Employment Discrimination . . .

Select a Question:
- What can I do if I suspect that my employer is discriminating against me?
- Won't I get fired if I report my employer for discrimination?
- Can I Sue in Court Rather than Reporting My Company to the EEOC?
- How long can I wait before I sue my employer for discrimination?
- How Can I Prove Discrimination?
- What if there are no witnesses?
- If a minority worker receives less money than a white worker, is that
  discrimination?

- What happens if I lose a lawsuit for discrimination?
- What will happen to my job if I lose the lawsuit?
- Can I get in trouble for speaking another language at work?

What can I do if I suspect that my employer is discriminating against me?

      Under Federal and California law, if an employee suspects that they may have been unfairly singled out because of their race, sex, religion, or family status, then that employee is required by law to first file a complaint for discrimination with the Equal Employment Opportunity Commission (EEOC) and the Department of Fair Employment and Housing (DFEH) before attempting to sue in court. An employee cannot file a case in court until the employee has first filed a complaint with the EEOC and the DFEH and obtained permission from each organization to sue in court - - The permission is called a "Right-to-Sue" notice." If an employee attempts to file a lawsuit before obtaining the Right-to-Sue notice, then the court will dismiss the lawsuit.

A complaint to the DFEH and EEOC is made by simply calling the DFEH and the EEOC and telling them about the discrimination. In response, the EEOC and the DFEH will meet with you in person to discuss the complaint. There are no charges for their services. Thereafter, the DFEH and the EEOC will conduct an investigation to see if there has been discrimination against you. Your employer will be required to respond to the allegation of discrimination. This area of the law can be tricky, So you need to take the following precautions before filing a lawsuit in court:

1. First step: You must first determine whether your employer is a private business or a government entity. If you are employed by a private business, then skip down to step #2 below. If you are employed by the government, then you must read step #1a below before doing anything else.

1a. If your employer is the government, the you must first file a complaint with the appropriate government board within 6 months after the incident last took place before you can file a claim with the DFEH, EEOC, or file a lawsuit in court. If you skip this step, then you will lose your right to eventually sue in court, absent extraordinary reasons. The board has 45 days after you file to respond to your complaint. If there is no response within 45 days, then the law will presume that your claim has been rejected. Once it has been rejected, then you must next follow step #2 below.


2. Second Step: You must file a complaint with the EEOC and the DFEH before suing in court. The EEOC handles violations of federal law and the DFEH handles violations of state law. Discrimination violates both federal and state law. As such, you must file with both agencies. In most cases, a claim with the EEOC must be filed within 180 days after the discrimination last took place. A claim with the DFEH must be filed within 1 year after the discrimination took place. There are some exceptions to this rule. Call the EEOC, DFEH, or The Law Offices of Craig P. Fagan for further questions. At the conclusion of their respective investigations, the EEOC and the DFEH will give you a “Right-to-Sue” notice, which is your passport that allows you to go to court and file a lawsuit.


3. Third Step: You must file a lawsuit in court within 90 days after receiving the Right-to-sue notice from the EEOC. By stark contrast, you have a year after receiving the Right-to-Sue notice from the DFEH to pursue all state claims. If you wait longer than 90 days after receiving a Right-to-Sue notice from the EEOC to file a lawsuit, then you will lose all federal rights. However, you can still file a state court lawsuit for state’s rights violations if you file your lawsuit within 1 year after receiving a Right-to-Sue notice from the DFEH.

(back to Employment Discrimination questions)

Won't I get fired if I report my employer for discrimination?

Don't worry: your employer cannot harm you for reporting them. The law against such conduct is extremely powerful, to the extent that an employer would be financially crippled if it retaliated against an employee. Simply put, if an employer fires, demotes, or punishes an employee in response to the employee filing this claim of discrimination, then the employee has very powerful protection from the law. To give you an example, an employer would be required to give you your job back, or, pay you for back wages lost, emotional distress, and award punitive damages in some cases against an employer. On top of that, the law will require your employer to pay all attorney's fees billed by your lawyer, even if your lawyer has promised that you won't have to pay unless you win. In bad cases, the court can triple the damages awarded to you. In short, your employer would suffer extreme financial losses for retaliating against you. In sum, your employer cannot retaliate. This is true even if it is later determined that the employee's original complaint for discrimination to the EEOC was unfounded or wasn't true. In short, the employee actually protects themselves by filing a complaint rather than keeping it quiet

(back to Employment Discrimination questions) or (back to Answers to Common Questions)

Can I Sue in Court Rather than Reporting My Company to the EEOC?

No. Under Federal law, you cannot file a lawsuit in court for employment discrimination until you first file a claim of discrimination with the EEOC. It is very helpful to hire an attorney before filing your complaint with the EEOC so that the process will be easy. At The Law Offices of Craig P. Fagan, we never charge a client for assisting them with their EEOC application. Once the EEOC or DFEH has completed their investigation, they will give you a formal notice called a "Right-to-Sue" notice. You must have possession of this Right-to-Sue notice before you will be permitted to file a lawsuit against your employer. Be careful not to miss the filing deadlines that will be discussed below.

(Back to Employment Discrimination questions)

How long can I wait before I sue my employer for discrimination?

