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:

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,3
  • Opposing unlawful harassment,4
  • Filing a complaint, testifying, or assisting in any proceedings relating to unlawful discrimination or harassment,5
  • Requesting a reasonable accommodation for a physical or mental disability,6
  • Requesting a reasonable accommodation for a religious belief or observance,7 and
  • A hospital worker (nurse, doctor, surgeon, or other person at a health care facility) filing a report of patient neglect or abuse.8

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.9 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.

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Footnotes:

  1. CA Government Code § 12940
  2. CA Government Code § 12940(a)
  3. CA Government Code § 12940(h)
  4. CA Government Code § 12940(h)
  5. CA Government Code § 12940(h)
  6. CA Government Code § 12940(m)(2)
  7. CA Government Code § 12940(l)(4)
  8. CA Government Code § 12940(g) & CA Penal Code § 11161.8
  9. CA Government Code § 12940

3 Responses to Discrimination Attorney – Fairness at Work is a Fundamental California Right

  1. Ellie Davis

    It’s interesting to know that having a written complaint will help your lawyer to prove that you have been discriminated against. My husband’s friend is thinking about suing his supervisor due to discrimination, and we are looking for advice. I will let him read your article to help him understand more about the discrimination process.

  2. Sabrina Addams

    One of my close friends is thinking of filing for gender discrimination and harassment against the company she works for. It’s really helpful to know that an employment law lawyer looks for direct evidence such as verbal or written comments or jokes directed at you and the witness of coworkers. I’ll let her know that she should gather some of this evidence if she ends up hiring a lawyer.

