Discrimination Attorney – Fairness at Work is a Fundamental California Right

This page is about California’s workplace discrimination laws. This is where you can learn about the law without a bunch of legal jargon. This page was written by Branigan Robertson, a discrimination lawyer in California. 

California has passed a number of sweeping laws to combat unlawful discrimination at work. If an employer violates one of these laws, the employee can pursue a case in court and achieve justice for himself and others. 

A discrimination attorney represents employees in lawsuits against their employer. The lawyer files the case in court, subpoenas documents, interviews witnesses, and negotiates a settlement. If a settlement cannot be reached, the discrimination attorney will try the case before a jury. 

If you would rather watch this video on YouTube, click here.

The goal of this page is to:

• Answer common questions that normal people have about discrimination,
• Detail CA law without a bunch of legal jargon,
• Help you decide if you need to contact a discrimination attorney, and
• Explain how much money a discrimination lawsuit might be worth.

This page was created by Branigan Robertson, a discrimination attorney in California. Mr. Robertson represents employees in discrimination lawsuits against corporations and government entities. If you’re an honest person, and you believe you are a victim of unlawful discrimination, contact Branigan as soon as possible for a free consultation.

An Overview of Discrimination Law in California – The Basics

California’s main anti-discrimination law makes it is unlawful for an employer to terminate or discriminate against an employee in pay, conditions, or privileges of employment because the employee has a protected characteristic or engaged in a protected activity.¹

To put it more simply, companies are not allowed to fire someone because they are a member of a protected class or they did something protected by law. Nor are corporations allowed to refuse to hire, pay less, demote, or reprimand someone because they are a member of a protected class or engaged in a protected activity.

What are the protected classes and characteristics? Here is all of them:

• Race, 
• Religious creed, 
• Color, 
• National origin, 
• Ancestry, 
• Physical disability, 
• Mental disability, 
• Medical condition, 
• Genetic information, 
• Marital status, 
• Sex (includes pregnancy and related medical conditions), 
• Gender, 
• Gender identity, 
• Gender expression, 
• Age (if over 40), 
• Sexual orientation, 
• Military, or
• Veteran status.

Mr. Robertson has made detailed pages on the most common types of discrimination. So, if you want to know more about these specific areas, click on one of the links above to access more information.

Additionally, reverse discrimination is fairly common. Reverse discrimination is when a member of a majority protected class (white people, christians, etc) are discriminated against simply because they are a member of a majority protected class.

What are the protected activities? Here is a list:

• Opposing unlawful discrimination,

Do you want to read the actual law that all this comes from? Here you go. This law is a part of the Fair Employment & Housing Act.² It is a long and cumbersome statute. But the main part says the following:

It is an unlawful employment practice… (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person…, or to bar or to discharge the person from employment…, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

CA Government Code § 12940(a)

Nobody wants to file a discrimination lawsuit. But sometimes it is the right thing to do. If you do not stand up for your rights, your boss, supervisor, and company will probably do it again. 

How Much Money are Discrimination Lawsuits Worth?

How much do discrimination cases settle for? Some cases settle for millions of dollars; most settle for substantially less than that. The value of your case depends on hundreds of factors, most of which you and your lawyer have no control over. 

Generally, discrimination victims can recover four types of damages:

1. Your lost wages, bonuses, and benefits.
2. Damages to compensate you for the pain and suffering you experienced as a result of the unlawful conduct.
3. Punitive damages if the company acted with malice oppression or fraud.
4. Attorney’s fees if you go all the way to trial and win. 

Here is a video that Mr. Robertson made about the monetary value of discrimination cases.

If you would rather watch this video on YouTube, click here.

What is the Statute of Limitations in Discrimination Cases?

A “statute of limitations” in a discrimination case is the deadline in which you must file your case in Court. If you fail to meet this deadline, you claim expires and you cannot pursue it. So, what’s the deadline in California discrimination cases?

The short answer is that it depends. The time limit to file a lawsuit for “discrimination” can involve one or more of hundreds of different employment laws – many of which have differing statute of limitations. 

For example, you might file a lawsuit for unlawful discrimination because your employer fired you for being Hispanic. In a case like this you would have one year to acquire a right to sue letter from the DFEH, and then one year in which to file your case. But, you will probably also be filing a wrongful termination claim as well, which has a two-year statute of limitation.

To make things even more complicated, if you work for a government employer like a city, state, or federal agency, you might have less than six months to initiate the legal process. It all depends on the case and circumstances. The absolute best thing you can do to avoid running afoul of the statute of limitations is to hire an attorney right after you are fired.

When Should You Call a Discrimination Lawyer?

The timing of your call to an attorney is absolutely critical in a discrimination case. If you call too soon, the lawyer will probably tell you to call back when things have gotten more serious. However, if you call too late, you might have made a serious mistake and ruined your case (like missing the statute of limitations or signing a severance agreement).

We usually tell people to call after they’ve been fired but before they sign any paperwork (such as a severance package). However, we understand that this simply isn’t possible in all cases. 

