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.
“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.
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.
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.
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 could result in widespread abuse of the legal system.
Our firm receives several calls per week from potential clients alleging that they were sexually harassed at work. No story is exactly the same, but most sexual harassment stories have common threads. For example, most of the stories we hear are with men harassing women. And usually, the male is the supervisor or boss of the female employee. Thus, we figure it would be a good idea to review why sexual harassment conduct by a supervisor is different from legal standpoint than harassment conduct by a coworker.
Branigan Robertson explains in the below YouTube video. But if you’d rather read, skip the video.
The Difference Between Harassment by a Supervisor & a Co-worker?
While sexual harassment is harmful and traumatic no matter who the harasser is, it does make a big difference from a legal standpoint what the harasser’s position is in the workplace. If an employee is sexually harassed by a supervisor, then usually the company is automatically liable. Why is company liability automatic? Because the supervisor has direct control over the employee, such as whether or not to terminate the employee. Often times, an employee may not complain if he or she is afraid that their job will be jeopardized if the supervisor finds out of the complaint.
Unlike company liability for a hostile work environment created by a supervisor, a company is not automatically liable for sexual harassment by a co-worker. However, if a co-worker is sexually harassing a co-worker, then the company is only liable for the co-worker’s conduct if the company allows, encourages or lets such harassment continue after being put on notice about it. Basically, the company is liable for the co-worker’s conduct if the company has knowledge (or should of had knowledge) of it. What this typically means is that the employee being harassed must complain about the harassment to someone in the company (i.e. – human resources or an executive) in order for the company to know about it. If the company has no idea the sexual harassment is occurring, then the company will not be liable.
Case Example: EEOC v. Cyma Orchids Corp.
Cyma Orchids Corp. is a great example of automatic company liability for sexual harassment by a supervisor. Plaintiff was an employee for several years with Cyma Orchids Corp. Throughout her employment she, along with other female co-workers, were sexually harassed by multiple managers and supervisors. On numerous occasions, plaintiff and the other female workers were offered inappropriate and uninvited sexual propositions, had their private parts groped, and were the subjects of sexual jokes and references. Plaintiff was smart enough to retain an employment lawyer to file a lawsuit against her former employer. Since the plaintiff was sexually harassed by her supervisors, Cyma Orchids Corp was automatically liable as plaintiff was under direct control of the supervisors. Like many cases, this case settled before trial for over $200,000.
Sexual harassment should not happen anymore. Unfortunately, it is still very common in California. If you are being harassed, whether by a supervisor or a co-worker, contact an employment lawyer today. It is important that you educate yourself about your rights before quitting or going out on a leave. We highly recommend that you get a consultation before you complain to management. There is a right way and a wrong way to make a workplace complaint. If you have any questions, don’t hesitate to contact our office.
Almost every day our firm receives calls from potential clients claiming they were wrongfully terminated. What is often at the heart of the lawsuit is what the employer said was the reason for the termination versus the real reason for the termination.
In order to prevail in the employment lawsuit the employee must show that the employer’s reason for terminating the employee was a pretext, or made up excuse, as a cover-up for an illegal reason. This is also called a pretextual termination.
What is Pretext in a Termination Lawsuit?
A pretext is a phony excuse or a made up reason that the employer uses to fire an employee. A pretext is basically an excuse that is used to cover up the true and illegal reason for the termination. Some of the common pretexts we hear are “poor performance,” the employee “just does not fit” in at the company, “restructuring” or “reorganization,” and “financial reasons” or cutbacks.
How does an employee go about proving the reason is a pretext?
In order for an employee to show that the employer’s reason is a pretext, the employee must show either that it is more likely than not that a discriminatory reason motivated the employer than the pretextual reason, or the employer’s explanation is not credible. It should be noted that a mere mistake made by the employer is not a pretext, rather a pretext is a phony, deliberate excuse used to cover up the illegal reason.
