admin, Author at JLG Lawyers

What Is Misogynoir? How Intersectional Discrimination Is Pushing Black Women Out of the Workforce

February 24, 2026April 9, 2026 admin

By Latrice Burks-Palmerio, Esq., Associate Attorney at JLG Lawyers

This article was adapted from a piece published in the Daily Journal. Read the original here.

She did everything right. She earned the degree, put in the extra hours, mentored the newer staff, and stayed quiet when she probably should have spoken. Then one day her role was eliminated. The official reason was restructuring. But she had watched less-qualified colleagues keep their jobs. She had heard the comments. She had felt the slow, steady erosion of being taken less seriously than the work she produced actually warranted.

She is not alone. Between February and April of 2025, more than 300,000 Black women left the American workforce. The unemployment rate for Black women climbed to 6.7 percent. News outlets reported the number but struggled to explain it. The explanations they offered, DEI rollbacks, federal layoffs, and small business headwinds, describe conditions. They do not name the cause.

The cause has a name. It is misogynoir.

What Is Misogynoir?

Misogynoir is a term coined by Black feminist scholar Moya Bailey in 2008. It describes the particular form of discrimination that Black women face when anti-Black racism and misogyny operate together, not as separate forces stacked on top of each other, but as a single, combined experience.

Understanding why that distinction matters requires stepping back for a moment. General racism affects Black people. General sexism affects women. But Black women face something that neither of those categories fully captures. They are not simply discriminated against for being Black or for being women. They are discriminated against specifically because they are Black women. The intersection is the target.

This is the core idea behind intersectionality, a framework developed by legal scholar Kimberle Crenshaw to describe how overlapping identities, race, gender, class, age, and others, create overlapping and compounding experiences of discrimination. Misogynoir applies that framework specifically to Black women, and it has roots that go back centuries.

Is misogynoir a legal term?

Not in the statute books. But the discrimination it describes is illegal. Under Title VII of the Civil Rights Act and California’s Fair Employment and Housing Act (FEHA), both race and gender are protected classes. When an employer treats a Black woman worse than her colleagues because of the combination of those two characteristics, that is actionable discrimination, regardless of what word you use to describe it.

How Misogynoir Shows Up at Work

I am a Black woman and an employment attorney. I do not just study this. I represent Black women who are living through it. The patterns I see are consistent enough that naming them matters.

Misogynoir in the workplace rarely announces itself. It accumulates. It is the job offer that came in lower than every comparable offer made to a white colleague. It is the performance review that describes the same behavior as “assertive” in a white male peer and “aggressive” in a Black woman. It is the meeting where her idea is passed over, then credited to someone else twenty minutes later.

Sometimes it is louder. Explicit comments about hair, speech, and manner. Assumptions about competence. The particular exhaustion of being asked to represent the entire experience of Black womanhood in diversity meetings while still being expected to carry a full workload. That invisible labor, the emotional and organizational work of simply existing in a space that was not built with you in mind, rarely shows up on a performance review. It rarely shows up in a paycheck, either.

And then there is the exit. It can look like a layoff. It can look like a resignation. But when you follow the thread backward, you often find conditions that became intolerable in ways that were entirely predictable and entirely manufactured.

That is not leaving. That is being pushed out.

The Legal Framework: What California Law Actually Covers

California has some of the strongest employment protections in the country. The Fair Employment and Housing Act prohibits discrimination based on race, sex, gender, and a range of other protected characteristics. Critically, FEHA allows employees to bring discrimination claims based on multiple protected characteristics at once.

This matters for Black women because it means you do not have to choose. You do not have to decide whether what happened to you was race discrimination or sex discrimination. If the answer is both, and for misogynoir it always is, California law has room for that.

Can I sue my employer for misogynoir under California law?

