Author Archives: BraniganRobertson

October 2, 2015 · 9:36 am

Reyes v. Arnold Pregnancy Discrimination Verdict

Unfortunately, pregnancy discrimination in the workplace is still very prevalent in California. Earlier this year we won a trial for over $500,000 for a woman who was discriminated against because of her pregnancy. Beyond that, our firm receives several calls per week from female employees being treated unfairly because of their pregnancy. The journey of having a child is already filled with enough stress, both physical and emotional, and it further adds to the stress of having a child when a pregnant employee’s job and financial security are being threatened by the very company they work hard for. Therefore, when an employer discriminates you, you should contact an employment lawyer for a free consultation.

Pregnancy Discrimination in California

Under Federal and California law, it is unlawful for an employer to discriminate against an employee on the basis of pregnancy, childbirth, or any other related medical conditions (such as breastfeeding). Basically, to have any kind of case at all, the employee must show that her employer knew or was aware that she was pregnant and evidence of employer’s intent to discriminate based on pregnancy.

Reyes v. Gary R. Arnold and First Take Productions Inc.

Reyes is a 2009 pregnancy discrimination case coming out of the Los Angeles Superior Court, and is a great example of how pregnancy discrimination in the workplace typically occurs. Plaintiff worked as an executive assistant and manager of the fundraising department for Defendant. Plaintiff was terminated after she informed her employer that she was pregnant. Not surprisingly, Plaintiff alleged that Defendant terminated her because she was pregnant.

Clearly, Defendant knew she was pregnant because she informed them. But was their discriminatory intent to fire the Plaintiff based on her pregnancy? Yes, on numerous occasions, Defendant made derogatory and negative comments regarding Plaintiff being pregnant. Defendant showed his annoyance with her being pregnant as he kept referring to her as having “a belly full of Iranian baby.” The jury found in favor of the Plaintiff, and was awarded over $700,000 in damages.

Although Reyes is a few years old, California juries are still ruling in favor of employees who are subject to pregnancy discrimination. Pregnancy discrimination in the workplace is a serious thing, and it never looks good in front of a jury when an employer fires an employee while they are on maternity leave or upon giving birth to their child. If you believe your employer is discriminating against you because of you are pregnant or because you have given birth, visit our webpage on pregnancy discrimination.

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· 9:05 am

Reasonable Accommodation – California Employment Law

Employers have an affirmative duty to reasonably accommodate disabled employees. Our firm gets quite a bit of calls from potential clients who have a disability, yet their employers fail to accommodate them so they can perform their job duties. While not all disabilities are protected under the law, generally, employers are required to reasonably accommodate an employee’s known disabilities so that the employee can perform the essential functions of the job.

How Can an Employer Reasonably Accommodate a Disabled Employee?

How to reasonably accommodate an employee depends on the employee’s disability and what he or she can perform given his or her limitations. Therefore, there is no one specific way to accommodate an employee. Rather, there are many different ways an employer can reasonably accommodate an employee.

FEHA provides a list of just some of the ways in which an employee can be reasonable accommodated. This list includes some of the following.

  • An employer can make the work facilities readily accessible to the disabled employee. An employer can do this by modifying furniture or equipment for use by the disabled employee, or reserving a parking place for the disabled employee so he can park closer to work.
  • The employer can also modify the disabled employee’s work schedule. For example, if an employee is treated for cancer in the afternoons, then the employer can change the employee’s work schedule so he comes in earlier to work and leaves earlier for his cancer treatments so he gets a full day of work and completes his daily tasks.
  • An employer can even reasonably accommodate a disabled employee by having the employee work from home.

This listed examples is not exhaustive, there are many more ways an employer can reasonably accommodate a disabled employee.

What About Assistive Animals?

Here is something very interesting related to reasonable accommodation. Under California law, an employer must allow for assistive animals in the workplace as a form of reasonable accommodation. Assistive animals include guide, support, or service dogs. This includes animals that provide emotional support to a disabled employee suffering from post-traumatic stress disorders and even depression.

Contact An Employer Lawyer if You Have Reasonably Accommodation Questions

Unfortunately, a lot of times employers can be lazy and do not want to work with the disabled employee. But there are often multiple ways an employer can reasonably accommodate a disabled employee. If you are a disabled employee and your employer is failing to provide reasonable accommodation, or has fired you because they do not want to provide a reasonable accommodation, then call an reasonable accommodation & disability employment lawyer for a free consultation.

