 We often speak with both employees and employers who have the same misconceptions about California employment law, which are important to be aware of in order to easily avoid unnecessary and often expensive mistakes:
1. "We Don't Have to Give a Reason for Firing an At-Will Employee." California is an at-will employment state. Generally speaking, an employer may terminate an employee at any time, with or without notice, and with or without stating a reason. Many employers incorrectly conclude that because they are not legally required to provide a reason for termination, they should never give a reason. However, when an employer refuses to explain why someone was fired, this may raise a suspision that the employer is trynig to hide a potentially unlawful reason. Otherwise, why couldn't the employer just cite the typical performance, attitude, etc... If that employee files a wrongful termination case, the absence of any explanation invites looking into whether unlawful discrimination or retaliation played a role. Providing a truthful and well-documented reason for a termination can sometimes reduce suspicion and strengthen the employer's defense. Real-Life Example: An employee with excellent performance reviews is terminated immediately after requesting a disability accommodation. The employer simply says, "California is an at-will state. We don't have to explain why." During litigation, internal emails reveal managers discussing frustration with the employee's medical restrictions. The employer's refusal to give any explanation for the final decision to fire becomes one of several facts suggesting that the reliance on "at-will employment" was being used to hide an unlawful motive. 2. Not Every Form of Retaliation Is Illegal. In fact, most types of retaliation California law only prohibits retaliation for engaging in legally protected activity. Protected activities include the following:
Real-Life Example: Employee A complains that the office coffee is terrible and management wastes money on unnecessary renovations. Employee B complains that female employees are being paid less than male employees performing substantially similar work. If both employees are later disciplined, Employee B may have a retaliation claim because the complaint involved alleged unlawful discrimination. Employee A generally would not, because complaining about coffee or management's business decisions is not protected activity, so even if Employee A was clearly terminated for making those complaints, this would not form a basis for a wrongful termination case. The key question is not whether the employer retaliated—it is whether the retaliation was because the employee engaged in activity protected by law. 3. A Hostile Work Environment Must Be Based on a Protected Class. People often use the phrase "hostile work environment" to describe an unpleasant workplace. Legally, however, a hostile work environment has a much narrower meaning. An abusive supervisor, rude coworkers, favoritism, yelling, or personality conflicts generally do not violate California's anti-discrimination laws unless the hostility is motivated by a protected characteristic such as:
Now imagine the same manager repeatedly mocks an employee's accent, makes derogatory comments about her religion, or ridicules her disability. Those facts may support a hostile work environment claim because the hostility is tied to a protected characteristic. 4. Wrongful Termination Requires Evidence of an Illegal Reason—Not Simply an Unfair One. Many employees understandably believe they were fired unfairly. However, California law generally does not prohibit employers from making poor business decisions, firing good employees, or terminating someone based on inaccurate information. Instead, a wrongful termination claim typically requires evidence that the termination violated a law or public policy. Examples include termination because of:
By contrast, if the employee was fired because he complained about not being paid his overtime due, that same termination may violate California's retaliation laws. The difference is not whether the employer was wrong—it is whether the employer violated the law. 5. Taking Protected Leave Does Not Make an Employee Immune From Termination. Many employees believe that once they take protected medical or family leave, they cannot legally be fired. That is another common misconception. Protected leave does not provide permanent job immunity. Instead, it generally means that it would be unlawful for an employer to terminate an employee because that employee exercised a protected legal right (but the employer can still choose to do so). If the employer can prove the employee would have been terminated regardless of the leave—for example, because of a company-wide layoff, documented misconduct discovered before the leave, or elimination of the position—the termination may still be lawful. Real-Life Example: An employee takes approved CFRA leave for surgery. While the employee is away, the employer eliminates an entire department as part of a company-wide reduction in force affecting dozens of employees. The fact that the employee was on protected leave does not automatically make the termination unlawful. Now consider a different scenario. A supervisor complains that an employee's medical leave is "too inconvenient" and terminates the employee immediately after the leave begins, even though no layoffs or performance issues exist. Those facts may support a claim that the termination was motivated by the employee's protected leave. The legal issue is not whether the employee was on leave. The issue is whether the leave motivated the employer's decision or whether it was at least one of the motivating reasons for termination.  Employers often walk a fine line when conducting workplace investigations—especially when those investigations are directed by an attorney. On the one hand, involving attorneys can strengthen the integrity of the process, especially if an outside counsel is hired by the company to conduct that investigation. On the other, it creates a latent risk: waiver of attorney-client privilege and work product protection if the employer later relies on the investigation as part of its defense to either justify the termination or demonstrate that they met their obligation of investigation the allegations made.
