In this post, we discuss the different type of claims covered under California labor and employment laws. Before we dive into the article, it's important that California employees know about Assembly Bill 9.
Under AB 9, an employee has up to three years to from the date of termination or the alleged act to file a charge of discrimination with the Department of Fair Employment and Housing (DFEH). If the employee receives a right-to-sue letter from the DFEH, he or she has one more year to file the lawsuit. For more information about new California employment laws in 2021, visit this post (New California Employment Laws in 2021).
Wrongful Termination
In California, most workers are considered “at-will” employees, which means that their employer has the freedom to terminate them for any reason, with or without notice, and they don’t need cause or justification for doing so. Similarly, an “at-will” employee has the right to quit their job whenever they want – so it’s essentially two sides of the same coin. However, if an employee is fired, laid off, or forced to quit for any reason that is considered illegal on a state or federal level, then it could be grounds for a wrongful termination lawsuit. Some of the most common unlawful reasons for termination include:
Sexual Harassment
Sexual harassment in the workplace can manifest itself in a variety of forms – all of which are considered illegal when they are frequent, severe, or consistent enough. It most typically includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
One of the most common forms is known as “Quid Pro Quo” (Latin for “this for that”) sexual harassment, which generally involves a person in power (such as a boss or a supervisor) explicitly or implicitly offering an employment opportunity – or threatening to take it away – in return for that employee's satisfaction of a sexual demand. In other words, the stereotypical “sleep with me or you’re fired” scenario.
Other examples can involve inappropriate touching, persistent leering, or sending unwanted sexual photos or messages – which brings us to the second most common form of sexual harassment: creating a hostile work environment. It’s important to note that sexual harassment doesn’t necessarily have to be of a sexual nature (although there is often some crossover); it can involve offensive remarks about a person’s sex, sexual orientation, or gender identity, derogatory comments about women (or men) in general, dirty jokes about a person’s physical attributes, teasing or exclusion because of a person’s sexual orientation. All of these things – if severe and frequent enough – can create a hostile work environment and could be grounds for a lawsuit.
Age Discrimination
Under state and federal laws, it is illegal for employers to discriminate against employees or applicants who are over 40 years of age. For example, a company can’t fire or lay off an older employee and immediately hire a younger one for the same position. It’s also worth noting that it is not illegal to refuse to hire someone if they are considered too young for a position – there are no anti-age discrimination laws applicable to anyone who is under 40.
Sex / Gender Discrimination
Sex/gender discrimination involves treating an employee or job applicant differently or unfavorably based purely on that person’s sex, sexual orientation, gender expression, or gender identity. This can include anything from hiring, firing, promoting, determining salary, assigning job responsibilities, establishing benefits, or any other term or condition relating to a job. Under California law, the Fair Employment and Housing Act (FEHA) makes it illegal for an employer with 5 or more employees to discriminate based on sex or gender. Moreover, under FEHA, discrimination based on “sex” can also include unequal treatment based on pregnancy, childbirth, breastfeeding, and any related medical conditions.
Religious Discrimination
It is illegal to treat an employee unfavorably because of their religion – which includes their religious beliefs, religious practices, religious dress, and/or religious grooming habits. Moreover, employers are legally expected to reasonably accommodate religious practices unless doing so would be burdensome to the operations of the business. This can include flexible scheduling to accommodate religious observances, allowing workers to pray at work or during a break, and respecting dress and grooming practices related to an employee’s religion.
Disability (Mental and Physical) or Medical Condition Discrimination
Under California law, employers have a legal responsibility to provide reasonable accommodations for employees with physical or mental disabilities. For example, an employer is responsible for providing a parking space and wheelchair access for a wheelchair-bound employee. Other accommodations can include making the employee’s workspace accessible or offering a flexible work schedule. Refusal to provide such accommodations, or denying a disabled applicant a job in order to avoid making such accommodations, could be a valid claim for a discrimination lawsuit.
