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workplace discrimination retaliation lawyer

Discrimination and Retaliation Defined and Clarified (Employment Law)

Discrimination and Retaliation are terms that are commonly misunderstood by workers and public in general. It's important to understand what these terms so that you can assess the merits of any potential claim you want to make against your present or former employer. 

Unlawful workplace discrimination takes place when you are treated substantially different in terms, conditions and privileges of your employment because you are a member of protected class (age, race, disability, gender, familial status, sexual orientation) etc, and there is actual evidence that the reason you are treated differently/poorly is your being a member of one or more of those protected categories and not for some other reason, such as personality conflict and favoritism for other reasons. In other words, being treated unfairly is not against the law unless the reason you are treated badly by the employer is because you a member of protected class. Simply being black, or over 40, or gay, or a woman is not enough to prove discrimination. There must be actual evidence that the reason you are treated different is the fact that you belong to one of those categories. 

Unlawful workplace retaliation takes place when you suffer adverse employment action, such as demotion or termination because you have engaged in a protected activity. Some of the common protected activities are complaining about harassment/discrimination at workplace, complaining about safety-violations, complaining about wage and hour violations, filing a claim for unpaid wages or overtime, participating in certain political activities, exercising rights under CFRA/FMLA, and a number of other specific activities. If the activity is not considered a "protected activity" under the law, than any adverse employer action that follows that activity cannot be grounds for retaliation claim. For instance, if you complain about your boss is yelling at you, or micromanaging you, or not being fair to you, or not keeping his promises to provide you with certain terms and conditions of employment, and you are terminated as a result, these facts do not make a retaliation claim, because complaining about yelling and unfairness, as opposed to discrimination, unlawful harassment, etc., are not protected activities.  

It's important to remember that with regard to both discrimination and retaliation the burden of proof is on the employee-claimant. The employer generally doesn't need to show good reason for terminating an at-will employee. The employer only needs to show a subjectively legitimate reason, which is very easy to do in most cases. 

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; [email protected]
  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
  • Practice Areas
  • About
  • Results
  • Submit Case
  • Contact
  • Resources
    • Consultations
    • Workplace Rights Checklist
    • Deposition Tips
    • Mediation Tips
    • Effective Mediator
    • Suing Current Employer
    • Severance Agreements
    • Workplace Investigation
    • Arbitration
    • Statutes of Limitations
    • Healthy Litigation Mindset
    • Trial Tips
    • Working Remotely
    • How To Find The Right Lawyer For Your Case