4 Rights Transgender Employees Have in California

While it is often challenging for any employee navigating work life to be a member of the LGBTQ community, transgender people tend to face the most severe problems, particularly in terms of discrimination. In 2016, the National Transgender Discrimination Survey found that 16 percent of transgender people had lost a job due to bias and that the unemployment rate among respondents was 15 percent, which was three times as high as the rate of unemployment in the U.S. population. In addition, in the year leading up to the survey, 30 percent of transgender respondents who had a job reported facing mistreatment at work due to their gender identity or expression This prejudice is present not only in employment but in society in general. Transgender people face pervasive mistreatment and violence. In the same aforementioned survey, it was found that almost half (47%) of transgender respondents were sexually assaulted at some point in their life. Fortunately, California has been working to strengthen the rights of transgender employees and transgender folks do have several legal protections. This article will go over some of those rights. If you think that your rights have been violated, speak with an employment or discrimination attorney to figure out what you can do about it.

For those unaware, transgender is a term used to describe people whose gender identity is different than their biological sex. It is separate from sexual orientation, which refers to who a person is attracted to. For instance, a transwoman can be bisexual, heterosexual, homosexual or have a different sexual orientation. California regulations define gender expression as an individual’s gender-related behavior or appearance, or the perception of such behavior or appearance, whether or not stereotypically associated with the person’s gender assigned at birth. These regulations define gender identity as an individual’s internal understanding of their gender and notes that gender identity does not need to match gender assigned at birth. Moreover, someone’s gender identity might be female, male, a combination of female and male, or neither female nor male. People who do not identify as only male or only female are typically considered non-binary and are afforded the same protections as transwomen and transmen. Furthermore, transgender people are protected during their transition at any stage, as well as if they do not decide to transition at all. Transition refers to both social and physical aspects of a person deciding to live as the gender they truly identify with. Social transition is the process of aligning one’s gender in social areas of life to the internal gender identity. It can include coming out as transgender to friends, family, and other people, as well as dressing or grooming in alignment with gender identity. Social transition also often includes changing name and personal pronouns, which are important changes to respect. Physical transition involves changing the body with medical treatments, such as hormone treatment, so that an individual physically aligns with their gender identity. With these definitions in mind, let’s review how California has tried to protect its transgender workers.

1. The right to appropriate facilities

Employers have to allow employees to use facilities like bathrooms that correspond to their gender identity or expression regardless of sex assigned at birth. Single occupancy facilities should be labeled with gender-neutral signs, like “Unisex” or “All Gender Restroom,” or even just “Gender Neutral.” While this right might seem trivial to some, it has been the cause of significant strife in the transgender community, and there has been a significant public debate on a national level regarding this so-called bathroom issue. Unfortunately, harassment is fairly common for transgender people who try to use the facilities aligned with their gender identity. Legal protections are an important step to addressing this problem.

2. The right to appropriate dress codes

Additionally, employers must be mindful when it comes to gendered dress codes. While these are not inherently illegal, employers cannot command an employee to conform to a grooming or dress code that is inconsistent with the employee’s gender identity or expression. Exceptions occur for the sake of business necessity, but they are not common. This right is particularly important during social transition, and a person changing from one gender’s dress code to another is protected.

3. The right to be free from discrimination

In California, it is illegal for employers to discriminate at any stage of employment based on gender identity or expression in the same way that it is illegal for them to discriminate based on sex, race, and national origin, among other categories. This means people cannot be fired, for instance, because they are transgender. Additionally, during hiring, employers cannot discriminate against people who are transgender; to help avoid potential bias, there are certain questions employers are legally not allowed to ask an applicant. These include questions meant to ascertain an applicant’s gender identity or sexual orientation, including queries about marital status, spouse’s name, etc. Questions about a person’s body or plans for surgery are also off-limits, unsurprisingly.

The fact that gender identity and expression are protected classes in California is the most important protection transgender workers have here, and the protection of these classes is something that many people are hoping the Supreme Court soon recognizes under Title VII’s prohibition of sex discrimination for the benefit of all the many states that currently allow discrimination against transgender people.  

4. The right to an informed workplace

Employers have a couple of specific obligations that essentially afford transgender people greater protection by disseminating and increasing knowledge of transgender rights in the workplace.

First, employers are legally required to display a poster detailing transgender employees’ rights. This poster has to be visible to all employees, as well as easily accessible. To make this requirement easy for employers, the Department of Fair Employment and Housing (DFEH) made a poster employers can use. This is actually quite important because marginalized groups, including transgender folks, often do not realize what their rights are. This poster gives them power by providing that knowledge. Of course, it also provides that information to potentially ignorant coworkers, which may help preclude harassment.

Second, employers with at least 50 employees are required to provide at least 2 hours of training on sexual harassment to supervisory employees. This training must include information about harassment based on sexual orientation, gender identity, and gender expression. As a result, supervisors are in a better position to ensure a welcoming and safe work environment for all employees, regardless of gender identity or expression.

            Transgender people deserve to be treated the same as cisgender people and, hopefully, that will be the norm one day soon. In the meantime, for those whose rights have been violated, for those suffering from discrimination and harassment at work because of their identity, reach out to an employment lawyer and learn how to fight back.

