An employer may not take any “adverse employment action” against an employee on the basis of a “protected category” such as age, race, gender, religion, national origin, sexual orientation, disability or pregnancy. Adverse employment actions consist of decisions that materially affect the terms and conditions of employment. Common adverse employment actions include:
- Termination or discharge
- Removal from schedule
- Demotion or unfavorable transfer
- Pay reduction
- Denial of promotion or advancement
- Failure to interview or hire
Even if an employee alleges discrimination in the workplace, it may be very difficult to prove. Not only is each case different, but an employee must show that an employer acted with a discriminatory motive. It is important that you discuss your situation with an attorney for guidance regarding how to proceed with prosecuting or defending potential discrimination claims.
Feel free to call us at 415.434.3400 for a consultation or contact us.
Disability Discrimination
Disability Discrimination is one common form of unlawful discrimination. The Federal American with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) prohibit discrimination against an employee or applicant on the basis his or her disability. To assert a disability discrimination claim in California, a claimant must actually be mentally or physically disabled and must still be able to perform the essential functions of the job with or without accommodation. Additionally, the claimant must be able to perform the job duties in a manner that would not endanger the health and safety of anyone even with reasonable accommodation. Disability discrimination also exists where the employer takes an adverse employment action because it incorrectly believed an employee or applicant is disabled. Partially or temporarily disabled employees are entitled to the same protections.
Disabled employees are entitled to “reasonable accommodation” in the workplace, if possible. A reasonable accommodation is when an employer modifies a disabled employee’s job duties, lets the employee work less hours or takes some reasonable measures to help the employee perform the job. Employers have an affirmative duty to engage in an “interactive process” with disabled employees to try and find a reasonable accommodation for the disability. Even if the employee does not request an accommodation, the employer must initiate the process and work together with the employee to determine how to reasonably accommodate the disabilities if the disability is known or apparent to the employer.
What qualifies as reasonable accommodation in California depends on the individual circumstances. If you have questions regarding disability discrimination, contact us to discuss your experiences.
Pregnancy Discrimination
Pregnancy discrimination has been on the rise. Employees should not be punished for being pregnant, breast feeding or being a working mother. Pregnant or breast feeding employees and working mothers in California have several protections under the law including:
- Family Medical Leave Act (FMLA) and/or California Family Rights Act (CFRA): Employees who are eligible for FMLA and/or CFRA leave may be entitled to an additional 12-weeks of leave after giving birth for the “reason of the birth of a child”. An employer must give the employee back her job upon her return from maternity leave or offer her a comparable position.
- Pregnancy Disability Leave Law (PDLL): California employees who are actually disabled by pregnancy or pregnancy-related conditions may be entitled to up to four months of leave, which can be taken all at once or intermittently.
- Fair Employment Housing Act (FEHA): California employers are prohibited from harassing, demoting, firing or otherwise discriminating against an employee on the basis of pregnancy, or requesting or taking pregnancy-related leave. In some circumstances, pregnancy is treated as a temporary disability.
There are several ways an employer may discriminate against an employee based on pregnancy. Some employers violate applicable law by failing to provide pregnancy leave, lactation locations or family bonding time. Whereas some employees are treated unfairly while pregnant at work, others may begin to experience unlawful treatment after they return from pregnancy leave.
Call us at 415.434.3400 or contact us online for a consultation.
