San Francisco Discrimination Lawyers
Discrimination in the workplace is prohibited by a combination of federal, state, and local laws. With The Fair Employment and Housing Act (FEHA), California has some of the most comprehensive anti-discrimination laws in the country. A series of federal laws, including the Civil Rights Act of 1964, also protect employees from discrimination, but in a much more limited capacity. Additionally, local city laws may provide even further protection; San Francisco, for example, has a law which prohibits discrimination of an employee because of his or her height or weight.
At Rukin Hyland in San Francisco, our attorneys represent employees who have suffered unlawful discrimination at work for the following types of claims:
- Age Discrimination
- Disability Discrimination
- National Origin Discrimination
- Pregnancy Discrimination
- Race Discrimination
- Religious Discrimination
- Sex and Gender Discrimination
- Sexual Orientation Discrimination
CALIFORNIA DISCRIMINATION CHARGE STATISTICS (2009-2016)
Starting a Discrimination Case
It is unlawful to treat an employee differently on account of their protected status in recruitment, hiring, promotion, work assignments, wages, benefits, leave, discipline, and termination. To prove a discrimination claim, an employee generally must show that:
- He or she was an employee or job applicant of the employer
- There was an adverse employment action—for example, he or she was fired, or demoted, or constructively discharged
- That his or her protected status was the substantial motivating factor for the adverse employment action
The following types of conduct could be considered discriminatory:
- Using certain recruitment practices, such as relying on word-of-mouth advertising or sending job postings for the purpose of excluding people
- Requesting that an employment agency refer only applicants who are of a particular status
Hiring and Promotion
- Using selection criteria in the hiring process that have a significant discriminatory effect without being able to prove that the criteria are job-related
- Relying on the discriminatory preferences of coworkers, customers or clients as the basis for an decision on employing an individual
- Requiring a specific “corporate look” or “image” policy as a proxy for discriminatory preferences or prejudices in hiring and promotion decisions
- Assigning or refusing to assign individuals to certain positions, facilities, or locations; denying promotions; physically isolating employees or otherwise segregating workers into jobs
Discipline, Demotion, and Discharge
- Discharging employees based on illegal reasons instead of nondiscriminatory reasons, such as their quality or quantity of work
- Using customers’ or clients’ prejudices or preferences to justify discipline, demotion, or discharge decisions
Discrimination occurs when an individual endures harassing behaviors from supervisors, employees, customers, or commercial contacts that are (1) unwelcome and (2) so severe and pervasive that they “alter the conditions of the individual’s employment” by creating a hostile or abusive work environment. In evaluating whether a case would rise to the level of unlawful harassment, factors that are considered include whether the conduct was hostile and/or offensive, whether the individual was physically threatened or intimidated, how frequently the misconduct was repeated, and the context in which the harassment occurred.
Pursuing a Discrimination Claim
An employee must do more than show that an employer’s decision is unfair or wrong — employees must have evidence that the action was motivated by discriminatory bias. For example, when an employer’s stated reason for firing an employee is workplace misconduct, an employee may prove discrimination in part by showing that the employer did not fire other employees who engaged in the same misconduct.
Statute of Limitations
Under both California and federal law, an employee who believes that he or she experienced discrimination first must file with the state or federal administrative agency before filing a lawsuit in court, pursuant to the FEHA’s statutory requirements. In California, employees have one year from discriminatory act to file with the Department of Fair Employment and Housing (DFEH). Alternatively, an employee may file a claim with the federal Equal Employment Opportunity Commission (EEOC) within 300 days of the discriminatory act if the charge also is covered by a state or local anti-discrimination law. Employees may wish to speak with an attorney to determine whether or not their employer has engaged in possible employment discrimination and what legal options they may have.
Can A Supervisor’s Comments Provide Evidence of Discriminatory Intent?
It is sometimes challenging to prove discriminatory intent. Evidence is required, obviously, but what kind? Courts have often talked about two kinds of evidence: direct and indirect.
- Direct evidence “typically consists of clearly sexist, racist, or similarly discriminatory statements or actions by the employer,” which proves an employer’s bias without any further inferences. Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1038 (9th Cir. 2005) (citing Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005)).
- Indirect or “circumstantial” evidence usually involves showing that the employer’s articulated reason for the adverse employment decision is not credible. Id. at 1043. For example, in a race discrimination claim brought by an Asian worker supposedly fired for failing to submit an expense report, evidence that similarly situated non-Asian employees were not fired for the same supposed offense may constitute some indirect evidence of discriminatory bias.
Of course, a supervisor’s discriminatory comments may provide strong direct evidence of discrimination. When a supervisor exhibits discriminatory bias, it may be reasonable to conclude that the employment decision was motivated by unlawful bias. Id. at 1039-40 (citing Mondero v. Salt River Project, 400 F.3d 1207, 1213 (9th Cir. 2005). In fact, the Ninth Circuit Court of Appeals has held that even “a single discriminatory comment by a plaintiff’s supervisor or decisionmaker is sufficient to preclude summary judgment for the employer.” Id. at 1039.
What Must Employers Do to Prevent Discrimination?
The FEHA requires that all California employers take affirmative steps to prevent discrimination in the workplace. This includes maintaining and distributing a written anti-discrimination policy that must:
- Identify all protected groups under the FEHA
- Provide a mechanism by which employees may report discrimination to someone other than their direct supervisor—for example, to a human resources manager, a complaint hotline, or to the DFEH or EEOC
- Include a directive that supervisors must report all discrimination complaints received to a designated company representative
- Include a statement that all complaints will be followed by a fair, complete, and timely investigation and that the employer will maintain the confidentiality of the complaint and investigation to the extent possible
- Provide that upon conclusion of an investigation, the employer will take appropriate remedial measures if any misconduct is found
- Make clear that employees will not be subjected to retaliation for making a discrimination complaint or participating in an investigation or proceeding related to a discrimination complaint
- Include a statement that third parties, as well as supervisors and co-workers, are prohibited from engaging in unlawful discrimination
How to Avoid Discrimination in the Workplace
The Equal Employment Opportunity Commission (EEOC) recommends the following proactive measures designed to avoid inadvertently discriminating against groups:
- Develop a strong Equal Employment Opportunity policy and train managers and employees on its contents
- Carefully analyze the duties and functions required by a particular job position, create job-related qualification standards related to those duties, and consistently apply these qualification standards when making hiring decisionsIdentify and remove barriers to equal employment opportunities, such as word-of-mouth recruiting
- Use a variety of recruitment methods to attract a diverse pool of jobs seekers
- Make promotion criteria clear and transparent
- Be sure that all job openings are communicated to all qualified employees
- Ensure that policies are communicated effectively to all employees
Contact Us Today
Keep in mind that there are strict deadlines on pursuing discrimination claims. In California, employees have one year from the discriminatory act to file a charge with the Department of Fair Employment and Housing (DFEH), a necessary prerequisite to filing a lawsuit. Contact our office today to discuss the specifics of your discrimination case and let us fight for your rights as an employee.