Workplace Discrimination

California Employment Discrimination

Matt Ruggles has litigated scores of discrimination lawsuits from both sides – for decades as a defense attorney representing corporations at one of the largest law firms on Earth; and since 2016 representing wrongfully terminated employees against corporate employers.

Additionally, Matt has recovered millions of dollars from large and small corporations, partnerships, and limited liability companies and individuals who broke California law by illegally discriminating against their employees. At the Ruggles Law Firm, we understand the first and most vital step in this process is becoming informed. It is our goal to provide you with the important information and assistance you need to build your case.

If you have been discriminated against, the Ruggles Law Firm can help!

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Understanding California Employment Discrimination

Employment discrimination refers to the unfair and adverse treatment of an employee based on certain protected characteristics. California law prohibits discrimination on a wide variety of characteristics including but not limited to an employee’s race, color, national origin, ancestry, religion, sex, gender, sexual orientation, gender identity, gender expression, age, disability, medical condition, genetic information, marital status, military or veteran status, or pregnancy and childbirth-related conditions.

In California employment law, two important concepts used to analyze potential discrimination are disparate treatment and disparate impact. These concepts help determine if unlawful discrimination has occurred in the workplace, although they differ in their focus and how they are applied.

Disparate Impact

Disparate impact refers to a type of discrimination that occurs when an employment practice or policy, although seemingly neutral on its face, disproportionately affects individuals in a protected class. Even if there is no intention to discriminate, the policy or practice may be considered unlawful (discriminatory) if it has a significantly adverse impact on a particular group or class of employees.

Disparate impact cases focus on the potential discriminatory effects of seemingly neutral policies or practices and require a statistical or evidentiary showing of the disparate impact on the protected class. Most of the time, a disparate impact case involves a large number of harmed employees, not just a single employee.

Because most personnel policies that have a “disparate impact” have been eliminated or revised over the years, disparate impact claims are rare. Most discrimination cases involve individual employment decisions, which is called “disparate treatment.”

Disparate Treatment

Disparate treatment is the most common form of discrimination and refers to intentional discrimination that occurs when an employer treats an individual worse than other “similarly situated” employees based on the employee’s membership in a protected class. For instance, disparate treatment occurs whenever the Employer treats an employee less favorably or adversely because of the employee’s race, color, religion, sex, national origin, disability, age, sexual orientation, gender identity, or any other characteristics expressly protected by the California Fair Employment and Housing Act (FEHA).

To establish a claim of discrimination based on disparate treatment, the employee must show:

The employee belongs to a protected class of persons identified in the FEHA.
The employee was qualified for the job and performing it competently.
The employee suffered an adverse employment action (e.g., termination, demotion, etc.); and
Facts tending to show that the adverse employment action was a substantial motivating factor in the Employer’s adverse employment decision. Simply put, the employee must be able to allege facts that, if true, would tend to show that the Employer engaged in illegal discrimination.

In California, an adverse employment action refers to negative actions taken by an employer that have an adverse impact on an employee’s terms and conditions of employment. It typically involves actions that harm or negatively affect an employee’s job status, work environment, or career advancement opportunities.

Adverse employment actions can take various forms, including but not limited to:

Termination or firing of an employee.
Demotion or reassignment to a lower position.
Reduction in pay or benefits.
Denial of promotion or advancement opportunities.
Exclusion from training programs or other professional development opportunities.
Imposition of disciplinary actions or unjustified performance evaluations.
Harassment or hostile work environment.
Retaliation for engaging in protected activities, such as reporting discrimination or filing a complaint.

Both disparate treatment discrimination and disparate impact discrimination are important legal frameworks in employment discrimination cases in California. Matt always recommends that an employee considering a discrimination claim consult with an employment law attorney who can assess the specific situation, analyze the facts, and determine the most appropriate legal strategy for pursuing a discrimination claim based on disparate treatment or disparate impact.

What Laws Protect California Employees from Employment Discrimination?

Here is a summary of key laws that safeguard employees’ rights in California with regard to discrimination:

California Labor Code Section 1102.5

Section 1102.5 of the California Labor Code protects employees from retaliation for disclosing violations of laws, rules, or regulations and other illegal activity to an employer, as well as to a government or law enforcement agency.