Common Example
Here is a pretty common factual scenario of when an employer uses a pretext to fire an employee. Jane Doe was fired abruptly and arbitrarily days after complaining to Human Resources about being sexually harassed by a valued executive supervisor. Up until her complaint, she performed well at work. However, Jane’s employer told her that she was being fired because she just did not fit in anymore and it was not working out. That struck Jane as odd as she had been working there for years and was a valuable employee with no write ups or reprimands. Thus, it seems that Jane was fired for reporting sexual harassment in the workplace, not because she did not fit in anymore.
In this hypothetical the employer’s reason here is a pretext, and a way to cover up the real reason for the termination – the employee complained about harassment, and would rather just fire an her rather than a more valuable executive. This scenario happens quite a bit, especially in discrimination, hostile work environment, and wrongful termination cases.
At the end of the day, an employer almost never tells an employee they are firing him or her for the illegal reason. Usually, the employer will make up a reason as to why they are terminating the employee, and the illegal reason will have to be proved through circumstantial evidence. But just because the employer provides a pretext that may seem valid on its face does mean the employee does not have a case.
If you were recently terminated out of the blue and for an arbitrary reason, it cannot hurt to contact an employment attorney to investigate your legal rights and options.
We all hear the typical workplace stories of the male supervisor being overly generous to the young and attractive female subordinate. But at one point does sexual favoritism become a hostile work environment, and therefore a violation of law? This is a tricky question with an answer that is not exactly clear cut.
Sexual Favoritism and CA Employment Law
Interestingly enough, it is not unlawful for a supervisor to favor a subordinate with whom he or she has a romantic relationship. However, it may be unlawful and create a hostile work environment if the favoritism is based upon the granting of sexual favors, it is widespread throughout the workplace, and employees witnessing the favoritism do not welcome such conduct. It does not matter if the employee claiming hostile work environment was the target of such conduct, they can merely be a witness to the conduct.
Under California law, an employee may establish a claim of sexual harassment by demonstrating that widespread sexual favoritism was so severe as to alter his or her working conditions and create a hostile work environment. What is severe as to alter the employee’s working conditions depends on the fact of the case.
Case Study: Salinda vs. DIRECTV Inc.
Salinda is a great example of widespread sexual favoritism in the workplace. Plaintiff was an employee of the Defendant for several years. After a few years of employment with Defendant, Plaintiff witnessed favoritism for young and attractive female employees by male managers and superiors. Further, these female employees would perform sexual favors for the male managers and superiors.
After she complained of this, certain managers and employees were fired. However, years after this first incident, sexual favoritism ensued again. She again complained about the widespread sexual favoritism. Around the same time, Plaintiff was diagnosed with disease of the eye. When she requested a reasonable accommodation, Defendant retaliated against Plaintiff by verbally reprimanding her on her job performance. Soon after, Ms. Salinda was fired.
Plaintiff argued that, among other things, she was retaliated against for her complaints regarding widespread sexual favoritism in the workplace. Defendant argued that Plaintiff was terminated for legitimate reasons having to do with poor job performance. The jury sided with the Plaintiff, and awarded the Plaintiff $1,178,341 in damages.
Sexual Favoritism is Unlawful in California
Sexual favoritism in the workplace is not an uncommon occurrence whether it is between a male and female, male and male, or female and female. Sadly, some larger companies give their star executives too much discretion in the workplace, and sometimes these executives will have employees engage in sexual favors to get ahead in the workplace. If you feel you are a victim of widespread sexual favoritism at your work, then contact an employment lawyer to see if the law was broken.
The purpose of the overtime pay is obvious. First, overtime encourages an employer to reduce amount of hours worked or hire more employees. Second, overtime ensures that employees are compensated fairly for the burden of working long hours. Unfortunately, California employers fail to pay overtime quite frequently. Rather than hiring an extra helping hand or simply paying the employee what he or she is owed, some employers would rather violate law in order to save a few bucks. That’s why employment lawyers spend a lot of time litigating overtime cases.
California Overtime Law
Under California law, employees are generally entitled to overtime pay if they work more than 40 hours per week or more than eight hours in one day. This is unlike federal law, where employees are entitled to overtime pay only if they work more than 40 hours per week, regardless of the amount of hours worked on any given single day.
