What type of harassment, discrimination, and retaliation is unlawful?
California law prohibits harassment, discrimination, and wrongful termination in the workplace if they are based on the employee’s actual or perceived:
- Race
- Mental and physical disability or medical condition
- National origin
- Religion
- Age (40 and over)
- Sex (including pregnancy, childbirth, breastfeeding)
- Sexual orientation
- Gender and gender identity
- Marital status
- Military or veteran status
What is workplace discrimination?
Workplace discrimination occurs when a company takes actions that demonstrate bias against an employee based on a protected class (e.g., disability or age). Workplace discrimination takes many forms. Some examples of discrimination include:
- Refusing to hire
- Refusing to promote
- Demotion
- Reducing the worker’s wages or benefits
- Termination
- Transferring employee to a less desirable location
When is it illegal for an employer to terminate an employee?
To determine when a termination is illegal, it is important to understand that California law presumes that workers are employed “at will.” “At will” means that both the employer and the employee can terminate the employment at any time, with or without cause or prior notice. In other words, an employer can fire an employee for any reason, except an unlawful reason (covered below). Thus, the employer’s power to terminate is broad. Most employees are “at will,” unless they have a contract for a definite term of time (e.g., 1 year).
California law creates exceptions to the employers’ broad power to terminate employees. These exceptions include, but are not limited to terminating an employee because: (1) their protected class (listed above), (2) for reporting the employer’s illegal conduct, (3) for taking protected leave, and (4) for any other reason that is against public policy.
The first exception prohibits an employer from terminating an employee because of her/his protected class or for reporting that she/he was subject to discrimination, harassment, or retaliation based on her/his protected class. Under the second exception, it is also illegal for employers to terminate an employee who reports that the employer is engaging in an activity or conduct that is in violation of local, state, or federal law or regulation (e.g., reporting that the employer is committing Medicare fraud). Third, an employer cannot terminate an employee for taking family leave, disability leave, or other protected leave. Under the last exception—a termination in violation of public policy—it is illegal for an employer to terminate an employee for any reason that is against state or federal law. A termination in violation of public policy, for example, occurs when an employer terminates a manager for refusing to engage in discriminatory hiring practices. In such example, the manager was not terminated because of a protected class, but rather for refusing to engage in conduct that was in violation of California’s anti-discrimination laws.
Because the inquiry into whether a termination is unlawful is very fact-specific, please consult a San Diego employment attorney at Jimenez Loayza, APC to help you assess whether you have a claim for discrimination and/or wrongful termination.
How long do employees have to file a case for discrimination under FEHA?
Starting on January 1, 2020, employees have 3 years to file a discrimination complaint with the Department of Fair Employment and Housing (“DFEH”). Claims before 2020 are still subject to a 1 year rule for filing a discrimination complaint. After your filing, the DFEH will then issue a right-to-sue letter. A right-to-sue letter allows an employee to file a lawsuit in court. After receiving the right-to-sue letter, an employee has 1 year to file a lawsuit in court.
While California law has expanded the time to file a case, it is important to contact an employment lawyer as soon as possible to preserve evidence. Over time, evidence can be misplaced or deleted, and witnesses can move thereby making it difficult to locate them.
The San Diego employment lawyers at Jimenez Loayza, APC are here to help you. Call for a free consultation at (619) 320-5901.
DISCLAIMER: This page is available for educational purposes only. The information provided in this page is to give you a general understanding of the law and not to provide specific legal advice. By using this page you understand there is no attorney-client relationship between you and Jimenez Loayza, APC. You should not substitute this page for competent legal advice from a licensed attorney, as the fact of your case may vary significantly.