It is crucial for employees to consult with an experienced employment attorney to fully understand their rights, navigate the complaint process, and pursue appropriate legal action if necessary.

Pregnancy Disability Leave (PDL)

PDL provides job-protected leave for employees disabled by pregnancy, childbirth, or related medical conditions. It applies to employers with 5 or more employees.

Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq.

ADEA prohibits age discrimination against individuals who are 40 years of age or older.

The ADEA applies to employers with 20 or more employees. However, simply showing that you are 40 years of age or older and that you suffered an adverse employment action is not sufficient to properly allege a claim for age discrimination. Instead, an employee alleging a claim for age discrimination must be able to demonstrate some objective fact that plausibly alleges that the Employer considered an employee’s age in the adverse employment decision. Pertinent examples include derogatory comments about the employee’s age, or comments that tend to show the Employer prefers younger employees to older employees. Typically, those sort of comments might include an Employer’s stated objective to bring in “new blood,” or to clear out the “dead wood,” from the employee population.

On the other hand, an employee alleging age discrimination where other over-40 year old employees have not been discriminated against will face an uphill battle in proving a claim for age discrimination. Finally, an employee that was over 40 years old when hired is vulnerable to the Employer argument that the employee’s age was not considered in hiring, and therefore presumably was not considered during termination.

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Fair Employment and Housing Act (FEHA) California Government Code 12940, et seq.

The California Fair Employment and Housing Act (FEHA) is the primary California law that prohibits employment discrimination based on protected characteristics, including but not limited to race, color, national origin, religion, sex, gender, sexual orientation, gender identity, gender expression, age, disability, medical condition, genetic information, marital status, military or veteran status, or pregnancy and childbirth-related conditions.

The FEHA applies to all private sector employers with five or more employees and protects employees, job applicants, and individuals engaged in unpaid internships or apprenticeships. The FEHA enables employees that have been a victim of illegal discrimination to recover substantial damages, including punitive damages, as well as an award of reasonable attorney’s fees. In most cases, a claim for discrimination under the FEHA is the primary claim in an employment discrimination lawsuit.

NOTE: Filing a lawsuit for violation of the FEHA requires an employee to “exhaust administrative remedies” by filing a administrative claim for discrimination with the California Civil Rights Department (formerly the Department of Fair Employment and Housing (DFEH)) and obtaining a “Right to Sue” letter from the Department. Although filing an administrative claim is not difficult to do, it requires legal advice to do so correctly and normally should be done by your attorney immediately prior to filing a civil lawsuit in the California Superior Court of the federal District Court.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

Title VII is a federal law that prohibits employment discrimination based on race, color, religion, sex, and national origin. For the most part, Title VII is the federal law that protects employees in the same manner of the California Fair Employment and Housing Act (FEHA).

Title VII applies to employers with 15 or more employees, including state and local governments, labor organizations, and employment agencies.

Because the legal remedies under Title VII generally are more limited compared to the remedies available under the California Fair Employment and Housing Act, Matt always encourages employees to pursue claims under the California FEHA rather than Title VII.

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Americans with Disabilities Act (ADA)

The ADA prohibits discrimination against individuals with disabilities in various aspects of employment, including hiring, promotion, job assignments, and reasonable accommodations.

The ADA applies to employers with 15 or more employees. Because the standard to qualify as “disabled” under the ADA generally is more difficult to satisfy compared to the California Fair Employment and Housing Act (FEHA), Matt encourages disabled employees that have been the victim of disability discrimination to pursue claims under the California FEHA rather than the federal ADA.

Most Discrimination Claims fall under the California Fair Employment and Housing Act (FEHA)

Identifying the Components of a FEHA Discrimination Claim

If you believe you have been a victim of discrimination in the workplace, it is essential to understand the components of a claim under California’s Fair Employment and Housing Act (FEHA).

