SAN FRANCISCO EMPLOYMENT LAW BLOG

Many people assume that racism, sexism, and other forms of discrimination in the workplace need to be overt before they can be addressed. This isn’t true. Under Title VII of the Civil Rights Act of 1964, employers may not discriminate against workers because they are part of a protected class. The bill says nothing about whether that discrimination must result from conscious bias. 

Today, most employment discrimination is actually caused by unconscious bias. While this can be harder to prove, it’s no less damaging to its victims. Learn how to identify unconscious bias in your workplace, how it can harm workers, and what you can do to stop it. 

What Is Unconscious Bias?

Unconscious bias is prejudice for or against someone because of aspects of their identity that isn’t done purposefully. In contrast, conscious bias is deliberately taking discriminatory actions against someone because of a trait like skin color, religion, or gender. 

This difference is critical because unconscious bias is far more widespread. Even people who believe they are “color-blind” or otherwise accepting may have subconscious biases that they don’t recognize. This makes it far more challenging to address the effects of unconscious prejudice than conscious racism, sexism, or other biases. 

Subconscious prejudice is the result of uncritical acceptance of stereotypes. For example, someone can consciously believe that sexism is wrong but may have internalized the idea that women are bad at math. If this unconscious bias isn’t noticed and accounted for, they may be less likely to hire or promote women into roles that require a lot of math despite their qualifications. 

The problem with unconscious prejudice is that it can lead to organization-wide inequities without any one person actively trying to harm or push out minorities. One recruiter or manager with unexamined biases can impact the careers of everyone below them. If these biases are found throughout the organization, it can quickly shape a company’s culture to be hostile to women, people of color, religious minorities, and other protected classes. 

The Impact of Unconscious Biases on Workers

While unconscious bias isn’t as blatant on a case-by-case basis as active harassment, it can still seriously harm workers. It is just as harmful to refuse to promote someone because of an unconscious assumption that they’re lazy as it would be to withhold a promotion because they’re Black. Some of the most significant impacts this type of prejudice has on workers include:

• Reduced Job Opportunities: Minorities often struggle to receive the same opportunities and pursue the same jobs as white and male colleagues. Studies have shown that the same resume with an “anglicized” or gender-neutral name is significantly more likely to be considered for an interview than identical resumes with non-European or feminine names. The subconscious bias of the hiring teams often prevents workers from getting jobs in the first place. 
• Stalled Career Growth: These biases can make it difficult for victims to continue growing their careers. For instance, women often struggle to receive the same promotions and raises as their male colleagues, particularly if they are mothers, due to the unconscious assumption that they are less dedicated to their jobs. 
• Hostile Workplaces: If management has internalized negative stereotypes about specific demographics, the entire organization can develop toxic attitudes towards those groups. Minorities who are hired and promoted may feel uncomfortable, excluded, and unable to report harassment or microaggressions for fear that they will “support” the stereotypes management believes.

Standing Up to Workplace Bias

It should not be your responsibility to fix your employer’s unconscious biases. However, making them aware of these tendencies may fall to you. If that doesn’t lead to change, you may need to take legal action to receive the fair treatment you deserve. Here’s how you can stand up to workplace bias and fight against trends harming your career.

• Talk to your colleagues. The most effective way to determine if unconscious bias is at play in the workplace is to talk with your coworkers. If management consistently appears to discriminate against people of a certain race, religion, or gender, your colleagues have likely noticed as well. Talk to them about their experiences and see if they have noticed anything you may have missed. 
• Document trends of discrimination. When you do find trends, document them. For example, collect organization charts for your company and note the relative diversity across the organization and between different levels of authority. Who has been promoted, and who has been fired or forced to resign? These trends are some of the best evidence you have of systemic discrimination. 
• Notify Human Resources: Even if you don’t believe it will make a difference, you should still communicate your concerns with the person or department in charge of hiring at your company. This demonstrates that you’re acting in good faith and may occasionally be enough to spur your employer to take anti-bias action. 
• Talk to an experienced lawyer. If your concerns are dismissed, it’s time to get help. Consult with a qualified workplace discrimination attorney about your circumstances. They will help you find the best path forward, whether that’s negotiating with your employer or taking legal action. 

Pursue Equitable Treatment With Expert Legal Counsel

Because unconscious bias, by definition, is not done on purpose, it can be hard to prove. That’s why it’s critical for you to consult with an experienced employment law attorney if you suspect you and your colleagues are suffering from discrimination caused by subconscious prejudices. At Le Clerc & Le Clerc LLP, we understand how stressful it can be to lose out on opportunities at work because of your identity. We have a strong track record of success helping clients like you pursue compensation for the discrimination they’ve faced at work, no matter the reason. Call 415-445-0900 or contact us online to learn more about how we can help you.

