What Is the Difference Between Retaliation and Unfair Treatment in a California Workplace?

All retaliation is unfair treatment in the workplace, but not all unfair treatment is retaliation. The primary difference between retaliation and unfair treatment in the California workplace is the presence of unlawful conduct. Unfair treatment, although often morally reprehensible, is not always illegal. On the other hand, retaliation against an employee always has legal consequences for an employer.

With a clear understanding of the difference between unfair treatment and retaliation, you can protect your rights in the workplace and have a better idea of when you have recourse against your employer for unlawful conduct. Below, we delve deeper into the idea of unfair treatment in the California workplace, specifically outlining when unfair treatment crosses the line into unlawful contact. Then, we take a closer look at the different scenarios that might prompt an employer to retaliate against employees in the California workplace.

What Is Unfair Treatment in the Workplace?

At some point in your employment history, you’ve likely experienced unfair treatment at your workplace. Maybe you didn’t get the promotion you deserved because of office politics or your boss played favorites. Nepotism—privileging family members—is another common occurrence in some workplaces. Unfair treatment can also include supervisors and managers who verbally abuse employees by yelling or screaming or falsely accusing employees of violating company policies.

Although the above examples result in frustration and sometimes anger for employees, unfair treatment is not illegal. California is an ‘at-will‘ employment state. At-will employment is a legal description of the relationship between an employer and an employee. In at-will employment states, employers can terminate an employee at any time without reason and an employee can leave a job for no reason; neither party has legal consequences. Additionally, employers can also demote, transfer, and discipline an employee without legal consequences.

Yet, even in employment-at-will states, like California, employers cannot take adverse action against an employee for illegal reasons. In these cases, unfair treatment becomes unlawful conduct.

When Does Unfair Treatment in a California Workplace Become Unlawful Conduct?

Title VII of the Civil Rights Act of 1964 protects all workers in the United States from discrimination based on race, color, sex, religion, or national origin. The United States Supreme Court extended the law to protect gay, lesbian, and transgender workers in June 2020. Further, the Americans with Disabilities Act (ADA) prohibits employers throughout the nation from discrimination based on disability. California employers that discriminate against employees and treat them unfairly based on the above protections are engaged in unlawful conduct.

Additionally, California employees have the right to file a complaint when their employers are breaking the law when they treat them unfairly. Federal law also protects employees who need to take time off for family or medical reasons under the Family and Medical Leave Act (FMLA). The Whistleblower Protection Act (WPA) protects federal workers in California who report illegal activities in the workplace. In some cases, employers choose to retaliate against workers whose absence falls under FMLA. Similarly, federal employers sometimes retaliate against whistleblowers.

What Is Retaliation?

On a broad level, retaliation refers to the notion of taking revenge against someone for actions that have harmed you or actions of which you don’t approve. In legal terms, retaliation specifically refers to the unlawful and unfair treatment of employees as a response to a protected action. According to the Equal Employment Opportunity Commission (EEOC), employers are engaging in unlawful conduct when they retaliate against employees for:

  • Filing an EEO complaint or lawsuit against an employer
  • Talking with management about discrimination or harassment
  • Cooperating with an investigation about harassment or discrimination
  • Refusing to follow orders that result in discrimination
  • Refusing sexual advances
  • Intervening to protect other employees from harassment
  • Requesting accommodations for religious reasons or for a disability

Whistleblowers also have protection from retaliation and employers cannot discriminate or take unlawful action against an employee who needed time away from work under FMLA.

Filing a Claim Against Your Employer for Unlawful Discrimination or Retaliation

You do not need a lawyer to file a claim against your employer; however, it’s often in your best interest. A lawyer can file a claim on your behalf, protecting your identity. This is especially important for sexual harassment claims and whistleblower claims. Employers, especially specifically targeted members of an organization, can take drastic measures when they feel desperate. An experienced attorney knows the ins and outs of the EEOC claims process and can ensure your meet required deadlines and fulfill criteria.

As a California resident, you can file a claim with the Equal Employment Opportunity Commission (EEOC) or California’s Department of Fair Employment and Housing (DFEH), the state equivalent of the EEOC. DFEH will automatically share information with the EEOC, so you need not report to both agencies. If you are a federal whistleblower or have suffered retaliation as a whistleblower, you must file with the EEOC because the State of California does not have jurisdiction over your claim. Regardless of the situation, you cannot file a lawsuit against your employer before your file a claim with the EEOC. You can begin an  EEOC claim online and make an appointment or you can file a claim with a state or local agency like DFEH.