Protected Characteristics:

FEHA prohibits discrimination based on various protected characteristics, including race, color, religion, sex, gender identity, sexual orientation, national origin, disability, age (40 years and older), and genetic information. To pursue a successful claim, you must demonstrate that the discrimination was substantially motivated by one or more of these protected characteristics.

This means that as part of the adverse employment decision (i.e. the termination decision), the Employer actually considered illegal criteria (e.g. race, gender, sexual orientation, etc.) as part of the reason for the termination, even if the illegal reason was not the sole or even the primary basis for the adverse employment action (termination).

Adverse Employment Action:

In most cases that Matt handles, the adverse employment decision is termination of employment. However, the phrase “adverse employment action” is not limited to termination, but also includes a significant negative change in your employment status or treatment.

Adverse employment actions can take various forms, but they generally involve actions that negatively impact an individual’s employment status, terms, or conditions.

Some examples of adverse employment actions recognized under FEHA include:

Termination or dismissal from employment: being fired or involuntarily separated from your job (i.e. layoff)
Demotion to a lower position or reduced responsibilities: Being moved to a lower-ranking position with reduced responsibilities, lower pay, or diminished prospects for advancement.
Unfavorable changes in work schedule, hours, or shift assignments.
Reduction in pay, benefits, or compensation.
Harassment or hostile work environment that creates a pervasive atmosphere of intimidation, ridicule, or insult that is related to a protected characteristic; sexual harassment is most common, but harassment can also be based on any other protected characteristic, including disability, gender, sexual orientation, or any other characteristic protected by the FEHA.
Retaliation for engaging in protected activities, such as filing a discrimination complaint or participating in an internal workplace investigation concerning alleged harassment or discrimination, even if you are only a “witness” to the alleged misconduct and not the direct victim.

It is important to note that this definition is specific to the California Fair Employment and Housing Act and may vary in other jurisdictions or under federal employment laws. If you have specific concerns or need legal advice regarding an employment situation, it is recommended to consult with an attorney or a relevant legal professional familiar with employment law in California.

Causal Connection:

An essential element of a FEHA discrimination claim is establishing a causal (factual) connection between the adverse employment action and the protected characteristic. You must demonstrate that the adverse action would not have occurred if it were not for your protected characteristic. This requires strong evidence to establish a clear link between the discriminatory treatment and the harm suffered.

In most cases, the factual connection between the adverse employment action and the protected characteristic involves derogatory comments or jokes concerning the employee’s protected characteristic (e.g. jokes or snide remarks about an employee’s disability, sexual orientation, race, etc.).

Understanding the Concept of Substantially Motivating Factor in FEHA Discrimination Claims

In California, the Fair Employment and Housing Act (FEHA) prohibits employment decisions that are based on impermissible criteria, such as a person’s protected characteristics like race, gender, religion, disability, or age. However, simply because the employer knew of the employee’s protected characteristic does not mean that the adverse employment decision was based on the illegal criteria. To address this, the concept of “substantially motivating factor” comes into play.

Under FEHA, a decision may be lawful if it is based on a mix of permissible and impermissible criteria, as long as the impermissible criteria were not a “substantially motivating factor” in the decision-making process. This means that if the prohibited factor played a significant role or had a substantial influence in the decision, even if other lawful factors were also considered, the employer may have violated the FEHA.

It’s important to note that the burden of proof lies with the employee in demonstrating that an impermissible factor was a substantially motivating factor. Providing evidence such as direct statements, comparative evidence, or patterns of disparate treatment can help support your claim.

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What Should I Do if I am Discriminated Against at Work?

Document the Incidents

Keep a detailed record of the discriminatory incidents, including dates, times, locations, individuals involved, and any witnesses. Note down any discriminatory comments, actions, or policies that have occurred. As much as possible, include dates for each incident, and the identities of any witnesses to the incident. This documentation will provide evidence and support your case.

Review Workplace Policies

Familiarize yourself with your employer’s policies and procedures related to discrimination, harassment, and complaint processes. Understand your rights and responsibilities as outlined in these policies. Obtain a copy of the personnel manual/employee handbook that applied during the same time period of the alleged misconduct, if possible, as well as the most current version.