6 Nuances of Disability Discrimination Law in California

Under California state law, workers with a disability are protected against several forms of discrimination in employment practices. Employers subject to this legislation cannot base employment decisions like hiring, firing, promoting, paying, or training on an employee’s disability status. Moreover, employers are legally obligated to make reasonable accommodations for workers who have a disability so that they can perform their job duties. Employees who are protected under state law include those who suffer from physical and mental disabilities, as well as medical conditions. Physical disabilities include physical impairments affecting a major bodily system and limiting a major life activity. Some conditions have been explicitly named as protected under state law: blindness, deafness, missing limbs, mobility impairments requiring wheelchair use, cerebral palsy, and episodic or chronic conditions like epilepsy, seizure disorder, diabetes, multiple sclerosis, HIV/AIDs, hepatitis, and heart/circulatory disease. Mental disabilities in this context include mental or psychological conditions that limit a major life activity (e.g. autism, bipolar disorder, obsessive compulsive disorder, clinical depression, cognitive disabilities, etc.). Medical conditions refer to genetic characteristics associated with a disease or health impairment related to a diagnosis of cancer; they often come up in disability discrimination because of increased risk of future medical issues. These definitions may seem vague or unclear, giving a glimpse into how complicated disability discrimination law can be. Let’s look at a few things that are good to know about the coverage and limitations of disability discrimination law in California.

1. California law specifically excludes particular mental health problems

            While California law has broader protections for workers with a disability than federal law, there are explicitly excluded categories of mental health problems that are not protected at all from discrimination in employment practices. These include compulsive gambling, kleptomania, pyromania, and particular sexual behavior disorders, including pedophilia, voyeurism, and exhibitionism. Additionally, substance abuse disorders resulting from the current, unlawful use of drugs are not protected. Consequently, discrimination based on any of these problems is legal.

2. Mild, temporary disabilities are not protected

            This probably makes intuitive sense to most people. What it means is that employees suffering from conditions that have minor or no long-term effects do not qualify as a protected class. For instance, Perry has the flu. He asks his boss for a reasonable accommodation to his temporary disability in the form of a week off of work. His boss tells him he can use sick days. This example illustrates that it really wouldn’t make sense for colds, flus, and the like to allow people special accommodations when there are alternative ways to deal with those relatively mild problems. Other conditions not protected include sprains, muscle aches, bruises, soreness, minor scrapes, non-migraine headaches, and minor gastrointestinal disorders that are not chronic. If employers want to fire someone for getting the flu, they can technically do that, assuming at-will employment, and most courts will not cry foul unless the sick person had a pretty severe reaction. 

3. Reasonable accommodations must be, well, reasonable

            Yes, employers must make reasonable accommodations for employees with disabilities. What does that mean exactly, though? “Reasonable” in this context means the accommodation does not impose an undue hardship on the employer. Undue hardships would involve substantial expense and difficulty for the employer and can be determined by looking at things like the employer’s financial resources, the size of the business, the nature, and cost of the necessary accommodation, and the impact the accommodation is likely to have on the employer’s business operations. Given that, it is usually possible for employers to come up with reasonable accommodations. Installing ramps, providing screen reader software or closed captioning at meetings, printing materials in large print, and adjusting work schedules are all examples of common, relatively simple solutions to problems posed by certain disabilities.

4. Employers who do not know cannot be held liable 

            Employees with a disability typically have a responsibility to make their employer aware of any need for accommodations. Legally, employers cannot be held responsible for discriminating based on disability if they were unaware of the disability. For instance, employers are not liable for failing to accommodate someone they did not know needed to be accommodated. Most employees with disabilities who might need reasonable accommodation should inform their employer about their condition, assuming the disability and limitations are not very obvious. It is a good idea for employees to give notice of their disability in writing, whether through email, text, or dated letter. Documenting this notice can protect the employee later if the employer tries to deny knowledge of it. Sometimes, employees must provide medical documentation confirming their disability or need for accommodation and in those cases, failure to do so can preclude any claims of illegal disability discrimination.

5. Some employers must accommodate people suffering from alcoholism and/or drug addiction

            Employers with 25 or more employees must provide reasonable accommodations for employees with addictions to drugs or alcohol. However, employees are only eligible if they voluntarily enter and participate in a drug or alcohol rehabilitation program, which the employer must permit as long as the leave of absence would not pose an undue hardship. The period of leave is unpaid unless the employee uses accrued leave, like sick days. Moreover, the employer has a duty to try to protect the privacy of any employees who do choose to participate in the rehabilitation program. These protections only extend so far, though. Employers are within their right to discipline or fire employees who show up to work under the influence of drugs or alcohol, as well as employees whose performance is negatively affected by their alcohol or drug use.

6. Mixed-motive claims can get tricky

            If an employer takes an adverse employment action against an employee and part of the reason is based on said employee’s disability or the employer’s perception of a disability, then that should be grounds for a successful discrimination lawsuit, right? Well, not exactly. If there were multiple motives the employer had in taking the action and they were not all discriminatory, then the law gets a little more complicated. An employer might have legitimate reasons to fire an employee with a disability that are unrelated to the disability. In mixed-motive disability discrimination cases, the discriminatory intent must be a “substantial motivating factor” in the adverse employment decision. If an employer can show that a legitimate, non-discriminatory motive by itself would have led to the same decision, then their liability is significantly reduced.

