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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.
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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
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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.
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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
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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.
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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
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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.
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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.
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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.
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