faq

I think my employer is discriminating, harassing, and retaliating against me. Is this illegal?

It depends. Only certain types of workplace discrimination, harassment, and retaliation are illegal. For example, employers may not discriminate against or harass employees based on their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Employers also may not retaliate against employees who complain about what they honestly and reasonably believe to be workplace discrimination or harassment based on these characteristics. Employers may not consider any of these characteristics in making employment decisions such as hiring, termination, promotion, training, or compensation.

What is discrimination?

Discrimination occurs when an employer makes harmful employment decisions based on certain characteristics protected by law (such as race, disability, gender, age, etc.). Employers may not consider these characteristics in making employment decisions such as hiring, termination, promotion, training, or compensation. If an employer does consider these characteristics in making employment decisions, the harmed employee may be able to sue the employer for discrimination.

What is harassment?

Harassment occurs when an employee is subjected to “severe or pervasive” unwelcome conduct in the workplace based on certain characteristics protected by law. Harassment also includes conditioning employment benefits on acceptance of sexual conduct. While sexual harassment is probably the most well-known form of unlawful harassment, severe or pervasive harassment based on any characteristic protected by law is unlawful, including race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. If an employee experiences harassment in the workplace based on these characteristics, the harmed employee may be able to sue the employer for harassment.

What is retaliation?

Retaliation occurs when an employer makes harmful employment decisions because an employee complained about or reported what he or she honestly and reasonably believed to be discrimination or harassment based on a characteristic protected by law (such as race, disability, gender, age, etc.). If an employer does retaliate against an employee for complaining about discrimination or harassment based on these characteristics, the harmed employee may be able to sue the employer for retaliation.

Are all California employees protected from workplace discrimination, harassment, and retaliation?

Unfortunately, no. All employees are protected from unlawful harassment. However, only employers that regularly employ five (5) or more employees must comply with the laws prohibiting employment discrimination based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, and sexual orientation.

Only employees who work for employers with 50 or more employees who have worked for the employer for at least 12 months and 1250 hours during the prior 12-months are entitled to medical or baby bonding leave under the California Family Rights Act (CFRA) and Family and Medical Leave Act (FMLA).

I’m being harassed in the workplace. What should I do?

You should complain about the harassment, in writing, to human resources (or other designated person in management). Your employer is legally obligated to take all reasonable steps necessary to stop the harassment. Reasonable steps may include launching a prompt, thorough, and impartial investigation, and appropriately disciplining the harasser. Your employer may not retaliate against you for making this complaint. If your employer does fail to correct and remedy the harassment or retaliates against you for complaining about the harassment, you may be able to sue your employer.

My boss treats me unfairly and yells at me all the time. Do I have a case?

It depends. Being a bad boss is not illegal. For the most part, only discrimination and harassment based on certain characteristics protected by law (such as race, disability, gender, age, etc.) are unlawful. It is generally not unlawful for your boss to treat you differently or harass you because she doesn’t like you, is threatened by you, or is in a bad mood. Simply being rude, obnoxious, or even just plain mean is usually not illegal, so long as the behavior is not motivated by a protected characteristic. On the other hand, if your employer is treating you differently or harassing you because of one of the characteristics protected by law, you may be able to sue your employer.

What termination reasons are illegal?

Absent an employment contract or collective bargaining agreement that states otherwise, most California private sector employees are considered “at-will,” meaning they can be fired for any reason (or no reason at all) except those reasons specifically protected by law. Some illegal termination reasons include those based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition,genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or in retaliation for complaining about harassment and discrimination, or whistleblowing. There are many other unlawful termination reasons as well, including those discussed on our wrongful termination page.

How long do I have to file a lawsuit?

It depends. Different types of cases have different time limitations, called “statutes of limitation.” For example, if you believe you have been discriminated against or harassed because of your race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status or your employer is retaliating against you for complaining about discrimination or harassment based on these characteristics, you must file a complaint with the Department of Fair Employment and Housing (DFEH) within one year of the last act of discrimination, harassment, or retaliation in order to pursue a Fair Employment and Housing Act (FEHA) case. You then have one year from the date the DFEH issues you a “right to sue” letter to file your FEHA lawsuit in court.

Other types of cases have different statues of limitations. For example, claims for unpaid wages or overtime generally have a three-year statute of limitations, but restitution of illegally withheld wages and overtime may be recovered for four years from the date of the filing of the lawsuit. Given the complexity of the laws governing statutes of limitation, it is best to contact a lawyer immediately when you suspect your rights may have been violated.

I think I need an attorney but I can’t afford one. What should I do?

Sarnoff + Sarnoff represents many clients for a contingency fee. This means you will not pay Sarnoff + Sarnoff for its legal work unless and until you obtain a monetary recovery, at which time you will pay the firm a percentage of the recovery. Sarnoff + Sarnoff will also advance all litigation costs until the end of the case or representation. If you don’t recover anything, you will not have to pay the attorneys for their time. However, you will have to reimburse Sarnoff + Sarnoff for litigation costs advanced by the firm regardless of whether you recover any money.

Can I file a lawsuit while I am still working?

Yes. You can file a lawsuit (or a complaint with the DFEH) against your current employer for discrimination, harassment, or retaliation at any time, even if you still work for the same company. However, your damages may be limited unless your employer has significantly reduced your pay or subjected you to severe or pervasive harassment.

How long does a lawsuit take?

It is very difficult to determine how long a lawsuit will take. Some cases are settled before a complaint is even filed in court. Most others settle at some point during litigation, but before trial. Litigation can be a lengthy and time consuming process. Once a complaint is filed in court, the process can take a year and a half or more before the case goes to trial.

How much money am I going to get?

It is nearly impossible to accurately predict the outcome of any litigation. The size of your recovery will depend on a number of factors, including your salary, the severity of your employer’s conduct, the proof of wrongdoing, and the degree of emotional distress you have suffered due to your employer’s conduct. Some factors, such as how well your witnesses (including you) and the employer’s witnesses testify, cannot be known until the lawsuit is already underway.

Do I need to start looking for a new job right after I’ve been fired?

Yes. California law requires wrongfully terminated employees to “mitigate” their damages. This means you must begin looking for a new job as soon as possible. However, you do not need to take any job offered. You are only required to accept a “comparable” position with similar duties, pay, and location as the one from which you were fired. For example, an engineer need not take a lower paying job as a waiter. However, if the engineer rejects a position that is similar in duties, pay, and location as her former position, her monetary recovery can be reduced. Conversely, if the engineer does take a lower paying job as a waiter, she must continue looking for a job with a similar salary to her former engineering position, or her monetary recovery can be reduced. It is very important to document all of your efforts to find a job following your termination so you can prove that you tried to mitigate your damages.

Will I have to testify in court?

It depends. Generally, litigants only testify in court during trial. Your case will likely never go to trial, since about 95% of all cases settle before then. However, if your case does go to trial, you will almost certainly have to testify in court. Without your testimony, it would be very difficult to give an accurate depiction of what happened to you in the workplace, and ultimately, to prove your case.

Regardless of whether your case goes to trial, however, you will most likely have to testify under oath outside of the courtroom in a deposition. Your deposition testimony has the same force and effect as testimony given in court, and you can be prosecuted for perjury for lying during your deposition.

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