            Clearly, there are many nuances of the law when it comes to disability discrimination. Because the law can be so complicated, employees who think they have a claim or want to understand their rights better are urged to contact a discrimination attorney. Together, they can work towards equality for people of all abilities

4 Factors Considered in the Creation of a Hostile Work Environment

What does it take to transform a simply annoying work environment into a sexually harassing hostile work environment? In order to answer this question, it is important to look at all of the circumstances together. There are four primary factors that are considered when looking at the totality of the circumstances. For your knowledge, these four factors are described in this article, although it is important to note that no single factor is required for a work environment to be deemed hostile. If you think you might have a claim for sex discrimination in the form of a hostile work environment, contact a discrimination attorney as soon as you can to figure out what you can do about your situation. 

1. The frequency of discriminatory conduct
   Sometimes, work environments can be deemed hostile because of how pervasive the inappropriate behavior is. Incidents of abusive conduct have to be sufficiently concerted and continuous to be considered pervasive. An isolated inappropriate sexual remark made to a co-worker would not be enough to make a claim of sexual harassment, for example, as was supported by the case, Clark County School District v. Breeden. There are several examples of cases where the plaintiff has not succeeded because the inappropriate behavior was not considered pervasive. In one case, Brennan v. Townsend & O’Leary Enterprises, Inc., the plaintiff alleged that there were four incidents that occurred over four years involving three different employees, and two of the incidents were at Christmas parties that were off of work property. In this case, it was ruled that the evidence did not constitute a concerted pattern of harassment. On the other hand, in Hostetler v. Quality Dining, Inc., only three incidents were considered enough to create a hostile environment. However, in that case, all three incidents happened in one week and included a forced French kiss, a crass comment, and an attempt to unfasten the plaintiff’s bra. While frequency is an important factor to consider, sometimes a single incident is sufficient to establish a hostile environment claim. However, in those cases, the incident must be quite severe.
2. The severity of discriminatory conduct
   Severity is one of the other four primary factors that must be considered in hostile environment claims. As mentioned, a single incident can show a hostile environment if it is very severe. For example, physical groping qualified in the case of Myers v. Trendwest Resorts. Physical assault or the threat of physical assault can also be sufficient in isolation, as seen in Hughes v. Pair. In cases like those, the employer can be held liable if their response does not quickly and effectively eliminate the problem (e.g. removing the harasser from the workplace). For example, a single incident of sexual assault followed by inaction on the part of the employer can mean trouble for that employer, as seen in Doe v. Capital Cities and Lockard v. Pizza Hut, Inc. This can be true even when the assaulter is not an employee. Employers can be held liable for their conduct following severe harassment by a third party, such as a client. This was the case in Little v. Windermere Relocation: an employee was drugged and raped by a client and when the employer found out, he cut her pay and told her to move on and clean out her desk after she protested the pay reduction. The plaintiff claimed her employer had made the work environment hostile with his reaction, and the Ninth Circuit agreed with the logic of her argument that the employer’s response following a single, severe incident can be grounds for a hostile work environment claim. In general, the more pervasive the conduct, the less severe it has to be, and the more severe the conduct, the less pervasive it has to be, to be considered a hostile environment. 
3. Whether or not conduct is physically threatening or humiliating or a mere offensive utterance
   In claims of a hostile working environment, it can be helpful for a plaintiff to show that there was some sort of negative effect on their psychological well-being, which could be produced by a physical threat, for example. While this kind of evidence of psychological injury is relevant and helpful, it is not necessary for a plaintiff to demonstrate that they suffered a psychological injury as a result of the sexual harassment. This was upheld in Harris v. Forklift Systems, Inc.
4. Whether or not conduct unreasonably interferes with an employee’s work performance
   Lastly, it is important to consider if the harasser’s abusive conduct was so severe or pervasive that it actually altered the work environment. In one case, Westendorf v. West Coast Contractors of Nevada, Inc., the plaintiff alleged a violation of Title VII based on her supervisor’s sexual remarks to her at work on four occasions over a three-month period. For example, he told her that she needed to clean a trailer in a French maid uniform and asked if women “got off” using a specific type of tampon. She was also asked by the supervisor and another co-worker if she was intimidated by another woman’s breast size, a woman they called “Double D.” The court decided that these remarks were not severe or pervasive enough to alter the plaintiff’s terms of employment under Title VII. A similar case came to the same conclusion but under California’s Fair Employment and Housing Act (FEHA). In this case, McCoy v. Pacific Maritime Association, the plaintiff’s coworkers made offensive and inappropriate remarks in her presence fewer than ten times across four months. These incidents included shouting and calling the plaintiff “stupid,” making crass comments about female employees’ buttocks, and making crude gestures towards an employee once her back was turned. The court decided that the comments, which were not generally directed at the plaintiff, were not so severe or pervasive that they changed the conditions of her employment.
   Every situation is different and has its own nuances. Sometimes, one court will disagree with another on the facts or legal standards to employ in a given case. For that reason, it is very important when considering litigation for sex discrimination to speak with an experienced employment attorney, who can navigate the common pitfalls and obstacles posed by such cases and give you a better chance at getting justice.

