day. When nonexempt employees exceed these hours, they must be paid time and a half. It also requires employers to pay double time or twice the worker’s standard wage if they exceed 12 hours of work in a day or more than 8 hours on their seventh consecutive day of work.

More importantly, California permits workers to refuse extra hours without penalties from their employer in certain circumstances. You can refuse to work more if:

You worked overtime the previous week for a total of 72 hours or more.
You are currently working your seventh consecutive day of the same workweek.
You believe doing so would pose a safety or health hazard, such as if you are operating heavy machinery or factory equipment.

In these situations, your employer cannot penalize you for refusing to work more in California.

The third set of rules that may apply varies from job to job. Your employer is required to follow any terms set in your employment contract or industry-wide labor agreements.

If your contract states that you cannot be required to work more than 10 hours of overtime, for example, your employer cannot require you to do so. If they attempt to force you to work more than your contractual limit or penalize you for refusing, they are in breach of contract, and you have grounds for legal action.

Can Employers Make Overtime Mandatory?

Yes, your employer can require you to work more than 40 hours a week or 8 hours a day unless your employment contract states otherwise. However, it’s important to know the rules about mandatory overtime:

Your employer cannot force you to show up or stay at work to work more. They can penalize you for refusing to do so, though. This can include firing you or otherwise taking adverse employment action.
Your company must pay you appropriately for your time. If you are not receiving time and a half or double time as appropriate for the extra time you’re working, your employer is violating your right to fair pay.
Your employer cannot require you to work extra time if it would be unsafe, if you worked more than 72 hours the previous week, or if you are on your seventh consecutive day of work in one workweek.
If you’re salaried, you’re usually exempt from overtime requirements unless you would earn more working at the minimum wage and following overtime compensation laws. For example, if you make $45,000 per year but work 80 hours a week, you may be misclassified as exempt and have the right to overtime pay in California.

Keeping these rules in mind can help you spot if your employer is violating state wage and hour laws.

Overtime, Parents, and Protected Characteristics

Parents are not explicitly protected under California law, but many types of discrimination against parents are also grounded in gender and marital status. This includes scheduling discrimination. Examples of discriminatory overtime policies include:

Requiring people of a certain gender to work more when other genders are not required to do so.
Excusing married people from mandatory schedule requirements when single people are not excused.
Penalizing people for taking protected family or medical leave instead of working overtime.

It is not illegal to fire someone who cannot work extra hours because they have children. However, it is unlawful to fire a woman because she may have children and no longer be able to work additional hours in the future. Employers also may not excuse women from working overtime so they can care for their kids while requiring fathers to work extra anyway. Finally, any policy that explicitly or implicitly benefits married workers over unmarried ones is unlawful, regardless of parental status.

Is Your Employer’s Overtime Policy Discriminatory?

Mandatory overtime is legal to an extent, but your employer’s policies may still be discriminatory. If you suspect your employer is violating your rights and discriminating against you with an unjust overtime policy, reach out to the skilled employment attorneys at Le Clerc & Le Clerc LLP. We can help you determine if you are suffering from discrimination and help you choose the best path forward. Learn more about how we can assist you with your workplace discrimination case by scheduling your consultation today.

Federal Agency Enforces Religious Protections Against Hairstyle Discrimination

On Behalf of Le Clerc Le Clerc LLP
January 31, 2023
Discrimination, Employment Law

The U.S. Equal Employment Opportunity Commission (EEOC) has sued a Kentucky grocery store for refusing to hire someone who would not change their religious hairstyle. The lawsuit alleges that this decision is a form of religious discrimination in the workplace.

The lawsuit was filed on behalf of Matthew Barnett, who applied to the Williamsburg Hometown IGA and received an interview. During the meeting, store management informed him that he would have to remove his dreadlocks to work at the location. Barnett is a longtime adherent of Rastafarianism, for which dreadlocks are a meaningful spiritual component. He refused to shave his head on religious grounds, and management ended the interview immediately.