So, here are some good guidelines to follow:

If You Are Still Employed

If you are still employed and you are thinking about calling a lawyer for discrimination issues, please read this first! 

First, you must realize that discrimination lawyers are not well equipped to save your job or jump in, drop legal hand grenades, and put management in its place. The tools that we have are far more effective in fighting for justice after a serious wrong has been committed (e.g. discriminatory termination). 

• Just think about this for a second, if you hire a lawyer while you are still employed, you essentially are threatening the company that you hope will continue paying your salary. Usually, we find that once you’ve hired a lawyer, your future at that company is essentially zero.
• You can hire a lawyer to simply advise you in the background, but you’ll have to pay by the hour for that kind of advice.

Second, legal fees are expensive. Since most employees don’t make lots of money, most lawyers work on a contingency fee; which means we don’t get paid until we recover money for the employee. This fee structure necessitates that there be money to recover. 

• If your boss is discriminating against you, but you haven’t lost anything yet (such as wages, bonuses, etc.) then there isn’t much we can recover. However, if you get fired then there is something we can chase after.
• So, only call a discrimination lawyer after you’ve lost something significant. This isn’t limited only to monetary losses; extreme emotional distress is also a harm. However, if your case is entirely based on emotional distress, you may find it difficult to find a lawyer willing to take your case on contingency.

Third, if you submitted a complaint of discrimination and management and HR seem to be investigating and taking your complaint seriously, wait until that investigation is done (and you get the results) before you call a lawyer.

If You Were Fired

It is far more likely that a contingency lawyer like Mr. Robertson will be interested in your case after the company fires you. 

You should call a discrimination attorney the day of your termination or the day after. At a minimum, we highly recommend that you reach out to a lawyer before you sign any separation paperwork!

Some employers try to force the employee they are firing into signing a severance deal during the termination meeting. They say things like, “You have to sign this right now.” We always advise that you respond with, “I’m going to take some time to review this with my family, and I will get back to you within a few days.” If you are over the age of 40, employers are legally required to give you 21 days to consider a severance agreement.

Sometimes it takes a few days to have a lawyer review your situation and get back to you. The sooner you start this process the better.

What Do Attorney’s Charge in Discrimination Cases? 

If you would rather watch this video on YouTube, click here.

In most cases, discrimination lawyers like Mr. Robertson represent their clients on a contingency fee. This means that the lawyer doesn’t get paid anything up front, rather, the attorney gets paid a percentage of the recovery at settlement.

Obviously, this fee structure is ideal for clients who lost their job. You just lost your main source of income! You shouldn’t be paying a lawyer up front. Unfortunately, in many cases, this fee structure is not possible because the case value isn’t significant enough to justify the time investment necessary to properly pursue the case. 

For example, let’s pretend that you have a discrimination case that might be worth $8,000 at settlement. It will be almost impossible to find a good lawyer to take that case like that because the costs of the case will quickly exceed the value. 

When the case doesn’t seem like a viable contingency case, attorneys like Mr. Robertson may be willing to still represent you, but the attorney would have to charge by the hour. This usually occurs when someone is still employed. 

If you want to know Mr. Robertson’s contingency or hourly fees, give our office a call for a free consultation. Mr. Robertson’s attorney fees are directly in line with the averages in the employment law industry.

How Do You Prove that You’ve Been Discriminated Against?

If you would rather watch this video on YouTube, click here.

The best way to prove that you’ve been discriminated against is to first identify which situation you find yourself in:

• Are you still employed?
• Have you been fired?
• Did you quit?

If You Are Still Employed

If you are still working for the company and believe that you’ve been discriminated against, you probably have a few different objectives:

1. You would like to stop the discrimination,
2. You want to save your job, and
3. You probably want to lay a foundation that a lawyer can use down the road if legal action becomes necessary.

You might be thinking that you need to “prove” to human resources that you’ve been discriminated against. However, none of these three things, require you to “prove” anything. In fact, I usually advise clients of mine to avoid trying to “prove” their case to HR or management. 

Why? Because it will likely paint a big target on your back. It will disrupt the flow of work, upset your boss, and irrevocably destroy the key relationship with management. I usually recommend that you:

Put the company on notice with a respectful written complaint.

This will do a few things:

1. This will probably stop the discrimination from continuing. Most employers (especially if they have HR) are smart enough to know when they might be increasing their legal liability. They will probably instruct the bad guy to knock it off.
2. A good written complaint will dramatically help your lawyer prove your case down the road (if it comes to that). 
3. While a discrimination complaint, in and of itself, will not save your job; it will demonstrate to the company that you are willing to fight for yourself. Lawyers’ often say – “There is value in the fight.” When you stand up for yourself properly, you educate the opposing party that there are consequences if they do not act appropriately. If they fire you now, after you’ve complained in writing, they might face consequences.

However, don’t let this go to your head. If you complain inappropriately, you won’t save your job, you’ll destroy it. To avoid doing this, I highly recommend that you watch my complaint video for more information on how to properly complain at work.