California has long been at the forefront of cannabis legalization. As of September 2022, the state has gone a step further by passing a new bill to protect cannabis users from discrimination by employers. Assembly Bill (AB) 2188 was signed into law by Governor Newsom and will begin protecting off-the-clock cannabis users from employment discrimination in 2024. 

This is an invaluable win for workers around the state. Recreational cannabis has been legalized in California since 2016 and for medical use since 1996. Adults over 21 may consume cannabis just like they may drink alcohol. However, employers have been permitted to require drug tests and discriminate against workers who were found to have cannabis metabolites in their blood.

AB 2188 will change that once it goes into effect. Keep reading to learn more about this bill, when it will kick in, and your current rights regarding workplace drug testing.

What You Need to Know About Assembly Bill 2188

Assembly Bill 2188 will prevent employers from penalizing or discriminating against workers who consume cannabis or THC products when off the clock and not at work. Specifically, AB 2188 will not let employers make employment decisions based on the presence or absence of non-psychoactive cannabis metabolites in a worker’s hair or urine. The only exceptions are the construction and building industries, employers that receive federal funding, and organizations that are required to maintain “drug-free” workplaces. The law will go into effect on January 1^st, 2024.

The bill was considered necessary due to critical differences in how the body processes alcohol and cannabis. Alcohol intoxication is usually determined by blood alcohol concentration (BAC) with a breath or blood test. Your body can reduce your BAC by about 0.015 g/100ml per hour, so you can go from 0.09 g/100ml – above the legal limit to drive – back to 0 in just six hours. When the standard tests identify that someone has consumed alcohol, it’s usually because they are still actively intoxicated. That’s reasonable grounds for penalizing an employee since intoxication will likely impact their ability to do their job.

That’s not how cannabis testing works, though. Tests for cannabis use typically look for THC metabolites, not the psychoactive substance itself. These metabolites can remain in your body for weeks or months, long after you are no longer intoxicated. If you show positive for cannabis use in a hair or urine test, it doesn’t mean you’re high at work. However, before AB 2188, employers could still use these test results to discriminate against employees. The new bill will change this and allow workers to use legal recreational substances in their downtime without risking their jobs.

Current Employer Drug Testing Laws in California

Until 2024, employers may still use cannabis drug tests to make employment decisions. However, these tests must follow state testing guidelines and laws to be valid. 

California permits companies to require their employees to submit to drug tests as a condition of employment. However, these tests cannot be discriminatory. If an employer discovers details about an employee identifying them as part of a protected class, the employer cannot discriminate against them. For example, if a test reveals that a worker is pregnant or takes medications for a disability, the employer cannot alter how they treat that person.

In addition, California law has placed the following restrictions on employment drug testing:

• Tests must be equitable. Companies must test universally if they want to check workers for substance use. They may not discriminate based on race, age, or other protected statuses.
• Most workers must be given notice before a required test. California prohibits random drug tests except in high-responsibility or safety-based public positions. Unless you work as a law enforcement officer, bus driver, or similar critical role, your employer must give you notice about upcoming drug testing. 
• Tests may not be unnecessarily intrusive. Various methods are used to test whether someone has consumed intoxicating substances. Companies must use the least invasive testing method that achieves a reliable result. For example, companies cannot require witnessed urine or blood tests if a breathalyzer test would work.

In addition to these restrictions, employers may not discriminate against workers who are being treated for substance abuse disorders. These disorders are classified as disabilities under California’s workplace discrimination laws, so employers must provide reasonable accommodations for workers receiving treatment for them. 

Certain alcohol or drug abuse treatments may result in drug tests delivering positive results. If an employer is aware that an employee is undergoing these treatments, taking adverse employment action based on the results is considered discriminatory. 

Examples of Unlawful Drug Tests

Companies can’t use the results of unlawful drug testing to make employment decisions. If you’ve been forced to take or penalized after an illegal test, you may be able to pursue compensation. Here are some common examples of potentially discriminatory or illegitimate testing practices that you may have experienced in your workplace:

• Your employer requires you to take drug tests, but not coworkers in similar positions.
• You’re forced to take unnecessarily invasive tests, and your employer doesn’t explain why they’re required.
• Your employer requires random drug tests for low-responsibility roles.
• Your employer used the results of a test to discriminate against you for a disability.

Exercise Your Rights Under California Employment Law

You have the right to use cannabis in your downtime in California. As of 2024, most employers won’t be permitted to penalize you for using this legal recreational substance. 

In the meantime, you may still have options if you’re facing unfair or discriminatory drug testing. At Le Clerc & Le Clerc LLP, we strongly advocate for our clients in workplace discrimination cases. If you believe you’ve been unfairly discriminated against through a drug test, we can help. Schedule your consultation today by calling 415-445-0900 or reaching out online to learn more. 

