Category Archives: Discrimination

Can Employers Enforce a Dress Code Policy that Targets Someone’s Hair?

When it comes to employment law, California tends to lead the nation in terms of the protection it provides employees.  The state’s Fair Employment and Housing Act goes beyond federal law to provide broader protections for workers against discrimination, harassment and other work place injustices. 

The state distinguished itself once again in July 2019 when Governor Gavin Newsom signed into law Senate Bill 188, the first of its kind in the nation. The law takes aim at more subtle discriminatory practices and policies that unfairly target employees based on the style or texture of their hair. 

Sadly, for years employers have been allowed to enforce dress code policies that unfairly target and penalize persons of color, often black employees, for their natural hairstyles. With the passage of Senate Bill 188, employees and their attorneys have one more tool in the legal arsenal with which to fight back against unfair workplace practices.Continue reading this article to learn more about SB 188, as well as workplace discrimination in general. If you feel you have been the victim of discrimination, contact our office to schedule a consultation.

California Employment Law on Hair Discrimination

What CA Law Says About Hair Discrimination

Senate Bill 188, also known as the Crown Act (Create a Respectful and Open Workplace for Natural Hair), amended both the education and government code. The Act states in part:

“Workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals as the policies are more likely to deter Black applicants and burden or punish Black employees than any other group.”

Senate Bill § 188 – The Crown Act

The act further acknowledges that the federal courts have long accepted that Title VII of the Civil Rights Act prohibits discrimination against persons with afros, but adds that “afros are not the only natural presentation of Black hair. Black hair can also be naturally presented in braids, twists, and locks.”Accordingly, California state law was amended to broaden the definition of race to include hair texture and protected hairstyles.

Here Are a Few Examples

While the following incident did not occur in California, and is not strictly work related, it still highlights the type of discrimination persons of color have been known to experience based on hairstyle.

In December 2018, a black high school wrestler from New Jersey was singled out by a white referee and made to cut his dreadlocks before being allowed to compete in a match. Video shows the young man agreeing to cut his hair in the gymnasium before going on to win the match by takedown.

This incident is extreme, but it demonstrates how hair policies can be used to unfairly target people of color.

In 2010, the Equal Employment Opportunity Commission (EEOC) sued Alabama- based Catastrophe Management Solutions for its treatment of a recent hire, a black woman named Chastity Jones. At the time of her interview, her hair, which was blond, was dreaded in curls known as “curllocks.” She was offered a position as a customer service representative.

At a meeting held later that day, staff noticed her dread locks and told her that company policy required her to cut her hair. She declined, and the manager rescinded the job offer.The EEOC sued the company on Chastity’s behalf.

The regional attorney for the Birmingham office stated that the litigation wasn’t about fighting company policies that require employees to maintain neat, professional hair, but rather

“it focuses on the racial bias that may occur when specific hair constructs and styles are singled out for different treatment because they do not conform to normative standards for other races.”

California’s Fair Employment and Housing Act Prohibits Racial Discrimination

California’s Fair Employment and Housing Act is contained in the Government Code. Section 12940 states that with few exceptions, it is unlawful for an employer to discriminate against an employee or job applicant based on racereligious creed,  national origin, ancestry, gender, or sexual orientation (in addition to a number of other traits). A worker who believes they have been treated differently because of legally protected characteristics should contact an attorney in order to have their case reviewed.

Have You Been the Target of Discrimination? Contact our Office

If you believe your employer is trying to enforce a policy that unfairly targets you because of the natural presentation of your hair, contact our office to schedule a consultation.

Our office doesn’t charge to review the facts of your case, and cases are often taken on a contingency basis — this means the client doesn’t pay out of pocket fees. For more information, contact the office of Branigan Robertson to learn how we can help.

