Workplace Discrimination

Do you hear comments like this in your workplace?

“Make sure you hire the young one. We don’t need any slow, old guys around here.”
“Black people just are not reliable, we avoid hiring them.”

Sounds like the school yard in grade school, right? Well at work it’s illegal discrimination and it’s wrong! Comments like these really make you ask yourself, “Have I been discriminated against?”

There are many types of discrimination at work, so I’ll try and break it down as simply as possible so you understand the differences. This will help you determine if you may have a claim under the California discrimination laws or federal discrimination laws.  In general, any type of bigotry at work is unfortunate, and in many cases unlawful.  In cases of favoritism, it can be a boss who only promotes a certain group of people while overlooking the older employees or a certain gender, etc.

Who is protected?

Let’s look at what and who is protected under the workplace discrimination laws.

There are several classes that are protected under the current discrimination laws; in fact there are laws to include “Military and Veteran Status” as a protected class. Almost anyone can fall into one of the protected classes in the right situation. So you must protect yourself and we can help.

Disabled Persons:

Federal and state labor laws strictly prohibit discriminating against employees or applicants with disabilities as defined under the Americans with Disabilities Act also known as the “ADA” and the Rehabilitations Act. The law prohibits any type of discrimination in any aspect of employment, including but not limited to; hiring, termination, job assignment, pay rate and raises, promotions, fringe benefits, layoffs and training requirements.

Harassment of disabled persons in the workplace can include excessive teasing and off hand comments that are so persistent as to create a hostile environment. The harasser could be a supervisor or co-worker.

Accommodations: The law requires the employer to make reasonable changes and accommodations to a workplace to accommodate a person with disability unless doing so is an undue hardship on the business owner. If you were denied adequate facilities in which to do your job, and therefore are unable to perform, this may be discrimination.

Disability, as defined by EEOC: Simply having a medical disorder will not automatically make you part of this protected class. In order to have a case in this area, you must be otherwise fully qualified and capable of the job and fit the EEOC definition of a disabled person

1. You may be disabled if you have a physical or mental condition which substantially limits a major life activity (including, but not limited to, walking, talking, seeing, hearing, or learning).
2. You may be disabled if you have a history of a disability (such as cancer that is in remission).
3. You may be disabled if you are believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment) In other words, if you are terminated because your boss thinks you are ill even if you weren’t.

You should know that Federal employees and/or applicants are covered under the Rehabilitation Act of 1973, rather than the Americans with Disabilities Act. However, the protections are similar. Our attorneys can help you understand the differences.

Age Discrimination:

Out with the OLD in with the YOUNG??
This can be a tricky area as most employers are not blatant about discrimination tactics and an employer is within their rights to lay off a senior employee and replace them with a junior employee who is capable of doing the same job at a lower salary, just to save money. However, if it can be proven that this replacement was done based on age and not just saving money, this could be considered age discrimination and unlawful.

You cannot have a company practice of hiring only people under a certain age with the reasoning that “old people are slower” etc. Even if this is implied and not written, it is clear prejudice.

Such practice must be clearly defined as separate from downsizing, where older employees are offered early retirement. Sometimes an attractive severance package is offered. This is sometimes referred to as a “golden handshake.” This is not necessarily unlawful, but if it is used to unload older workers it can be deemed discriminatory and illegal.

Gender And Sex Discrimination:

We get common questions from our clients such as, “What is sexual discrimination?” Or “What is gender discrimination?” Take a look at some of these comments that might be construed as discriminatory. . . 

“Is it that time of the month? This is why I hate hiring women!”
“Nice shirt Jen. Now I know how you get those big accounts.”

Gender and sex discrimination can also fall under harassment and should be examined from both directions. You cannot be denied employment or promotion based solely on your gender and stereotyping, or forced into specific activities at work because “you’re a guy.” Discrimination happens to both men and women all the time and can start in a small way at first, but a supervisor who allows it to go on can create an institutional attitude toward discrimination and can be penalized just for allowing it.

As with age discrimination, this can often be in the form of favoritism or unequal treatment toward one sex or the other. While you are not “mistreated” for being a woman, you were clearly passed over for one or more promotions while less qualified male employees got the job.

Discrimination can also happen based on pregnancy or starting a family and is protected under these same laws. If you are passed over or not hired because you have children or are pregnant and therefore the company does not want to be obligated to give leave, they are exercising prejudice and can be found liable.

Racial Discrimination:

Sometimes we have clients ask, “What is racial discrimination?” or “Have I been discriminated against?”

I am going to try to answer JUST THAT!

You may think this is cut and dry, but racial discrimination at work can take on many different faces. Don’t settle for status quo in an unequal workplace.

You could be passed over for a less qualified person of a specific race or relegated to certain jobs based on your race. This type of stereotyping IS DISCRIMINATION! In order to have a case for race discrimination you must prove the following:

1^st that you were a member of a protected class (a minority in most cases, but not all cases).
– For example, you are Hispanic and the “other party” is not
2^nd that you were or are qualified for the job that you applied for or were doing and meeting the company’s expectations when you were fired, demoted or disciplined.
-You have all the skills necessary and you have never received a complaint about your performance.
3^rd that the person hired or promoted instead of you was chosen over you solely because they were of a different race.
-For example, you are Caucasian and the predominantly African American company chose to hire someone who was also African American because they would “fit in better.”

In many cases an employer will give a cover reason that holds no merit i.e. “the other applicant was more qualified” when they weren’t. It can be difficult to prove all accounts of bigotry and racial inequity, but we have been sorting these cases out for many years and can help make sense of it for you.

In these types of cases, EVIDENCE IS KEY. For example, do you have emails related to this type of discrimination or witnesses that will come forward that have witnessed conversations that were discriminatory in nature?  If so, collect these and call our firm, and let’s talk!

Nation Of Origin Discrimination:

There are many new rules that affect this class as it includes immigration discrimination.

You cannot be fired, denied a job or promotion, allowed only to perform certain jobs within a company or otherwise be abused at work based on your nationality or immigration status.

 Here are some examples:
“You can work here, but only as a maid.”
“Keep them in the back, we want a white face on our company.”
“You better just do your job and keep quiet or I’ll report you to the INS.”

These are all things I’ve heard have taken place from clients in the workplace and they are all illegal!

Don’t put up with this kind of injustice at your office. If this is happening to you, we want to know about it!

Additional Resources for discrimination information: http://www.eeoc.gov/laws/types/race_color.cfm