How Does an employee Know if They are Being Discriminated Against in the Workplace Based on Their Disability?

How Does an employee Know if They are Being Discriminated Against in the Workplace Based on Their Disability?

Employees with particular disabilities are considered to be part of a protected class by the law. The State of California provides security and rights for American's with disabilities who wish to enter the workforce. These rights are meant to encourage employees with disabilities to participate in society and offer the same opportunities as those who do not have a recognized disability. The law recognizes certain mental disabilities, psychological disorders, intellectual disabilities, organic brain syndrome, and/or emotional or mental illness. Also, certain physical disabilities are recognized as well, such as a physiological disease, disorder, condition, cosmetic disfigurement, or any loss of control of the body.

How do you know its disability discrimination?

The Fair Employment and Housing Act prohibit behavior in the workplace that singles out employees based on their disability by way of hiring practices, promotion selection, and the way in which employee benefits are distributed. Discrimination comes in all shapes and sizes but they all cause damage to an individual with a disability, emotionally as well as to their career. In its most obvious form, discrimination can be inflicted upon an employee through verbal and written comments. These comments often speculate on the employee's capability to carry out their duties as an employee. For example, an employee who was injured in a car accident lost one of his arms. This employee is often verbally abused and humiliated in front of his co-workers by his manager. Often his manager would make comments and make jokes towards him such as "Gosh you're slow, this is really a two-arm job" and "Hey, too bad you can't shop at the secondhand store". In an email, his manager told him he was slow and his disability was a burden on the department. This employee was the only person at the company who was picked on and treated in this manner by the manager. Here, this example shows discrimination in the verbal form as well as the written form. In both forms, the manager singled out the employee from the rest of his coworkers specifically because of his disability which may give rise to a disability discrimination claim.

Again, discrimination can also come in the form of demotion, passing up an employee for promotion, singling the employee out, name calling refusal to provide reasonable accommodation, depriving the individual of employee benefits, cutting hours, reducing pay, or even wrongfully terminating the employee. Although this list covers the most common forms of discrimination, it is not an exhaustive list. A Disability Attorney is a lawyer who specializes specifically in employment law matters and is able to identify certain actions and behaviors as discriminatory that may extend beyond the actions mentioned.

It doesn't just come from upper management

Generally it might be presumed that it is the employer or someone in upper management who would exercise discriminatory behavior towards an employee with a disability, however, that is not always the case. Many employees with disabilities endure adverse treatment based on their disability by fellow co-workers. For example, an employee may have certain adjustments made to their schedule or use a special chair at their desk to accommodate their disability needs. Other employees may make comments such as "oh here comes John, he always gets special treatment just because he has a bum leg" or "Disabled people get it so easy, they are just lazy and want a free ride in life". These types of comments are of course hurtful but they also are downright discriminatory. Commenting on an employee's disability, especially in a derogatory manner can be characterized as harassment and unlawful.

You're afraid you'll lose your job if you complain

If an employee is harassed at work based on their disability, he or she should report the incident(s) immediately and the employee is entitled to do so without repercussions for complaining. This means that if an employee is being treated adversely because of their disability, whether it is by another coworker or a supervisor, it is against the law for an employer to fire the employee specifically for making that complaint. This is called retaliation. An employee who is being retaliated against after making a complaint regarding unlawful conduct, the employee may endure a demotion, bogus reprimands, or even being suspended from work. These are forms of punishment that an employer may inflict upon an employee for complaining and may give rise to a retaliation claim.

Even if an employer has fulfilled their obligation in making reasonable adjustments to accommodate the employee's disability, the employer is also responsible for taking steps to protect the employee from harassment. Once an employee makes a complaint about being harassed by other employees based on their disability, the employer needs to take steps to address the issue such as conducting an investigation, separating the individuals, enforcing or enacting work policies that aid in maintaining a harassment-free environment, and other preventative measures that actually hinder the problem from reoccurring,

Every case is different

So, how does an employee know if they are being discriminated against in the workplace based on their disability? Every case is different and there is no hard and fast rule that can determine automatically if an employee was discriminated against or not. That is why each case is decided based on collecting all the surrounding circumstances before coming to a conclusion.

Disability discrimination in the workplace is considered as unlawful behavior and prohibited by the employment laws in California. Although employees with a disability have rights in the workplace, those rights can still be violated. It is up to the employee to make complaints, keep a personal record of all incidences, and to seek legal counsel if their employer or Human Resources Department is not addressing the issue. If an employee is treated negatively based on their disability, this can be disruptive to the particular employee and may cause the employee to experience stress. An employee with a disability may have the right to refuse to withstand such conditions at work. Contact a Disability Discrimination Attorney today to discuss your rights as an employee with a disability.