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California’s Employment Laws Favor Workers in 2019

The year 2019 is shaping up to be a good year for workers in California. Several laws have gone into effect that benefit workers’ rights. Perhaps spurred on by the frustrations voiced during the MeToo movement, many of these laws strengthen existing laws dealing with sexual harassment and discrimination. Additionally, there is a raise in the minimum wage as well as overtime pay for agricultural workers. 

This article will briefly discuss some of the new changes to California employment law. If you have questions about any of these changes, or you feel you’ve been the target of discrimination, harassment or some other employment violation, contact our office to schedule a consultation.

New CA Employment Laws 2019 | Branigan Robertson

The Changes, a Brief List

One – Minimum wage increase – This year, the minimum wage in California has been bumped for companies with 25 or more workers from $11 per hour to $12 per hour. Companies with fewer workers will now be required to pay their employees $10.50 per hour.

Two – Criminal History and Employment Applications – A new senate bill clarifies existing law dealing with job applicants who have criminal histories. Under current law, employers are prohibited from basing hiring decisions on a job applicant’s conviction record if that conviction has been sealed, or dismissed. There are exceptions to this law, such as if the applicant would be required to carry a firearm as part of the job.

In some cases, the employer is legally required to inquire about certain criminal histories. The new law limits these inquiries to “particular convictions” as opposed to convictions in general. A particular conviction is defined under the new law as “a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation, or state law that contains requirements, exclusions or both, expressly based on that specific criminal conduct or category of criminal offenses.

The purpose of this law is to prevent companies from being overzealous when required to look into an applicant’s past criminal history.  

Three – Settlement Agreements and Sexual Harassment Disclosure– Lawsuit settlement agreements can no longer include provisions that prevent sexual harassment victims from disclosing factual information regarding their experiences.  This means that if an employee settles a lawsuit with a company after experiencing harassment, he or she will be free to testify about this experience. 

While the harassed person will be free to discuss the factual circumstances of the harassment, the actual settlement amount can still be kept secret by a non-disclosure clause. However, the law allows for settlement provisions that shield the identity of the sexually-harassed victim.

Four – Defamation Protection– It used to be that employees who had experienced sexual harassment and reported it could be exposed to a defamation suit. Thanks to Assembly Bill 2770, allegations of sexual harassment based on credible evidence and without malice are protected from such liability.

Five – Mandatory Sexual Harassment Training– While mandatory sexual harassment training has been in effect for years, it’s only applied to companies with 50 or more employees. The updated law has been broadened to include businesses with as few as five employees. Every two years, employees will be required to go through training. This includes one hour for non-supervisory staff, and two hours for supervisors.

Six – Agricultural Workers to Get Overtime – Prior to the passage of this law, agricultural workers were exempt from California’s overtime rules. Assembly bill 1066 will change this in phases over a period of four years. Among the immediate provisions of the law, workers who toil for more than nine and a half hours in one day (or more than 55 hours a week) must be paid time and a half for their overtime work.

By the year 2022, the law will require that agricultural workers putting in more than 12 hours in a day be paid at least double their normal hourly rate.  Additionally, persons working more than eight hours a day (more than 40 hours a week) must be paid time and a half.

Seven – Females on Boards of Directors – California law now requires that publicly-held companies with executive offices in California have at least one female director on the board.

Eight – Breastfeeding at Work – Employers are now required to make reasonable requirements to provide rooms for breastfeeding that aren’t bathrooms. 

Have Questions? – Ask an Employment Attorney

The changes to the laws discussed on this page only scratch the surface. Each law contains nuance, and most workers dealing with a bad employer require the help of a good lawyer to seek justice.

 If you believe your rights as an employee have been violated, it’s recommended you talk to a lawyer sooner than later. California’s statutes of limitation mean that a person filing a claim against an employer is always fighting the clock.

Having a good lawyer on your side might mean the difference between a check or a fair settlement for your pain and suffering. Whether you’ve dealt with wage theft, discrimination, harassment or some other employment related violation, a good lawyer will be indispensable in helping you get your life back on track. Call the office of Branigan Robertson with your questions and find out how we can help.