1. Drug testing in some cases
   Job applicants can be drug tested once they have received conditional offers, as long as they are all drug tested and it is not an issue of discrimination. For instance, an employer who only obliges African American applicants to take drug tests as a condition of employment would be in blatant violation of federal and state discrimination laws. For most jobs, random drug testing of current employees is typically considered unreasonable. Exceptions, of course, do exist and include employees who work in safety or security sensitive roles. Employers who have reasonable suspicions about illicit drug use can do a drug test; it is random ones that are unannounced and not previously consented to that are most problematic. Employers should have written policies about drug testing, which can be important to set employee expectations (recall that it is illegal for employers to violate their employees’ reasonable expectations of privacy).
2. The imposition of medical exams or questions about medical information
   Employers are not allowed to discriminate based on medical condition or disability status. To this end, they generally cannot oblige employees to disclose the medications they are taking or to provide information about the internal state of their body. Generally speaking, employers cannot ask job applicants to reveal confidential medical information or to submit to medical examinations. However, once a job offer is made, an employer can make it conditional upon you passing a job-related medical examination (e.g. a fitness test for a firefighter that assesses specifically job-related duties). Of course, that means all entering employees in that kind of position must be required to do the same. One person cannot be singled out due to the employer’s belief that they have a disability, as that would be illegal discrimination. Additionally, even if a disability is revealed during such a medical exam, if the individual can perform the essential functions of the job with a reasonable accommodation (one that does not pose an undue hardship on the employer) then the employer cannot refuse to hire them.
   Moreover, medical records that an employer might have about employees for health insurance claims, workers’ compensation claims, or disability or medical leaves must be kept confidential. Your boss cannot go around telling all your coworkers that you have diabetes, for instance, if you only told your boss because you needed to take leave because of it and do not want that information shared with others. It is best for employers to keep medical documents separate from personnel files and kept in a secure location that only designated staff members can access.
3. Invasions of privacy related to social media
   With the pervasiveness of social media in today’s world, it is likely no surprise that privacy concerns can be a huge issue for people who use it. Most employees do not want their bosses snooping on their social media accounts. Where else would they complain about their micromanaging and silly habits? To help address this issue, California enacted Labor Code Section 980 in 2013. Generally, it limits employers from accessing employee social media. The law bars employers from asking or demanding that an employee or job applicant do a few different things. For example, your boss cannot request or order that you tell them your username or password so they can access your personal social media. Your boss also cannot require you to access your social media accounts in their presence (they don’t need to see that you complained about them twice last week!). Employers also cannot retaliate against an employee for refusing access to personal social media. However, employees who do not want their employers looking at their information online should ensure that their privacy settings hide their information from people who they have not explicitly granted access to (e.g. Facebook friends).
   A related issue that comes up in the context of discrimination is employers using social media and having access to information that they are not legally permitted to use in the hiring process, like age/race/sex. Wittingly or unwittingly, people who make hiring decisions may discriminate against people based on membership in protected categories if they look up the social media profiles of applicants. Even if only your profile picture is available to the public, that can still tell employers your approximate age, gender, and race, which could bias their decisions. To avoid this problem, employers should employ a hiring system that erases the problem. For instance, a third party could be asked to look up the social media profiles of applicants and scrub all the details about things employers are not allowed to ask of applicants and then give only the relevant details to the person or people making hiring decisions.
   Do any of these situations sound familiar to you? If so, you may be a victim of a workplace privacy violation. If you think your reasonable expectations of privacy in the workplace have been violated or you have been wronged at work in some other way (e.g. discriminated against, sexually harassed, or retaliated against for protected activity), you may want to contact a wrongful termination attorney to see what you might be able to do about your situation.

5 Nuances of Disability Discrimination Law in California

Under California state law, workers with disability are protected against several forms of discrimination in employment practices. Employers subject to this legislation cannot base employment decisions like hiring, firing, promoting, paying, or training on an employee’s disability status. Moreover, employers are legally obligated to make reasonable accommodations for workers who have a disability so that they can perform their job duties. Employees who are protected under state law include those who suffer from physical and mental disabilities, as well as medical conditions. Physical disabilities include physical impairments affecting a major bodily system and limiting a major life activity. Some conditions have been explicitly named as protected under state law: blindness, deafness, missing limbs, mobility impairments requiring wheelchair use, cerebral palsy, and episodic or chronic conditions like epilepsy, seizure disorder, diabetes, multiple sclerosis, HIV/AIDs, hepatitis, and heart/circulatory disease. Mental disabilities in this context include mental or psychological conditions that limit a major life activity (e.g. autism, bipolar disorder, obsessive compulsive disorder, clinical depression, cognitive disabilities, etc.). Medical conditions refer to genetic characteristics associated with a disease or health impairment related to a diagnosis of cancer; they often come up in disability discrimination because of increased risk of future medical issues. These definitions may seem vague or unclear, giving a glimpse into how complicated disability discrimination law can be. Let’s look at a few things that are good to know about the coverage and limitations of disability discrimination law in California.