File a Complaint

If internal policies permit, file a written complaint with your employer’s human resources department or designated complaint procedure. Follow the specified reporting procedures and provide the necessary documentation and details of the discrimination incidents.

An Important Legal Concept About Making a Complaint at work:

Understand that NOT complaining and following an available complaint procedure can adversely affect your credibility if you pursue formal legal action (a lawsuit) because the employer will assert an “affirmative defense” that you didn’t use the internal process, and had you done so, the company would have investigated and remediated the problem, therefore your damages are limited.

Simply put, you cannot keep your complaints secret and then spring them on the employer AFTER you get terminated (or five minutes before your termination meeting). An employee is expected to act in “good faith,” meaning the employee acts like s/he honestly hopes that the employer’s internal complaint procedure will work and does not take any action to inhibit, delay or improperly affect that decision-making process. Keeping your complaint secret is not consistent with a good faith course of conduct, unless there is some other threat inhibiting internal complaints.

Consult with an Employment Attorney

Consider seeking advice from an experienced employment attorney who specializes in discrimination cases. They can assess the merits of your case, explain your legal rights, and guide you through the process.

Explore Mediation or Settlement

In some cases, mediation or settlement discussions may be offered as a means of resolving the dispute at the administrative agency level (i.e. after you file and administrative charge with the CRD or EEOC, but before you file a lawsuit in court). Consult with your attorney to determine if this is a viable option and to ensure your rights are protected during the negotiation process.

Consider Legal Action

If efforts to resolve the matter through internal channels or agency investigations do not result in a satisfactory resolution, consult with your attorney about the possibility of pursuing a lawsuit to protect your rights and seek appropriate remedies.

Remember that time limits, known as statutes of limitations, apply to filing discrimination claims. It is important to act promptly to preserve your rights. An employment attorney can guide you through the specific deadlines and requirements based on your circumstances.

Note: This information is not legal advice and is intended only for informational purposes and a general guideline. Consulting with an experienced, licensed employment attorney always is recommended to obtain personalized legal advice based on your individual situation.

File a Charge with Appropriate Agencies

If internal resolution attempts are unsuccessful, or if you believe your employer has not adequately addressed the situation, you can file a charge of discrimination with the appropriate administrative government agencies. In California, the primary agencies for employment discrimination are the California Civil Rights Department (formerly the Department of Fair Employment and Housing) which enforces the California Fair Employment and Housing Act, as well as the federal Equal Employment Opportunity Commission (EEOC) which enforces Title VII of the federal Civil Rights Act.

In California, Matt recommends that employees that have experienced workplace discrimination file a complaint with the California Department of Civil Rights, not the EEOC, because the remedies and damages available under California state law (the FEHA) are broader than the remedies and damages available under Title VII, the federal Civil Rights Act.

Which Employee Characteristics Are Protected by California law?

Here is a summary of California and federal classifications of employment discrimination, along with examples. These examples illustrate some common scenarios of employment discrimination in California. It is important to note that this is not an exhaustive list, and other protected characteristics, such as marital status, military or veteran status, or medical condition, are also safeguarded by California law.

Race or Color

Examples: Refusing to hire or promote someone because of their race or skin color, segregating employees based on race, racially derogatory comments or slurs, or denying training opportunities based on race.

National Origin

Examples: Treating employees differently because of their country of origin, accent, or ethnic background, imposing language requirements unrelated to job duties, or displaying or expressing derogatory stereotypes about a particular national origin group.

Religion

Examples: Refusing to accommodate an employee’s religious practices or beliefs, making employment decisions based on stereotypes or prejudices about certain religions, or subjecting employees to religious harassment or ridicule.

Gender

Examples: Paying employees of one gender less than those of another gender for performing substantially similar work, denying promotions based on gender, or engaging in sexual harassment, such as unwanted sexual advances or creating a hostile work environment.

Sexual Orientation, Gender Identity, or Transgender Identity:

Sexual Orientation Discrimination:

Under FEHA, it is illegal to discriminate against employees or job applicants based on their sexual orientation. Sexual orientation refers to a person’s emotional, romantic, or sexual attraction to people of the same sex, opposite sex, or both sexes. It encompasses being gay, lesbian, bisexual, or heterosexual. Discrimination based on sexual orientation can manifest in various ways, including harassment, unequal treatment, denial of employment opportunities, or a hostile work environment.