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When Employers Marginalize Workers and Break the Law

There are many reasons a disenchanted worker will walk into an employment attorney’s office for a consultation. They include religious discrimination, sexual harassment, wage theft, among others.

One common scenario we attorneys see are employees who have become marginalized in the workplace. People don’t come to us because the law was broken. They generally don’t know the law. They come to our office because they were treated like garbage. Marginalization can occur in a number of different forms and include physical isolation from coworkers, lack of recognition for an employee’s achievements, bullying, or a basic lack of respect. And while an employee can be marginalized for many different reasons, not all of them are unlawful.

In its most benign form, employee marginalization can be the result of poor management. As discussed in this Industry Week article, sometimes a manager mistakes a quiet employee for an employee lacking initiative. As a result, the employee isn’t engaged by management, or encouraged to advance within the company. While this type of treatment may be unfair, even wrong, it isn’t necessarily unlawful.

This article was written to discuss the plight of marginalized employees, as well as the legal line an employer walks when marginalizing a worker. If you believe that your employer has violated state or federal law in marginalizing you, contact our office to see how we can help.

Marginalized Worker Employment Law | Branigan Robertson

What is a Marginalized Employee?

Let’s look a hypothetical situation involving marginalization for purposes of illustration:

Picture a customer service representative named Bob, who works at a big box retailer. A friendly person, Bob’s laid-back approach to sales is appreciated by customers. While his individual sales numbers aren’t stellar, the department he works in has experienced a 15 percent boost in sales since his hiring. However, Bob’s supervisor frequently reminds him that the company doesn’t reward employees for ‘assists,’ and frequently demeans him in front of the other sales staff. One of the other sales reps, who’s numbers are slightly better than Bob’s, often gets overwhelming praise in front of staff for his performance.

When Bob complains to a store manager, his supervisor says he’s only trying to “toughen Bob up,” in order to make him better at his job. Unsatisfied with the company’s lack of response to his situation, Bob leaves the big box store for another job.

OK, so Bob has been marginalized, but did the employer break the law? Keep reading to find out.

The Effects of Marginalization on Morale

A person whose work is valued less by an employer while coworkers are praised and encouraged might experience a wide range of emotions, including discouragement, depression or hopelessness. In short, it’s not a good work situation.

The question that one often asks in this situation, is whether or not an employer who marginalizes a worker has violated the law. In Bob’s case, the answer is no. No laws were broken. Not all cases of employee marginalization are unlawful. It may be cruel, bad business, or just plain wrong, but an employee who’s experienced workplace marginalization may not have a strong case against the employer.

But your situation may be different. And this is what you need to pay close attention too. Keep reading to learn a little about what laws were designed to protect marginalized employees.

What the Law Says About Marginalized Workers

Both state and federal laws exist that are designed to protect workers. Even though California is an at-will employment state, which means an employer is usually free to terminate a worker for any reason, the law prohibits termination, discrimination, or marginalization in certain cases.

For instance, the Fair Employment and Housing Act §12940(a), which closely mirrors federal law, states that it is unlawful employment practice:

“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 refuse to select the person for a training program leading to employment, or to bar or discharge the person for employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”

So, if we look at the example of our friend Bob from the previous section, an employment attorney would have to consider several factors to determine whether or not he had a strong case. For instance: was Bob’s employer marginalizing him because of his skin color, religious beliefs or sexual orientation? Any of these would be discrimination and we have detailed pages and videos on each.

Was Bob the openly gay employee in his department? Did straight employees receive advancements or bonuses while performing the same duties as Bob? Did Bob’s supervisor make slurs or use sexually inappropriate language when referring to Bob (hostile work environment)?

These and other issues would need to be explored in order to determine whether or not Bob’s marginalization was unlawful.

Whistleblowers Are Also Protected

A whistleblower is an employee who notifies the authorities of workplace violations of law. Under California Labor Code, it is unlawful for a company to retaliate against an employee who has called attention to such violations. Not surprisingly, a common company response to a whistleblower is to isolate and marginalize that employee, perhaps in the hope that the employee will simply quit.

