Victims of employment discrimination may be able to file a lawsuit against their employer seeking monetary compensation.
Below, we answer some of the most common questions about filing an employment discrimination lawsuit in California.
How can I bring a case against an employer for discrimination in California?
Generally speaking, in order to initiate a lawsuit against an employer for employment discrimination in California, you must first submit a complaint with the state’s Department of Fair Employment and Housing (DFEH). Employees and job applicants are often expected to exhaust all administrative remedies before being considered for a position. Depending on the circumstances, the employee may be required to go through the DFEH complaint process before they may bring a legal action.
An immediate right to sue notification can be obtained by submitting a request to the DFEH. In contrast, if you request a right to sue notification immediately, your complaint will not be investigated by the Department of Fair Employment and Housing. As an alternative, you can wait until the DFEH dismisses your case or finds no violation before taking your case to court.
According to the DFEH, going directly to court without first undergoing an investigation by the DFEH is only recommended if you have legal representation. With the help of your attorney, you can submit a right to sue notice in California Superior Court, either in the county where the discrimination occurred or in another relevant county.
A copy of the “complaint” will be served on your employer and any other parties who have been identified as defendants in the action once you have filed it. If the defendants do not file a formal answer to the claims included in the complaint within 30 days, the matter may move to the courtroom.
A civil employment discrimination action might take several months or even years to make its way through the courts system in the United States. But as the matter goes closer and closer to trial, the chances of it being settled out of court increase. Both the employer and the employee have the ability to negotiate a settlement at any stage before the completion of a trial. This is done before the court reaches a decision on the matter.
If the case is not resolved, it may be taken to trial and heard by a jury in a jury trial or in front of a judge in a bench trial, depending on the kind of trial being held. The facts and arguments presented by both sides will be heard by the judge and jury. The judge or jury will next reach a decision on each claim, ruling either in favor of or against the plaintiff, and determining the amount of damages to be awarded to each party.
What is the best way to tell if I have been discriminated against?
The majority of employment discrimination is subtly disguised. The fact that discrimination might result in a lawsuit is recognized by employers, who take precautions to ensure that they do not put anything in writing or say anything that is clear to either the employer or the applicant. The presence of indicators of discrimination is possible, though.
In order to prove employment discrimination, it may be necessary to show that some groups of employees are treated differently than other groups of employees. It might also include sudden shifts in an employer’s attitude toward an employee after learning that the individual belongs to a protected group. The following are examples of signs of possible discrimination:
- Changes in work performance evaluations that occur suddenly
- Disinvitation from gatherings and activities
- Changes in job responsibilities or an increase in workload
- Reduced working hours or lower pay (no equal pay)
- Various types of rule enforcement include workers from a variety of diverse backgrounds
- Management’s failure to put a halt to racist or sexist jokes in the workplace is a serious issue.
- Making fun of someone’s accent or sexual orientation is prohibited.
- Choosing not to take into consideration candidates with ethnic-sounding names
Employers who are part of the same protected class as the employee are still able to discriminate against them. For example, an African American manager may be able to discriminate against an African American employee or prospective employee. A female employer could discriminate against a female candidate solely based on gender.
Is there a protected class in California?
Yes, and The California Fair Employment and Housing Act (FEHA) makes it illegal for an employer to discriminate against an employee based on protected characteristics such as:
- Religious creed
- National Origin
- Physical Disability
- Mental Disability
- Medical Condition
- Genetic Information
- Marital Status
- Gender Identity
- Gender Expression
- Age (age discrimination is discriminating against someone 40 or older)
- Sexual Orientation
- Military and Veteran status
Discrimination in the workplace may have a negative impact on everyone. Minorities are not the only ones who face discrimination. Discrimination in the workplace based on any of the following criteria is illegal in California. Most forms of job discrimination are also prohibited by federal law.
It is also illegal to discriminate against an employee based on his or her perceived race, sexual orientation, disability, or participation in another protected group. This means that even if an employer is mistaken about an employee’s status, they may be in violation of the law for discrimination.