Gender Identity Discrimination:

FEHA protects individuals from discrimination based on their gender identity, which refers to a persons’ internal sense of their own gender, whether it aligns with the sex they were assigned at birth or not. Discrimination based on gender identity can occur when an individual is treated differently, harassed, denied employment, or subjected to adverse actions due to their gender identity. It is important to note that gender identity may include transgender identities, as well as non-binary, genderqueer, or other gender identities.

Transgender Identity Discrimination:

FEHA specifically prohibits discrimination against individuals based on their transgender identity. Transgender individuals are those whose gender identity differs from the sex assigned to them at birth. Discrimination against transgender individuals can occur through denial of employment, unequal treatment, refusal to provide appropriate restroom or changing facilities, or harassment based on their transgender status. It is important to create an inclusive and respectful workplace environment that respects and supports transgender individuals’ rights.

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Age

Examples: Rejecting job applicants or terminating employees based on age stereotypes, setting age limits for job opportunities without a valid reason, or denying promotions or training opportunities based on age.

Disability

Examples: Failing to provide reasonable accommodations for employees with disabilities, terminating an employee if reasonable accommodations would have permitted the employee to perform the essential functions of the position, refusing to assign a qualified employee with a disability to an open position, refusing to hire or promote qualified individuals with disabilities, or subjecting them to harassment or hostile treatment.

Pregnancy or Childbirth

Examples: Refusing to hire pregnant applicants, treating a pregnant employee differently based on stereotypes or “concern” for the pregnant employee and unborn child, demoting or terminating employees due to pregnancy or childbirth-related conditions, or denying reasonable accommodations for pregnancy-related needs.

Genetic Information

Examples: Making employment decisions based on an individual’s genetic information, genetic testing, or family medical history, or requiring employees to undergo genetic testing.

Understanding the Distinction: Direct vs. Indirect Forms of Discrimination

Discrimination can manifest in various ways, and recognizing the distinction between direct and indirect forms is essential. Here, we discuss the idea of direct versus indirect employment discrimination and highlight their significance:

Direct Forms of Employment Discrimination

Direct employment discrimination involves intentional and readily apparent acts by employers that treat employees unfavorably due to their protected characteristics. Protected characteristics in California include race, color, national origin, religion, gender, age, disability, sexual orientation, and more.

Direct discrimination occurs when employers openly discriminate against individuals based on these characteristics, violating their rights to equal treatment and opportunities in the workplace.

Direct employment discrimination can manifest in various ways, including:

Termination or demotion based solely on a protected characteristic, such as firing an employee because of their age, religion, or sexual orientation.

Implementing policies or practices that disproportionately affect certain groups, such as requiring specific grooming standards that infringe upon religious practices or implementing biased performance evaluation criteria.

Indirect Forms of Employment Discrimination

Indirect forms of employment discrimination refer to covert, subtle, or implicit biases and actions that result in unequal treatment based on an individual’s protected characteristics. These indirect acts of discrimination can perpetuate systemic inequalities and hinder equal opportunities for employees in California.

Employees should be aware of these indirect forms of workplace discrimination to understand their rights and take appropriate action if they experience or witness any discriminatory behavior. Here are some key points to consider:

Unequal Opportunities: Discrimination can manifest in the form of unequal opportunities for advancement, training, or challenging assignments based on protected characteristics. Employees should be aware of any disparities in access to career development or growth opportunities, as this can be indicative of discrimination.

Pay Disparity: Pay discrimination can occur subtly, with differences in compensation based on factors such as gender, race, or other protected characteristics. It is crucial for employees to understand their right to equal pay for equal work and to be vigilant about identifying any disparities.

Retaliation: Retaliation occurs when an employer takes adverse action against an employee who has engaged in “protected activity” or “protected conduct,” such as making a complaint of discrimination or harassment at work, whistleblowing, or participating in a workplace investigation regarding discrimination.