Make no mistake, if a company uses marginalizing tactics to retaliate against an employee because he or she blew the whistle on illegal company activity, the retaliation is unlawful.

Do You Feel You Were Treated Unlawfully by an Employer?

It’s a sad fact of employment. Some companies tend to treat their workers abysmally. This can be for several reasons: misguided attempts to spur production, poor management skills, a lack of regard for workers, or something more nefarious (and unlawful) such as personal prejudice against protected classes.

If you’ve experienced marginalization at work, it could be well worth your time and effort to discuss the specifics of your case with an employment lawyer. While it’s true that many cases of employee marginalization are not unlawful, a good lawyer will be able to look at the facts of the case and decide whether or not legal action should be pursued.

Contacting a Lawyer

A person who successfully pursues a claim against an employer engaged in employee marginalization can potentially benefit financially. In California, marginalized employees may be entitled to:

  • Lost wages
  • Back pay
  • Pain and suffering
  • Punitive damages

Employment attorneys representing workers often take cases on a contingency basis. This means the client doesn’t pay up front fees, but rather the attorney is paid with proceeds from the judgment or settlement. If you have questions about any of the topics covered on this page, or other employment law issues, contact our employee rights office to schedule a consultation.

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New Discrimination Law Whiteboard Video


I’m happy to post our latest video! This one is all about discrimination in the workplace. What is the legal definition of “discrimination.” This video answers that and a whole lot more. To learn more about discrimination law jump to this page.

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January 29, 2017 · 10:52 pm

What if an Employer Treats an Employee as Disabled When the Employee isn’t Disabled?

Most people know that an employer can’t fire a disabled person in California if the worker can perform the essential functions of the job. But can a company fire an employee it believes to be disabled, but isn’t actually disabled? In other words, may your boss fire you if he believes you’re disabled, even when you’re not? No, they can’t. This is called “perceived disability” and hopefully the following article will shed some light on this sparsely used term.

The Legal Foundation of “Perceived Disability” in California

CA law is very clear that terminating an employee because of a disability, when the employe can perform the essential functions of the job, is unlawful. Lawyers call this disability discrimination. But the law also addresses the odd scenario when someone doesn’t have a disability, but the employer thinks they do. A quick look at the CA Code of regulations makes it clear:

California Code of Regulations § 7293.6. (5) A “Perceived Disability” means being “Regarded as,” “Perceived as” or “Treated as” Having a Disability. Perceived disability includes: (A) Being regarded or treated by the employer or other entity covered by this subchapter as having, or having had, any mental or physical condition or adverse genetic information that makes achievement of a major life activity difficult; or (B) Being subjected to an action prohibited by this subchapter, including nonselection, demotion, termination, involuntary transfer or reassignment, or denial of any other term, condition, or privilege of employment, based on an actual or perceived physical or mental disease, disorder, or condition, or cosmetic disfigurement, anatomical loss, adverse genetic information or special education disability, or its symptom, such as taking medication, whether or not the perceived condition limits, or is perceived to limit, a major life activity.

Example of Perceived Disability

One example of perceived disability would be if an employee, Jimmy, worked for ACME Company and after ten years of service he receives a misdiagnosis of Parkinson’s disease, a progressive, degenerative disease of the nervous system. Jimmy tells his boss. Obviously, Jimmy is still able to perform all the essential functions of his job, but immediately after telling his employer, his direct supervisor writes Jimmy up for being “crazy” and “weird.” Furthermore, Jimmy is required to report to his direct supervisor after every doctor’s visit. A month or two later his boss terminates him for “not fitting in.” This is illegal.

Usually the discrimination is not this obvious. But if you’ve been fired because your employer believed you were disabled, but you were not disabled, you may have a claim for disability discrimination under CA’s Fair Employment & Housing laws. Contact our office for a free consultation.