That risk becomes very real in litigation involving claims of discrimination, retaliation, failure to investigate, or wrongful termination. The governing principle is this: an employer can't refer to the investigation as a defense in litigation and at the same time refuse to disclose the written materials relevant to that investigation. The leading case on this issue is is Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128. There, the court held that when an employer affirmatively relies on an attorney-conducted investigation to defend its actions, it places the contents of that investigation “at issue,” thereby waiving privilege. In practical terms, once an employer argues:
As a result, the plaintiff may gain access to wintess statements, interview notes, draft reports, attorney impressions, and final investigation reports. This can fundamentally shift the leverage in a case, especially if any of these documents contain any "juicy" evidence showing that the employer had unlawful reasons for terminating you. This damning evidence can include the following: flaws in the investigation, biased questioning, failure to interview key witnesses, pre-determined conclusions, and inconsistent documentation. These types of issues with the investigation process can, along with other evidence, support or strengthen a potenital or existing case against that employer. Employer should keep this in mind when deciding to conduct an investigation and at a minimum ask themselves: what will be the exact purpose of this investigation? How likely is the company to use this investigation and its conclusion to defend any potential legal action by an employee? And, does the company feel comfortable disclosing all of these investiation materials if need be under the circumstances? When describing the facts of your potential employment discrimination or harassment case to an attorney, be as factual and as specific as possible. Avoid using vague legal terms and abstract adjectives that don't actually tell the attorney what happened to you. Here are three common examples to illustrate the difference and help you communicate the fact of your case more effectively from your very first contact with any lawyer:
"My coworker called me a black bitch in the office kitchen a week ago" tells the lawyer exactly what happened. On the other hand, "my coworker racially harassed me" doesn't. Harassment could mean so many different things. "My boss made sexual advances to me / inappropriate touched me" doesn't provide any specific information about what happened. On the other hand, "my boss told me that if I stayed over at his place, he was going to make it worth my while after he grabbed my right breast with his left hand in his office" provides the relevant information in a clear and specific manner. and finally, "My supervisor physically attacked me" doesn't really explain what happened. On the other hand, "my supervisor pushed me against the wall of his office and punched me in the shoulder with his right fist, leaving a bruise, a picture of which I have and can share" explain very well what happened. When describing your case to an attorney, don't be shy. Be as explicit as necessary to explain exactly what happened to you.  Under Title VII, a union may be liable in several ways for workplace discrimination and harassment. First, a union may be liable for intentionanlly failing to file grievances concerinng a racially hostile working environment of any of its members. Goodman v Lukens Steeol Co., 482 US 656, 667 (1987). This inquiry does not require proving that the workplace was hostile. In Goodman, the union had for several years been a party to a union contract with a provision expressly prohibiting discrimination. The union was aware of, but nevertheless ignored grievances based on racial harassment and other forms of discrimination. The Supreme Court held that a union's deliberate failure to bring race-based claims, by itself constituted discrimination, violating the plain terms of Title VII.
A union may also be liable under Title VII for acquiescing in a racially discriminatory work environment, i.e. being aware of discriminatory or harassing conduct taking place and doing little to nothing to remedy or prevent it. The union has an affirmative obligation to oppose employment discrimination against its members. Bonilla v Oakland Scavenger Co. 697 F.2d 1297, 1304 (9th Cir. 1982). The same reasons which prohibit an employer from discriminating on the basis of race... apply equally to the union. McDonald v Santa Fe Transp. Co., 427 U.S. 273, 285 (1976). In light of the above, it's well worth exploring, when filing a lawsuit against an employer for discrimination and wrongful termination whether there is sufficient evidence to include the claimant's union in the complaint as a defendant. Woods v Graphic Communications 925 F.2d 1195 (9th Cir. 1991) is another important case whic includes relevant discussion and analysis for union liabiltiy for discrimination in various circuits.  There is one specific thing you can do to help your attorney get the best results in your discrimination, harassment or wrongful termination case:
- pretend to be your employer's attorney for a moment and ask yourself how you would defend the case against you - This means that you should first share with your attorney not only the facts that support your case but also circumstances that might make it more challenging as early as your initial consult to evaluate your case. This will help your attorney determine whether your case is worth pursuing, and if so - prepare to defend your case against any arguments made by the employer's attorneys using those negative facts. Think of any skeleton in your closet your employer knows about or can discover to use against you during your testiomny. This can include your previous arrest history with or without conviction, drug use, problems with or claims against your previous employers, rude or inappropriate emails or text messages you may have sent in the past to your co-workers or management, less than flattering social media activity, and any other information that would put you in less than positive light. Prepare to deal with these facts, if the employer's attorneys try to use them against you When you prepare for your deposition, make a list of questions that you believe you would be most uncomfortable answering, and discuss with your lawer how you should best answer those questions. If you are ready for the most difficult questions during your deposition testimony, the rest should be much easier. Gender and Sex Discrimination at Worklace: Setting Different Grooming Standards for Men and Women2/19/2013
 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. 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. 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. 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. |
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