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Answers to the Twelve Most Frequently Asked Questions Employment Discrimination Cases (1)
1. Who is protected under California Employment Discrimination
Law?
Except in cases of harassment, an employee must work for an
employer who regularly employs five or more people to be entitled
to protection under California Discrimination law. However, a
harassment claim can be brought against an employer who employs
at least one person and if an employee is retaliated against
because they complain about discrimination, the retaliation claim
can be brought against any employer who employs at least one
person.
Generally speaking the rights of employees of non-profit
religious organizations are limited in terms of their ability to
bring discrimination claims.
2. What if I am an independent contractor and not an actual
employee of a company?
An employee is considered anyone under the direction and
control of an employer regardless of whether their employment
relationship was based on an oral or written contract.
Independent contractors may or may not fall outside of the
definition of "employee" for discrimination claims based on the
amount of control that the company in question exercises over
their work. However, independent contractors can bring
harassment claims against the company.
3. Are all forms of discrimination prohibited under California
Law?
No. Only the following forms of discrimination are
prohibited: race, religion, disability, age, sex, national
origin and marital status. If the discrimination does not fit
into one of those categories it is not actionable. Thus, if an
employer discriminates against and employee because, for
instance, he does not like him, this does not constitute an
actionable discrimination claim unless the employee can also
prove that the action taken against him was based on one of the
forms of discrimination listed above.
Please note that cases of sexual harassment are considered
discrimination cases, although special rules apply to these
cases.
4. What forms of discrimination are most typically litigated?
Most non-harassment discrimination cases fall into one of
four categories: (1) individual "disparate treatment" cases in
which an employee claims that an employer treated the employee
less favorably than other employees because of race, religion,
age, sex, etc.; (2) retaliation cases in which the employee
claims that the employer retaliated against the employee for
opposing discrimination practices; (3) "disparate impact" or
"adverse impact" cases in which employee claims that the
employer's employment practice has an unfavorable impact on a
protected class of employees; (4) cases involving a class-wide
pattern or practice of systemic disparate treatment where a
plaintiff shows a statistical difference between protected class
members and similarly qualified members of the majority group.
5. What evidence is required to prove discrimination in a
disparate treatment case?
The law recognizes that a plaintiff will rarely have access
to direct evidence of intentional discrimination; therefore, an
employee is allowed to prove discrimination through
"circumstantial" or indirect evidence. Thus, through
circumstantial evidence the plaintiff must first prove that: (1)
he or she is a member of a protected class; (2) that the
plaintiff was qualified for his or her position; (3) that he or
she was discharged or demoted; and, (4) that the employee was
replaced by a person outside of the protected class.
The employer then has an opportunity to demonstrate that the
employee was terminated or demoted for a legitimate,
non-discriminatory reason.
The plaintiff then has an opportunity to produce evidence
that the supposed legitimate reason for terminating or demoting
the plaintiff was simply a pretext for discrimination. If the
plaintiff can meet that burden he or she will win the case.
6. How can I prove retaliatory discrimination?
In order to prevail on a retaliatory discrimination case the
plaintiff must establish that he or she suffered an adverse
employment action as a result of complaining of protected forms
of discrimination. The employer then has the opportunity to
demonstrate that there was a non-retaliatory explanation for the
employment action and the plaintiff must, again, show that the
explanation is pretextual (i.e., fake).
7. What do I need to do to pursue my claim?
Under California law before bringing a lawsuit an employee
must first make a claim with the Department of Fair Employment
and Housing (DFEH) or with the Equal Employment Opportunity
Commission (EEOC). An employee can request an investigation or
immediately receive a right-to-sue letter and bring a lawsuit
against the employer. Under certain circumstances union
employees must also exhaust their administrative remedies through
the union.
8. What damages can I recover in an employment discrimination
case?
If a plaintiff can prove discrimination he or she is
entitled to recover damages for past and future medical
treatment, past and future wage loss, damages for pain, suffering
and emotional distress and, if the plaintiff can establish bad
enough conduct on the part of the company, punitive damages
(i.e., damages intended to punish the employer). Government
entities cannot be sued for punitive damages.
9. Should I retain an attorney?
It would very difficult for an employee to pursue a
discrimination case in civil court without an attorney.
Employees do bring administrative claims without an attorney;
however, they eventually recognize that they will need the
services of an attorney to receive the full compensation for
their damages. It is best for an employee to retain an attorney
at the beginning of the case, even before a claim is filed,
because the content of the claim may limit an employee's ability
to recover damages in a civil lawsuit. It is important that the
employee retain an attorney with special knowledge and skills in
the area of discrimination law.
- Can I recover my attorney fees if I win?
If the employee prevails on a claim of discrimination,
harassment or retaliation, they are entitled to be compensated
for their attorney's fees by the employer. This is true whether
or not the attorney has been hired on a contingency fee basis and
the plaintiff is entitled to recover for all of their attorneys'
hourly work even if that amount of money exceeds the contingency
fee and the amount of plaintiff's verdict.
- How long do I have to bring my discrimination lawsuit?
You have to file a claim with the DFEH or EEOC within one
year of the date your claim "accrued." This is sometimes a
difficult date to ascertain if there has been discrimination over
a long period of time. To be safe, an employee should bring a
claim within one year of the first known act of discrimination.
However, if you have waited longer, you may still be able to
bring a claim so you should consult with an attorney. Be
careful. Your claim may "accrue" while you are still an
employee. Employees are allowed to bring discrimination claims
even while still employed.
- Will my employment discrimination case settle out of court?
Probably, since most employment discrimination cases settle
at some time before trial. However, most significant settlements
do not occur until there has been at least some litigation.
1. Most legal questions require complex answers. The answers
provided here may not be complete or fully accurate but attempt
to provide consumers with abbreviated answers. For more detailed
answers to these questions, a consumer should check out other
articles in this section of this web site, research other legal
articles and texts on the subject matter or consult with an
attorney.
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