For example, an employer may suspect a job candidate is gay based on how the applicant looks or behaves during a job interview. The company does not wish to hire LGBT workers. The employee files a complaint against the employer for sexual orientation discrimination. Even if the applicant was not homosexual, the employer violated California law by discriminating against him based on their perceived sexual orientation.
It is an unlawful employment practice under the FEHA for an employer to discriminate against a person in any aspect of employment. This includes the following:
- Refusal to hire or employ someone
- Refusal to select a candidate for an apprenticeship or training program
- Getting rid of, bearing, or dismissing an employee
- Discriminating against a person in terms of compensation or in the terms, conditions, or privileges of employment is prohibited
Employment discrimination is illegal in all aspects of employment and hiring, including:
- Refusing to make a reasonable accommodation
- Refusing to engage in an interactive process with employees in need of a reasonable accommodation in a timely and good faith manner
- Refusal to hire
- Refusing to enroll in a training program
- Salary reduction
- Refuse a promotion
- Refuse to reinstate
- Refuse benefits
- Forcing a worker to resign
- Assign different responsibilities
- Discrimination in any form is unacceptable
It is not only employers who are subject to labor rules prohibiting job discrimination. Employment discrimination laws also apply to labor unions and labor organizations, which are forbidden from excluding, dismissing, or restricting membership based on discriminatory classifications under the legislation. Discrimination bans apply to apprenticeship training programs and employment agencies as well as to other businesses and organizations.
Is it considered discrimination if I am not hired?
Employment discrimination laws apply to job applications, job candidates, and interview settings before an individual is ever hired, as well as after they have been hired.
Improper job application forms or questions during an interview may be a red flag that an employer is engaging in unlawful employment discrimination. When an employer asks an individual the following questions, the employer may be in violation of employment laws:
- Sexual orientation
- Maiden name
- Marital status
- Requiring a photograph
- Mental or physical disability
- Arrest record
Employers are prohibited from requiring an applicant to have a medical or psychological assessment if no other prospective workers are likewise obliged to undergo such examinations, or if the examination is not job-related and compatible with business necessity. An employer, on the other hand, may inquire as to whether job applicants are capable of performing the essential activities of the position and how they intend to carry out the responsibilities of the position.
Upon offering a position to a candidate, the employer may condition the offer on the candidate passing a medical exam or answering medical questions, but only if other new workers in a similar job function are required to answer these questions or undergo a medical exam.
Is it required for me to file a formal complaint with Human Resources first?
If an employer refuses to hire an applicant because of discriminatory grounds, or if an employer discriminates against an employee, it may not be necessary to consult with human resources before bringing a discrimination complaint against the employer. Before bringing a lawsuit, it may, however, be required or encouraged to file a formal complaint with a supervisor or human resources office, depending on the nature of the discrimination or harassment.
A co-worker or other non-supervisory party may be held accountable for workplace harassment if the employer was negligent in its handling of the situation. This means that the employer is required to do the following:
- The employer was aware or should have been aware that harassment was taking place; and the employer failed to take prompt and effective corrective measures.
The success of the employee’s harassment case will be determined by whether or not the employer took appropriate steps to prevent harassment in the workplace, as well as how the employer responded to complaints or evidence of harassment in the workplace.
When applicants or employees are unable to perform the essential functions of their jobs due to a medical condition, disability, or pregnancy, employers are required to make “reasonable accommodations.”
Employers are also required to engage in an interactive process with employees who require a reasonable accommodation in a timely and good-faith manner. This is done in order to establish whether or not a reasonable accommodation would allow the candidate or employee to accomplish the necessary functions to do the job successfully.
Whenever an employee or job applicant need a reasonable accommodation in order to accomplish their work duties, they should convey their requirements to their supervisor or a human resources representative. If the employer is not responsive or does not make a reasonable accommodation, the employee may wish to file a complaint with the Equal Employment Opportunity Commission (EEOC) or the Department of Fair Employment and Housing (DFEH).