Under both federal and California law, if an employee works overtime, then the employer must pay the employee one and a half times an employee’s regular rate. For example, if Mark the Mechanic is paid $12.00 per hour, but works 42 hours in a given week, then his rate of pay for those 2 overtime hours is $18.00 per hour instead of $12.00 per hour. If he has not been paid the correct amount, he can hire a wage & hour lawyer.
Overtime Case Example – Atempa v. Pama
Atempa is a 2015 case out of the Superior Court of San Diego County and Judge Joel Wohlfeil’s courtroom. Plaintiffs, Marco Atempa and Keilyn Reyes, were employees of defendant, an Italian restaurant. During their employment, Defendant would alter the employees’ time sheets and essentially cut the hours its employees worked every pay period. In doing this, Defendant would avoid compensating its employees for overtime pay and thus save money. Eventually, employees began to notice the time being cut from their paychecks. Plaintiffs, a cook and a dishwasher, sued Defendant on behalf of over 70 harmed employees. After an eight day bench trial, the court ruled in favor of the Plaintiffs. The amount awarded was just under $300,000.
Wage and Hour Attorney Help Recover Unpaid Overtime
Unfortunately, what happened to the Plaintiffs in Atempa is fairly common. Our firm receives calls almost every week of employers who fail to compensate their employees properly for overtime hours worked. Sadly, employers all too often try to take advantage of their employees in an effort to save money. But at the end of the day, the employer risks significant legal liability by doing this, and if brought to court will end up paying out more than if they just simply paid their employees properly to begin with. If you feel your employer is not compensating you properly, call an attorney immediately.
Unfortunately, sexual harassment in the workplace occurs quite a bit in California. Most employment lawyers across California still receive several calls per week regarding some sort of sexual harassment. Sexual harassment typically falls within the umbrella of “hostile work environment,” which is generally offense verbal comments or uncalled for physical touching. In order to prove the existence of sexual harassment, the employee most show that he or she was a victim of unwanted sexual comments or touching, and the sexual harassment was so serious that it altered the employee’s working environment into an abusive working environment.
The common sequence to these types of cases is twofold: 1) the employee complains about sexual harassment, and 2) then the employee is terminated for some arbitrary or made up reason.
Sexual Harassment Case Example – EEOC v. Zoria Farms
Although this is a federal case, Zoria nonetheless is a great case example of sexual harassment in the workplace. Plaintiffs were female employees of Zoria Farms, a large dried fruits company. Plaintiffs sued arguing that they were not re-hired for their current position as retaliation for complaining about sexual harassment. During their employment, Plaintiffs were constantly victims of sexual harassment in the workplace. Coworkers would make sexual comments, leer at them, hug, try and kiss, asked them out on dates, and even requested sex from them. Plaintiffs complained numerous times to Defendant, but nothing changed because the employer took no steps to rectify the situation. The Plaintiffs were not re-hired for their position.
Plaintiffs filed suit through the EEOC alleging, among other things, sexual harassment. Like many civil lawsuits, the parties in Zoria entered into a settlement agreement prior to trial. The settlement agreement called for the Plaintiffs to be awarded $330,000 paid by Defendant, and the company was to implement sexual harassment training. If you want to review more facts about the Zoria decision, visit the EEOC website here.
Labor Law Attorneys & Sexual Harassment
Sadly, what happened to the employees in Zoria is pretty common throughout California and the nation. However, cases such as Zoria reaffirm that if an individual is wronged, then justice will be served if they have a meritorious case. If you feel you have been sexually harassed at work, or retaliated against for complaining about sexual harassment, please contact a sexual harassment lawyer as soon as possible. Generally, the statute of limitations for sexual harassment cases in California is short, so don’t sit on your legal rights. Contact someone as soon as you feel the harassment has occurred.
Employment rights must be addressed immediately. The window for legal action may close if you don't act. Call or contact Mr. Robertson for a free consultation.
