Both federal and state laws protect certain groups against workplace discrimination. Workers in these groups, known as “protected classes,” may become the victims of discrimination in the workplace when they are not hired, passed over for a promotion, terminated, demoted or otherwise punished for belonging to one of these protected classes.
If you were the victim of workplace discrimination, a discrimination lawyer in Los Angeles from the Law Office of Joshua Cohen Slatkin can help you figure out the best option for recovering any lost past and future wages, emotional damages like pain and suffering, and punitive damages in some circumstances, and ensure your employer does not continue to violate your rights.
Call us today at 310-923-7839 to schedule a case evaluation, and to explore the next steps to hold the employer responsible for this serious violation of California employment law.
What is discrimination?
Discrimination occurs in a number of ways, but includes disparate treatment, harassment, and disparate impact. Each of these types of discrimination affects employees in a different way, but all are violations of federal and state discrimination laws when the victims are members of a protected class.
Disparate treatment is perhaps the most well-known type of discrimination. It occurs when an employee suffers consequences based on his or her protected characteristic. This may occur when employers pass over a woman to promote a man, or when they lay-off an older worker instead of a younger one. Other examples may occur in hiring, when employers pass on well-qualified minority candidates to hire less-qualified white candidates.
Harassment is just one factor in the definition of a “hostile work environment.” Some examples that create this type of abusive environment include coworkers who use racial slurs, make unwanted sexual advances, or joke about a protected characteristic.
Disparate impact refers to a situation where the employer puts a policy in place that targets a specific protected class. In most cases, this is not a situation with an individual victim, but one where all employees with the same protected characteristic suffer harm. One of the most common examples is a policy that holds a woman’s use of the Family and Medical Leave Act against her when considering raises or promotions.
What laws protect employees from discrimination?
Both the U.S. government and the State of California have laws in place to prevent workplace discrimination. These laws include:
- Fair Employment and Housing Act (FEHA)
- Age Discrimination in Employment Act (ADEA)
- Equal Pay Act of 1963 (EPA)
- Title VII of the Civil Rights Act of 1964
- Americans with Disabilities Act (ADA)
California has only one main set of laws in place to prevent discrimination in the workplace, the Fair Employment and Housing Act (FEHA). This law, however, is wide-reaching and offers additional protections above and beyond the federal laws. For this reason, most employees who file discrimination claims in Los Angeles base their claim on FEHA.
Who has protection from discrimination under California law?
FEHA offers protection against discrimination and harassment in nine categories. These are:
- Sex or sexual orientation
- Age (only persons over 40)
- National origin/ancestry
- Physical disability
- Mental disability
- Medical condition
- Marital status
Who is liable for discrimination in the workplace?
In most cases, the employer is liable for discrimination in the workplace. This is especially true when the discriminatory acts are pervasive and a part of the company culture.
Strict Liability for Supervisor’s Conduct
Any time a supervisor discriminates against an employee who belongs to a protected class, the company is strictly liable for this behavior. See Roby v. McKesson Corp. 47 Cal. 4th 686, 705 (citing to State Dept. of Health Services v. Superior Court, 31 Cal. 4th 1026, 1040-1041). Strict liability means that the employer you worked for would also be legally responsible for any injury or damages caused by the supervisor’s actions. In Roby, the Supreme Court held that personnel management actions may be relied upon as evidence in support of FEHA harassment claims and that “harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” Roby at 706.
How can I file a discrimination claim against my Los Angeles employer?
The first step in filing a discrimination claim in California is to file a complaint with the federal Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment & Housing (DFEH). In most cases, California discrimination claims fall under the jurisdiction of the DFEH.
The EEOC gives employees 180 days from the date of the discriminatory action to file a charge, while you have one year to file a complaint based on FEHA from the date of the last discriminatory action. Some discriminatory actions are “on-going” and can change the date of the last discriminatory action.
Once you file this type of complaint, you will receive a letter giving you the “right to sue.” Only then can you file a discrimination claim against your employer.
In California, you have two years from the date of your termination to file a wrongful termination cause of action not brought under the FEHA (known as a Tameny Claim). A Tameny Claim must prove that an employer discharged an employee for an unlawful purpose (e.g., discrimination) in violation of public policy.
However, with a wrongful termination claim not brought under the FEHA, you are not entitled to attorneys’ fees and other benefits which are recoverable with wrongful termination claims under the FEHA. This is why you want to contact an experienced employment lawyer as soon as possible after you are terminated.
