Discrimination - San Francisco Employment Lawyer | Bay Area Discrimination Attorney

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 However, her job offer was revoked because she was reported to have failed the screening by refusing to complete it.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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