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.

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.

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.

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.

Lawsuits are tricky business, and hard evidence is fundamental to your success. If you’re considering litigation, it’s important to begin gathering concrete evidence as early as possible. It may be true that hearsay and circumstantial evidence work well when you’re griping about your boss with your best friend, but your lawsuit will be for all for naught unless you have evidence you can see, prove, or hold in your hands.

1. Write it down. Whenever you make a complaint, do it on paper, not verbally. You may have told your HR manager that you had been called a racial epithet, but your HR manager can easily deny that fact unless you have a paper copy of the complaint that you filed.
2. Make a note of it. Our memories can be unreliable, so keep a careful record of any workplace violations perpetrated against you. Otherwise, situations and experiences will change over time in your mind and will be much more difficult to prove. Write down times, places, names, dates, etc.
3. Get witnesses. Every time someone infringes on your rights – be it verbally, physically, or in some other way – verify with any bystanders that they saw it take place. These witnesses will be invaluable when it comes to the time of the lawsuit.
4. File it away. If a document comes across your desk that could be used as evidence in your suit, hang onto it.

And most importantly, get someone on your side who knows how to navigate the legal landscape. Your Los Angeles employment law experts are here to make sure your rights are protected.

Such an agreement may be shown by the acts and conduct of the parties, interpreted in the light of the subject matter and the surrounding circumstances.  Duration of an employee’s  employment, commendations and promotions received, the apparent lack of any direct criticism of the employee’s work, the assurances that were given, the employer’s acknowledged policies, promises made to induce an employee to leave another job and other relevant facts are all analyzed to determine whether the totality of the relationship supports a claim that an employee could only be fired for good cause.  .

If there is a situation where good cause is required for termination based on alleged employee misconduct “good cause” typically requires “fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual.  It is notable that “good cause” requires a reasoned conclusion, in short, supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.

Your right to a safe and fair workplace is protected under law. However, the process of filing claims can be complicated and full of obstacles. Here are just a few of the difficulties of the filing process:

• First, charges must be filed with both state and federal employment offices.
• These offices may either conduct an investigation themselves or provide you with a “right to sue” letter.
• Filing charges incorrectly can be fatal to your case. In some cases, judges will allow the charges filed to be used as evidence against the employee who filed them.
• Defense lawyers will also exaggerate or distort inconsistencies or gaps that they find in the charges, incriminating the employee who filed them.

It’s important to have the right help on your side. With Los Angeles employment law experts Callanan, Rogers, and Dzida on the case, you’ll be able to avoid the pitfalls that await and obtain the justice you deserve.

However, employment law is quite complex in nature and so when it comes time to choose a firm to represent you, you’ll want to do some extensive research in order to ensure you receive a favorable outcome.  Always consider the following:

• Reputation–read online testimonials or call the firm secretary and ask for proof to back up a firms reputation.
• Understanding of the system and your rights–check the track record of a firm’s successes and failures.  Are there favorable or unfavorable patterns that show reason for concern?
• Reliability–will the firm’s representatives really be there for you when you need them? What’s included in the contract?
• Affordability–while you should never compromise on service, especially if you’ve been treated unfairly, you’ll want to ensure the firm’s rates will fit into your budget.

Typically employment in California is “at will.” This means that, unless your employer made a specific promise about the length of your employment in an employment contract, the employer can fire you or lay you off at any time with or without reason.  Do you feel you’ve been wrongfully terminated?

If you’ve been wrongfully terminated, our goal at Callanan Rogers & Dzida, LLP is to help you obtain financial recovery and justice through the legal system.

This is an incorrect notion.  ”At will” means an employer may discharge an employee at any time or an employee may quit at any time.

However, that does not mean the employer may terminate the employee with impunity.

The California Constitution as well as the Fair Employment and Housing Act protects many classes of employee from discriminatory discharges based on age, race, disability, religion, marital status etc.

The Fair Employment and Housing Act, the California Labor Code, and many other State and Federal laws protect an employee from retaliatory terminations.  For example, an employee may report that she is being sexually harassed and then is retaliated against with a discharge for false reasons.  An employee may blow the whistle because the employer is manufacturing goods in violation of the law.  An employee may have been discharged because he complained about not receiving his rest breaks or overtime.  The list goes on and on.

The Labor Code prohibits an employer from making false representations which cause an employee to change residence and quit his/her job in reliance on these representations and then is terminated.

Sometimes, an employee is not really “at will” because the totality of the circumstances imply a promise that the employee may only be terminated for good cause.  Courts look at factors such as the length of employment, employer practices, performance evaluations, oral promises made, etc.

When employers terminate an “at will” employee under suspicious circumstances, it is wise to obtain the advice of an employment attorney to determine if one or more of the multitude of laws protecting employee’s rights has been violated.