The EEOC stated that it only filed a lawsuit after “exhausting its conciliation efforts to reach a voluntary pre-litigation settlement.” The agency worked with Hometown IGA to find other non-litigious methods of resolving Barnett’s claim, but a satisfactory resolution was not reached. No, the agency is taking the matter to court to set an important precedent regarding religious hairstyles nationally.

Hair has been the subject of much controversy over the past decade. There remain no national laws that specifically protect hairstyles as racial or religious expression. However, states like California have begun implementing regulations to prevent situations like Barnett’s. Here’s how California protects religious expression in the workplace, the potential impact of the EEOC’s lawsuit on California residents, and how to fight back if your employer prevents you from wearing your hair according to your religious principles.

California Laws Offering Hairstyle Protections

California has long been one of the forerunners in expanding civil rights in the United States. This is just as true in hairstyle discrimination as it was in gay marriage. The state’s Fair Employment and Housing Act (FEHA) is responsible for providing these protections, and legislators regularly amend it to clarify what is protected under the bill.

For hairstyles, two primary amendments have increased protections for workers. The first is the California Workplace Religious Freedom Act (WRFA). This 2012 bill states that all sincerely held religious beliefs must be accommodated in the workplace. In particular, it named “religious dress practice” as an example of protected behavior. This includes wearing or carrying religious items, head and face coverings, and, broadly, hairstyles as well.

The other law guarding the rights of employees to wear their hair in specific ways is the 2020 Creating a Respectful and Open Workplace for Natural Hair Act (CROWN Act). Under the CROWN Act, the definition of racial features protected from discrimination has been expanded to include traits “historically associated” with race. This specifically includes hair texture and “protective hairstyles” such as dreadlocks, twists, braids, and other styles that protect tightly coiled hair from breaking.

Under these laws, employers may not discriminate against workers for wearing dreadlocks due to their religion or race. This includes requiring employees to change their hairstyle to remain employed, refusing to hire people with these hairstyles, or penalizing workers with these styles.

Impact of the EEOC Case on California Employees

As a federal agency, the EEOC acts as the national government’s enforcement arm for employment discrimination claims. Because California already has the CROWN Act and WRFA on the books, the EEOC case may not have a noticeable effect immediately. However, it is an important reminder to many workplaces that discriminatory “grooming” policies that bar religious and racial hairstyles can have serious consequences.

Some employers discriminate against current or potential employees without realizing that it could have penalties. Barnett’s lawsuit may discourage this behavior by demonstrating that workers can and will fight back. Furthermore, the case may give California’s Civil Rights Department additional license to respond to similar claims filed by state workers, with the understanding that the federal government’s interpretation of anti-discrimination laws is similar to California’s.

How to Push Back Against Unfair Grooming Policies

If your workplace has grooming or dress code policies that primarily apply to people of certain races or religions, it is likely against the law in California. These restrictions on freedom of religion or discrimination based on race are explicitly unlawful in the state. You may have grounds to sue your employer if they have forced or threatened you with consequences for wearing your hair per your religious principles. You can take action by:

Collecting proof of discriminatory policies or harassment: In some cases, proving a policy is discriminatory is as simple as taking home a copy from work. If a policy bans protective hairstyles or specific religious expression, it violates your rights. In other cases, you may need to gather communications such as emails or texts that threaten you for wearing your hair in protected styles.
Talking to colleagues: A policy that only impacts people of certain races or religions is likely also illegal. You can discuss your experiences with coworkers to determine if the policy affects everyone or is only enforced with certain people.
Demonstrating adverse employment action: If you have been fired, denied a promotion, or lost a job opportunity like Matthew Barnett, document the incident and its causes. You may have a stronger case if you can show that you have excellent performance reviews or have been harassed for your hair in the past.
Consulting with a skilled attorney: An experienced workers’ rights attorney will help you gather all the information above and build a strong case. They will also help you file claims with the appropriate agencies and represent you if you need to take the matter to court.

At Le Clerc & Le Clerc LLP, we are dedicated to protecting your rights as an employee in California. Do not hesitate to get in touch and discuss your religious hairstyle harassment with our skilled attorneys. We are prepared to help you pursue fair employment and justice for the discrimination you have faced.

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