  3. Milton Rasberry

    I just was to tell u what happend . I just got fired over a safty concern . Thats not why im writing you. When i was hired my supervisor was a racist. He is a Mexican American, im African American. First i noticed that the Mexican employees had better treatment. My supervisor Tony would train them on everything and didnt train me on anything. Then he would ask me to do something that i wasnt train on and when i didnt know it he would belittle me in front of others . We had a cross training where we would come in two hours early to get trained on the other things . His best friend was the supervisor on the other shift so when i worls go in early they just put me to work . It was a two week training . The last three days one of the line leads ask me wasn’t i here for training and why was i on the line . So he trained me my last three days . Tony would still belittle me because i still didnt get the proper training. On my own i learned but it wasnt as quick as the other employees. At times i would finish the work i did and stay busy by doing other work . Tony would see me and say i didnt tell you that you could do that you only do what i tell you . It was hard for me not to work so when i would finish i would have to look for him all around the plant . So sometimes i couldnt find him . I would just keep busy then he would tell the assistant plant manager so id be in trouble so i had to not work till he would telk me what to do . I would wait for him to tell me then id get in trouble for waiting for him . Then he started calling me boy or Milton boy . I didnt say anything at first but he kept calling me boy . I started getting headaches that turned in to migraines so bad id have to leave work. Then i asked him to stop calling me boy because maybe he didnt know the meaning so he said he looked it up and seen what it meant and said he would call me little mother fucker. The other emloyees started moving up in potions even though i waa the harder worker . One day as i was leaving work for the day Tony called me back in grabbed another employee Thomas pulled up his shirt to show me his racial tatoo on Thomas’s chest and pounded his chest and laughed at me . Then he started calling me boy again the one of the other employees Eric start doing the Hitler salute when he called me everytime. So they would all laugh at me . Then all of a sudden the first shift supervisor Dekota started treating me differently treating me rude and yelling at me. One time they hired some one i was training got teased for talking to me . Thomas would make comments to her saying you want his little chocolate babies . She stopped talking to me and i asked her why the she told me that Thomas and Tony was teasing her so bad she would cry . This went on for a year . The plant manager wa had left then things got worse . There was someone hired i was training him on the line that i knew the best . Jose was his name . I trained him and Tony took an intrest in Jose . jose was one of the nephew of another employee. When something would go wrong or Tony had order on the line he would come speak in Spanish what was to be done or what was wrong so i wouldnt know . then he would pull me off my line and have jose do it . Tony would help jose then Jose’s uncle would help them then eric would help the so they could say that jose was better so he could take me line from me . They even had QC helping them pass thing that were still dirty and fail all my things. We had a new plant manager come in and was going to change things . Jeff the new plant manager said he wanted the employee on the line that knows it the best . I still knew the butterline better then anyone on my shift . Tony then put Eric in charge of that line and jose under him . One day Eric got mad and yelled at me for doing my job when he messed up and said he would make it where i wont work that line anymore so the next day Tony took me off the line and laughed telling me to say goodbye to my line . So i still was learning all the paperwork and the computer work on my own . Tony would come see me and telk me i should never touch the computer. So i went to talk to Jeff the new plant manager about how Tony took me off my line even though i know it best because jeff came in say he wanted the best worker on the line . Aftee i talked to Jeff about some of the things Tony did to take the line from me Jeff went and told Tony . So issues started happening bad on the line so at the next meeting jeff had he changed his wants to back up what Tony did to me. So i felt like tony got to him like he did the first and second shit supervisor also the assistant plant manager. So i didnt feel like i could talk to jeff . One time the regional h.r came to talk to us about how we could tell him about stuff going on . After the meeting i went to tell him what was going on . He told me he couldn’t talk to me because he had another meeting and a flight to catch . I felt like i didnt have anyone to talk to . Tony started treating me worse . Jeff said there should be more leads in the plant every line should have a lead . Since i had been there longer then all the other people that was becoming leads before me even though i knew more then they did they made up a dumping lead and gave it to me . Jeff told all the new leads that we will get a dollar raise after a month . Our supervisor would come tell him and he would give us the raise . after the month everyone got the raise but me . Eric’s girlfriend was hired as house keeping she left on maturity leave and came back as a line lead and she got the raise before me . Three months went by . It was time for the whole plant to get raises and it was based on how much thet were making at the time . I got that raise based on the amount still not getting the my lead raise. At this time Jose quits . Tony pulls me of my lead potions to put me under eric so i was up set but i still did my job eric went and told Tony . I knew i was going to get in trouble so on break i got my phone and started to record then right before my break was over Tony called me into his off to talk to me . He said he wants me on the line working under eric because eric was going to get fired because he yells at people because he got away with it because of tony . I said im made because as soon as i become a lead because Jeff said he wanted more leads now Tony is taking that from me i should be happy that i got a raise . So i just worked . Eric got fired because he and Tony got into it a couple of weeks after Tony told me eric was going to get fired . I thought one of the people who knows how Tony treated me doesnt like tony anymore so if i can get him on my side he can help me expose Tony . I sent eric parts of the recording i had when Tony was talking about him and he got rehired. About that time they someone seen me really upset about how Tony talked to me and text me was i ok . So i started talking there would be days id go home crying dealing with him and some times i would call in to not deal with Tony . I went on and on how i was being treated . There was an employee Nick over heard tony saying he wanted the plant to be little mexico only with Mexican employees. Lisa the person i opened up to told our new hr so i had to give my statement . I even told her about how i tried to talk to jeff about how tony took my line away and jeff took tonys side. The hr told me that jeff wanted to sit im the meeting when i told hr what was going on and she said thats againts company policy so a week lated Tony was fired nothing was said to me then Jairo became the new supervisor so he said he will get me my raise because i deserved it more then anyone . I was looking for the dollar that all the leads got but i didnt get it . The raise the the whole plant go they used that to put me up to what i should have been making a long time ago after the first month like jeff said so i wrote i letter to hr about how i still feel discriminated againts because i didnt get the raise we were all promised . Nothing was said about it after that . It was time for the whole plant to get raises again on what we were making at that time so since i didnt get the raise like everyone else did i got a smaller raise again . I had a couple of family emergency where i called in . One was when my brother tried to kill my mother . He attacked her got arrested and sentenced for only 4 years but there was times my mom felt uneasy so i would stay witg her . Another time They found my uncle dead in his home after being dead for almost a week not knowing the cause. Then before my uncle’s funeral my mom got admitted into the hospital so i missed a day . Jeff wrote me up for missing so much work and told me if i missed anymore days i would be fired so when my truck caught fire and i lost all my close in the fire i was late but i still went to work . When i got into a car wreck and totaled my new car i still went to work . Other employees he told the same thing to the same day as me called in time and time again missing days at a time. Then we started talking about lockout tagout then everyone got locks then starting this year the started pushing on using our locks around the last days i worked my car broke down so i had to find away to work i got kicked out of the place i was living and i couldn’t come home so i went place to place . I got a car and they asked if i could come in 4 hours early . I went in to work on a like but the wrong parts were on it so i turned off the machine at three different areas and one of the sensors was apart but i didnt have my lock and employee on the second shift left her machine on the other part of the plant and seen i didnt have my lock and told the supervisor before the supervisor came out i was done on the machine he asked about my lock i said ivd been homeless so it could be some where i was so i said can i use one for you he said no the assistant plant manager told him to stop but my supervisor loan me one when i needed it . He sent me home then Jeff called me into his office and said what if the machine came on . I said there is no way it could i turn it off in three placed and the sensor isnt connected . A few day before they had maintenance looking at it because it wouldnt come on because of the sensor i was talking about. Jeff said he will see if i was right about the machine not coming on so he suspended me then fired me.

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