When Does Discrimination NOT Apply?

In California, there are circumstances where certain actions or decisions may not qualify as discrimination under the California law. It’s important to understand these distinctions to properly assess whether discrimination has occurred. Here are some situations that may not qualify as discrimination:

General Unfairness or Poor Management

Not all instances of unfair treatment or poor management decisions necessarily constitute discrimination under California law. Discrimination laws generally focus on adverse actions based on protected characteristics, such as race, gender, age, religion, disability, or other specified grounds.

Personality Conflicts or Disagreements

Disagreements, conflicts, or personal animosity between individuals in the workplace, absent any discriminatory motive related to protected characteristics, may not be considered discrimination. Employment discrimination laws typically require a connection between adverse actions and protected characteristics.

Business Necessity or Job-Related Factors

Employment decisions based on legitimate business necessity or job-related factors, such as qualifications, skills, experience, performance, or job requirements, may not be considered discrimination. Employers have the right to make decisions based on these factors as long as they are applied consistently and not used as a pretext for discrimination.

Subjective Performance Evaluations

Subjective performance evaluations, in and of themselves, may not necessarily qualify as discrimination. However, if subjective evaluations are used to mask discriminatory motives or are applied in a discriminatory manner, it could potentially be considered unlawful discrimination.

Personality Traits or Compatibility

Employment decisions based on personality traits, personal compatibility, or interpersonal dynamics, unless directly linked to a protected characteristic, may not meet the legal definition of discrimination. Discrimination laws primarily focus on protecting individuals from adverse actions based on immutable or protected characteristics.

Lawful Drug or Alcohol Testing:

Drug or alcohol testing conducted in compliance with applicable laws and regulations, such as pre-employment testing or testing based on reasonable suspicion, generally does not constitute discrimination. However, any adverse employment actions resulting from such testing must be applied consistently and not disproportionately impact individuals based on protected characteristics.

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What makes your California Employment Discrimination Case
STRONG

Protected Classification and/or Protected Conduct

For California Fair Employment and Housing Act-based claims, the employee must belong to a protected class, including but not limited to race, gender, religion, age, disability, or sexual orientation.

Alternately, a wrongful termination claim can be based on an employee that is terminated for engaging in protected conduct.

Adverse Employment Action

The employee must have suffered an adverse employment action, such as termination, demotion, or a significant reduction in pay or benefits. The longer you worked for the employer, the stronger your case.

Under California law, an adverse employment action refers to any negative action taken by an employer against an employee that significantly affects the terms, conditions, or privileges of employment. It can form the basis of an employment lawsuit if it is unlawful and based on protected characteristics or activities. Adverse employment actions can include, but are not limited to, the following:

Termination: Wrongful termination, such as firing an employee for discriminatory reasons or in retaliation for engaging in protected activities, can be considered an adverse employment action.

Demotion: A significant reduction in an employee’s job title, responsibilities, or compensation can constitute an adverse employment action if it is based on discriminatory or retaliatory motives.

Suspension: Placing an employee on unpaid or paid suspension for an extended period can be considered an adverse employment action, particularly if it is unjustified or motivated by discriminatory or retaliatory reasons.

Pay reduction: Unlawfully reducing an employee’s wages or salary can be considered an adverse employment action if it is based on discriminatory grounds or retaliation.

Harassment or hostile work environment: Subjecting an employee to severe or pervasive harassment, which creates a hostile work environment, can be an adverse employment action.

Unfavorable changes in working conditions: Implementing unfavorable changes in an employee’s working hours, location, or work environment that negatively impact their job can constitute an adverse employment action.

Retaliation: Taking negative actions against an employee in response to their participation in protected activities, such as filing a complaint of discrimination or harassment or being a witness in an internal investigation of discrimination, harassment or retaliation, can be considered an adverse employment action.

Causal Connection

There must be a factual connection linking the adverse employment action and the violation of public policy. This means that the employee’s protected status or the employee’s protected conduct was “a substantially motivating factor” in the employer’s adverse employment decision.