Who is considered an immediate "family member" for purposes of taking FMLA leave?

Who is considered an immediate "family member" for purposes of taking FMLA leave?

As if working hard for that promotion or striving for better shifts wasn't hard enough, what happens when the unexpected throws you off course? Becoming extremely ill, being injured in an accident, being called to duty overseas, or needing to care for a sick loved one, these are all situations that have the potential to pop up unexpectedly in an employee's career. Also, some employees join the workforce with a disability and may need time off sporadically to maintain their health. Generally, these occurrences are out of the employee's control but does this mean that their career is over? Is an employer allowed to dismiss an employee who needs time away from work when the unexpected strikes? Does an employee have any rights when it comes to needing time off from work?

A Leave of Absence Lawyer is the type of legal professional who specializes in answering the type of questions that arise when an employee needs to take a leave of absence, has already taken the leave, or is currently on leave. There are federal and state statutes that regulate employee leaves, therefore taking leave can be complex for the employee as well as the employer in understanding what is permitted and prohibited by law. Unfortunately, employers sometimes violate the rights that are given to employees by one of these federal or state statues by demoting the employee, removing the employee from the work schedule, or even firing the employee. This can be frustrating for an employee and can also be detrimental to their career and financial situation. If an employee does find themselves in a situation where they have been treated adversely by their employer because they took a leave of absence, a Leave of Absence Lawyer may be able to represent the employee in legal proceedings.

What is FMLA leave?

In modern times, Congress took notice of the way in which family dynamics were evolving in that more adults who had families were entering the workforce. With this in mind, it was also noticeable how behind employers were as their policies remained rigid and lacked compassion for employees who may need to take a leave of absence. In order to remedy this imbalance, the FMLA was enacted. FMLA stands for Family and Medical Leave Act and is a federal act.

The Family and Medical Leave Act was created to encourage adults to feel confident in their pursuit to maintain a job while meeting the needs of family life simultaneously. The FMLA provides rights and the parameters of those rights such as the amount of leave an employee may take, what situations call for a leave, information on military leave, medical leave requirements, information on paid and unpaid leave, information on re-entry, and how employee rights are enforced.

Keep in mind that in California, the California Family Rights Act (CFRA) is the state law that regulates leaves for employees.

Who is entitled to a leave of absence? 

Being an employee is a start for whether or not an individual is eligible for FMLA leave, but there are additional requirements. The employee must have had their job at the company for no less than12 months from the date of when the leave of absence began. In addition to the 12-month minimum employment, the employee must also have logged a minimum of 1250 hours of work during those 12 months prior to the leave of absence being taken. Lastly, in addition to this two requirements, the employee must prove that they meet what is known as the 50/75 standard. This means that the employee must show that there was a minimum of 50 employees within a 75-mile radius of the job site where the particular employee was working before they took their leave.

Each case is unique and requires a critical analysis of the facts, therefore it is beneficial to contact a Leave of Absence Lawyer who has experience in leave of absence cases. It is always best to obtain a free consultation rather than deciding on your own that you do or do not have a case.

Who is Considered an Immediate "family member"?

In taking a leave of absence to care for an ill family member, an employee must know that a protected leave does not cover all family members. A protected leave to care for a family member extends to a parent, child, or spouse. It does not extend to siblings. Also, in some cases, it may extend to an employee who is the legal guardian of the individual who is in need of their care.

What reasons are considered valid for taking a leave?

An employee's leave may be protected by the law if the employee suffers from a severe illness or health condition, or a spouse, parent, or child suffered from a severe illness or health condition. Another reason that provides a protected leave would be for the birth of a child and or to take care of the child after birth. Also, if an employee adopts a child or takes in a foster child, the initial placement of the child in that employee's care is protected if the employees need time off for this process.

If an employee's spouse is in the armed forces currently serving in operational work and an emergency arises out of being on active duty, an employee may have a protected leave. Lastly, an employee may take a protected leave to care for an injured member of the armed forces or veteran, or to care for them while they are in the process of rehabilitation.

As an employee in California, it is imperative to know your rights in the workplace. Taking a leave of absence can be disruptive but it should not cost an employee their job or career based simply on taking the leave. While FMLA remains in place to protect employees, employers today still attempt to violate these rights, therefore the need for Leave of Absence Lawyer remains. If you took a leave of absence and lost your job shortly after or perhaps you were fired upon submitting a request for a leave of absence, you may have a claim against your employer.