1. California law specifically excludes particular mental health problems
   While California law has broader protections for workers with disability than federal law, there are explicitly excluded categories of mental health problems that are not protected at all from discrimination in employment practices. These include compulsive gambling, kleptomania, pyromania, and particular sexual behavior disorders, including pedophilia, voyeurism, and exhibitionism. Additionally, substance abuse disorders resulting from the current, unlawful use of drugs are not protected. Consequently, discrimination based on any of these problems is legal.
2. Mild, temporary disabilities are not protected
   This probably makes intuitive sense to most people. What it means is that employees suffering from conditions that have minor or no long-term effects do not qualify as a protected class. For instance, Perry has the flu. He asks his boss for a reasonable accommodation to his temporary disability in the form of a week off of work. His boss tells him he can use sick days. This example illustrates that it really wouldn’t make sense for colds, flu, and the like to allow people special accommodations when there are alternative ways to deal with those relatively mild problems. Other conditions not protected include sprains, muscle aches, bruises, soreness, minor scrapes, non-migraine headaches, and minor gastrointestinal disorders that are not chronic. If employers want to fire someone for getting the flu, they can technically do that, assuming at-will employment, and most courts will not cry foul unless the sick person had a pretty severe reaction.
3. Reasonable accommodations must be, well, reasonable
   Yes, employers must make reasonable accommodations for employees with disabilities. What does that mean exactly, though? “Reasonable” in this context means the accommodation does not impose an undue hardship on the employer. Undue hardships would involve substantial expense and difficulty for the employer and can be determined by looking at things like the employer’s financial resources, the size of the business, the nature and cost of the necessary accommodation, and the impact the accommodation is likely to have on the employer’s business operations. Given that, it is usually possible for employers to come up with reasonable accommodations. Installing ramps, providing screen reader software or closed captioning at meetings, printing materials in large print, and adjusting work schedules are all examples of common, relatively simple solutions to problems posed by certain disabilities.
4. Employers who do not know cannot be held liable
   Employees with a disability typically have a responsibility to make their employer aware of any need for accommodations. Legally, employers cannot be held responsible for discriminating based on disability if they were unaware of the disability. For instance, employers are not liable for failing to accommodate someone they did not know needed to be accommodated. Most employees with disabilities who might need a reasonable accommodation should inform their employer about their condition, assuming the disability and limitations are not very obvious. It is a good idea for employees to give notice of their disability in writing, whether through email, text, or dated letter. Documenting this notice can protect the employee later if the employer tries to deny knowledge of it. Sometimes, employees must provide medical documentation confirming their disability or need for accommodation and in those cases, failure to do so can preclude any claims of illegal disability discrimination.
5. Some employers must accommodate people suffering from alcoholism and/or drug addiction
   Employers with 25 or more employees must provide reasonable accommodations for employees with addictions to drugs or alcohol. However, employees are only eligible if they voluntarily enter and participate in a drug or alcohol rehabilitation program, which the employer must permit as long as the leave of absence would not pose an undue hardship. The period of leave is unpaid unless the employee uses accrued leave, like sick days. Moreover, the employer has a duty to try to protect the privacy of any employees who do choose to participate in the rehabilitation program. These protections only extend so far, though. Employers are within their right to discipline or fire employees who show up to work under the influence of drugs or alcohol, as well as employees whose performance is negatively affected by their alcohol or drug use.
6. Mixed-motive claims can get tricky
   If an employer takes an adverse employment action against an employee and part of the reason is based on said employee’s disability or the employer’s perception of a disability, then that should be grounds for a successful discrimination lawsuit, right? Well, not exactly. If there were multiple motives the employer had in taking the action and they were not all discriminatory, then the law gets a little more complicated. An employer might have legitimate reasons to fire an employee with a disability that are unrelated to the disability. In mixed-motive disability discrimination cases, the discriminatory intent must be a “substantial motivating factor” in the adverse employment decision. If an employer can show that a legitimate, non-discriminatory motive by itself would have led to the same decision, then their liability is significantly reduced. Clearly, there are many nuances of the law when it comes to disability discrimination. Because the law can be so complicated, employees who think they have a claim or want to understand their rights better are urged to contact a discrimination attorney. Together, they can work towards equality for people of all abilities.

9 Things Job Hunters With a Disability Should Know

1.  Where do my rights come from?

When it comes to disability discrimination, there are a few different sources of rights an employee may use to defend himself or herself from mistreatment.  Depending on what type of employee and employer the scenario involves will determine what body of law to apply.  The Americans with Disabilities Act (ADA), the Rehabilitation Act, and the California Fair Employment and Housing Act (FEHA) are the sources of rights for employees with a disability.  Although all three are very similar, FEHA, unlike the other two Acts, is not a federal Act. This means it applies at a state level and is less likely to be interpreted via federal decisions.  The good thing about FEHA is that provides more protection for employees. 

2.  What legislation provides rights to me specifically? 

The answer is not straightforward and may depend on the facts of the particular case, but the Rehabilitation Act will apply to you if work for a federal agency, a federal contractor, or you receive federal financial support.  You may have rights under the ADA if you are one of more than 15 employees at your job.  However, for those employees at a smaller company, FEHA will protect an employee who is one of five or more employees. 

3.  Are employers required to take into account my disability when hiring?

Affirmative action is a particular type of hiring policy enforced by employers to afford equal opportunities to legally recognized minority groups.  Per the Rehabilitation Act, federal contractors are required to incorporate affirmative action in their hiring practices.  This means an employer must consider an employee’s disability when choosing a candidate to fill a position.  However, employers that fall under the ADA and FEHA are not required to apply affirmative action when hiring. For example, an employer would not be obligated to take into account the fact that an employee belonged to a minority group and hire them as a means of representing an underrepresented group. 

4.  Do I have a legally recognized disability?

  Not all conditions, illnesses, or impairments are identified as a “disability” under the law.  It can be frustrating for some employees of interviewees who are entitled to benefits from the government for their disability because this does not automatically deem he or she as an employee with a disability under the ADA.  An employee or interviewee would need to discuss with an employment lawyer as to whether he or she has a legally recognized disability by a particular Act. 

5.  Are my eyeglasses or contact lenses considered a disability?

  Usually, the law determines whether an employee’s disability is legally recognized which is measured by whether the disability impairs an individual’s ability to carry out a major life activity.  But what about if an employee or candidate has poor eyesight, is that considered as a disability? In most cases, an employee or candidate who has poor vision will only be considered as having a disability if the impairment cannot be corrected with prescription eyeglasses or contact lenses. 