Discriminatory Intent

The employee must be able to show that the adverse employment action was substantially motivated by discriminatory or retaliatory intent. This means that the employee must demonstrate that the actual reason or the given reason for termination is false and that the real reason is something illegal.

Evidence

Of course, a well-documented case always is preferred to a completely undocumented case. Although an employee intending to sue the employer is obligated to preserve and maintain all relevant documents in the employee’s possession (including wage statements, employee handbooks or any other document related to the job from which the employee was fired), the most important documents typically are in the possession, custody or control of the former employer, and usually must be obtained through discovery after the lawsuit is filed in court.

Witness accounts that can be documented will bolster your case. Witnesses that still work for your former employer and are “friendly” will be tremendously helpful. Gathering and saving telephone numbers, private email addresses, and any relevant text or electronic communications with prospective witnesses is very important and should be done at the outset of any potential lawsuit or dispute.

Finally, your most recent job performance review is crucial, assuming it is positive in nature. Likewise, the absence of any written discipline related in any manner whatsoever to the actual or stated reason for dismissal is an important fact that will strengthen your potential lawsuit.

Exhaustion of Administrative Remedies

If the claim for discrimination is based on the public policy in the FEHA, then an employee must “exhaust administrative remedies” prior to filing a lawsuit. This means the employee must file an administrative complaint of discrimination, harassment and retaliation with the California Civil Rights Department. In almost all cases, correctly filing an administrative complaint with the CRD requires legal assistance.

Timeliness

The statute of limitations on a claim for employment discrimination in California is two (2) years from the date of the adverse employment action (i.e. termination).

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What makes your California Employment Discrimination Case
WEAK

Lack of Evidence

The terminated employee is relying on speculation. In other words, the employee is unable to obtain or provide factual evidence of the illegal reason for being terminated.

No Causal Connection

The employee has no evidence of the connection between the termination and the alleged illegal reason claimed as the real reason for the termination. For instance, if you claim your supervisor fired you because of your religion, you generally must be able to demonstrate that the supervisor knew of your religion AND that the supervisor actually considered your religion when making the termination decision.

Lack of adverse employment action

If the employer did not take an adverse employment action against the employee, such as termination, demotion, or pay reduction, the employee generally cannot pursue a discrimination claim. Simply put, most discrimination claims involve the adverse employment action of termination. Cases that involve adverse employment action short of termination of employment generally are weak, although individual circumstances can vary significantly.

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Case Examples of California Employment Discrimination

In this section, we provide typical case scenarios that illustrate the various forms of employment discrimination that individuals may encounter in the workplace. These cases shed light on the challenges faced by employees and highlight the importance of understanding and addressing employment discrimination.

Each case example presented here serves as a reminder that employment discrimination can take many forms and affect individuals based on their protected characteristics, such as race, gender, age, disability, religion, or pregnancy status.

Gender-Based Pay Disparity

Jane, a highly skilled female software engineer, discovers that she is consistently paid less than her male colleagues with similar qualifications and experience. Despite her outstanding performance, she uncovers a pattern of gender-based pay disparity, which indicates potential gender discrimination in compensation practices.

Disability-Based Failure to Accommodate

John, a longtime employee, falls off a machine at work and breaks his neck. After exhausting his 12 weeks of FMLA leave, John’s doctor recommended that he take an additional 2 weeks off work to recover from neck surgery. The employer terminates John because he could not return to work with no restrictions at the conclusion of his FMLA leave. This case raises the issue of disability discrimination based on the termination and failure to accommodate John’s disability by denying him additional time off in violation of the California Fair Employment and Housing Act.

Racial Discrimination and Termination

Marcus, an African-American employee, worked as a sales manager for a California-based technology company. Despite his strong sales performance and contributions to the company’s success, Marcus faced unjust termination due to racial discrimination.

After a change in management, Marcus noticed a significant shift in how he was treated compared to his white colleagues. He was subjected to heightened scrutiny, excessive micromanagement, and unfounded accusations of underperformance. Despite his repeated attempts to address the issues and provide evidence of his contributions, Marcus faced a hostile work environment that was ultimately used as a pretext for his termination, highlighting racial discrimination.