As of September, the California Family Rights Act (CFRA) has officially been expanded. Under Assembly Bill (AB) 1041, the state has widened employees’ rights to take leave to care for their families as of January 1^st, 2023. 

Starting in the new year, employees may be able to use their CFRA leave to care for a “designated person,” which is a significantly broader ruling than the CFRA’s previous provisions. In addition, Governor Newsom signed AB 1949 into law in September, adding bereavement leave to the CFRA.

These changes may sound small, but they demonstrate California’s continued dedication to protecting and expanding workers’ rights. Keep reading to learn how the CFRA impacts you and what to expect from these new bills.

What Is the CFRA?

The CFRA is California’s state equivalent of the federal Family and Medical Leave Act. The Act is designed to give workers access to time off necessary to care for their families without risking their jobs. Under the Act, eligible employees may take up to 12 weeks of unpaid, job-protected time off in any 12-month period. The Act covers workers who need to take time off due to:

• Serious health conditions: This includes any mental or physical health problem, surgery, or injury that requires inpatient care, more than three days away from work, or ongoing medical treatment for incurable conditions. Employees may be required to provide a medical note to their employer to take leave.
• Pregnancy and delivery: Pregnancy is specifically covered by the CFRA, allowing mothers to take time off without losing their employment to recover from labor.
• Child bonding leave: Parents may also use the CFRA to take time away from work to bond with a newborn, adopted, or foster child within 12 months of joining the family.
• Qualifying exigencies for active duty military: An employee may take time away for specific reasons related to their own or an immediate family member’s active duty military service.
• Caring for a family member: The CFRA allows workers to take time away to care for their family if they face serious health problems.

The bills signed in September make two critical changes to the Act. First, AB 1041 expands the family members workers may request time off to care for. Currently, you can take time to provide care for your children, parents, grandparents, grandchildren, or spouse or registered domestic partner. In January, this will be changed to allow workers to care for a “designated person.” This person can be “any individual related by blood or whose association with the employee is equivalent to a family relationship.” You will be permitted to designate the person when you request leave.

In addition, bereavement leave will be protected. AB 1949 will guarantee workers the right to take up to five days off following the death of a family member. This bereavement leave is separate from standard CFRA or sick time. Bereavement leave will cover immediate family only.

During this time, your employer may not terminate your job. When you come back to work, you’re entitled to return to the same or an almost identical position. Your pay and other benefits will also remain the same when you return. 

Are You Eligible for CFRA Leave?

Before requesting CFRA leave, you must ensure you’re eligible under state law. As of last year, the Act applies to companies with five or more employees and all public institutions, so your employer is most likely held to this law. They are required to provide you with CFRA time off if:

• You’ve been employed by the company for at least 12 months before the start of your requested time off
• During that time, you’ve worked at least 1250 hours for your employer, or a minimum of 24 hours a week.

It’s important to note that you can only receive 12 weeks of time off under the Act. Suppose you have already taken 12 weeks and you have another qualifying event. In that case, you are not eligible to take additional time off without your employer’s approval, and your job will not be protected. 

What to Do If Your Employer Denies You Leave

If you meet the qualifications to take CFRA time off, your employer cannot deny you that time. If they deny your claim, terminate your position, retaliate against you for taking leave, or otherwise violate the CFRA, you have the right to take action. 

• File a complaint with HR: Notify your HR department that your rights have been violated. They may help you receive the leave you’re owed or return to your vacated role. If not, filing the complaint demonstrates that you attempted to resolve the situation internally before taking other action. 
• Consult an experienced attorney: Next, talk to a lawyer about your situation. Qualified employment law attorneys will help you determine if your rights have been violated and build your case. 
• Notify the CRD: Your attorney will help file a report with the California Civil Rights Department (formerly known as the Department of Fair Employment and Housing) to ensure they are notified of any violations.
• Take legal action: Your lawyer will also help you determine if you need to take legal action and how to approach the situation to protect your employment and receive compensation for your losses.

Pursue Equitable Leave With Expert Legal Counsel

The CFRA is already one of the most flexible state-mandated leave programs in the country. In 2023, it will become even more valuable, allowing people to take the time they need to care for their loved ones, no matter who they might be. You have the right to take CFRA leave as long as you meet the appropriate criteria, and your employer may not penalize you for it.

If you’re struggling to have your CFRA request acknowledged, if your request has been unjustly denied, or if you’ve suffered from retaliation for taking leave, get help. At Le Clerc & Le Clerc LLP, we can help you receive the time you’re owed. Schedule your consultation today to learn how we can help you exercise your right to care for your family and protect your employment.