Law Office of Arkady Itkin 

Often, an employee is subjected to unlawful discrimination and retaliation while still employed and weeks or even months before being terminated. Although very "tempting," suing an employer while still employed is problematic. First, you are very likely to lose a job (just because it's unlawful to terminate an employee who exercises his legal rights to bring legal actions, doesn't mean that the employer simply can't violate the law and do it). Secondly, your recovery in any case is likely to be insignificant because you have not sustained any loss of wages, which is at the core of any settlement or judgment.

Despite the above, there are a few important things you can do to line up your "weapons" if and when you get unlawfully terminated as a result of discrimination or retaliation: 

1. Make sure that your boss cannot blame terminating or demoting you on your performance. This is a critical time to do the best you can, as the employer's love to use poor performance as excuse for termination, because it's so subjective and relatively hard, although possible to argue against.   
 
2. If there are any witnesses to unfair treatment, get their statements in writing if possible, and keep their contact information. In many cases with opposing sides having opposing story, witness statements are crucial.   
 
3. Keep all relevant documents, emails and other documentation proving discrimination, retaliation, or your complaints to HR or your superiors about the same, as they will be of critical important when proving your case in court.   
 
4. If you witness discrimination or harassment against yourself or others, complain to HR in a courteous but firm manner and ask for investigation in writing.   
 
5. If you are terminated, do not sign any releases in exchange for severance before you consult an attorney, as signing a release usually extinguishes all legal claims, committing the signing employee to never sue the employer for any violation.
 
Then, when the time comes and you are well equipped to fight, the results will be better and the process will be likely shorter, as the employer, facing substantial evidence against them will likely want to settle faster. 

Under California law, an employer is required to promptly and thoroughly investigate any claim of harassment, discrimination, or retaliation. The obligation to investigate arises out of the affirmative duty under the Fair Employment and Housing Act, Cal. Gov. Code section 12940(j) and (k) to take all reasonable steps necessary to prevent discrimination and harassment from occurring. The duty to investigate a harassment claim promptly and throughly exists whether or not the claimant consents to an investigation or cooperates with one. Further, neither an employee’s failure to report harassment nor the fact that the harassment stopped before the investigation began conclusively absolve an employer from liability for discrimination and harassment. Moreover, it is not enough for an employer to conduct an investigation without also taking measure to protect the employee from retaliation.

Employer’s failure to investigate an employee’s complaint adequately may violate California anti-discrimination laws. To be adequate, the investigations should be commenced immediately, and be completed as soon as circumstances reasonably allow. Investigations commenced within a day or days of a complaint and completed within a two-week period have been routinely upheld as timely. Waiting until after the complainant has filed an administrative charge with DFEH or EEOC will be presumed inadequate.

While the complaint is undergoing investigation, the employer should take steps to prevent contact between the complaining employee and the alleged harasser, such as rescheduling or placing the alleged harasser on leave.

Several laws protect California women from pregnancy discrimination at workplace. These laws interact with each other in complex ways. Each law and protection may or may not apply depending on the size of the employer, the employee’s length of service, and other facts. Some leaves run concurrently, while others don’t.

There are three statutes that directly related to leave during and after pregnancy: California Pregnancy Disability Leave Law (PDLL), California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA)

California’s Pregnancy Disability Leave Law is the most inclusive and should be looked at first in determining a woman’s entitled to protected leave. All California employers with at least five employees are covered. Pregnancy disability leave is available regardless of a woman’s length of service with a covered employer, and it is available to both full and part-time employees.

The PDLL provides women with up to four months of leave for disabilities caused by pregnancy, childbirth, or related medical conditions. PDLL also requires employers to reasonably accommodate any restrictions tha are advised by a woman’s health care provider. According to the Employment Development Department, women with normal pregnancies typically receive disability benefits for up to six weeks after giving birth. Women who have c-sections or any number of other complications relating to pregnancy or childbirth will likely be entitled to longer leave periods.

It is important to note that the fourth months of protected leave is a floor, not a ceiling. While the law provides that it is unlawful for employers to refuse to allow a leave “for a reasonable period of time not to exceed four months,” Gov. Code section 12945(a), it also provides that if a pregnancy related medical condition or disability requires more than four months of leave, “the employer must treat the employee the same way regarding reinstatement rights as it treats any similarly situated employee who has taken a similar length disability leave.

California’s PDLL has more protective reinstatement rights than other leave laws. Under this law, a woman must be returned to the same position at the end of her leave. There are only two exceptions to this rule: (1) when the employee would not otherwise have been employer in her same position at the time reinstatement is requested for legitimate business reasons unrelated to the employee taking a pregnancy disability leave or transfer;” and (2) when “each means of preserving the job or duties for the employee would substantially undermine the employer’s ability to operate the business safely and efficiently. If an employer is excused from reinstating a woman to her same position, she must be reinstated to a comparable position unless there is no comparable position available.

PDLL is an essential protection because many women who become pregnant are not entitle to leave under the more familiar FMLA and CFRA provisions. Those laws only apply to employers with at least 50 employees working within a 75 mile radius of the affected employee’s job site. In addition, FMLA and CFRA only apply after a woman has worked for her employer for at least one year and 1250 hours during that past year.

The important difference between FMLA and CFRA is that FMLA leave generally runs concurrently with the pregnancy disability leave CFRA does not, and in fact it expressly excludes disabilities due to pregnancy, childbirth, and related medical conditions. Thus, some women may qualify for four months of disability leave and an additional twelve weeks of CFRA leave. It is important to note that if a woman decides to take both, the pregnancy disability leave and CFRA leave, her right to reinstatement will be governed by CFRA and not PDLL. This means that she will be entitled to a comparable position rather than the same position when reinstated.

It should be noted that the PDLL, CFRA, and FMLA all provide for unpaid leave. State disability and Paid Family Leave (PFL) may provide partial wage replacement during a period of leave.