You can bring claims for race discrimination, sex discrimination, or both under FEHA. California courts have recognized intersectional claims. In Martin v. Board of Trustees of California State University, 97 Cal.App.5th 149 (2023), a plaintiff successfully alleged discrimination based on multiple protected characteristics in a single action. In Kuigoua v. Department of Veteran Affairs, 101 Cal.App.5th 499 (2024), the court similarly allowed combined race, gender, and national origin claims. The legal framework exists. The question is whether the facts of your case support it.

Hostile Work Environment

A hostile work environment claim does not require a single dramatic incident. It requires a pattern. Repeated microaggressions, tone policing, isolation, and gaslighting can collectively create workplace conditions that are severe or pervasive enough to be legally actionable. The standard is whether a reasonable person in the same position would find the environment hostile. Courts have applied this standard to intersectional discrimination.

Constructive Discharge

Constructive discharge happens when an employer makes working conditions so intolerable that a reasonable person would feel they had no choice but to resign. If you were pushed out rather than laid off, if the conditions became unbearable in ways you can document, that resignation may still be a legal claim. The fact that you technically submitted the paperwork does not end the analysis.

Retaliation

If you reported discrimination and then watched your performance reviews change, your projects disappear, or your role get restructured out of existence, that sequence matters. Retaliation for protected activity is illegal under both state and federal law. The timeline is evidence.

Wage and Equal Pay Claims

Black women are disproportionately offered lower starting salaries than comparable colleagues. They are disproportionately passed over for bonuses and promotions. If you have been doing the work of a higher-paid position without the title or compensation, or if you can show that comparable employees in similar roles were paid more, those are wage claims worth examining.

If This Is Your Experience: What Comes Next

The most important thing I can tell you is this. What happened to you may be illegal, and you may not know it yet. The conditions that drove you out may look, on paper, like ordinary business decisions. That is how misogynoir often operates. It is designed to be deniable. An employment attorney looks at the whole picture, not just the final act.

Document what you remember. Emails, performance reviews, text messages, dates, and details of specific conversations. The more specific your documentation, the stronger any potential case becomes.

Do not sign anything an employer presents to you without having it reviewed. Severance agreements almost always include waivers of legal claims. Once you sign, those claims are typically gone.

Talk to an attorney before you decide you do not have a case. That decision should not be made alone, and it should not be made in the first week after losing a job.

JLG Lawyers represents employees in California. We work on contingency, which means you do not pay unless there is a recovery. The first conversation is free.

If you have experienced workplace discrimination, wrongful termination, or were forced out of a job under conditions that felt wrong, we want to hear what happened.

Frequently Asked Questions

These questions are among the most common we hear from Black women who are trying to understand their legal rights after a difficult workplace experience.

What is the difference between racism, sexism, and misogynoir? Racism and sexism describe discrimination based on a single characteristic. Misogynoir describes the specific experience of Black women, who face discrimination at the intersection of race and gender simultaneously. The combined effect is distinct from either alone.

Does misogynoir have to be intentional to be illegal? No. Under California and federal employment law, discrimination does not require proof of intent. Disparate treatment, meaning being treated worse than similarly situated employees, and disparate impact, meaning neutral policies that produce discriminatory outcomes, are both legally actionable.

How long do I have to file a discrimination claim in California? Generally, you have three years from the date of the discriminatory act to file a complaint with the California Civil Rights Department (CRD) under FEHA. Filing deadlines are strict. If you believe you have a claim, speak with an attorney as soon as possible.

I resigned. Can I still have a legal claim? Potentially yes. If your working conditions became so intolerable that a reasonable person would have felt they had no choice but to leave, California law recognizes that as constructive discharge. The resignation itself does not end your legal options.

I signed a severance agreement. Is it too late? It depends on the agreement and when you signed it. Certain waivers have specific requirements under California law to be enforceable. An employment attorney can review the document and give you an honest assessment.

ABOUT THE AUTHOR

Latrice Burks-Palmerio, Esq. is an Associate Attorney at JLG Lawyers. She represents employees in California in cases involving wrongful termination, workplace discrimination, harassment, and retaliation. Before joining JLG, she worked at an AM 100 law firm focused on business litigation. A significant portion of her practice involves representing women of color who have experienced intersectional workplace discrimination. She is a vocal advocate for equality in all its forms.