Pregnancy Discrimination in Termination

Jennifer, a pregnant employee, receives consistently positive performance reviews prior to her pregnancy. However, after Jennifer discloses her pregnancy and requests time off for maternity leave, she is unexpectedly terminated, with no valid explanation provided by her employer. This raises suspicions of pregnancy discrimination, as her termination coincides with her pregnancy status.

Religious Harassment and Retaliation

Sarah, a Muslim employee, faces persistent harassment by her supervisor, including derogatory comments about her religious beliefs and practices. When Sarah reports the harassment to HR, she experiences retaliation, such as increased workload and negative performance reviews. This case highlights both religious harassment and retaliation, which are forms of employment discrimination.

These case examples are hypothetical and intended to demonstrate common scenarios of employment discrimination in California. Actual cases may involve additional complexities and nuances. If you believe you have experienced employment discrimination, it is crucial to consult with a qualified California employment lawyer who can evaluate your specific circumstances, provide legal advice, and guide you through the necessary steps to protect your rights.

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Recoverable Damages from Employment Discrimination Lawsuit

In California, the damages that may be recovered in a successful discrimination lawsuit can vary depending on the circumstances of the case. Generally, an employee who has been discriminated against may be entitled to recover the following types of damages:

Lost Wages and Benefits:

These include any income the employee lost as a result of the termination, as well as the value of any benefits, such as health insurance, that were lost. In most cases, this will be the most significant component for recoverable damages.

There are several factors that can increase or decrease the claim for lost wages in a California lawsuit, including:

Length of absence from work

The longer a person is unable to work due to their injuries, the greater their lost wages will be.

Nature of the injuries: If the injuries sustained by the plaintiff are severe, they may require more time off work or even prevent them from returning to work altogether.

Fringe benefits and perks

The plaintiff’s fringe benefits and perks, such as health insurance, retirement benefits, and bonuses, will also be considered when calculating lost wages.

Overtime and bonuses: If the plaintiff regularly worked overtime or received bonuses, their lost wages will be higher.

Future earning potential: If the plaintiff’s injuries will impact their future earning potential, such as preventing them from pursuing a promotion or earning a higher salary, their lost wages will be higher

Age and occupation of the plaintiff

If the plaintiff is young and has a long career ahead of them, their lost wages will be higher than if they are close to retirement age. Similarly, if the plaintiff has a high-paying job, their lost wages will be higher than if they have a lower-paying job.

Mitigation (i.e. your responsibility to find new comparable work) will be a major factor limiting damages for the young person, but less important for an older person close to retirement because it’s reasonable to assume the young person can get a new job but a 60 year old is facing a much tougher market.

Emotional Distress

If the termination caused the employee significant emotional distress, they may be entitled to recover damages for the resulting pain and suffering. There are two primary types of emotional distress: garden variety vs. non-garden variety.

Garden variety distress

Garden variety distress: peaks at or immediately after the time of your termination and gets better in a matter of days or weeks.

Non-garden variety distress

Non-garden variety distress: this type goes up over time and does not get better. For instance, you are losing weight and may need counseling or hospitalization. This type is more unusual and will require extensive work to prove.

Other Damages

Attorneys' fees and costs

If the employee prevails in the lawsuit, they may also be entitled to recover their attorneys’ fees and other costs associated with the litigation.

Punitive damages

In cases where the employer’s conduct was particularly egregious, the employee may be entitled to recover punitive damages, which are intended to punish the employer and deter similar conduct in the future.

California Civil Code Section 3294 outlines the conditions for awarding punitive damages in a civil lawsuit, which can be granted when the defendant’s conduct was willful, intentional, or malicious and caused harm to the plaintiff.

In addition, the law allows for punitive damages to be awarded when the wrongful conduct was carried out by a managing agent, acting within the scope of their employment, which means the company or employer may also be held liable. A managing agent is defined as someone who exercises substantial control over the defendant’s business operations or has a significant role in managing the defendant’s affairs.

The amount of punitive damages awarded is typically limited to a multiple of the actual damages suffered by the plaintiff.