Category Archives: Discrimination

This category examines discrimination in the workplace in California. Specifically, it defines discrimination, examines how to avoid discrimination, preventative measures to avoid a discrimination claim, defenses against a discrimination claim, and much more. It also looks at real world examples and cases to shed insight on the laws surrounding discrimination.

Evening the Playing Field: CA’s New Fair Pay Act

California New Fair Pay ActThe lack of wage equality amongst genders has been well-documented for some time and, as you may have noticed, has become a staple of candidates’ speeches in election years. And rightly so, for even in 2013 women earned 84 cents for every dollar a man earned. This gap is even worse for African American women (64 cents) and Latina women (44 cents). Pay discrimination of this sort is usually easy to hide by prohibiting or discouraging employees from talking about their pay. The employee’s fear of retaliation may also help to keep this illegal activity secret. California, however, had new legislation go into effect on January 1, 2016, to further curb this kind of activity.

The Original Fair Pay Act

The California Equal Pay Act (“EPA”) was passed in 1949 and had its last update in 1985. Though it helped in addressing the issue of pay inequality, it was not perfect and presented some loopholes that companies were able to use to their advantage. One such instance was the “same establishment” provision which prevented a female working at a facility from comparing her wage to that of a male at a facility at another location. If that was not enough, employers could raise the “any bona fide factor other than sex” defense and its overly broad interpretation to provide excuses for pay discrimination. Meaning they could simply say, “we paid her less because she’s not as fast, qualified, effective, etc., and get around the requirement.

Finally, though the Labor Code has provisions protecting employees that disclose their own wages, there were no specific protections for employees inquiring about the wages of others even if it was solely for the right to be paid equally.

A Leaner, Meaner Fair Pay Act

The California Fair Pay Act, which went into effect this year, will help reinforce the California EPA.  First, it does away with the “same establishment” requirement, so that employees performing the similar work at different locations are paid equally. Secondly, it has narrowed the “bona fide factor other than sex” defense to more specific defenses that the employer will have to use closing the ambiguous loophole from before. Finally, it explicitly prohibits retaliation or discrimination against employees who disclose, discuss, or inquire about their own or other coworkers wages for the purpose of enforcing equal pay under the California EPA.

Pay discrimination is not a fake issue brought up the sake of political debates, but a real thing occurring more than it should.  If you feel as though you are not making an equal amount compared to other employees doing similar work because of your gender, call an employment lawyer.

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Same-Sex Sexual Harassment Claims: Just as Powerful as Opposite-sex Harassment Claims

The right to work in an environment free from sexual or gender based harassment is a federal and California civil right. Sexual harassment includes the the unwanted and unwelcomed visual, verbal or physical conduct that is sex-based or of a sexual nature or requests for sexual favors. If an employee is sexually harassed by his or her supervisor, an employer is liable for those damages incurred by the employee as a result of the sexual harassment. But is an employer potentially still liable for sexual harassment that occurs between an employee and supervisor of the same sex?

Sexual Harassment Attorney – Same Sex Harassment?

In recent a case from this year, Lewis v. City of Bencia, Brian Lewis, a paid intern and heterosexual man, sued his former employer, the City of Bencia, and his former supervisors for sexual harassment and retaliation. Lewis’ supervisor showed him pornography on the office computer and consistently told him inappropriate sexual jokes. The supervisor also bought Lewis lunch on numerous occasions and gave him numerous gifts while Lewis was employed with the City. One such gift was tuxedo underwear. Lewis claimed that the supervisor had asked whether he can visit Lewis’ home and once asked Lewis why he has not kissed him yet. On another occasion, a different supervisor also showed Lewis pornography on the office computer.

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Filed under Harassment, Sex Discrimination, Sexual Harassment, Sexual Orientation Discrimination

Harris v. Bingham McCutchen – Victory on Arbitration Issue

Robert Odell Arbitration Harris v. Bingham McCutchenEarlier this month, the California Court of Appeal denied mega law firm Bingham McCutchen’s attempt to have a wrongful termination lawsuit (filed against them by a former associate, Hartwell Harris) thrown out of court and into binding arbitration. (Click here read the court’s decision).