Contact an Experienced Employment Attorney If You’ve Been a Victim of Unlawful Conduct in a California Workplace

The skilled legal team at Perkins Asbill have the knowledge and resources to advocate for employees who have been victims of unlawful conduct in a California workplace. If your employer has illegally discriminated against you, sexually harassed you, or retaliated against you for taking action against them, you need a competent and diligent lawyer in your corner.

At Perkins Asbill, A Professional Law Corporation, we take pride in client service and holding employers accountable for their illegal practices. Contact us today online or at 916-446-2000 for a confidential case evaluation to determine your eligibility for compensation and learn the best way forward for your individual circumstances.

YOU DESERVE TO WORK IN AN ENVIRONMENT FREE FROM DISCRIMINATION

Whether you apply for a job or already have one, your employer must provide you with an application process and work environment free from discrimination. Here in California, the Fair Employment and Housing Act enforces those protections.

FEHA applies to employment agencies, private and public employers with more than five employees, and labor organizations. If you suspect your employer, or a prospective employer, of discrimination, you may benefit from understanding your rights and legal options.

Who does California law protect?

FEHA prohibits a prospective or current employer from discriminating against you based on the following:

  • Genetic information
  • Gender
  • Age
  • Religion
  • Race
  • Color
  • National origin
  • Sexual orientation
  • Medical condition
  • Marital status
  • Physical or mental disability
  • Gender identity
  • Military or veteran status
  • Gender expression

If you fall into one of these categories and the evidence shows that your employer discriminated against you as a result, you may be able to file a complaint. The law further prohibits your employer from retaliating against you for filing such a complaint, which includes firing you.

When does California law prohibit discrimination?

FEHA prohibits employers from discriminating against current or prospective employees during any of the following:

  • Applications
  • Interviews
  • Screening
  • Advertisements
  • Hiring
  • Work conditions
  • Promotions
  • Transfers
  • Compensation
  • Separating employees
  • Terminations

Employers may not discriminate against anyone when it comes to internship programs, apprenticeships, unions or employee organizations.

What legal remedies does California law provide?

Upon proving a discrimination claim, the law allows you to pursue the following legal remedies:

  • Past lost earnings
  • Future lost earnings
  • Reinstatement
  • Hiring
  • Reasonable accommodations
  • Out-of-pocket expenses
  • Promotion
  • Policy changes
  • Training
  • Punitive damages
  • Damages for emotional distress
  • Attorney’s fees and costs

Depending on your case, you may receive one or more of these remedies. Of course, you must prove your claim before the court will consider awarding you any damages. This often requires a thorough investigation into your claim. Gathering written or electronic communications, talking to potential witnesses such as co-workers, and a review of your employer’s policies and procedures is often a good place to start.

Even though you are filing a claim in connection with your own experiences, you may discover that the discrimination your employer subjected you to also extended to other employees or applicants. If so, you may help make positive changes for others who suffered as you did by pursuing your claim.

YOU SHOULDN’T FACE DISCRIMINATION BECAUSE OF YOUR DISABILITY

Living with a disability can be challenging enough without other people judging you for it. For this reason, the state of California enacted several laws that provide you with the protections you need in order to live your life free from the preconceived notions and discrimination of some employers.

Just because you live with a disability doesn’t mean that you aren’t qualified for a position or that you can’t perform the duties of a job. As long as any reasonable accommodations you need don’t present an undue hardship on an employer, you deserve to be treated like anyone else. Sadly, not all employers feel this way and violate the laws meant to protect you.

What does the law say?

Under the Disabled Persons Act, California Fair Employment and Housing Act and the Unruh Civil Rights Act, all provide you with the following protections from discrimination due to your disability:

  • An employer may ask you about your ability to perform the duties of the job for which you are applying.
  • An employer may provide you with a response to your request for an accommodation.
  • An employer may ask you for a certification from your doctor regarding your need for a reasonable accommodation.
  • An employer must consider you for the position despite your known or perceived disability.
  • An employer may not require you to undergo a physical or psychological evaluation that is not required of all prospective employees.

Your current or prospective employer should have a good faith discussion with you regarding whether any accommodation you need is possible. These conversations need to determine the essential functions of the position, along with whether any accommodations you would need place an undue hardship on the employer.

What do you think?