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September 30, 2015 · 1:31 pm

Recording Conversations At Work: Good or Bad Idea?

Occasionally, potential clients call our office telling us they have recorded a conversation with their supervisor. In other situations folks ask us if it is okay to record a conversation they are going to have with their boss. Because this comes up quite a bit in the employment world I figure it would be a good idea to address this issue. Employment lawyers across California will all tell you the same thing – don’t secretly record anyone at work.

I made the below whiteboard video to help explain this area of law without any legal jargon. After you watch the entire video, make sure that you read the rest of this page. It is critically important!

An Employee Cannot Secretly Record A Conversation At Work

First of all, its a bloody crime. California Penal Code § 632(a). Secondly, you probably won’t be allowed to use it as a part of your case anyway. California Penal Code § 632(d).

In a majority of states, an employee can record a conversation in the workplace if that employee is taking part in the conversation. However, California does not follow the majority rule. In California and a handful of other states, an employee generally cannot record a conversation in the workplace unless everyone involved in that conversation consents or knows that the conversation will be recorded. This is because under the California Penal Code, recording a conversation is punishable by fine or prison time. While penalty is rarely enforced, you should still avoid recording your boss because you don’t want him/her to threaten you when they find out about the recording.

More importantly, even if it was legal to record your boss, in a civil case, you would not be able to use a secret recording as evidence in court. The law prohibits it except in extremely rare circumstances. Therefore, even if you get your boss to admit on tape that he broke the law, you would probably be prohibited from admitting it as evidence to show the jury.

Before you continue reading, sign up for our free monthly employment law newsletter! We will email you useful employment information that helps employees protect themselves from workplace abuse.

Are There Exceptions to the Recording Law?

There are exceptions to this general rule. If the employee who is doing the recording is having a conversation in a public setting, such as a lobby with people in it, stairwell, or the breakroom where there is people then recordings these conversations in public settings is usually legal. This is because there is no expectation of privacy in a public setting. It can be expected that the conversation in the public setting can be overheard because there is a lot of people surrounding the conversation.

If you think your employer is doing something illegal or discriminating against you or another co-worker, rather than recording a secret conversation to use as evidence, contact an employment lawyer immediately to discuss your options in the workplace.

Additional Information About CA Law

If you want to get more information about California employment law, sign up for our free newsletter. We will send you up-to-date information about overtime, wrongful termination, retaliation, and much much more. To sign up just click the below link.

I hope this page has been helpful in your search for information.

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September 24, 2015 · 9:44 am

Work Disability Discrimination Case Law

Injuries and diseases happen all the time, and sometimes it can affect a person’s normal day to day activity, such as their job. Under California law, it is unlawful for an employer to discriminate or take adverse action (such as demotion, cut in pay, or termination) against an employee based on his or her disability if that employee can be reasonably accommodated. Under the law, the definition of disability is broad. A disability can include any physical or psychological disability.

Even more interesting is that an employee is protected from disability discrimination due to a perceived impairment that is disabling, potentially disabling, or perceived to be disabling. Therefore, if your employer assumes you are disabled, even if you are not, and terminates you based on that incorrect assumption, the employer may have broken the law. If you are an employee suffering from a disability and you believe your employer fired you because of the disability, contact a disability discrimination lawyer immediately.

Disability Case Review – Leggins v. Thrifty Payless Inc.

Leggins is a case out of the Superior Court of Los Angeles, and provides a good example of what an employer should not do when an employee has a disability. Plaintiff was a store manager for the employer for 30 years. Plaintiff suffered a neck injury as he was trying to stop a robbery in his store. Plaintiff had to have several surgeries due to the neck injury. Once he returned to work, he requested to be moved to a different location where he would do less physically demanding work. However, nothing was done.

Sadly, Plaintiff had another injury which made his neck injury even worse. Plaintiff was eventually transferred, but the manager there would give him work that exceeded the limitations of his injury. Even after Plaintiff complained to the manager that he cannot perform the work due to his injury, the manager gave him even more of the physically demanding work. Soon after the transfer and working with this new manager, Plaintiff was fired.