Do I have to file a complaint with the Equal Employment Opportunity Commission?
Discrimination in the workplace can be a violation of both California state law and federal law, depending on the circumstances. The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the majority of federal anti-discrimination legislation. The California Department of Fair Employment and Housing (DFEH) is the state agency in charge of the majority of employment discrimination cases in the state.
The state of California, on the other hand, provides significantly more safeguards in anti-discrimination proceedings than federal law in many instances. For example, discrimination against transgender people and against people based on their sexual orientation is expressly prohibited in California. Although the federal government has expanded protections to include gender orientation, such classes are not officially mentioned in federal anti-discrimination legislation, according to the Equal Employment Opportunity Commission.
It is possible that California rules will apply to employers with at least 5 employees. Certain federal laws, on the other hand, are only applicable to businesses with 15 or more employees. As a result, many people in California prefer to file an employment discrimination complaint with the DFEH rather than the Equal Employment Opportunity Commission. Despite the fact that a complaint can be transferred between both authorities in many instances.
If an employee in California wishes to file a lawsuit against his or her employer for employment discrimination, the employee is often obliged to exhaust all administrative procedures before filing a lawsuit against the company. Depending on the circumstances, the employee may be required to go through the DFEH complaint process before they can bring a legal action. A complaint can be filed by your attorney with the DFEH and you will receive an instant right to sue notice rather than waiting for the administrative process to be completed first.
You can register a complaint about job discrimination with the Department of Fair Employment and Housing (DFEH). You must generally submit a pre-complaint inquiry within three years of the latest occurrence of discrimination, harassment or retaliation in order to be considered for a complaint. In some cases, however, there are exceptions to this time restriction, such as in cases where the individual did not become aware of the unlawful behavior until after the three-year period had expired.
Complaints can be filed online, via phone, or by printing and mailing the appropriate form from the DFEH website, which is available on their website. It is through the pre-complaint inquiry that the DFEH will conduct a complaint intake interview, which will help determine whether or not a complaint may be accepted for further investigation.
Within 60 days of receiving the complaint, an investigator will contact the individual who submitted it to explore the specifics of the alleged discrimination or harassment that occurred. If the DFEH representative concludes that the state will not handle the complaint, the matter will be dismissed, and the individual will have the opportunity to immediately file a lawsuit against their employer in civil court. Upon acceptance of the pre-complaint inquiry by the representative, a complaint will be produced for your signing and forwarded to the employer. At this point, the complaint might also be filed with the Equal Employment Opportunity Commission (EEOC).
After the employer replies to the complaint, the Department of Labor and Employment will review the response. In many circumstances, the Department of Labor and Employment will provide dispute resolution services, which allow both the employee and the employer to seek a resolution to the complaint. It is possible that the complaint will not be resolved through negotiation, in which case the DFEH will launch an investigation.
It will be determined whether or not there was a violation of California’s anti-discrimination legislation during an employment discrimination investigation. Upon finding that there was a violation, the case will be sent to the DFEH Legal Division for further action. If there has been no infringement, the matter will be closed without further action. Even though the case is closed, the employee retains the right to take their case to court as soon as the case is closed.
The DFEH Legal Division normally demands that the parties go through mediation before reaching a settlement. Mediation is a type of alternative dispute resolution in which a neutral mediator assists the parties in reaching a mutually accepted solution to their issue. In a successful mediation, both the employer and the employee will come up with a solution to the issue rather than leaving it up to the courts to decide the conclusion of the dispute.
If the parties are unable to resolve their differences through mediation, the Department of Labor and Employment may bring a lawsuit on the employee’s behalf against the employer. If the DFEH does not pursue the claim, the investigation will be closed, and the employee will be given the opportunity to bring a lawsuit against the company immediately afterward.
How long do I have to file a lawsuit against my employer?