6.  What if my disability requires an interpreter or reader?

  For some individuals who have been professionally diagnosed to have a disability may require a reader or an interpreter.  This may arise if an employee or candidate wears a hearing aid or has a processing deficit.  For instance, an employee may be able to carry out a job but on occasion may need someone to read him or her certain paperwork during an annual training seminar or for a person who is undergoing a test in an interview for a position.  Depending on what legislation is relevant to the particular employee or candidate will determine whether the employer is obligated to provide this kind of accommodation.  If an employer is required to provide this type of accommodation to an employee and in which cases refuses, that employer could be liable for disability discrimination. 

7.  What if my disability is irregular?

  For an employee or interviewee, it can be difficult to explain to an employer that their disability impacts them sporadically. does an employee or interviewee tell their employer that their disability is unpredictable?  In other words, the individual can have periods of being in a well state followed by random spells of their disability impacting their health.  Some examples of this may be HIV, epilepsy, diabetes, or remission for cancer. Flare-ups or a spike of impairment does not mean an employee does not have a disability and should not be entitled to accommodation in the workplace. Disabilities are not always predictable and the legislation recognizes individuals who experience sporadic impairments. 

 In certain situations, depending on the specific disability and how the disability affects the employee or interviewee’s ability to perform key life activities, may be considered a disability under California legislation. 

8.  The name disability is not listed under the legislation

  Just because the medical term used to diagnose your disability is not specified under the legislation or perhaps your employer has never heard of it, does not mean you are not entitled to protection under the legislation. In order ensure that most disabilities are recognized, the legislation does not look to the name of a disability or condition but rather to how it impacts an employee or interviewee’s ability to perform key life activities.  Examples of key life activities include bathing, walling, seeing, hearing, speaking, breathing, etc.

9.  How do I know if I was discriminated against based on my disability?

  Many laws in California protect employees with a disability as well as individuals who are participating in job interviews.  Although the laws are there to provide protection, the laws are complicated so employees may not know their rights and employers may not be abiding by their obligations.  The best way to know if you are being discriminated against by an employer to meet with an employment lawyer who specializes in representing employees against their employers.

A good place to start in your search for a discrimination lawyer would be to search for a firm who offers free consultations. 

2 Challenges Veterans Might Face at Work

Veterans often have difficulties getting hired, in part due to widespread stereotypes and biases against them. Even when veterans get past that first stage and are hired (congrats!), they unfortunately still often have challenges to deal with in the workplace. They might find that they do not love the new job. Maybe their coworkers are cruel, scorning the military, or perhaps the boss is treating them differently than everyone else because of their status as a veteran. If you are a veteran and that sounds familiar to you, you are not alone. Luckily, veteran status is a protected class in California and employers are not allowed to discriminate based on that in the same way they cannot discriminate based on traits like gender, disability, or race. In fact, veterans have additional safeguards under federal and state law, as well, such as the right to reemployment after service with job security for a year for those who meet eligibility criteria. Although legal protections exist, employers and even coworkers can still violate your rights. This article will give a few examples of challenges veterans might face at work to help illustrate what to look out for in the workplace. If your rights are violated, an employment attorney can help you figure out what you can do about it.

1. Harassment from coworkers

One thing that most people can agree on is that doing a job becomes much more difficult when coworkers create an unwelcoming, even hostile, work environment. No one wants to go to work if they cannot count on being respected by their colleagues and boss. Because of negative stereotypes and personal biases, oftentimes people can act very poorly towards veterans, even if they do work with them. Harassment, though, is a form of illegal discrimination and in California, both employers and coworkers can be held liable for engaging in it (or, as an employer, permitting it). To get a sense of what harassment against a veteran could look like, let’s imagine the following:

Nick served in the Marine Corps for four years. When he returned, he was reinstated to his former position as a factory worker, but was let go after a year. After this, he spent a few months searching for a job before finding a place that hired him. His new job is similar to his old one, but he finds himself wishing he could go back to his old job because of his new coworkers. For the first few months at this job, Nick’s coworkers make him the butt of their jokes constantly, even though after the first few weeks, he told them to knock it off. With clear disdain, they make fun of things like his “military posture” and denigrate his morals, saying things like that he has “the blood of a killer.” Nick’s focus is constantly interrupted by anxiety over what he feels is bullying and he comes to detest going to work. Even his blood pressure has increased since starting this job. Eventually, he files a complaint with human resources.

Nick is in what appears to be a very hostile work environment due to the harassment by his coworkers. If nothing is resolved after he notifies the company about the discriminatory harassment, Nick could have a legal claim against his employer for permitting discrimination in the workplace. Note that harassment is not always so obvious; it can also come, for instance, in the form of rumors or inappropriate but not ill-intentioned comments. Regardless of how the harassment manifests, it can be very damaging to the victims and employers must protect their veteran employees from the suffering it can cause.

