The Official Injury Attorneys of the San Francisco 49ers
Oakland Employee Discrimination & Harassment Lawyer
Working to Right the Wrongs for Employees in California
If you believe you have been the victim of a civil rights violation, you likely have the option of filing a lawsuit against those responsible for any harm suffered as a result. You should start by speaking with an experienced civil rights attorney, as the law and the facts are often complicated. In addition, employers do all they can to attempt to show that their actions were not unlawful.
If you believe you have been the victim of a civil rights violation, you likely have the option of filing a lawsuit against those responsible for any harm suffered as a result.
Harassment and discrimination can affect many areas of employment, including:
- Hiring
- Firing
- Compensation
- Overtime pay
- Meal and rest breaks
- Performance evaluations
- Promotion or demotion
- Severance
- Medical leave
The Oakland employee discrimination & harassment lawyers at Venardi Zurada LLP serve California. We are experienced and effective attorneys who work on a contingency basis, which means you do not pay us until we recover money for you. We offer free consultations to evaluate whether or not you have a legal claim for discrimination or harassment. When we take a case believing that harassment or discrimination occurred, we are committed to proving that fact to a jury.
What is unlawful discrimination or harassment?
Employers must not take adverse employment actions (i.e., demotion, pay cut, termination, etc.) that are prohibited by federal, state, and sometimes municipal laws. This does not mean that the employer must otherwise behave in a fair or even civilized way.
Employees often believe that any type of unfair or offensive conduct by the employer gives them the right to sue their employer for harassment, discrimination, or wrongful termination. However, it is important to be aware that California is an “at-will” employment state. This means that an employer can take any adverse employment action against an employee, including termination of their employment, for any reason or no reason at all as long the discrimination is not based on a narrow range of unlawful reasons.
Laypeople use words like “discrimination” and “harassment” to mean unfair conduct, whereas lawyers use those same words to mean unfair conduct that is prohibited by law. It is important to know what types of unfair employment conduct by an employer are,in fact, unlawful. Otherwise you may be bringing a lawsuit that has no chance of being upheld in court.
What type of discrimination or harassment is unlawful?
As discussed above, not every type of abusive or offensive conduct by the employer is prohibited by law. Employees can only successfully sue for certain types of behavior such as:
- Race Discrimination
- Ethnic Origin Discrimination
- Gender/Sex Discrimination
- Sexual Orientation & LGBT Discrimination
- Age (over 40) Discrimination
- Disability Discrimination
- Religious Harassment or Discrimination
- Pregnancy Discrimination
- Being Overweight Discrimination (San Francisco)
- Retaliation for a protected activity (whistleblowing)
These categories of “protected characteristics” are quite narrow. Consequently, a well-performing employee can be treated badly, fired, or denied a promotion, for no reason at all, for a false reason (e.g., the employer claims that the employee is performing poorly), or due to some unprotected characteristic (e.g., being too young, wearing an ugly tie, not being friendly with the boss) with no repercussions.
However, an employer acts unlawfully when it takes an adverse action against an employee based on a protected characteristic and then gives a false lawful reason (a pretext) for terminating the employee. For example, an employer may claim that it terminated a Hispanic woman due to her performance or personality (lawful reasons) when, in fact, this is just a pretext and in reality the employer terminated her because the manager dislikes Hispanics (unlawful reason).
This is why whenever harassment or an adverse employment action takes place (most frequently a termination, demotion or denial of promotion, or unpleasant conduct toward the employee) the first question to ask is what is the real reason for the termination? If the termination was primarily due to an unlawful reason, the second question is whether there is enough evidence in the form of documents and/or witnesses to prove this.
What is unlawful workplace harassment?
Harassment in the workplace happens when a coworker or manager says or does something that is inappropriate, offensive, or unwelcome. To make the harassment unlawful, it must be based on one of the protected characteristics of the employee: race, ethnic origin, gender/sex, sexual orientation, age (over 40), disability, religion, pregnancy, or being overweight (San Francisco), or in retaliation for a protected activity.
For example, an African American employee must not be harassed at work because they are African American but could be harassed, without any legal recourse, if that harassment is based on the employee being short or bald and is otherwise not motivated by his race. Often the motivation for the harassment is not completely clear because the harasser may not make specific derogatory comments that reveal the prejudice.
Harassment can occur in many ways but it generally means creating an uncomfortable and hostile work environment for an employee through verbal or physical abuse directed at the employee. A hostile work environment has to be “severe and pervasive” to be actionable, but that standard can be hard to assess. Generally the worse the verbal and physical abuse is, the less frequent it has to be, and the less severe it is, the more frequent it has to be.
Often specific harassment (on the basis of one’s race, gender, national origin, sexual orientation, etc.) can be interspersed with harassment based on unprotected characteristics (e.g. perceived poor performance, unattractiveness, perceived lack of intelligence, baldness, etc.). Sometimes harassment of other employees based on the same or different protected characteristics can also contribute to a hostile work environment toward an employee.
In order for a company to be held responsible for harassment by an employee, a manager or management in general must be in some way involved in the harassment or clearly aware of it and allowing it to continue.
What is sexual harassment?
Sexual harassment is a type of workplace harassment that involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. The harassment can be directed at the victim or can occur, for example, when the victim is a woman and the harasser makes offensive comments about women in general. Both victims and harassers can be of either gender, and the victim and harasser can be the same gender. Harassers can be managers, peers, or coworkers, but can also be others that are not employed by the company such as clients or vendors.
While simple teasing and isolated incidents generally are not in violation of the law, sexual harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment. It is also illegal when it results in an adverse employment decision (such as the victim being fired or demoted).
What is workplace discrimination and how does it relate to workplace harassment?
Oftentimes discrimination and harassment are linked. The distinction is that whereas harassment creates a hostile work environment, discrimination means unequal treatment of the employee compared to other similarly situated employees. This could take the form of passing the employee over for promotions, assigning harder work to an employee, refusing to accommodate reasonable requests, and/or demoting or terminating the employee. These are called “adverse actions” and, as explained above, must be based on a characteristic that is protected by the law. Discrimination may exist without outward conduct constituting harassment but the two often happen together.
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If you are an employee who feels their rights have been violated, or you need help negotiating or reviewing your employee contract, please call to speak to one of our expert employment law attorneys at 833-893-6763 or submit our form.