The case went all the way to trial, and the jury returned a verdict for the plaintiff. The jury found that the employer did indeed discriminate against the Plaintiff based on his disability. The jury awarded the plaintiff over $8,000,000 in damages.

Contact a Discrimination Lawyer

At the end of the day, cases such as Leggins show that the law and the California judicial system is fair and just. Further, it bolsters the ability of California employees to hold their employers accountable for violating the law. If you have a disability and you feel your employer is taking adverse action against you because of your disability, contact a discrimination lawyer as soon as possible! Visit our disability discrimination lawyer page for details on hiring a attorney if you already feel you have a case.

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September 22, 2015 · 11:20 am

An Attorney’s Perspective on Race Discrimination in California Workplaces

Lately, our office has been receiving some calls from potential clients alleging race and color discrimination at their work place. Thus, it may be a good idea to do a brief overview of race discrimination in the work place. What is an employment lawyer looking for? What kind of case is worth pursing? Our main workplace discrimination law page can be found here. This page is a brief overview. The below video is a short and concise synopsis of the law in this area.

Race and Color Discrimination

Under both Federal and California law, an employer cannot discriminate against an employee for his or her race or color. Race is defined as any person who is identifiable due to their ancestry or ethnic characteristics. Interestingly, the law does not see race and color as the same thing. Rather, they are distinct terms as both are listed separately as protected characteristics under federal and California law. Thus, the color of an employee’s skin, and not his or her race, can be foundation for a discrimination claim, even if it is alleged against another employee or supervisor of the same race.

A good example of this is from the case Walker v. Secretary of Treasure, I.R.S. in which a light skinned African American employee was discriminated against by a dark skinned African American supervisor.

A lot of times, people may have the notion that race and color protections only apply to those groups that have historically been viewed as minorities. However, this is not the case. Both Federal and California law prohibit discrimination against white people as well, and any race for that matter, regardless of whether they are the majority of minority race. This is commonly called reverse discrimination. For example, an African American supervisor can discriminate against a white subordinate, just as a white supervisor can discriminate against an African American subordinate.

How does an employee show there was racial discrimination?

An employee can show that he or she was discriminated against due to race or color either by direct evidence or indirect evidence. An example of direct evidence is if an employee is fired for being African American, and during discovery, an e-mail is produced that explains that the employee was fired because he or she was African American. But this kind of evidence is rare and does not happen all that often in todays litigious culture.

Typically, evidence is circumstantial. All this means is that evidence indirectly points out that an employee was discriminated against for his or her race. An example of indirect evidence can take the form of witness testimony. For example, if an employee is fired by his or her supervisor for being African American, yet there is no direct evidence, the former employee can depose several workers who can testify that they heard the supervisor talk about how he dislikes the employee because he or she is black. So just because an employee does not have direct evidence does not mean he or she has no case!

What Kind of Case is Worth Pursing?

There is no good way to answer that. Each case is different. Generally, contingency lawyers like Mr. Robertson are looking for cases in which racial discrimination led to the termination of an individual. That way there is liability (racial discrimination) and damages (the employees lost wages). However, in some instances the client has not been fired, and still has a good case. It all depends and the best way to find out if you have a case is to call for a free consultation with an employment lawyer.

Unfortunately, discrimination in the workplace based on race or color is still prevalent in California and across the nation. We still get several calls per week having to do with race discrimination, whether it be by a supervisor or a co-worker. If you feel you are being discriminated against due to your race or the color of your skin, call an employment lawyer for a free consultation.

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September 16, 2015 · 10:52 am

An Employer Cannot Discriminate Against An Employee Based on Religion

Religious Discrimination in the Workplace – Both federal and California law prohibit discrimination based on religion and require employers to make reasonable accommodations for their employees’ religious beliefs that are associated with traditional religions, such as observances and certain practices. For example, an employee is a devout Christian and attends mass every Sunday morning, however his employer forces him to come into work Sunday morning despite being notified that he attends church every Sunday. The employee refuses citing religious reasons and is terminated. Here, the employer has violated the law by terminating the employee due to his religion. Further, the employer failed to accommodate the employee.

EEOC v. Abercrombie and Fitch Stores, Inc.

Here is a case that occurred a couple years ago that is a great example of religious discrimination in the workplace. Although it is not a California case, it is still shows what an employer should not do in the event their employee seeks a valid religious accommodation.