There are two time periods that you must be aware of to avoid losing your right to sue. First, to protect your legal right to sue for employment discrimination, you must file a complaint with the EEOC within 180 days (6 months) after the last act of discrimination that has occurred against you. If you wait longer than 180 days, then you will likely lose your right to sue. After you file your claim with the EEOC, the time frame for suing will freeze until the EEOC finishes its investigation and issues you a "Right-to-Sue" notice. Second, once the EEOC gives you the "Right-to-Sue" notice, then you must file a lawsuit within 90 days against your employer or lose all of your rights to sue.

(Back to Employment Discrimination questions)

How Can I Prove Discrimination?

You can prove discrimination in more ways than you would think possible. The most obvious situation is where an employer constantly uses racial slurs when referring to the employee. However, it is equally discrimination if the employer treats employees differently because of their race. For example, it would be discrimination if white accountants received $40,000 a year, while a similarly experience African American accountants in the same company only receive $33,000 a year. Also, if a company only enforces rules against minorities, but not against white employees, then this is discrimination. For example, assume that Big Giant Corporation, Inc. has a rule that says that you cannot leave work on Friday before 5 p.m. However, white employees regularly leave work on Friday's at 4 and are never reprimanded or fired. However, an African American employee who leaves at the same time, is written up and\or reprimanded. Simply put, the employer is treating the employee of a different race differently. This amounts to discrimination, if all other things are equal.

(Back to Employment Discrimination questions)

What if there are no witnesses?

The court will still accept the case. If there are witnesses to the case, then their eye witness testimony is called "direct evidence" which means that they directly saw what happened. However, many times discrimination occurs in secret. In other words, there are no eyewitnesses. Nonetheless, a person can prove discrimination with "indirect evidence," which is also referred to as circumstantial evidence, to prove your case. In this type of case, you would prove that the circumstances indicate that there must be discrimination, although there are no eyewitnesses to the incident. For example, assume that two white women and a Mexican woman apply for the same legal secretary job. Also assume that they have the same experience and education. However the two white women are paid $36,000, while the Mexican woman gets only $25,000. The "circumstances" tend to prove that the employer has treated the Mexican woman differently because of her race. It would be up to the employer to prove that there was some reason other than her race to explain its conduct. In reality, it is a rare case where there are eyewitnesses to an employer making racial comments about an employee. Rather, discrimination cases are usually proved by showing that minority employees in similar situations receive less-favorable treatment than do employees who aren't minorities. A person is treated "differently" if they receive less pay, less vacation time, or are penalized more harshly than members of other races who are in the same situation. For example, assume that five employees with equal backgrounds and seniority work for a company. Four of the employees are white and each are paid $48,000. One employee is African America, but is paid only $40,000. The employer is treating the African American employee differently and is guilty of discrimination. The African American employee would have a claim for racial discrimination against his employer.

(Back to Employment Discrimination questions)

If a minority worker receives less money than a white worker, is that discrimination?

The answer may be yes. Assume that 10 people work for a company. 7 of the employees are white and 3 are Mexican. Assume that all employees have a habit of showing up a few minutes late to work every day. The 7 white employees are never punished, but the 3 Mexican employees are written up. This would clearly be an instance of discrimination as the employer is treated similarly situated employees differently solely because of their race.

(Back to Employment Discrimination questions)

What happens if I lose a lawsuit for discrimination?

You have very little to worry about. The United States Congress has declared that it wants victims of discrimination to file lawsuits against employers who may be discriminating. As such, even if an employee loses the lawsuit, the court will not permit the employer to received reimbursement for all of its attorney's fees that it incurred defending the lawsuit if the court believes that the complaint had some merit to it, no matter how small. A court may punish a person who loses a lawsuit if the court finds that the complaint was completely fake and had zero merit. If you have a competent attorney representing you, then you have very little to worry about.

(Back to Employment Discrimination questions)

What will happen to my job if I lose the lawsuit?

As mentioned above, if you lose a lawsuit, your employer cannot retaliate. If your employer retaliates against you after it wins such a lawsuit, the law will still hold the employer liable. As such, if you get demoted, suspended, or fired after losing a discrimination lawsuit, your employer can be sued. In such a lawsuit, you would only be required to show that the employer retaliated against you. An employer would be required to give you your job back, or, pay you for back wages lost, emotional distress, and award punitive damages in some cases against an employer. On top of that, the law will require your employer to pay all attorney's fees billed by your lawyer, even if your lawyer has promised that you won't have to pay unless you win. In bad cases, the court can triple the damages awarded to you. In short, your employer would suffer extreme financial losses for retaliating against you. This is true even if it is later determined that the employee's original lawsuit was unfounded or wasn't true.

(Back to Employment Discrimination questions)

Can I get in trouble for speaking another language at work?

No. In fact, it is considered to be discrimination if an employer tells an employee that they are only permitted to speak in English. Under California law, an employer cannot tell employees to refrain from speaking a foreign language in the workplace unless there is an overriding business necessity. In other words, unless it will harm the company and prevent it from doing business, it cannot tell its employees to quit speaking in a foreign language.

(Back to Employment Discrimination questions)

*Any person making an inquiry to the Law Offices of Craig P. Fagan through this website is advised that no attorney-client relationship will be formed with the Law Offices of Craig P. Fagan absent a written agreement that is signed by the lawyer and the client and that defines the scope of the representation. You are also advised that representation on a matter outside of California cannot be confirmed unless an application to practice law pro hac vice is first issue by another state.
get a free hit counter
Download a free hit counter here.
 
back to top