Sexual Orientation Discrimination
California’s Fair Employment and Housing Act (FEHA) makes it illegal for an employer to fire, refuse to hire, take an adverse employment action, or discriminate in any way against an employee due to their sexual orientation (defined as either “homosexual, heterosexual, or bisexual”). Also, the law prohibits harassment of any kind – for example, being subjected to homophobic jokes on a regular basis or being excluded from meetings, projects, or events due to your sexual orientation. Moreover, the law prohibits discrimination based on “perceived or actual” sexual orientation, meaning it is still considered sexual-orientation-based harassment or discrimination even if your employer or coworker is mistaken about your sexual orientation.
Race / Color Discrimination
This type of discrimination involves treating an employee or job applicant unfavorably because of their race or characteristics associated with their race, such as the color of their skin, the texture of their hair, or their facial features. Racial discrimination is unlawful against minorities and non-minorities, including Caucasians. Examples of race/color discrimination can include unequal pay between different racial groups, establishing hostile policies such as “English Only” rules when on work premises, or harassing someone because of their foreign accent or the complexion of their skin.
Ancestry / National Origin Discrimination
It is against the law to discriminate against someone because of where they were born or where their ancestors are from. This can include discrimination based on an employee’s cultural associations with a national origin group, marriage to a person from a specific country, tribal affiliations, speaking a native language, or family names associated with a particular national origin group.
Additionally, California laws protect employees against discrimination based on immigration status, which essentially means that non-citizens and U.S. citizens are equally entitled to the same general protections against discrimination.
Wage & Overtime Claims
Employees in California who are improperly compensated are protected by both federal law (Federal Labor Standards Act) and California law (the California Labor Code). Some of the most common claims against an employer’s illegal wage & hour practices include:
Note: California’s overtime laws explicitly state that working over 8 hours in one work day or 40 hours in one work week is considered overtime, at which point the employee is entitled to time and a half pay.
Whistleblower Claims
Under California’s Anti-Retaliation Protections (Labor Code Section 1102.5) and Whistleblower Protection Act, employees are protected from retaliation when reporting illegal activities or fraudulent practices within the workplace (i.e. complaining about unlawful work conditions or reporting a health and safety issue to a government agency). They are also protected from refusing to participate in illegal activities or fraudulent practices (i.e. an employee refusing to lie to the IRS about the company’s purchases from the previous year).
Retaliation
Employees cannot be fired, punished, or retaliated against for exercising their legal employment rights or for complaining when those rights have been violated by the employer. Under California law, such “protected activity” includes but is not limited to reporting unlawful discrimination or harassment in the workplace, complaining about unpaid wages or discussing your income with other employees, requesting time off to vote or to serve jury duty, or taking family leave, medical leave, or maternity leave.
Denial of Benefits
California law requires employers to provide certain types of benefits to employees, which include:
Marital Status
Discrimination based on marital status – defined as an “individual's state of marriage, non-marriage, divorce or dissolution, separation, widowhood, annulment, or other marital state” – is unlawful. Any employment decision (hiring, benefits, promotions, discipline or termination) that is overtly swayed by person’s marital status – such as refusing to hire an applicant because they plan on getting married and having kids, or even asking if they plan on getting married and having kids during the interview – is considered unlawful discrimination.
Military or Veteran Status
Sadly, veterans often encounter discrimination on the job or during interviews because of a disability they sustained during their line of duty. The California Fair Employment and Housing Act (FEHA) protects the civil rights of those with military or veteran status to seek, obtain, and hold employment without discrimination. Under California law, military or veteran status is defined as a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, or the California National Guard.
Genetic Information
This seemingly abstruse form of discrimination is becoming more and more common. Genetic information includes things such as family medical history, genetic testing, and the like. This type of discrimination occurs when an employer requests, requires, or purchases an employee’s (or applicant’s) genetic information. It can also occur when an individual is harassed or retaliated against on the basis of information found in genetic testing results. This type of conduct is unlawful under state and federal laws.
Gender Identity
California has a long history of protecting the rights of sexual minorities and members of the LGBTQ community. The definition of “gender identity” was recently expanded under new regulations as a person’s “internal understanding of their gender…which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth and transgender.” Both the California Fair Employment and Housing Act (FEHA) and Title VII of the federal Civil Rights Act (Title VII) make it illegal for an employer to fire, demote, fail to hire, fail to promote, harass, or otherwise discriminate against an individual because of their gender identity.