Of course, our team will walk you through this process and ensure you meet all necessary deadlines. Because of the complicated, nuanced nature of employment laws, you will need a skilled lawyer from the Law Office of Joshua Cohen Slatkin to help you prepare for this type of claim.
What types of damages can I collect from a discrimination claim?
Employees who suffer discrimination in the workplace have the opportunity to recover a wide range of compensation. This includes:
- Lost wages, such as in the case when an employer fires or passes an employee over for a promotion
- Future wages
- Past and future loss of benefits, including loss of health insurance and retirement plans
- Emotional distress, especially in hostile workplace claims
- Attorney’s fees
- Court costs
- Punitive damages in some circumstances
“The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. However, before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar,(see discussion below on Employer’s common defenses) to that of which the employee has been deprived; the employee’s rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages.” See Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181-182
Common Defenses Employers Use to Defend Against Employment Claims
After-Acquired-Evidence Doctrine – “In general, the after-acquired-evidence doctrine shields an employer from liability or limits available relief where, after a termination, the employer learns for the first time about employee wrongdoing that would have led to the discharge in any event. Employee wrongdoing in after-acquired-evidence cases generally falls into one of two categories: (1) misrepresentations on a resume or job application; or (2) post hire, on-the-job misconduct.” (Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 632 [41 Cal.Rptr.2d 329].)
“The after-acquired-evidence doctrine serves as a complete or partial defense to an employee’s claim of wrongful discharge.” To use this doctrine as a defense “the employer must establish ‘that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it’…[T]he employer…must show that such a firing would have taken place as a matter of ‘settled’ company policy.” (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 842, 845-846 [77 Cal.Rptr.2d 12], internal citations omitted.)
“Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” (McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352, 362-363).
Failing to Mitigate Your Damages – A plaintiff (that is, the person bringing the lawsuit) “has a duty to mitigate damages and cannot recover losses it could have avoided through reasonable efforts.” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1568 [54 Cal.Rptr.2d 468].) “An unemployed plaintiff who is able to look for work does not satisfy his duty to mitigate by waiting passively for employment to be offered. The opportunity to mitigate is not merely the opportunity to accept a job, but the opportunity to seek appropriate work when one is able to do so. If that opportunity is shown to have existed, the issue of mitigation should not normally be prevented from reaching a properly instructed jury.” That is why it is very important for your employment case to actively seek out comparable employment positions, keep detailed records of your job search efforts (like a daily journal or log), and keep copies of all employment applications submitted.
“The burden is on the employer to prove that substantially similar employment was available which the wrongfully discharged employee could have obtained with reasonable effort.” See Chyten v. Lawrence & Howell Investments (1993) 23 Cal.App.4th 607, 616. But, you should keep in mind that you only have a duty to seek out substantially similar forms of employment. For example, if you are a doctor or lawyer who was wrongfully terminated, you are required to seek out comparable forms of employment as a lawyer or doctor and do not have to search for and apply for all jobs, like that of a bus driver or waiter or waitress. Such positions would not be considered comparable. However, if you are a truck driver who is wrongfully terminated, then you need to search out other truck driving or potentially bus driving positions with other companies since that would likely be considered substantial similar.
Legitimate Non-Discriminatory Reasons for Termination – Mixed-Motive Defense. In Harris v. City of Santa Monica, the California Supreme Court held that plaintiffs in FEHA claims need to prove that discrimination was a “substantial factor,” not just a “motivating factor,” in their termination.
And even if the plaintiff proves that discrimination was a “substantial factor,” the employer may still argue that it would have still terminated the employer for other reasons and, if successful, the plaintiff may only get declaratory or injunctive relief along with attorneys’ fees. In such cases, employees cannot get damages, back pay, or reinstatement to their former position. Thus, it is vitally important to seek legal representation from an employment lawyer if filing a discrimination claim against an employer to overcome this burden of proof.
How can the Law Office of Joshua Cohen Slatkin help me win my claim?
California’s discrimination laws offer protection for a number of protected classes who regularly suffer from abuse in the workplace. If you were the victim of workplace discrimination, you have the right to file for compensation for your losses without the risk of retaliation.
The Law Office of Joshua Cohen Slatkin can help you exhaust the administrative channels necessary to file a discrimination claim based on federal or state laws, and navigate the claims process to get the compensation you deserve.
Call us today at 310-923-7839 to schedule your free consultation.