Khan worked for Abercrombie and Fitch in the stockroom. She worked there for roughly five months. Khan is a Muslim teenage woman and wears a hijab as is tradition in the Muslim religion. When she was first employed Khan was told that her hijabs must match Hollister colors. She agreed to this. However, later in her employment she was told that her hijab was against company dress code. Abercrombie told her that if she did not remove her hijab, she would be removed from the work schedule. Khan was fired for refusing to remove her hijab.

In a religious discrimination case, the person discriminated against must show that he or she holds a bona fide belief in her religion, that her or his religious beliefs conflict with a particular job duty, and finally that the employer took adverse action against the employee based on his or her religious beliefs. Here, Khan let Abercrombie know that she was a devout Muslim. Second, that her religion prohibited her from removing her hijab which conflicted with Abercrombie’s demand that she remove it. And finally, Abercrombie fired her because of her refusal to remove her hijab due to her religious beliefs. Abercrombie tried to argue that Khan wearing a hijab caused undue hardship to Abercrombie because Abercrombie’s economic success depended in-store employees looking a certain way. The court disagreed with Abercrombie’s argument because Abercrombie did not show actual loss to constitute undue hardship. The court ruled in favor of Khan and found there was in fact religious discrimination.

Contact an Employment Lawyer if You Have Been Discriminated Against

The freedom to practice one’s religion is rooted in the foundation of this country. EEOC v. Abercrombie and Fitch Stores, Inc. is a victory for employees. While an employer may be able to tell you how to do your job, an employer cannot dictate how and when an employee practices his or her religion. If your employer has taken adverse action against you for your religious beliefs, contact an religious discrimination lawyer today!

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September 11, 2015 · 12:38 pm

An Employer Cannot Discriminate Against an Employee For His or Her Age

Our firm has been receiving a lot of calls recently from potential clients claiming their employer has discriminated against them based on their age. Thus, it may be a good idea to review age discrimination in the workplace. While this page provides an overview on age discrimination, our general discrimination page can be found here.

Age Discrimination in the Workplace if You Are Forty Or Older

FEHA (the California Fair Employment and Housing Act) prohibits employers from discriminating against an employee for his or her age. FEHA’s age discrimination provisions apply to those employees who are forty years of age or older. Interestingly enough, federal courts have held that there cannot be any reverse discrimination claims by younger employees. Basically, this means that those employees under forty years old cannot sue for discrimination against them in favor of older employees. For example, if an employee who is twenty-eight years old is passed by for a promotion because he is too young and they end up promoting an employee who is older, the twenty-eight year old employee would most likely not have an age discrimination case. Although the example provided may seem unfair, FEHA’s age discrimination provisions will most likely not apply to any employees younger than forty.

Proving Age Discrimination Claims

An employee alleging age discrimination must prove that adverse action was taken against him or her due to his or her age. The employee can prove this by direct or circumstantial evidence. Direct evidence can be in the form of comments regarding the employee’s age. For example, a supervisor sends an e-mail to other co-workers that he is going to fire an employee because he or she is too old and should retire soon. That would be direct evidence.

However, direct evidence is usually pretty rare. Most of the time, evidence of age discrimination is circumstantial. The California courts have adopted an analysis test in which the initial burden is on the plaintiff to show that he or she was discriminated against due to his or her age. Thus, the employee must show the following. First, that he or she was at least forty years old at the time adverse action was taken against him or her. Second, that adverse action was in fact taken against the employee. Third, that the employee’s job performance was satisfactory. And fourth, that he or she was replaced by a significantly younger person.

Here is a common example of age discrimination by the employer involving circumstantial evidence. Employee is 60 years old, and has been at the company for many years. He has never received a write up or complaints about his performance, in fact he has always performed well. Randomly, the employee is terminated and given an arbitrary reason such as it is not working out anymore or the company is cutting back financially. The employee later finds out that he was replaced by a significantly younger person who is in his or her low thirties. Now from these facts, it is not guaranteed that he will win an age discrimination case, but the facts are very suspect and suggest there could be some age discrimination on part of the company.

Contact an Age Discrimination Lawyer

If you are above the age of forty and your employer has taken adverse action against you, it may be worth calling an employment lawyers who handles age discrimination cases for a consultation and evaluation of your potential case.

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