According to California law, it is a civil right to be given the chance to seek and hold employment without being subjected to discrimination on the basis of race, religion, sexual orientation, or any other unlawful basis. Employees who are subjected to unlawful discrimination may file a lawsuit against their employers for the violation of their rights.
A statute of limitations applies to filing a case against your employer for violations of employment discrimination statutes. The length of time you have to file a complaint is determined in part by how your complaint was handled. This can be extended or shortened based on the circumstances in specific instances.
In general, you must file a complaint with the Department of Fair Employment and Housing within three years of the last incident of employment discrimination or retaliation that you experienced. Before you can bring a case in civil court, you must first get a right-to-sue letter from the court. You have one year from the day that the state sends you a notice of your right to sue or does not pursue your claim to file a lawsuit in state court.
If you want to file a federal employment discrimination complaint, you normally have 180 days to do so. The EEOC deadline, on the other hand, can be extended to 300 days if a state or local agency is enforcing employment discrimination laws on the same grounds as the EEOC. Employees in California would have 300 days to submit a complaint with the Equal Employment Opportunity Commission (EEOC) for the majority of employment discrimination allegations.
An employee must first be served with a notice of right to sue before they can initiate a federal employment discrimination claim. After receiving a notification of right to sue from the Equal Employment Opportunity Commission, the employee normally has 90 days to file a lawsuit in civil court.
Consult with an attorney as soon as possible to ensure that you have sufficient time to file your claim and take your case to court.
What are my damages?
An employment discrimination lawsuit’s potential damages will be impacted by a number of variables, including the extent of the discrimination, whether you were subjected to any harassment, and the type of harm caused to the employee or job candidate. The remedies available may include monetary compensation, punitive damages, and equitable remedies.
Money damages resulting from workplace discrimination may include the following types of losses:
- Back wages (with interest)
- Front pay
- Loss of income from a missed promotion
- Reduced pay after a demotion
- Pension benefits
- Bonus payments
- Pain and suffering
- Emotional distress
In addition to monetary damages, an employment discrimination lawsuit may seek adequate remedy. Equitable remedies have the potential to force an employer to perform specific activities. Suppose an applicant was turned down for a job because of a discriminating reason. The employer could be ordered by the court to hire the applicant. In addition, the court can order the employer to make reasonable accommodations for the employee’s disability.
In the majority of job discrimination lawsuits, applicants or employees who have been subjected to employment discrimination or harassment can additionally seek compensation for the costs of their attorneys’ fees and court expenses.
In cases where the employer’s conduct is particularly egregious or deliberate, an employee may also be eligible to recover punitive damages from their employer. Punitive damages are damages that are meant to punish the employer for his or her improper conduct. The imposition of punitive damages also serves as a deterrent to the employer or other employers from engaging in similar wrongful actions in the future.
Is it possible to be fired for filing a lawsuit against a business for employment discrimination?
Employees in California are protected from retaliation if they report workplace discrimination against other employees, applicants, or coworkers.
The FEHA protects employees who are subjected to retaliation for engaging in the following activities:
- Opposing workplace harassment
- Opposing employment discrimination against other employees
- Reporting employment discrimination or workplace harassment
- Assisting with DFEH investigations or government inquiries
An employer cannot fire an employee for filing a lawsuit against the company for workplace discrimination or harassment. If you fire an employee because they filed a claim against your company for employment discrimination, you may be committing retaliation and may be accused of “wrongful termination.”
FEHA infractions or other employment law violations that are reported by an employee may result in retaliation from an employer, and the employee may be eligible to file a retaliation complaint with the DFEH. Retaliation can result in an employee filing a lawsuit against his or her employer for retaliation or for unlawful termination of employment.
For assistance, please contact us.
We welcome your inquiries concerning California employment laws preventing discrimination and retaliation, as well as the opportunity to discuss your case confidentially with one of our knowledgeable California employment law specialists.
Our law firm maintains local employment law offices in and around Los Angeles, San Diego, the San Francisco Bay area, and several other nearby cities.