This post is for informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship with JLG Lawyers. Past results referenced in JLG’s materials do not guarantee future outcomes. If you believe you have an employment claim, contact a qualified California employment attorney to discuss the facts of your specific situation.

desperate man trying to figure out how to deal with mental health discrimination at work

Mental Health Discrimination At Work – Examples

January 15, 2023January 15, 2023 admin

All of us are well aware that it is an unfortunate reality that there is discrimination in the workplace. However, when it comes to discrimination, most people usually only think of discrimination based on one’s race, gender, sexual orientation, or religious affiliation. An often overlooked and serious form of discrimination in the workplace is mental health discrimination. If you have a mental health issue you may be in a situation where an employer is knowingly, or even unknowingly, discriminating against you. If you are suffering mental health discrimination you do not have to suffer in silence. Fortunately, under California and federal law, you are provided certain protections from mental health discrimination at work.

As a starting point, it is important to understand what mental health discrimination in the workplace looks like. This article will provide examples and cases to help you better understand how mental health discrimination is addressed in the California workplace.

What is Mental Health Discrimination at Work?

In some situations, mental health discrimination may be hard to identify. Part of the reason is that mental health issues are not always observable. Also, an employee may be afraid to disclose any mental health issues for fear of stigma and stereotypes, even if it is for the purpose of receiving reasonable accommodation.

Mental health discrimination at work is where an individual, with a diagnosable mental health condition, is treated less favorably than other employees because of this disability. This discrimination can be either direct or indirect, intentional or unintentional. Mental health discrimination can come in various forms such as failure to provide a reasonable accommodation, failure to provide equal opportunities, and even harassment or victimization.

California and federal law provide legal rights to prevent illegal workplace treatment against employees diagnosed with a mental health condition.

Examples of Mental Health Discrimination at Work

To help better understand mental health discrimination, here are some examples that highlight how this type of medical condition discrimination looks in the workplace.

Direct Mental Health Discrimination

The most obvious examples of mental health discrimination are usually direct. Direct mental health discrimination can be seen when an employer (or supervisor) treats an employee less favorably than others because of their mental health condition. For instance, an employee may be a top performer, but they suffer from severe anxiety or bipolar disorder. If an employer refuses to give this employee an opportunity for a promotion while others with similar qualifications have, this may be a form of mental health discrimination. In this example, it would also be considered mental health discrimination if the employee was denied the same promotion because their spouse or partner suffered from a mental health condition.

Indirect Mental Health Discrimination

This type of discrimination typically occurs through a workplace practice or policy that is for all employees yet results in a significant disadvantage to an individual or group of individuals with a mental health condition. For instance, an employee may have a mental health condition that requires them to take an evening medication that causes drowsiness. Requiring all employees to have rotational shifts in which, during certain weeks, employees are required to work the late or overnight shift may be an example of indirect mental health discrimination.

Discrimination Arising from Disability

A third form of discrimination occurs when discrimination arises from a disability. This most often occurs when an individual is disciplined for their behavior that was caused by their disability. For instance, an individual may have a diagnosable mental health condition that has caused them to be absent from work. Discrimination because of their absence would not be direct or indirect but arising from their disability.

Mental Health Discrimination Cases & Real-Life Examples

There have been several cases that have addressed mental health discrimination at work. Here are some cases to show how mental health discrimination in the workplace is addressed:

Termination of an employee diagnosed with severe depression – An employee with severe depression requested and was approved time off to recover and heal. The employee’s request was based on his doctor’s recommendation. When the employee returned to work, he was fired with an explanation that he could not be trusted to perform his job. The employer ended up paying $250,000 and agreed to implement policies, train executives, and distribute material pertaining to requirements for treating employees with disabilities.
Harassment of employees with post-traumatic stress disorder (PTSD) – An employee with PTSD was forced to quit his job to avoid ongoing abuse and harassment regarding his mental health condition. The supervisor referred to the employee as a “psycho” and consistently mocked his therapy sessions for PTSD. The employer paid $75,000, received an injunction against future discrimination based on one’s disability, and was required to provide a letter of apology and recommendation for the employee.
Termination after requesting extended leave – An employee was terminated despite making a request for extended leave due to a collapse on the job resulting from stress and anxiety. The employer paid $140,000 and agreed to train their human resources and supervisory employees on the requirements of the Americans with Disabilities Act (ADA).
An employee with psychiatric disability cleared for work – An employee diagnosed with a psychiatric disability was hospitalized. The employee was terminated from their job after being medically cleared to work. The termination, in part, was also alleged to be due to the employee’s need to take future leave for medical appointments. The employer paid $125,000 and agreed to implement an ADA reasonable accommodation policy, provide training, and submit periodic reports to the Equal Employment Opportunity Commission (EEOC).
Employee Termination Related to Medication – An employee with attention deficit hyperactivity disorder (ADHD) took medication for this diagnosis under the prescription of a healthcare provider. A manager instructed the employee to stop taking the medication and take a drug test. Before any test results were received the employee was discharged. The employer paid $100,000, agreed to conduct training, provide regular reports to the EEOC, and publicly post a notice that confirms their obligations under the ADA.

Remember, it is important to file your claim before the expiration of the statute of limitations. You have 3 years from the date of discrimination to file an administrative complaint with the California Civil Rights Agency (formerly called the Department of Fair Employment & Housing). Generally, with the EEOC, you have 180 days from the date of discrimination to file a claim.

Conclusion

As you can see, mental health discrimination can come in a variety of ways. If you believe you are suffering mental health discrimination at the workplace, do not let it continue without addressing it. Even if you are unsure if you are being discriminated against because of your mental health condition, it is highly recommended that you seek the opinion of an experienced California employment lawyer. They will be able to assist in evaluating your situation and determining your best course of action.

How To Prove Disability Discrimination?

January 15, 2023January 15, 2023 admin

People often ask an attorney about how to prove disability discrimination at work, as often the discriminatory practice isn’t always obvious. A person looking in might not realize what is normal and what is not standard practice at your particular workplace. Sometimes a person may wonder if they really have been a victim of discrimination in the first place, or if the conduct of their employer is, or qualifies as, discrimination in the workplace.

While the misconduct may sometimes be subtle, or whether it’s hard to miss, the discrimination usually involves at least one of the varieties of discriminatory conduct detailed below. Each of them is helpful to remember if you are thinking about how to prove discrimination based on disability at your office or another workplace.

6 Ways to Prove Disability Discrimination at Work

A quick way to know how to prove disability discrimination and/or determine if you were the victim of disability discrimination at work is to remember the mnemonic, STAMPED, which stands for:

Similarly situated employees receive better

Treatment. As a result of requesting an

Accommodation or

Mentioning an adverse action you were not

Promoted by your

Employer because you have a

Disability

Each of the first five letters is one of the many ways an employer may have acted towards you that demonstrate disability discrimination in the workplace.. The last letter in STAMPED is a requirement that must be met for any of the five ways to be valid.

1. Similarly Situated Employees

The first way is when your co-worker, who holds the same or similar position as yours (is similarly situated) is treated differently, usually better because they do not have a disability. This type of behavior isn’t always obvious. An example would be when nobody seems to mind when your co-worker takes an hour and ½ for lunch when you are both allowed an hour, but if you exceed the hour, your boss writes you up.

2. Receiving Poor Treatment

While the above way to prove disability discrimination at work requires a comparison between how you and another employee are treated, sometimes you are alone in your position without anyone who you can use to compare the actions of your employer with. You don’t always need that other person to prove poor treatment. Sometimes the poor treatment constituting discrimination is overt. Perhaps your employer loudly complains to other workers that you’re lucky you have your job after having exhausted all your available sick days. You shouldn’t be called out for using the same amount or more sick time than another, just because the basis for you using your sick days is that a disability-related condition is making you unable to work that day.