All all three justices in Division Five of California’s Second Appellate District unanimously agreed that Bingham’s arbitration agreement (which forces all of its employees to arbitrate their claims against the company rather than file lawsuits in court) was invalid under Massachusetts law, which was also Bingham’s own choice in drafting their agreements.

Law Firm Fails to Enforce its Own Arbitration Clause

Ms. Harris worked for Bingham in their Santa Monica, CA office as a litigation associate from May 2007 until February 2011 when she was fired after developing a rare sleep disorder called Delayed Sleep-Phase Syndrome. She later filed a lawsuit against Bingham in November 2011, claiming that, despite her positive reviews, Bingham terminated her once they learned of her disability and need for accommodation while she returned to a normal sleep cycle.

After the lawsuit was filed in Los Angeles Superior Court, Bingham moved to compel the case to binding arbitration, citing the arbitration clause in Harris’ employment contract.  Presiding Judge Mel Red Recana, however, agreed with Harris’s attorney, Tamara S. Freeze, and denied Bingham’s arbitration petition on the grounds that the provision was not enforceable under Massachusetts law, which Bingham had decided would control the contract.

Bingham then appealed the trial court’s decision, however, the California Court of Appeal affirmed the lower court’s denial in a strong 3-0 decision – both ordering their opinion to be published in the appellate records and ordering Bingham to pay Harris her costs on appeal.

Attorney Reaction

Regarding the appeal, the Law Offices of Tamara S. Freeze has stated on their blog:

“Ironically, Bingham McCutchen knew their arbitration agreement, as originally drafted, was invalid in light of a 2009 Massachusetts Supreme Court opinion: Warfield v. Beth Israel Deaconess Medical Center, Inc. but apparently forgot to update it. Indeed, Bingham’s own attorneys published a press release on their website warning their clients about this new law and how it would affect arbitration agreements . . . a warning that Bingham apparently failed to heed itself. For obvious reasons, the publication has since disappeared from Bingham’s website (but we still have a copy HERE).”

Hartwell Harris was represented by Tamara Freeze, Robert Odell, Allison Lin and law clerk Harrison Brown.

 

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Woman Gets Fired for Having Premarital Sex – Is this Pregnancy Discrimination?

Employment Attorney – Generally, employers across California cannot fire an employee because of their sex. Nor can they fire an employee because she is pregnant. However, there are some exceptions for religions institutions. In the below CNN video, San Diego Christian College fired Terri James for having premarital sex.

Link to Terri James Pregnancy Discrimination Video

The school may argue that the lawsuit is barred because FEHA’s definition of “employer” does not include a non-profit religious corporation.  The school may also argue that James could not allege a common law wrongful termination action either in this situation, whether it is based on FEHA or the California Constitution.  If the court behaves like it did in Henry v. Red Hill Evangelical Lutheran, James may be out of luck. In that case The court held that the ministerial exception to FEHA set forth in section 12926(d) of the Government Code barred the claim and that the California Constitution did not support the lawsuit either.

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Filed under Christian, FEHA – Fair Employment & Housing Act, Pregnancy, Sex Discrimination

Mixed-Motive Employment Discrimination

Harris v. City of Santa Monica Employment Lawyer Pregnancy DiscriminationThe California Supreme Court just came down with a big decision regarding employment discrimination. Employment lawyers across the state are describing Harris v. City of Santa Monica as a compromise between employee rights and business’ freedom to terminate employees. I find the decision fair, despite the fact that I was rooting for Ms. Harris.

Fair Employment and Housing Act – Pregnancy Discrimination

The facts of the case are relatively straight forward: a bus driver alleged that she was fired by the City of Santa Monica because of her pregnancy in violation of the FEHA. The City claimed that she was fired for poor job performance. At trial, the City argued that if the jury found a mix of discriminatory and legitimate motives in Harris’ termination, the City could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her. The trial court denied the City’s argument, and the jury awarded her $177,905 in damages and more than $400,000 in attorney fees. The Court of Appeal reversed, and the Supreme Court granted cert.

