Employment Discrimination/ Retaliation

Employment discrimination involves treating someone differently based in whole or part on the employee’s race/color, national origin (including language) disability (including pregnancy and HIV/AIDS) age, sex/gender (including gender identity/expression and pregnancy) transgender or sexual orientation.

Types of Employment Discrimination

Race/Color Discrimination

Discrimination based on race or skin color is most often subtle and may even be unspoken, evident only from treating an employee of one race more favorably than another such as segregation of particular employees in a certain job class even if there was no intent to discriminate. Other examples are more overt and involve both blatant and inferred hostility towards persons of a certain race or color such as making racial epithets or otherwise acting or commenting in a way that implies ill will towards another race.

National Origin (Including Language)

This type of discrimination has become rampant in the current political climate and involves similar factors present in discrimination based on race and color, with the addition of “language” being a common manner of discrimination against employees whose native language is something other than English. A common example of national origin discrimination takes the form of the employer’s implementation of an “English Only” policy which does not comply with law. If you have been told you cannot speak a language other than English by your employer, you may be a victim of national origin discrimination.

Disability Discrimination

Persons with disabilities or those perceived to be disabled face barriers to employment ranging from failure to hire, failure to provide reasonable accommodations and termination. California provides a broad definition of “disability,” which includes, both physical and mental disabilities as well as HIV/AIDS, Hepatitis or any impairment that limits an employees ability to participate in major life activities with special emphasis on working. The failure to accommodate a disability also constitutes disability discrimination.

Sex/Gender Discrimination

There are multiple forms of sex/gender discrimination which includes, like race/color and national origin discrimination, treating one gender less favorably than the other. This may mean they have been passed over for promotion in favor of a less qualified male, received a poor performance review because they reported sexual harassment, (also considered retaliation), expressed a gender identity as male or female, became pregnant, required a pregnancy leave or pregnancy accommodation, were denied the right to wear pants or required to wear high heels to the exclusion of male employees.

Pregnancy Discrimination

Discrimination based on pregnancy involves three types of actionable conduct under the California Pregnancy Disability Leave Act (Cal. Gov’t Code § 12945) (“PDLA”):
1) Under the PDLA, pregnant women are entitled to a leave of absence for pregnancy disability for up to four months, intermittently or consecutively.
2) Employers must also provide for reasonable accommodations for pregnant employees in the same manner as any other disability, such as affording light duty or temporary job transfer.
3) Employees who have taken four (4) months of leave under the PDLA are still entitled to take 12 weeks leave under the California Family Rights Act (“CFRA”) if eligible.

LGBTQ Discrimination

The last bastion of the struggle for civil rights, the LGBTQ community still continues to suffer immense barriers to employment almost more than any other class of employees. Harassment and differential treatment based upon sexual orientation, gender identity or transgender status is unfortunately common in even the most professional workplaces. If you have been harassed, denied promotion or terminated because of your sexual orientation, gender identity/expression or transgender status (including transitioning), you may have a claim for discrimination.

Age Discrimination (Over 40)

California prohibits discrimination against workers that are 40 and over. Older workers are most often discriminated against on the basis of age due to a reduction in force or “RIF,” a seemingly neutral policy that when applied to all employees results in the differential treatment of older workers. Because older workers often have a longer tenure and more experience than younger workers, they are typically paid higher salaries. Clearly, employers would prefer to pay workers less if they could. For this reason, the FEHA prohibits selecting employees for termination only to replace them with younger, cheaper workers.

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