If you feel that a prospective or current employer failed to give you a fair chance due to your disability or refused to provide you with a reasonable accommodation, you may have a claim for discrimination. If you fail to receive a satisfactory resolution within your company, you may need to go outside of it for a resolution to your issues. When you do, you may find that your employer will begin retaliating against you, which the law also prohibits.

You do not have to simply accept the situation. If reasonable accommodations are possible, but your employer refuses to provide them to you, you have every right to speak out about it. You also have the right not to go through this alone. Help is available.

DID DISCRIMINATORY INTERVIEW QUESTIONS CAUSE YOU TO MISS OUT?

As a woman, you may already know that finding your dream job may come with some difficulties. Though you certainly have worked hard with your education and experience gaining, you likely know that gender and pregnancy discrimination remain serious issues in many industries. Unfortunately, discrimination could take place before or after you start a job.

As with most job applications, you may have recently gone through the interview process at a prospective place of employment. While overall you may think that the interview went well, you may also have some lingering concerns over some of the questions asked. In fact, your prospective employer may have made certain inquiriesthat were not entirely legal.

Questions that may indicate discrimination

While it is understandable that employers want to ensure that they hire the right individuals for their jobs and that their employees will have time to work, they cannot discriminate against job applicants while looking for the “right” person. In particular, women can face discrimination if employers have concerns about the applicant being pregnant, potentially becoming pregnant or already having children.

If your interviewer asked you any of the following questions, he or she may have acted in a discriminatory manner:

  • What is your marital status?
  • Are you engaged?
  • How many children do you have?
  • What are your children’s ages?
  • How are your children cared for?
  • What is your spouse’s occupation?
  • Do you take birth control?
  • Are you participating in fertility treatments?

These types of questions may prove even more discriminatory if only female applicants received such questions. However, if a prospective employer does make these or similar inquiries, he or she may be attempting to determine whether you may need maternity leave or other leave under the California Family Rights Act in the future.

How to handle discriminatory questions

When faced with any of these questions, you may have wondered the best way to answer. Some options include:

  • You provide an answer to the question.
  • You state that you do not feel comfortable answering the question.
  • You answer the implied question in regard to the employer’s concerns.
  • You ask how the question is relevant to the job opening.

No matter how you handled the question, you are not in the wrong. If you believe that your answer to any of these questions resulted in you not getting the position, you may want to consider taking additional action.

Even before employment, gender discrimination can take place. If you feel that you have been the victim of such actions, you may wish to obtain an assessment of your circumstances do determine whether filing a legal claim may suit your situation.

FAMILY CAREGIVERS CARRY HEAVY LOADS AT HOME AND AT WORK

The latest statistics reveal that 60 percent of employees in California and across the country are also caring for a loved one in some capacity. Most of them are working full-time jobs and are experiencing health issues of their own, either because of age or the stress of their burdens.

If you are among those caregivers, you know firsthand how difficult it is to balance the needs of your ailing loved one with your job, your family and your personal well-being. Unfortunately, many in your circumstances find that their employers are not always compassionate toward their situations, and some face outright discrimination because of their position as caregivers.

What does FRD look like?

The law protects you from many kinds of discrimination, and among them is Family Responsibilities Discrimination. If you have caregiving responsibilities to your children, your ailing partner, your elderly parents or yourself as an expectant mother, you may be the victim of FRD if your employer does any of the following:

  • Rejecting you for a position for which you are well qualified
  • Passing you over for a promotion you deserve
  • Demoting you
  • Harassing you because of your absences
  • Terminating you
  • Pressuring you into removing your ailing loved one from your health insurance plan
  • Denying you the legal right to time off to care for an ailing loved one

The fear of any of these consequences may make you reluctant to approach your employer to request time off to tend to the needs of your family, especially if you have seen co-workers mistreated for similar reasons. In fact, about 28 percent of care-giving employees report they have kept their family obligations secret from their employers.

Finding support wherever you can

Advocates for family caregivers remind them to take care of themselves. Many caregivers admit they delay seeking medical attention for their own complaints, and you may be among those suffering from untreated high blood pressure, diabetes, pulmonary disease and depression. Support groups exist to help you carry the load, and you may find great benefit in taking advantage of their services.

Meanwhile, if you feel your employer has discriminated against you because you are a family caregiver, you may begin with a calm discussion to ascertain why your employer treated you this way. If this conversation doesn’t end satisfactorily or the negative actions continue, you have every right to seek assistance from a legal professional.