San Diego Employment Discrimination Attorney

Employment Discrimination

Illegal discrimination in the workplace takes a wide variety of forms, some of which many of our clients do not initially think of as “discrimination.” Oftentimes, clients will come to us at Gomez Trial Attorneys complaining of a San Diego workplace situation that just feels wrong. Only after learning about California’s powerful worker protections do they realize that what has happened to them constitutes a clear violation of anti-discrimination laws.

Any San Diego worker who has encountered a situation at work that feels off can benefit from speaking confidentially with an experienced San Diego employment lawyer. In the meantime, below the San Diego personal injury attorneys at Gomez Trial Attorneys answer some of the most Frequently Asked Questions we receive from clients who find themselves in difficult workplace situations.

What Is Employment Discrimination?

The scope of the answer to such a short question may surprise you. Under the California Fair Employment and Housing Act (FEHA), and the regulations promulgated under it (available online here), it constitutes illegal “employment discrimination”:

For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

That is a lot to take in, we know. In a nutshell, it means that anything bad that happens at or in connection with work because of any one of that long list of factors starting with “race, religious creed, color…” etc., constitutes employment discrimination.

Employment Discrimination Laws

Title VII

Title VII of the Civil Rights Act of 1964 prohibits an employer with fifteen or more employees from discriminating on the basis of race, national origin, gender, or religion. The law prohibits employers from taking the following actions:

• Refusing to hire due to race, origin, gender or religion
• Discipline due to race, origin, gender or religion
• Firing someone due to race, origin, gender or religion
• Denying training due to race, origin, gender or religion
• Failing to promote due to race, origin, gender or religion
• Paying less or demotion due to race, origin, gender or religion
• Harassment due to race, origin, gender or religion

Age Discrimination In Employment Act

The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating on the basis of age for any person over the age of 40 by any employer with over 20 employees.

American With Disabilities Act & Rehabilitation Act

The Americans with Disabilities Act (ADA) was enacted to prevent discrimination against individuals with handicaps. It prohibits discrimination based on a physical or mental handicap by employers with more 15 employees. The Rehabilitation Act applies to all government entities and federal contractors.

Equal Pay Discrimination

Requires an employer who is already subject to the Fair Labor Standards Act (the federal wage and hour law) to provide equal pay to men and women performing “equal work”.

National Origin Discrimination

The Immigration Reform and Control Act bars employers with more than three employees from discriminating against a U.S. citizen (or an intended citizen like someone who may work legally but is not yet a citizen) on the basis of his or her national origin.

Employment Discrimination FAQs:

Can You Give Me Some Examples of Employment Discrimination?

Sure. Taking the definition above as our guide, any of the following can constitute employment discrimination under California law:

• Sexual harassment or sexual assault at the workplace or by a co-worker;
• Basing a hiring or firing decision on the fact that a worker is LGBTQ;
• Passing someone over for a job opportunity because the worker is pregnant;
• Promoting or demoting someone on the basis of their skin color or country-of-origin;
• Taunting or making rude comments about a worker’s physical or mental disability;
• Excluding a worker from a training program because of assumptions about the worker’s cultural background;
• Assigning work responsibilities based on an employee’s age;
• Paying a worker less than equal pay for equal work, because of the worker’s sex, gender, or gender expression;
• Refusing to hire a military reservist because of the prospect of the reservist going on active duty;
• Mandating a dress code that conflicts with a worker’s religious practices.

By no means does this constitute a comprehensive list. Employment discrimination takes too many forms for us to catalog them all here. The important thing to understand is that the “protected categories” listed in FEHA (“race, religious creed, color…” etc.) can virtually never serve as the explicit or implicit reason for an employer or co-worker to take an action or to make a decision regarding any aspect of a person’s employment. Anything that happens to you at work—even something that someone else might think is “good” for you—on the basis of these factors can constitute illegal discrimination.

I’m Still Not Sure if I’ve Been Discriminated Against. How Can I Know for Sure?

We get this kind of question a lot. The fact is, although illegal discrimination runs rampant in every type of workplace in San Diego, oftentimes it does not take a blatantly obvious form. Many workers instead come to us with a sense or a gut feeling that they have not gotten a job, been demoted, passed over, reassigned, or seen a pay-cut, on the basis of something about themselves other than their abilities and work ethic (This is not to say that clear, unmistakeable discrimination does not happen. It does.)

So, our answer to the question above is this: Trust your gut. If it feels like someone with authority took action relating to a job you have or a job you want based on how you look, whom you love, what you believe, how your body functions, or any similar characteristic of your personhood, then you may have experienced illegal discrimination.

To explore your gut feeling further and to figure out your potential rights, talk with an experienced San Diego employment discrimination lawyer. Any conversation you have with an attorney is and will always remain 100 percent confidential, no matter what you decide to do afterward.

What Rights Do I Have as Someone Who Was Subjected to Employment Discrimination?

As a general matter, you have the right under FEHA to work free from discrimination, and to take legal action against those who discriminated against you. However, how you use and enforce that right can affect your ability to recover the compensation you deserve for the harm discrimination causes. We advise anyone who believes they were illegally discriminated against in any employment-related context to speak with our San Diego employment discrimination attorneys before taking any action that may hurt their rights.

To explain what we mean, it helps to step back and consider some of the options typically available to a person who has experienced work-related discrimination, and how those options may affect the worker’s legal rights.