2. Denial of time off for medical leave

Veterans often suffer from serious health conditions related to their military service. Common conditions include amyloidosis, traumatic brain injury, respiratory cancers, musculoskeletal ailments, and depression. Federally, the Family and Medical Leave Act offers eligible employees under covered employers up to 12 weeks of leave in a 12-month period for a few different purposes, one of which is to deal with serious health conditions. Although this leave is generally unpaid, employees can use accrued paid leave during FMLA leave. This means that for veterans who have accrued paid leave from their civilian job during their military service (under a different federal law), they may be able to get paid time off for a serious health condition upon returning. Let’s look at an example of how a veteran might illegally be denied time off for a serious medical condition:

Tiana returned from military service two years ago. For a year and a half, she has been working full-time at the same big company. She has been diagnosed with clinical depression, which she is taking antidepressants for. Despite this treatment, she begins to notice that, as happened before she was on medication and at this job, she is finding it impossible to sleep, is irritable all the time, and no longer finds interest in her work or hobbies. When she realizes these symptoms of depression are severely interfering with her life and her job, she asks her psychiatrist if her medication might not be working as it should. Tiana is told that she can switch her antidepressants if she would like to, but recommends that regardless of whether or not she wants to take antidepressants, Tiana should take time off from work to do some inpatient therapy. When Tiana requests this time off from work, giving a short but sufficient explanation of why along with her doctor’s note to her employer, she is told that she doesn’t need time off; she just needs to spend more time in the sun.

Tiana’s employer, assuming she is subject to the FMLA, is breaking the law by denying Tiana time off to treat her serious health condition. There is a pervasive stigma against mental health disorders, but they are as debilitating as physical disorders, oftentimes more so, and they are covered by the FMLA. Veterans have increased rates of multiple serious health conditions compared to the general population, so it is important that their rights to treatment and healing time are not violated. Moreover, discriminating against an employee, veteran or not, based on a physical or mental health condition is illegal.

            Serving in the military is anything but a cakewalk. It involves an often highly dangerous job, time away from family, and for many returning veterans, it leads to workplace discrimination and denial of rights that should be afforded to them. With all that veterans have sacrificed for the country, it is well within their rights to speak out against unlawful behavior. If you are a veteran facing challenges like the ones above or you believe your rights have been violated in another way, contact an employment attorney. You deserve respect and fair treatment at work, and an employment attorney can help you get what you are entitled to if you are denied that.

3 Examples of Invasions of Privacy in the Workplace

Unlike other states, California has a special protection of privacy written into its constitution, which says citizens have certain inalienable rights, including “pursuing and obtaining safety, happiness and privacy.” Different statutes also provide specific privacy protections for California employees. For instance, employers cannot demote, suspend, or terminate employees for participating in conduct that is not illegal during off-duty hours (given that the behavior occurs away from the place of work). Employees have the right to sue employers for violating reasonable expectations of privacy, as measured by objective and widely accepted social norms.  This article describes a few of the ways in which employers are not allowed to invade the privacy of their employees. If you find that your legal rights in the workplace are being violated, it is a good idea to consult with an employment attorney, as the law can be complex and difficult to navigate for people who are not experts.

1. Drug testing in some cases

Job applicants can be drug tested once they have received conditional offers, as long as they are all drug tested and it is not an issue of discrimination. For instance, an employer who only obliges African American applicants to take drug tests as a condition of employment would be in blatant violation of federal and state discrimination laws. For most jobs, random drug testing of current employees is typically considered unreasonable. Exceptions, of course, do exist and include employees who work in safety or security sensitive roles. Employers who have reasonable suspicions about illicit drug use can do a drug test; it is random ones that are unannounced and not previously consented to that are most problematic. If you talk to a discrimination lawyer you will find out that Employers should have written policies about drug testing, which can be important to set employee expectations (recall that it is illegal for employers to violate their employees’ reasonable expectations of privacy).

2. The imposition of medical exams or questions about medical information

            Employers are not allowed to discriminate based on a medical condition or disability status. To this end, they generally cannot oblige employees to disclose the medications they are taking or to provide information about the internal state of their body. Generally speaking, employers cannot ask job applicants to reveal confidential medical information or to submit to medical examinations. However, once a job offer is made, an employer can make it conditional upon you passing a job-related medical examination (e.g. a fitness test for a firefighter that assesses specifically job-related duties). Of course, that means all entering employees in that kind of position must be required to do the same. One person cannot be singled out due to the employer’s belief that they have a disability, as that would be illegal discrimination. Additionally, even if a disability is revealed during such a medical exam, if the individual can perform the essential functions of the job with a reasonable accommodation (one that does not pose an undue hardship on the employer) then the employer cannot refuse to hire them. 

Moreover, medical records that an employer might have about employees for health insurance claims, workers’ compensation claims, or disability or medical leaves must be kept confidential. Your boss cannot go around telling all your coworkers that you have diabetes, for instance, if you only told your boss because you needed to take leave because of it and do not want that information shared with others. It is best for employers to keep medical documents separate from personnel files and kept in a secure location that only designated staff members can access.

A professional discrimination attorney can help you to stop discriminating based on a medical condition or disability status

3. Invasions of privacy related to social media

            With the pervasiveness of social media in today’s world, it is likely no surprise that privacy concerns can be a huge issue for people who use it. Most employees do not want their bosses snooping on their social media accounts. Where else would they complain about their micromanaging and silly habits? To help address this issue, California enacted Labor Code Section 980 in 2013. Generally, it limits employers from accessing employee social media. The law bars employers from asking or demanding that an employee or job applicant do a few different things. For example, your boss cannot request or order that you tell them your username or password so they can access your personal social media. Your boss also cannot require you to access your social media accounts in their presence (they don’t need to see that you complained about them twice last week!). Employers also cannot retaliate against an employee for refusing access to personal social media. However, employees who do not want their employers looking at their information online should ensure that their privacy settings hide their information from people who they have not explicitly granted access to (e.g. Facebook friends).  

