What are the Protected Classes Under Discrimination Laws?

Many are familiar with the topic of discrimination and would assume they know exactly what the term refers to, but it’s not as easily defined as many think. An employer may dislike an employee. They might feel his or her personality is grating or disruptive to the team efforts and they may, as a result of their dislike, treat that employee differently. You might even say they treat that employee unfairly. Is that enough evidence for a discrimination claim? It may not be. In order to file a valid discrimination claim, the Equal Employment Opportunity Commission (EEOC) needs to see that the discrimination falls within pre-determined categories or protected classes.

The way the courts determine protected groups under discrimination laws today was heavily influenced by the Civil Rights Act of 1964. It prevents discrimination in educational environments as well as public workplaces. Under the Civil Rights Act of 1964, an individual cannot be discriminated against for: age, pregnancy, national origin, race, ethnic background, religion, or sexual orientation.

There are common forms of discrimination that fall under the umbrella of protection held by the EEOC that are easily recognizable:

1. 1.       Discrimination against workers due to their national origin, heritage or country of original citizenship.
2. 2.       Being required to speak English in the workplace (this may only be enforced if speaking English is a requirement to effectively perform job duties in the workplace).
3. 3.       Discrimination against an employee because of a foreign accent.
4. 4.       Hostile workplace environments created by “teasing” or offensive comments or actions aimed at employees due to their sexual orientation.
5. 5.       Employees that are fired due to their sexual orientation have also been victims of discrimination in form of wrongful termination.

If you feel that you need to further discuss any of these issues, please get in touch with Blumenthal, Nordrehaug & Bhowmik. We’d be happy to help you determine what action is necessary to right the situation. 

Advice on Employment Law from top San Diego Discrimination Attorney:

California employees who believe their rights are being violated at their place of work should read this short piece of advice regarding employment law from a San Diego discrimination attorney. The topic of discrimination is among the most common topics in which the rights of employees tend to be violated.

According to the National Labor Relations Act (NLRA), discrimination against an employee for the purpose of discouraging or encouraging unionization is an unfair labor practice. Interestingly, any two or more unaffiliated employees who engage in activities may qualify to serve the purpose of Section 8(a)(3) of the NLRA, even if there is no formal organization which they are specifically acting on behalf of. Whether in regards to hire, tenure or any other term or condition of employment, the employer cannot commit this type of discrimination. The San Diego discrimination attorney has been defending California employees who have suffered similar discrimination issues for over a decade.

It can be very difficult for employers to prove no link exists between an act of discipline toward an employee who broke a work rule and the fact that this employee participated in a union activity. Until the employer can prove such discipline would have taken place even if the employee had not participated in the union activity, it remains an unlawful punishment. Contact a San Diego discrimination attorney if you participated in a union activity and, consequently received an unlawful punishment from your employer.

Many employees who consult a San Diego discrimination attorney are unclear what exactly constitutes a violation of the NLRA. Here are a few common violations: firing, suspending or demoting an employee because he/she urged other employees to join a union; granting seniority to those who replace employees participating in a legal strike; and refusing to hire qualified applicants as a result of them belonging to a union. These are just a few examples out of many which a San Diego discrimination attorney can help defend you against in order to recover the compensation you deserve.

Contact the San Diego discrimination attorney with questions or concerns.

Wrongful Termination Lawyers: When should Employees seek their Help?

Wrongful termination lawyers defend employees in various situations, including discrimination, violation of public policy, fraud (via misrepresentation at the date of hire), contractual breach and constructive discharge, among others. What do all of these scenarios have in common? The employees who suffer through them all put some measure of trust into their employer, but are deceived at their own expense.


Employers should practice fair dealing and good faith at all times, meaning they should treat similarly situated employees in the same manner. However, this often times is not the case due to widespread subjectivity in our business culture. Wrongful termination lawyers can help defend those who are treated unfairly in the following scenarios: Discrimination, Violations of public Policy, Fraud and Constructive Discharge.


Discrimination: in a discrimination suit, wrongful termination of an employee occurs due to his or her possession of certain characteristics rather than for legitimate reasons.


Violations of Public Policy: in a suit based on the allegation of violation of public policy, the employee must show that (1) the public policy involved is derived from an administrative regulation, state or federal statute, and (2) that the policy is fundamental and of benefit to the general public, rather than just to the employee or employer. It is the employer’s job, on the other hand, to show that it decided to terminate the employee based on legitimate business reasons.


Fraud (via Misrepresentation at the date of Hire): an employer may be liable for fraud if it makes promises at the date of hire that it fails to keep. For example, if at the date of hire the employer promises regular pay rate increases that that it never intended to deliver, it has committed fraud. It is thus very important for employees to accurately and adequately record such promises as soon as they are made in order to give wrongful termination lawyers strong foundations to defend a claim.


Contractual Breach: this occurs when written, oral, and implied contracts are not fulfilled by the employer. It is up to the employee to prove that the contract exists and that he or she suffered from wrongful termination in violation of that contract. Employers often try to avoid these lawsuits by asking employees to sign the Confirmation of Receipt, which can defeat their claim that there was an implied or oral contract. On the other hand, employers can create a clause in a written contract that allows for termination at-will in order to protect them from wrongful termination claims. The best thing for employees to do is to read and understand all contracts thoroughly before signing them.


Constructive Discharge: in this type of suit, the employee claims that the working conditions were made so intolerable that a reasonable person would be compelled to resign. However, the employee is instead terminated, producing a breach in the employer’s implied promise of good faith. This most often occurs when the employee claims that he or she was harassed at work and that the employer did nothing to prevent the harassment.