Can I Sue A Company For Wrongful Termination In California?

"We need to talk" is not just a terrifying phrase to hear from your significant other, it is also something you never want to hear from your boss. No good can come from the phrase and if it is said to you at work, it most likely means trouble lies ahead, such as losing your job. Hopefully, you never have to hear those four haunting words at work but if you do and you are fired, is that legal? Do you even have the right legally to fight the decision in court? What if your boss just did not like you and fired you? Can your boss fire you without giving you a reason? How do you know if what your boss did was even allowed according to the law? All of these questions are totally valid and should be asked! This was your job, your livelihood, your means of providing for yourself and perhaps others, and this could also negatively impact your career, so you need to ask these questions, but who do you ask? Is it worth pursuing in court? An Employment Attorney is the type of legal professional who would be able to provide the most educated opinion on these common questions regarding your termination. When and if you do need these questions answered, keep the following information in mind.

Throughout America, every state varies on their laws, especially the laws that regulate employment. As an employee or applicant, it is important to know the laws that your state in particular enforces. This is because a situation may arise at work where you might have been treated adversely and depending on the state, you could potentially recover.

In California, employees are called "at-will" employees. What in the world does that even mean though? "At-will" means that if you are an employee in the State of California, your boss or employer can decide at their own will to boot you out of your job for any reason or even for no reason at all. So your boss could basically walk into your office today and say "Hey, I've decided you just absolutely repulse me and the sight of your face makes me want to gouge my eyes out. You're fired!", and it could technically be legal. It is not likely that someone would actually be so blunt and fire you for repulsing them, but technically there are no laws that prohibit the action or behavior unless it is motivated by a protected class or activity. Some may argue that the flip-side to at-will employment for the employee is that unlike other states, the employee is not required to give a two-week notice of resignation. The employee can quit without notice, for any reason or no reason at all and not be sued by the employer.

At first glance, it seems pretty crappy to be an employee in California but that's not the whole story. As an at-will employee can you really be fired for any reason? Like every good lawyer will tell you, the answer is: "well it depends". The circumstances that surrounded the termination are essential and may lead to the exception to at-will employment. Although an at-will employee can be fired for any reason or no reason at all, they cannot be fired for an illegal reason. This means an employer cannot fire an employee based on belonging to a protected class such as race, age, religion, gender, sexual orientation, disability, medical condition, military status, marital status and so forth. Another reason that may be considered as illegal would be retaliation for making a complaint regarding unlawful issues at work. Depending on the facts of the situation, even being fired for refusing to consent to a lie detector test could be considered as wrongful termination. One other example of being fired for an illegal reason would be in retaliation for filing a complaint, testifying in legal proceedings, or even for reporting abuse. There are many ways in which an employee could be fired for an illegal reason that you may have had no idea existed.

What is considered an "illegal reason" can be very complex so it is essential to provide to an Employment Attorney all of the facts that lead up to your termination and even any details you can provide for what happened after. Important details may include but are not limited to who your employer replaced you with, whether you made any complaints verbally or in writing about adverse treatment, for how long you were employed for, and perhaps were any comments made to you leading up to your termination.

For example, let's take the previous example from the rather blunt boss who fires you because he basically just hates the sight of you. If prior to this happening your boss asked you out on a date and you turned him down, his actions in terminating you may have been illegal. This is where the circumstances are key. This might be considered wrongful termination because you were fired for an illegal reason which in this case could be quid pro quo sexual harassment and/ or retaliation. Another example would be if you are Hispanic and your boss did the same thing to several other Hispanic employees, and in fact, only fired Hispanic employees and only hired non-Hispanic employees. Again these surrounding circumstances may constitute a wrongful termination, which in this case may be a race discrimination claim. 

So can you sue a company for wrongful termination in California? Taking all the information provided above, the answer remains "well it depends", which is better than "no". Every case is different and requires careful consideration from an Employment Attorney. An Employment Attorney has the specific expertise in the complex and forever evolving employment laws in California. The good news is that if you are told "we need to talk" to your boss, you do have certain rights and they can be enforced or you may recover if those rights were violated. If you do decide to call an Employment Lawyer regarding a potential wrongful termination claim, be sure to contact a law firm that offers free consultations like Stevens & McMillan.

Is there a statute of limitations that I have to file a sexual harassment claim before?