If you would rather watch this video on YouTube, click here.

If You Were Fired

If the company fires you and you find a lawyer to take your case, how does the lawyer go about “proving” that you were unlawfully discriminated against? 

First, lawyers establish a foundation:

• As you recall, unlawful discrimination requires that the company take an adverse action against you because you have a protected characteristic. 
• Therefore, it’s very important that your lawyer first establish that you have a protected characteristic and the employer knew about it. While this is pretty simple to do in race discrimination cases, it can be much more challenging in religion, pregnancy, or disability discrimination cases.
  • For example, let’s say you have Crohn’s disease. First, does that qualify as a disability under your state’s law? Second, did your employer know about it when they fired you?
  • The company simply can’t have discriminatory intent if they didn’t even know you were disabled, or pregnant, or gay, or Christian, or whatever protected characteristic applies to you.

Second, we look for direct evidence that suggests the employer doesn’t like people with your characteristic.

• This could include:
  • Verbal comments directed at you or others.
  • Written comments directed at you or other people with the same characteristic. These can be in text messages, emails, or any other written medium.
  • “Jokes” directed at you or others.
• Witnesses
  • Some honest co-workers come to the aid of our clients. They are often happy to give us dirt on the bad guy or girl.
  • Most co-workers don’t voluntarily help us because they are still employed and need the paycheck. But their past statements and writings can still be used to our benefit. We often find emails, text messages, jokes, and more that we use to corroborate our claims that the supervisor had discriminatory intent when he/she fired our client.
• In most of our discrimination cases, direct evidence is pretty rare. But that is OK. Most cases are proved with circumstantial evidence (see below).

If you would rather watch this video on YouTube, click here.

Third, we look at your job performance and the employer’s discipline history:

• It’s absolutely critical that we establish your baseline of job performance. Specifically, what I mean is that we need to be able to prove that you were a satisfactory employee. Had you ever been written up before? How long had you worked for the company before you were fired? We need to know this so if the company lies and says you were a bad employee, we can show the jury that their claim is not true – the real reason you were fired was because of your protected characteristic.
• Additionally, we want to know how the company has treated other employees. If other employees have the exact same characteristic that you do, but they didn’t get fired, that is going to make your case more difficult to prove. 
• But, if the employer claims you were fired for being tardy one day, and they haven’t fired other employees for being late, then it’s more likely that the real reason for your termination is your protected characteristic.
• How do we go about proving all this? First, we look at your personnel file, performance documents, emails, and text messages. Second, we get people to testify under oath that you were a good employee. Third, we gather all the information and put it into a comprehensive timeline of events so that we can explain your story in order to the jury.

Fourth, we look for circumstantial evidence. This means we are looking for liars.

• In litigation, lawyers have various discovery tools that we use to collect information. This includes:
  • Interrogatories,
  • Requests for admission, and
  • Depositions
• These tools allow us to collect information under oath. That means, if you or the company lies when responding to a question, the liar has committed perjury. If you commit perjury, the jury will know that you are a liar. And guess what happens when someone lies to a jury? They lose!
• Let’s say the manager who fired you claims, under oath, that the sole reason why you were fired was because you didn’t submit a report on time. You were supposed to submit it on Friday, but you didn’t get it in until Monday. 
• But during discovery, we prove that the company has never fired anyone for submitting a late report. Additionally, it turns out, we subpoena the manager’s text messages and find that he admits to a friend that he didn’t fire you for submitting the late report.
• While it’s true that you didn’t get the report in on time, if we can show the jury that your manager has lied to them about why you were fired, it will help prove that the real reason for your termination was your race, religion, disability, age, or whatever the applicable protected characteristic in your case.

In the legal world, we call this a pretext – essentially the lie is a fake reason for firing someone, where the real reason is a protected activity. Mr. Robertson made a YouTube video on pretext.

Finally, we package together the sequence of events, your job performance, the company’s discipline history, and all the evidence of pretext, and we present that to a jury during trial. 

The jury is going to decide, on a preponderance of the evidence burden, whether or not your termination was substantially motivated by your protected characteristic. Under the preponderance standard, the burden of proof is met if you prove to the jury that there is a greater than 50% chance that your discrimination claim is true. This isn’t criminal court with a “beyond a reasonable doubt” standard. In civil cases like employment discrimination, it’s a lower burden of proof.

Discrimination Based on Perception

The law also prohibits discrimination based on the perception of protected characteristics (the perception that the aggrieved individual has one of the above protected characteristics, even if he or she in fact does not). Additionally, an employer may not take an adverse action based upon a person’s association with another person (e.g., spouse) who has or is perceived to have one of the above protected characteristics.

If you believe your company has terminated you, skipped your promotion, or demoted you because of one of the above characteristics, call our employment attorney and law firm immediately. While our office is located in Orange County, we serve clients throughout California.

Footnotes:

1. CA Government Code § 12940
2. CA Government Code § 12940