If you are discriminated against in your workplace, then you have an unenviable choice: Do you act to eliminate the employment or the discrimination? While neither is an easy path, even if you decide to seek work elsewhere, the difficulties that discriminatory actions can inflict on a career, finances and emotions often outlast the employment under which they arose.
As an employee within the United States, you are protected from suffering these discriminatory injuries by the federal government’s Title VII. And as a worker in the state of California you have the further benefit of a stronger set of anti-discrimination laws, California’s Fair Employment and Housing Act (FEHA). The first step towards confronting discrimination and asserting your rights under both state and federal law is to become informed.
What kinds of discrimination are against the law?
It is unfortunate, but legal for employers to be disrespectful, rude and even to make unwise choices when hiring or promoting their staff. “Discrimination” does not mean that a boss has to be fair, nor does it mean that he or she has to be reasonable. However, discrimination does mean that an employer cannot treat a person or group with a protected characteristic differently from others who are similarly situated. These protected characteristics include: age, sex, race, religion, color, national origin, ancestry, physical disability, medical condition, genetic information, marital status, gender, gender identity, gender expression, predisposition to genetic illness, sexual orientation and military or veteran status. Notably, California law prohibits employers from enacting “English-only” language restrictions within the office in the absence of business necessity.
What kinds of discrimination are most common?
According to report released by the U.S. Equal Employment Opportunity Commission (EEOC) the following types of discrimination are the most common reasons for claims brought against employers.
- Retaliation Discrimination: Retaliation Discrimination, the most common form of workplace discrimination, occurs when an employee’s choice to exercise rights or make a complaint is met with punishment such as termination, demotion, or disciplinary sanction. Retaliatory discrimination also includes instilling a fear of potential consequences should an employee complain or assert his or her rights. An example would be changing an employee’s hours, work location or duties because the employee reported safety violations, sexual harassment or another violation of public policy.
- Racial Discrimination: Racial discrimination includes racially based termination, demotion, unfair salary, unequal treatment, refusal of fair access to employee benefits, refusal of fair access to training and harassment. Often in cases of racial discrimination, racial overtones and discriminatory intent can be found in seemingly innocuous comments and criticism, especially when one employee is singled out. In the case of race discrimination, it is important to pay attention and to document such statements.
- Gender Discrimination: Sex and gender discrimination encompass a broad range of issues within the workplace that include sexual harassment, unequal pay, pregnancy discrimination, and discrimination based on marital or parental status. Gender discrimination in its most well-known form is known as the “glass ceiling,” whereby sex and gender prevent qualified individuals from job advancement. However, sex and gender discrimination can be perpetrated by an employer of the same sex or gender. For example, a woman executive may choose to hire a man on the basis of his gender while turning down a woman who is better qualified. Likewise, sexual harassment, whereby a male or female experiences unwanted sexual advances or requests for sexual favors, can be perpetrated by employers of both the same and different sex.
- Disability Discrimination: Disability discrimination, like other forms of discrimination, often involves the singling out of an employee as well as offhand comments regarding his or her disability. A disabled employee who is discriminated against may be able to perform the essential functions of the job with reasonable accommodation, but find that their employer either refuses to accommodate them or creates less favorable employment conditions. Both federal and California State law prohibit such adverse actions, hiring and application practices towards those with disabilities, and the Americans with Disabilities Act further requires reasonable accommodations for disabled employees.
- Age Discrimination: Those over the age of 40 are protected from age-based employment discrimination by both California State law, the federal Age Discrimination in Employment Act of 1967 (ADEA), and the Older Workers Benefit Protection Act (OWBPA). Age discrimination often manifests itself through statements about “fresh faces” or the like as justification for the promotion of a younger worker, or hiring practices that refuse to hire qualified persons above a certain age. Further, age discrimination may take place as an employee reaches retirement age, at which point he or she is met with repeated questions regarding retirement, pressure to retire or threats if retirement is not taken within a certain time period.
What should you do?
The above scenarios may seem all too familiar. Maybe your employer changed the terms of your employment or your workload because you chose not to retire, maybe you were denied an earned promotion as retaliation for a complaint or medical leave, or maybe something happened that was altogether different but still discriminatory. If so, then you have a right to seek recourse and to hold your employer accountable for violating your rights under the law. And your first action should be to seek legal counsel. Remember that time is a critical factor in successfully pursuing discrimination claims, and that reaching out for a consultation early is a step in preventing your claim from falling on the wrong side of applicable statutes of limitation.
Aiman-Smith & Marcy is a boutique law firm with experience in defending the rights of employees against discriminatory practices of large corporations and a history of multi-million dollar settlements in individual and class action cases. Our firm works on a contingency basis, meaning that no fees or expenses are collected unless a recovery is made on behalf of the client. Contact us today.