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What is the Difference Between Harassment, Discrimination, & Bullying in California Employment Law?


“Harassment” and “discrimination” are terms that many people use interchangeably. Is there a legal difference between the two? Yes, there is a significant difference. But what about “bullying?” How does California employment law define and deal with bullying? This article will define harassment, discrimination, and bullying and explain how these three concepts play out in California’s workplaces.

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The Definition of Harassment, Discrimination & Bullying

Harassment is when an employee is treated poorly (name calling or unwanted touching) because of a protected characteristic or activity. Discrimination is when an employer takes an adverse action against an employee (termination or demotion) because of a protected characteristic or activity. Bullying is when an employee is treated poorly, but the bad treatment is not because of a protected characteristic or activity.

An example will make these distinctions clear. Jane is an employee for Acme. Jane is discriminated against if she is fired because she is a woman. She is harassed if John, her boss, calls her a derogatory name because she is a woman. She is bullied if John makes fun of Jane for being a Dodger’s fan. Here, being a woman is a protected characteristic in California employment law (“sex”). Being a Dodger’s fan is not.

Harassment and discrimination are unlawful. Bullying, on the other hand, it not illegal. Currently, there is no California or Federal employment law that addresses workplace bullying. However, if the bullying happens because of the victim’s religion, race, sex, disability, or color, etc., it becomes “harassment” under CA’s employment law. In that case, the employer is legally required to prevent it from occurring. If they don’t, the employee may file a lawsuit.

Read below to learn more about CA’s protected categories. If you wish to jump to a page exclusively about harassment, click here. If you want to jump to a page only about sexual harassment, click here. If you learn more about discrimination, here is our main page.

The CA Supreme Court on the Difference

In the case of Reno v. Baird, the California Supreme Court highlighted the distinction between harassment and discrimination. It said:

The court noted that harassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job…. Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties. While harassment is not a type of conduct necessary to personnel management, making decisions is a type of conduct essential to personnel management. (emphasis added)

California’s Protected Categories in Harassment and Discrimination Cases

A California employer cannot hold certain traits or characteristics against an employee. California law has specifically outlined what an employer may not use against employees. These protected characteristics include:

Fortunate for CA employees, both harassment and discrimination include every one of these characteristics. Under Title VII, the federal anti-discrimination and harassment law, only protects against race, color, national origin, sex, and religion.

Differences Between Harassment Discrimination Bullying

Who is Liable for This Bad Behavior?

Another subtle, but important difference between discrimination and harassment cases is who may be liable. In discrimination cases, only the company-employer is liable. In a discrimination case the manager making the discriminatory decision will not be personally liable because the harm stems from the employer.

But in harassment cases the person who does the harassing may be personally liable.  The harasser can be sued regardless of whether the employer knew or should have known the harassment was occurring. While it is the duty of the employer to provide a safe work environment, as we all know, people find ways to hide what they want to hide.

If you want to investigate the difference further, feel free to look up the actual statute on point. Discrimination is governed by CA Government Code § 12940(a) and harassment is § 12940(j).

Any Exceptions to these Rules?

Generally, the only times in which the characteristics listed above can legally be used against a potential or current employee is when the employer can show that the characteristic is required for the job. This is called a bona fied occupational qualification. For example, if someone with a heart problem applied to be a firefighter. Even if that person could show that they can perform the essential functions of the job with an accommodation, the physical requirements of a firefighter job, mixed with the potential physical limitations of a heart condition, could endanger the lives of others. It is highly likely that the law would allow discrimination in this case.

Why Isn’t Bullying Illegal Like Harassment?

The answer is that “its complicated.” Essentially, the law is not perfect. It cannot regulate all bad behavior. The problem with bullying is that the definition is so wide and broad that if you made it illegal you would have an explosion of lawsuits. Since there already enough lawsuits in this world, the California legislature is unlikely to pass a law that would result in widespread abuse of the legal system.

Additional Legal Information

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