Blog

Proving unlawful discrimination is often based on circumstantial evidence. It is not very often that we will find a sophisticated employer committing direct acts of discrimination (e.g. discriminatory remarks about a protected class of persons).

There are many scenarios which can lead to a reasonable inference that discrimination is motivating the adverse employment action like a firing or demotion.

Here are a few that are important to look at:

Who is your replacement? If you are over 40 and suspect you were terminated because of your age, is your replacement substantially younger than you? Or if you have a disability or medically condition and suspect you were discriminated on that basis does it appear that your replacement is injury or condition free. If you believe your race or ethnic origin motivated the decision what is the race or ethnic origin of your replacement? The list goes on and on. If you are a member or a protected class and suspect discrimination-who is your replacement? This could suggest that discrimination affected the decision to
terminate you.

Were you terminated or demoted for a false reason? If the employer is providing a dishonest reason as a basis for your termination or demotion this could very well lead to a reasonable inference that the decision was a result of discriminatory bias.

Is your employer changing the story for the reasons you were discharged or demoted? Shifting contradictory reasons are often are helpful in supporting an inference that the adverse decision was motivated by discrimination.

Were you treated differently than others? If an employee can show that he was treated differently than similarly situated employees, he/she may use this evidence of disparate treatment as circumstantial evidence. To show that employees are similarly situated, a plaintiff need only establish that he or she was treated differently than other employees whose violations were of “comparable seriousness.”

Are there contradictions, weaknesses or inconsistencies in reason your employer gave for your discharge or demotion? A causal link can be shown by demonstrating “ ‘weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for his action so that a reasonable fact finder could rationally find them unworthy of credence” and hence infer discriminatory intent.

Were there departures from or irregularities in normal company procedures? Departures from regular practice, or deviations from an employer’s own policies, allows an inference that an improper motivation was in play.

If you believe you have been wrongfully terminated or demoted examine the above-mentioned scenarios. Did anything like this happen to you? If so you should be consulting with an attorney.

Were you terminated because of a sham or inadequate investigation? A sham investigation also supports a finding of improper discrimination. If the investigation was suspicious, incomplete, inconsistent or dishonest this showing could lead to a finding of discrimination.

Were you given unobtainable goals? It has been found that it is permissible for a jury to view the imposition of an unattainable goal as evidence of pretext because a jury may reasonably view the goal or production quota as an effort to set up an employee for failure.” The performance improvement plan that an employer imposed on the employee was specifically designed to create such a reason to fire the employee by setting performance standards that could not be met.

The California Fair Employment and Housing Act (FEHA) protects employees who have physical and/or mental disabilities from harassment or discrimination. California Government Code § 12940 states:

It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification…(a) For an employer, because of the …physical disability [or] mental disability …of any person, to…discriminate against the person in compensation or in terms, conditions, or privileges of employment.
Physical Disability includes physiological disease, disorder, condition, cosmetic disfigurement or anatomical loss that affects a body system and limits a major life activity. [Gov. Code § 12926(k).]

Mental Disability is defined as having a mental or psychological disorder or condition that limits a major life activity. [Gov. Code § 12926 (i).]
The protection for disabled workers in California greatly exceeds protections currently afforded by Federal law. Under California law, the definitions of “mental disability” and “physical disability” require merely that the disability “limit” a major life activity. Under the ADA the condition must “substantially limit,” a major life activity. This Federal definition gives the employer more room to argue for denying request for accommodations to their disabled employees.

A “major life activity” is broadly construed to include physical, mental, and social activities and working. [Gov. Code § 12926(k)(B).] Additionally, under California law “whether a condition limits a major life activity shall be determined without respect to any mitigating measures, unless the mitigating measure itself limits a major life activity.” [Gov. Code § 12926.1.] Thus, more mental and physical condition will qualify as disabilities under California law.

Termination of employees who need medical leave for a physical or mental disability could be a violation of the Fair Housing and Employment Act.

