Law Office of Arkady Itkin
Law Office of Arkady Itkin - San Francisco Injury / Wrongful Termination Lawyer   Contact Us at (415) 295-4730
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The Simple Truth About Reverse Discrimination at Workplace

7/10/2020

 

Gender and Sex Discrimination at Worklace: Setting Different Grooming Standards for Men and Women

2/19/2013

 
sex and gender discrimination is illegal in California
Title VII makes it unlawful “to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's  sex․" 42 U.S.C. § 2000e-2(a)(1).  The Courts have recognized two bases on which an aggrieved employee may proceed in a sex discrimination claim:  disparate treatment and disparate impact. Disparate treatment arises when an employer “treats some people less favorably than others because of their ․ sex.” Disparate treatment is permissible under Title VII only if justified as a bona fide occupational qualification (“BFOQ”).   A BFOQ is a qualification that is reasonably necessary to the normal operation or essence of an employer's business.  See 42 U.S.C. § 2000e-2.

An employer's policy amounts to disparate treatment if it treats men and women differently on its face.   For
example, in UAW v. Johnson Controls, 499 U.S. 187 1991), defendant Johnson Controls barred fertile women, but not fertile men, from jobs entailing high levels of lead exposure.  The Court concluded this was disparate treatment:  “Johnson Controls' policy is not neutral because it does not apply to the reproductive capacity of the company's male employees in the same way as it applies to that of the females.”  The Court has made it clear that such an “explicit gender-based policy is sex discrimination under § 703(a) [of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2(a) ] and thus may be defended only as a BFOQ.” 
 
However, an appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment and does not give rise to a gender discrimination claim.   For example, in Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir.1977), the court held that a store may impose different hair length requirements on men and women, and may require men but not women to wear neckties. In that case, the court noted that regulations promulgated by employers which require male employees to conform to different grooming and dress standards than female employees is not sex discrimination within the meaning of Title VII.

On the other hand, a sex-differentiated appearance standard that imposes unequal burdens on men and
women is disparate treatment that must be justified as a BFOQ or it will be found an unlawful discrimination. Thus, an employer can require all employees to wear sex-differentiated uniforms, but it cannot require only female employees to wear uniforms.   See Carroll v. Talman Fed. Sav. & Loan Ass'n of Chicago, 604 F.2d 1028 (7th Cir.1979).   An airline can require all flight attendants to wear contacts instead of glasses, but it cannot
require only its female flight attendants to do so. (See Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763 (D.D.C.1973). 

In one recent case United Airlines was found to have engaged in gender discriminatoin when it had a weight policy with respect to its flight attendants, that imposed stricter standards on women than on men. 

For more information about different kinds of discrimination, please visit our San Francisco Employment Lawyer Blog. 

Discrimination, Retaliation, and Harassment against Caltrans

2/27/2011

25 Comments

 
Recently, one employee of Caltrans contacted me in what seemed to be an urgent need for help and legal representation, as she was subjected to egregious harassment by her supervisor, and could not get any help from the higher management or human resources department. Her supervisor openly and repeatedly disregarded her disability limitations in t he most humiliating manner.    

The same Caltrans employee kindly shared with me a rather disturbing article about the discrimination and harassment that's taking place in the Caltrans Oakland office. Unfortunately, this kind of treatment of employees in large public offices is not as uncommon as one might think. One reasons for this seems to be the impunity which some of the managers enjoy for such violations. The perpetrators of discrimination and their superiors are rarely terminated and usually get a slap on the wrist in the form of a confident reprimand letter or a warning, while costing the city, county or state department many thousands of dollars in legal fees and in settlement. 
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When You Are Harassed, Discriminated or Retaliated Against at Workplace

1/23/2010

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You have a job that you value and enjoy, and it seems that you get along with everyone at the company except those few "bad apples" - your manager who harasses or retaliates against you and his superiors who are either reluctant to take action because they are biased and side with your manager no matter what, or because they want to "play it safe" by sweeping your reported problems under the rug.   

If you are not ready to quit and you believe that the situation can be remedied, it is very important that you don't become a victim of your anger. You should not allow yourself to lose your cool, to act or talk in a rude or offensive manner to your superiors, whether they are guilty of unlawful misconduct or not and not give them legitimate, legal reason to suspend or terminate you. This is the time to act like a true diplomat  - to voice your concerns in a compelling but courteous manner to all those who have the authority to address your issues without yelling at anyone or threatening your employer with a lawsuit.

As tempted as you might be to give your boss a piece of your mind - anger never serves any employee's best interests before litigation or after the lawsuit is filed, when treating the situation like business rather than personal battle is even more important for successful prosecution of a case in court.
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Building Your Retaliation Claim Before You are Fired

7/18/2009

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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. 

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California Employer's Duty to Investigate Discrimination and Harassment Complaints

7/10/2008

2 Comments

 

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.

2 Comments

Pregnancy Leave Protection Laws for California Employees

7/9/2008

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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.

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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. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; arkady@arkadylaw.com
Photo used under Creative Commons from Ernst Moeksis