A statute of limitations is not something that only constrains matters in criminal law, it also impacts sexual harassment claims that occur in the workplace. Certain claims under Employment Law regulations have a statute of limitation attached to the filing of the claim, meaning an employee cannot just file a lawsuit at any time, they must file certain claims within a certain time period that is set by statute. The law requires that an employee file a claim within a certain time frame or the claim will expire. An employee can avoid missing the statute of limitations on a sexual harassment claim by being well informed of the deadlines that the law imposes. Every case is different and it is important to ask an Employment Lawyer at Stevens & McMillan to be advised in your particular case.

First and foremost, before looking into the statute of limitations on sexual harassment, the employee might need to know if they were sexually harassed in the first place. Because the statute of limitations concerns the act of sexual harassment and when it occurred it is useful for the employee to know all the types of behaviors that fall under sexual harassment. Certain behavior is considered sexual harassment under the law, such as unwanted sexual advances or romantic pursuit, and other unwelcome conduct that is of a sexual nature, including verbal comments, inappropriate touching, lewd gestures, and visuals, depiction of sexual acts or sexual content, including sexual innuendo and/or words, lewd jokes and derogatory statements directed at an employee based on gender. Examples these acts may be demonstrated through asking the employee on a date, imitating or acting out sexual acts such as oral sex, any kind of unwanted touching that is not acceptable in the course of everyday life, blocking an entry or exit with their body, making comments that are about sex, cat-calling, blowing kisses, winking, and even sending emails or texts that are of a sexual nature. The behaviors and acts mentioned is not an exhaustive list, but as you will read below, being able to identify sexual harassment and all the forms it may take might have the potential to set a statute of limitations at a farther in the future date. If you are uncertain if you were sexually harassed by your coworker or boss you should discuss the details of what happened to you with an Employment Law Attorney.

An employee who has been sexually harassed at work or in a work setting does need to file their claim before the statute of limitations expires. Before the employee is able to file in Court, the employee must exhaust administrative remedies through the Department of Fair Employment and Housing (DFEH). In California, an employee who has been sexually harassed in the workplace needs to file a complaint about the sexual harassment with the DFEH. Not only do they need to file a complaint with the DFEH, the complaint must be filed within 12 months of the most recent act. For example, Tammy has endured unwelcome sexual advances made by her boss towards her for the last six months. On numerous occasions, he has made comments to her about her breasts and often tried and sometimes succeeds at giving her back and neck massages. Over the course of the six months, Tammy has made several complaints to the Human Resources Department about her boss' unwelcome touching and his offensive remarks, yet nothing has been done to remedy the situation. Tammy recalls the last incident occurred on March 2, 2017, which was the day she filed her last complaint with the Human Resources Department after her Boss tried to massage her neck again. Because this was the last time her boss had sexually harassed her, she must file her sexual harassment complaint with the DFEH by March 2, 2018, in order to protect the statute of limitations and be able to file a lawsuit.

After a complaint is filed with the DFEH, the employee may be given a right-to-sue letter, This means that the employee who filed the complaint has exhausted her administrative remedies and now has permission from the department to sue their employer or organization. Alternatively, the employee may ask for a right-to-sue notice, which means that the Plaintiff is requesting the DFEH stop conducting an investigation and therefore the employee can begin legal proceedings. Once the employee receives either a right-to-sue letter or a notice of case closure, the employee has 12 months from that date to bring a civil lawsuit in Court against their employer for sexual harassment.

Keep in mind that filing the complaint does not mean that the employee has commenced legal proceedings. Also, the Department producing a right-to-sue letter does not mean the employee is guaranteed to have a successful case, it is formal permission to begin legal proceedings against the employer. For instance, the employee may hire an Employment Lawyer upon receiving the right-to-sue letter. The employee may call an Employment Lawyer because that is the type of attorney who handles sexual harassment cases that take place at work.

Although an employee may feel pressured and restricted by the enforcement of a statute of limitations on sexual harassment claims, one of the reasons it may positively impact the employee is that they have a better chance of obtaining fresher evidence. This means that the statute of limitations may encourage employees to obtain witnesses statements sooner while the details of the circumstances are still fresh in the mind of the witnesses and even for the employee themselves. So while the statute of limitations can feel like it is working against the employee, it can also aid in building a stronger case. In addition, if the employee decided to hire an Employment Lawyer, the sooner the employee files their complaint with the DFEH, the more time the legal team will have to investigate the matter and put the case together.

Again, each potential case is different and if you feel that you have a sexual harassment issue in the workplace, you should still reach out to Stevens & McMillan to discuss your potential claim.