Employers have an affirmative duty to reasonably accommodate disabled employees. Leave time for a finite period is considered a reasonable accommodation under the California Government Code (Fair Employment and Housing Act).

“Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future ” (Jensen v. Wells Fargo Bank (2000) 85 Cal. App.4th 245, 263.)

Thus, employees who need more leave time off to recover but are laid off or terminated by an employer because his/her 12 week family leave period could possible have a wrongful termination claim. Also employees who are not otherwise qualified for family leave but do meet the qualifications for being disability under the California Government code may also have this right to medical leave as a reasonable accommodation for a disability.

In California, both the Family and Medical Leave Act and the California Family Rights Act protect your right to take a leave of absence. Unfortunately, not everyone is protected under these acts. To claim the right to take a needed leave of absence, you must first:

• Work for your employer for at least one year,
• Have worked 1,250 hours in the past year, and
• Be employed by someone with at least 50 other employees in the surrounding 75 miles.

Because of this limitation, only half of workers are actually covered by the FMLA and the CFRA. The amount of leave time you can take depends on the nature of your leave of absence.

If you need to care for a newborn, newly adopted child, seriously ill family member, or for your own illness, you qualify for up to 12 weeks of unpaid leave.

If you have a disability of which you made your employer aware upon employment, you may qualify for additional leave time past the 12 week maximum.

For those incapacitated by pregnancy, childbirth, or related medical conditions, the California Pregnancy Disability Leave Law qualifies you for four months of leave time. After you have used your four months of PDLL leave, you can take your additional 12 weeks of CFRA leave if you choose, for a total leave of up to seven months.

It is illegal for your employer to treat you differently for taking medical leave. If your right to leave has been violated, contact your Los Angeles employment law experts.

In Patrick Kelley v. The Conco Companies, the Court of Appeal recently upheld an employee’s claim for retaliation against his former employer even though it found that he was mistaken for thinking that the company broke the law.

Patrick Kelley was a union employee and in July of 2006 he was hired by Conco Companies as an apprentice ironworker. While working, Kelley was subject to sexually explicit and threatening comments by his male coworkers. Kelley complained to his managers about the sexual harassment, which drew the ire of his coworkers. At this point, Kelley was a target and the threats just increased.

Kelley worked for other contractors after Conco but the Steel and Iron industry was a small world and Kelley’s new coworkers berated him for complaining at Conco. By November of 2007, Kelley was deeply depressed and he decided to resign. Kelly filed suit for sexual harassment, sex discrimination and retaliation under the California Fair Employment and Housing Act.

The Court’s Analysis

The trial court granted the employer’s motion for summary judgment, rejecting Kelley’s claims of sexual harassment, sex discrimination and retaliation.

The Court of Appeal agreed that Kelley did not present a claim for sexual harassment. The Court overturned previous law that held that a Plaintiff could sue for same-sex harassment as long as the Plaintiff proved he was being treated “differently” because of his gender (Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1557 [in a very similar case, Court upheld claim for sexual harassment where male, heterosexual Plaintiff was subject to homosexual taunts].) The Court held that, “[w]hat matters, however, is not whether the two sexes are treated differently in the workplace, but whether one of the sex is treated adversely to the other sex in the workplace because of their sex. (citation.) While Kelley was undoubtedly subjected to grossly offensive comments and conduct, he did not produce evidence which would support a claim that he suffered discrimination in the workplace because of his gender.”

But even though the Court found that unlawful sex discrimination/harassment did not occur, Kelley still had a valid claim for “retaliation” under the Fair Employment and Housing Act: “a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA. [Citations.] [¶] . . “

This rule is immensely powerful for employees and works outside of the discrimination context as well. For example, if an employee mistakenly thinks that he is not being paid all the wages owed to him, complains and is terminated as a result, that employee has claim for unlawful retaliation.

The Court of Appeal’s ruling to uphold retaliation for the mistaken employee is good public policy. Employees who reasonably (but mistakenly) stand up for their rights should not have to fear being retaliated against. Callanan, Rogers & Dzida, LLP frequently represents employees faced this type of unlawful retaliation.