If you are an employee who has suffered from any of the above scenarios, contact the offices of Blumenthal, Nordrehaug & Bhowmik today to file a claim with our Wrongful Termination lawyers.

California Disability Rights

http://www.bamlawca.com/Wrongful-Termination-Discrimination-and-Harassment-More/Disability-Discrimination.shtml

FAIR EMPLOYMENT & HOUSING DISCRIMINATION LAWS

In order to win a discrimination lawsuit in California for failure to promote due to racial discrimination, an employee must demonstrate that: (1) the employee is a member of a protected class; (2) the employee applied for and was qualified for an open job; (3) the employee was rejected for that job; and (4) rather than filling the position the employer left it open or filled it with a worker outside the protected class at issue. An employee cannot successfully argue that he or she has a successful discrimination lawsuit based on the fact the employer lied about the reason that it actually fired the employee or failed to give the employee a raise or promotion.  Employment laws prohibit intentional discrimination committed against California employees, not lying. While evidence of the employer's lying might suggest it had cause to hide its true discriminatory reasons for why it actually decided not to hire or promote the employee, there still must be evidence supporting a rational inference that the alleged racial or age discrimination was the true cause of the employer's actions.

Disparate treatment and disparate impact discrimination claims are separate and distinct. Under California employment laws, Liability in a disparate-treatment case depends on whether the protected trait actually motivated the employer's decision to discriminate against the employee. By contrast, disparate-impact claims involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and the employer cannot justify the discrimination by business necessity. 

As with racial discrimination laws, an employee's allegations of employer retaliation under California's Fair Employment and Housing Act require that the employee prove: (1) the employee engaged in protected activity; (2) the employer subjected the employee to an adverse employment action such as demoting or firing the employee; and (3) a causal link existed between the protected activity and the employer's action exists.  In order for the employee to establish that the employer damaged the employee as a form of retaliation, the employee can show that the employer knew the employee made a complaint against the employer when the employer subjected the employee to demotion or termination.

California Wrongful Termination Laws

Pursuant to California Labor Code Section 2922, an employment relationship between an employer and an employee of an unspecified time period may be terminated at the will of either the employee or the employer.  This employment law rule governing the discharge of employees creates a presumption of at-will employment. However, the California at-will employment presumption can be overcome by employees if the employee can show evidence that the employer terminated the employee as a result of discrimination.

Furthermore, even where an employer does not actually terminate an employee, an employee can still bring an action for wrongful termination under California labor laws using the theory of constructive discharge. In order for an employee in California to successfully bring a claim for constructive discharge, the employee must be able to show that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable person in the employee’s position would be compelled to resign. If the employee can prove that the working conditions were truly intolerable, the employee may be able to recover damages under the constructive discharge theory for a violation of state labor laws.

Pursuant to California wrongful termination laws, constructive discharge occurs when the employer's conduct effectively forces an employee to resign. Although the employee may ultimately say, "I quit," the employment relationship is actually terminated involuntarily because the employer has intentionally created an intolerable working environment for the employee, against the employee's will and against California labor laws. As a result, under California labor laws, a constructive discharge is legally regarded as a firing rather than a resignation.

Even though employees can sue employers for wrongful termination under California labor laws based on a constructive discharge theory, an employee cannot simply quit and sue the employer. The conditions giving rise to the employee’s resignation must be sufficiently extraordinary and egregious, known as intolerable in the legal work, to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. Under California state employment laws, an essential component of a constructive discharge lawsuit against an employer is that the hostile working conditions must be so intolerable that any reasonable employee would resign rather than continue to work for the employer.

CALIFORNIA DISABILITY DISCRIMINATION LAWS

Under California labor laws, namely California's Fair Employment and Housing Act, "reasonable accommodation" for purposes of handling employees with disabilities in the workplace is not clearly defined but instead explained through certain examples. The Americans with Disabilities Act governs the federal approach for workplace disability rights. The definition of the “reasonable accommodation” that California employers are required by law to give employees with disabilities in the state are virtually identical under both California’s Fair Employment and Housing Act and the federal Americans with Disabilities Act.

California law affirms that employers are not allowed to bar or to discharge an employee from employment or to discriminate against employees by demoting or disciplining them based on physical disability because doing so can constitute a violation of California labor laws. compensation or in terms, conditions, or privileges of employment. However, it is important to distinguish this type of illegal employer conduct from times when the employer fires an employee that happens to have a physical or mental disability and is not capable of adequately completing the work even though the employee is given reasonable accommodations, which would not be considered a violation of employee rights and state labor laws. 

Under California Labor Laws and the Americans with Disabilities Act, California employers are not allowed to fire an employee based on a physical disability even though the employee is able to complete the job with reasonable accommodations. In the event that an employer violates the labor law by discriminating against workers with physical or mental disabilities, in order to win a lawsuit for money and damages, the employee must be able to prove that the employer in fact fired the employee because of the employee’s disability and that the employee could perform the essential functions of the job with or without accommodation. 

Under the Americans with Disabilities Act, employees must show that they were a qualified individual with a disability if they want to sue their former employer for violating the employment rights of workers with disabilities. Under federal law, in the event that the workers tries to get an accommodation by getting reassigned to an open job in another area of the company, the workers can satisfy the "qualified individual with a disability" requirement if the worker can show that he or she is able to complete the critical jobs of the open job position with or without accommodation. Additionally, for the employee to recover money under Federal laws  governing employee with disability rights, the worker must prove that the job applied for existed and that it was not a promotion for the employee to get the job but instead an equivalent job position.