• Staying silent and biding time. Workers can choose not to do anything other than wait for more definitive evidence of discrimination before taking any action. This may constitute a legitimate strategy, but it may also impair the worker’s ability to make a credible claim for damages when the time comes. Also, employees should consider the legal ramifications of “gathering evidence” of workplace-related discrimination, as some such actions may violate terms of employment or even California law.
• Reporting discrimination to HR or a supervisor. Many employee handbooks advise employees to speak with a human resources coordinator or a supervisor to raise the alarm about potential discrimination. This, too, could represent a smart move, but it comes with risks; namely, that HR departments and supervisors may not prioritize the worker’s interests over those of the company, and may use the complaint as a means of “shaping the narrative” around the discrimination.
• Filing a complaint with the California Department of Fair Employment and Housing (or with the federal Equal Opportunity Employment Commission). FEHA authorizes employees to file a complaint with the state agency that oversees the anti-discrimination law’s enforcement. Filing a complaint can be a good move, but also has potentially significant consequences for the employee’s ability to take legal action and triggers a state-level investigative process that is largely out of an employee’s hands once it starts.
• Filing a civil lawsuit for damages. A legal action in California courts may make sense for an employee, but it usually requires careful planning and adherence to strict deadlines. Do not attempt to pursue a lawsuit seeking damages for employment discrimination without the help of an experienced employment discrimination attorney.

In addition to the options above having potential legal consequences, employees rightly wonder about the potential practical, real-world consequences of a decision to complain about work-related discrimination. They may have legitimate concerns, for instance, about how a complaint could affect their career path or their relationships with co-workers. It is illegal for an employer to retaliate against an employee for standing up for his or her rights under FEHA, but that can come as cold comfort to an employee who finds that, even without retaliation happening, merely speaking out can change how the world sees them.

Experienced San Diego employment discrimination attorneys understand the legal and practical issues that accompany taking actions to stop workplace discrimination. They have the know-how to work with employees to figure out the best strategy for protecting the employees’ rights in the particular work circumstances at hand.

What Kind of Damages or Other Remedies Can I Get if I Sue for Employment Discrimination?

The potential outcomes of suing for employment discrimination in California vary from case-to-case, and may depend upon which of the above-steps you and your attorney decide to take, and in what order you take any-or-all of them.

As a general matter, however, legal remedies for employment discrimination can include:

• Compensation for out-of-pocket losses associated with the discrimination, including wage losses;
• Compensation for physical harm and/or emotional distress;
• Civil penalties and/or punitive damages authorized under California law; and
• Forced changes in workplace policies, procedures, or practices.

The amount of money damages an employee could receive in a lawsuit can also vary widely. Speak with an experienced San Diego employment discrimination attorney today to determine the potential outcomes of a lawsuit in your situation.

What Is a Class Action and What Does It Have to Do With Employment Discrimination?

Some acts of employment discrimination affect entire groups or “classes” of workers. For example, if a big box retailer has an “unwritten” policy of not hiring a particular nationality of job applicants, then any applicant affected by that policy has suffered the same basic discriminatory harm. In such cases, lawyers or the state Department of Fair Employment and Housing may file a lawsuit on behalf of the entire group or “class” of people harmed by the discriminatory policy.

This type of lawsuit, called “class action,” can serve as a powerful means for victims of discrimination to speak with a collective voice and to force a change in the employer’s discriminatory policies. Participating or joining in a class action lawsuit may, however, also affect an individual’s rights to take legal action on his or her own. If you have received notice of your potential membership in a “class” of people who were discriminated against, speak with an experienced employment discrimination attorney about its potential effects on your right to seek compensation.

What Should I Do if I Suspect I Was Discriminated Against in Connection With Work?

Speak with a San Diego employment discrimination lawyer. Do that first, before deciding to do anything else.

Yes, we know that sounds self-serving. However, protecting yourself against employment discrimination means navigating a potential minefield of legal complications. Missteps can cost you dearly. Experienced attorneys can keep you on the right path.

In other words, unlike other legal situations in which we sometimes advise potential clients to gather evidence, collect contact information from witnesses, and so-on, we do not advise you to do any of those things without first speaking with a lawyer about a potential case of employment discrimination. As we said above, speaking with a lawyer is 100 percent confidential. Your employer and co-workers will never hear from the lawyer without your permission.

Is There Anything I Should Definitely Not Do?

Employment Discrimination Attorney, John Gomez

As we said, we would prefer that the only thing you do is to speak with our experienced employment law attorneys. However, regardless of when you talk to an attorney, the following actions in response to employment discrimination are usually not a good idea:

• Do not take action that violates company policy or breaks the law.
• Do not engage in discriminatory conduct of your own, thinking it is authorized.
• Do not use a threat to reveal discrimination as leverage or blackmail against your employer.
• Do not fire off an angry email or text to your boss at three a.m.
• Do not quit your job without first speaking with a lawyer.

We understand. Discrimination in connection with your work can feel like a deep betrayal, and can leave you with a sense of hopelessness and disempowerment. One reason for those feelings is that workplace discrimination virtually always happens in a situation where the person doing the discriminating is more powerful than the person discriminated against.

However, difficult as it may seem, we encourage you to call us and put your trust in the law. Employment discrimination is illegal, and despite the complex process, we can help you take avenues toward justice.

Gomez Trial Attorneys
655 West Broadway, Suite 1700
San Diego, CA 92101
Phone: (619)-237-3490