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Supreme Court Decision – Employment Lawyers Say “Compromise”

“We hold that under the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement. But the employer does not escape liability. In light of the FEHA‘s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices. In addition, the plaintiff may be eligible for reasonable attorney‘s fees and costs. Therefore, we affirm the Court of Appeal‘s judgment overturning the damages verdict in this case and remand for further proceedings in accordance with the instructions set forth below.”

As most readers can tell, the court was trying to make employers and employees happy. This decision permits employees to still bring lawsuits when the employer has a mixed motive, however limits the damages attainable.

Some plaintiff attorneys question whether the court adequately defined when discrimination becomes a “substantial factor” in workplace discipline. The high court’s opinion concluded that “mere discriminatory thoughts or stray opinions are not sufficient to establish liability” under state law. The justices refused to offer a more specific definition “given the wide range of scenarios in which mixed-motive cases might arise.”

All in all, this is just another day in the life of an employment attorney.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under Age Discrimination, Disability Discrimination, Discrimination, FEHA – Fair Employment & Housing Act, National Origin Discrimination, Pregnancy, Race Discrimination, Religious Discrimination, Sex Discrimination, Sexual Orientation Discrimination

Pregnancy Series #4 – Pregnancy Disability Leave in California – 10 Things You Should Know

Pregnancy Disability Leave, PDL, FMLA, CFRA, reasonable accomodationIn a previous post we covered what you need to know about maternity leave. But that is only useful if you have a typical pregnancy. What if it’s a hard pregnancy, and you need more than the usual amount of maternity leave? You are probably wondering:

  • What if I get put on bed rest and can’t work?
  • What if my labor is horrible and I need more than 12 weeks to recover?
  • How much disability leave can I take?
  • Can my boss refuse to let me take disability leave beyond my maternity leave?
  • Do I have the right to return to the same position afterwards? Same pay?
  • What else do I need to know?

Click through for ten critical pieces of information that you need to know about pregnancy disability leave….  Continue reading

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Filed under CFRA - California Family Rights Act, Disabling Injury and Illness, Discrimination, Family & Medical Leave, FEHA – Fair Employment & Housing Act, FMLA - Family & Medical Leave Act, Maternity Leave, Pregnancy, Pregnancy Disability Leave, Sex Discrimination

Breastfeeding in the Workplace Example – American University Professor Adrienne Pine

I’ve already written an entire post on California’s laws on breastfeeding in the workplace. But I just came across this CNN article and had to share it. Although the incident did not take place in Orange County, or even California for that matter, it is still worth a read.

Adrienne Pine, an American University professor in Washington D.C., noticed that her infant child was running a fever. It was Ms. Pine’s first day teaching for the semester. So she didn’t want to miss class. But, as many working mom’s know, couldn’t drop her child off at daycare because of the fever. Daycare generally refuses sick babies because of the potential of spreading the disease (if one exists).

So, what is a working woman to do? She brought her baby to class. But the baby got fussy and hungry and you can guess what happened next:

after her daughter started fussing, the professor began nursing — in front of 40 students — to get her to stop.

A firestorm erupted afterwards. Students complained on Twitter and Ms. Pine was suddenly thrust into a national debate. Should women be allowed to breastfeed at work? Should they be afforded a private place to use a breast pump? Should employers provide emergency daycare? These are all very important questions for working women across America.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Pregnancy Series #3 – Maternity Leave – What You Should Know About California Law

Maternity Leave, California, FMLA, CFRAIf you just found out that you are pregnant let me be the first person in the Internet world to say, “Congrats!” There is nothing more exciting that expecting a child. I know this from experience. My wife and I just had our first daughter and I want to jump for joy. I couldn’t be happier.

But if you’re a working woman this might be daunting. What does your pregnancy mean for your job? It obviously means you must take time off for doctor visits, pregnancy classes, labor, and recovery. But how much time can you take off? What protections does California law afford?

Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) are the laws at issue. The FMLA, in combination with the CFRA, provides California working mothers with the best maternity leave rights in the nation.

Read more after the jump…. Continue reading

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Filed under CFRA - California Family Rights Act, Employee Benefits, Family & Medical Leave, FMLA - Family & Medical Leave Act, Health Benefits, Health Care, Leaving a Job, Maternity Leave, Pregnancy, Sex Discrimination

Pregnancy Series #2: Pregnancy Discrimination Is Not OK – What You Should Know

pregnancy discrimination at work in CaliforniaThis article is for pregnant working women and new moms in California.

I understand that work is important. If you don’t make money, you can’t buy diapers, formula, or clothing for your children. Your boss knows that the paycheck is very important to you, and sometimes he takes advantage of this by forcing you to work extra hours, or making you perform dangerous jobs that are hazardous to your health. He knows you need the money so you probably won’t complain.

Some bosses are even worse.  They simply fire pregnant women because they don’t want to deal with the hassle of filling your position while you are on leave. Nor do they want to continue paying your health insurance. They usually claim “poor performance,” “absenteeism,” or some other excuse as the reason for the firing.

Other bosses know the law and permit their employees to take leave. But demand that the employee be back in only a few weeks, or when the employee returns, the employer has drastically reduced their responsibility and cut their pay.

Is any of this behavior legal in California? No, it’s not. To find out more continue reading below.

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Filed under Discharge & Layoffs, Family & Medical Leave, FEHA – Fair Employment & Housing Act, FMLA - Family & Medical Leave Act, Pregnancy, Retaliation, Sex Discrimination

Pregnancy Series #1: California is Friendly to Moms Breastfeeding in the Workplace

workplace breastfeeding, breast pumping at work, room for breastfeedingMy wife is 5 days overdue with our first child. Once the baby is out my wife wants to breastfeed our daughter. Although my wife no longer works, I couldn’t help but wonder, what are a new mom’s rights in the workplace? Can you breastfeed on the job? What if your boss doesn’t let you? Can you use a breast pump at work? Does your boss have to provide you with a private room, or do you have to do it in a bathroom stall?

In 1998, California’s legislature resolved to improve the life of Mom’s in the workplace. It passed a series of statutes, including California Labor Code § 1030-1033. The most important is § 1030:

Every employer…shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee…shall be unpaid.

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Filed under Discrimination, Family & Medical Leave, FMLA - Family & Medical Leave Act, Pregnancy, Rest Breaks, Sex Discrimination, Wages and Hours

A Texas Hospital Bans Obese Workers. What about California?

Obesity discrimination is a hot topic in employment law. CNN recently ran an article covering a hospital in Texas that has a policy of denying job applications solely because the potential employee is obese.  Applicants for a job at Citizens Medical Center in Texas must have a Body Mass Index of less than 35 (185 lbs for someone who is 5-1; or 265 lbs for someone who is 6-1). I’ve blogged about this topic before. It isn’t new and it isn’t going away. If you want to know more about CA’s laws regarding obesity in the workplace, see my previous post.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Can I be fired for being fat? Is obesity a ‘disability’ in California?

Let’s be honest, obesity is an epidemic. According to California Health and Human Services, approximately three in five adults are overweight or obese in California. Although recent trends suggest leveling growth rates of obesity in the state, overall obesity rates remain extremely high.

Not surprisingly, some bosses view their obese employees as limited, incapable, slow, unhealthy, or expendable. More likely than not, an obese employee is granted fewer mistakes, fewer promotions, and fewer raises than a skinny employee. It is not uncommon for someone to get fired explicitly because of their weight.

There is no law in California that states that an employer cannot fire or discriminate against an employee because of their weight. However, there is law in CA that states than an employer cannot discriminate against an employee because of a disability.  That begs the question — is obesity a disability?

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Filed under ADA, Disability Discrimination, Disabling Injury and Illness, FEHA – Fair Employment & Housing Act