A related issue that comes up in the context of discrimination is employers using social media and having access to information that they are not legally permitted to use in the hiring process, like age/race/sex. Wittingly or unwittingly, people who make hiring decisions may discriminate against people based on membership in protected categories if they look up the social media profiles of applicants. Even if only your profile picture is available to the public, that can still tell employers your approximate age, gender, and race, which could bias their decisions. To avoid this problem, employers should employ a hiring system that erases the problem. For instance, a third party could be asked to look up the social media profiles of applicants and scrub all the details about things employers are not allowed to ask of applicants and then give only the relevant details to the person or people making hiring decisions.

            Do any of these situations sound familiar to you? If so, you may be a victim of a workplace privacy violation. If you think your reasonable expectations of privacy in the workplace have been violated or you have been wronged at work in some other way (e.g. discriminated against, sexually harassed, or retaliated against for protected activity), you may want to contact an employment attorney to see what you might be able to do about your situation.   

5 Things You Didn’t Know About Being Forced to Quit

                If your boss fires you for an illegal reason you can assume you should call an Employment Attorney to discuss a potential suit against the organization for wrongful termination at the very least, but what if you were forced to resign? Being “forced to quit” or “forced to resign” at first blush sounds a bit out of the ordinary. What does it actually mean to be forced out of your position, and if you actually were forced out, do you still have a claim against your ex-employer?  Usually, if an employee finds themselves in this kind of a situation, he or she may bring a claim for wrongful termination and or breach of employment contract which came out of an employee’s forced resignation.  Below are five things you may not have known about being forced to quit. 
 
 
1.  Being forced out of your job is an actual thing
 
                Being squeezed out of your employment by your employer is a thing, it’s called “constructive discharge”.  The way in which constructive discharge arises is in situations where an employer actively tries to make the particular employee’s employment so unbearable that they are forced to resign or retire which may be a reason to sue for wrongful termination and or breach of their employment contract. 
 
                In order to pursue a claim against an employer for construct discharge, an employee would need to prove it is more likely than not that their employer purposely made the employee’s work conditions unbearable or the employer knew the conditions were unbearable and did nothing to cease further occurrences.  Again, this is something a wrongful termination attorney should analyze in order to decide whether there is a potential claim.

 2. Were you pressured into quitting or resigning?
 
                What factors are taken into account in deciding if an employee really was constructively discharged? Although not an exhaustive list, there are certain features an Employment Attorney will consider in deciding if an employee was constructively discharged.  The features include a reduction in rank, a decrease in pay, decrease in job responsibilities, harassment, including sexual harassment or harassment based on a protected class, and causing extreme humiliation, all of which amounts to forcing the employee to quit.
 
 

3. It’s based on an objective standard
 
                In deciding whether an employee was constructively discharged, the behavior of the employer is observed from an objective standpoint not subjective. This means the employer’s acts are judged based on what a reasonable employee in that particular employee’s position would have found to be intolerable work conditions, not what the particular individual may find to be unbearable. The rationale is to avoid the allowance of overly sensitive employees to make claims but it also does not allow employers to escape a lawsuit even if a particular employee is more tolerant than most.
 
                Keep in mind that in applying the objective view, even if the reasonable employee would find certain treatment to be upsetting or disappointing, those feelings are not enough to amount to an unbearable work environment.
 
                An employment lawyer will be able to apply the reasonable person standard to your situation and tell you if a reasonable employee would likely find the circumstances unbearable.
 
4.  Where is the line drawn?
 
                “Intolerable” or “unbearable” working environments are usually measured by how often the acts in question occur. For example,  the more frequent the conduct or harassment, the more likely it is considered insufferable. Also, employment law will likely classify a work situation as “intolerable” if it is abnormally antagonized. For example, Pam worked at a retirement home as a nurse. For several months her boss had been continuously transferring her to different positions, placing her under the supervision of other employees who were less qualified than she was and also much younger. Often her boss would violently scream and torment her in front of other employees to the point where she could not get her work done because it was so distracting. Finally, Pam was forced to resign from her position because the constant disruption of being transferred as well as harassed on a daily basis was intolerable. Here, because the acts were continuous over an extended period of time, Pam’s Employment Attorney may be able to file suit against her employer for constructive discharge.
 
 
5.  “I quit” doesn’t necessarily mean no claim
 
                It would seem rational to assume that if an employee quits their job, they can’t turn around and sue their boss but that’s not always the case.  An employee quitting may be the end result of their employer’s behavior towards him or her in the workplace. If an employee decides to quit or resign due to the way in which they have been treated by their employer, under the law the resignation may be classified as a termination. For example, George, an agent at a real estate company made a complaint to his boss about illegal practices conducted by the company. After he made the complaint, George was demoted to a lower-paying position and was forced to move his desk into the break room. This put George at an extreme disadvantage on many levels and above all George felt humiliated which ultimately lead him to quit. Here, George was entitled to make a complaint about illegal practices at the workplace, therefore the demotion and moving his desk to the break room may all be forms of retaliation. George may also show he was constructively discharged because he was subjected to the demotion, lower pay, and his demotion was put on display for the whole agency to see in the break room. An employment lawyer may be able to decipher whether George has a claim again his employer.
 
 
                Although it seems like an employee may not have a claim against their employer because they quit their job, depending on the circumstances he or she may be classified as “fired” regardless. If the employer subjected the employee to an unbearable work environment, the employee needs to consult with a legal professional.  An employee who suspects they are heading down the path of constructive discharge should reach out to an Employment Attorney to discuss the facts of their case.