3. You Ask for an Accommodation

As you might be aware, disabled persons can request reasonable accommodations to help them perform the essential functions of the job. Maybe you’re a diabetic and need to snack often to keep your blood sugar stable when generally, employees are not permitted to eat outside of break or lunch. You ask if your break time can be divided into three (3) of five (5) minute long segments, instead of one (1) fifteen (15) minute break. There is no basis as to why this isn’t possible, as not everyone takes breaks at the same time, and as long as they add up to the same duration. The segmented breaks would not result in a decrease in your productivity but your employer simply refuses to allow you to take the shorter, more frequent, breaks.

When there is no valid reason why your request for accommodation was allowed, also may be a way to prove discrimination based on disability.

4. You Mention an Adverse Action

Continuing with the situation described in the last item, as a result of being denied the more frequent but shorter breaks, you emailed management to discuss the unfairness of the situation and to again request the accommodation. Your direct supervisor, the one that denied the accommodation in the first place was at the meeting. Two days later, after never having received a disciplinary report due to work performance, you receive a write-up that you are falling behind on certain assignments. However, you always turn in your assignments by the date they are due, and you never turn them in late. Based on this hypothetical situation, you may be able to prove disability discrimination.

5. Have You Been Denied a Promotion You Deserved? That Might Help You In Proving Disability Discrimination

Let us imagine you applied for a promotion to become a supervisor at your job. The company hired someone else, but when you chatted with the new supervisor about their past work experience working retail, it seems all their past jobs have been in an office setting. It doesn’t make sense that the company chose them over you to fill the position due to your superior qualifications. This situation may show how you were treated differently than the person they hired, proving disability discrimination. This as well applies to a person with superior qualifications that weren’t hired due to disability.

6. Your Employer Must Know you are Disabled or be Regarded as Disabled

The last item on the list is a precondition for all the ways how to prove disability discrimination listed above. This one is simple: you must be certain your employer is aware you are disabled, or they must believe you are, in order for the negative treatment or action to be based upon a disability.

While helpful, the above list may omit certain, less common ways a person might be discriminated against at work. An attorney can help you determine how to prove disability discrimination and what are the next steps to take to stop this type of treatment.

So, if you feel that you’re a victim of disability discrimination, don’t hesitate to book a free consultation with our employment lawyers in California.

a woman comitted to stop sexual harassment through sexual harassment training in california

What is Sexual Harassment Training in California?

December 22, 2022December 22, 2022 admin

Sexual harassment in the California workplace is a form of sexual discrimination which violates California’s Fair Employment and Housing Act and Title VII of the Civil Rights Act of 1964. Sexual harassment includes any unwelcome sexual advances, whether they be physical, visual, or verbal. Sexual harassment also includes actions that create a hostile, intimidating, or offensive work environment because of an employee’s sex. Essentially, sexual harassment is either considered a “quid pro quo” (pressuring an employee to engage in sexual activity for some type of employment benefit) or a “hostile work environment” (harassment so severe or pervasive that it alters the terms of an employee’s work environment).

While there is greater awareness of sexual harassment than in the past, people are still unfortunately subject to it on a daily basis. As a result, California made sexual harassment and abusive conduct prevention training a legal requirement for most employers to help remind people what behavior is considered unacceptable in the workplace. The ultimate goal of this training is to provide education that will result in the reduction and prevention of sexual harassment in the California workplace.

Understanding California Sexual Harassment Prevention Training

Who is required to take Sexual Harassment Training in California?

Sexual harassment prevention training is required for all private California employers with 5 or more employees (and all public agencies regardless of size). When determining the number of employees, this includes all employees in a company, not just those working in the same location, and not just those working in the state of California. While employees outside California count towards the “5 or more employees” requirement, they are not required to take the training. Training is required for both supervisory and nonsupervisory employees. If an individual is an employee that provides the training for their employer, they do not need to attend separate training for their employer to be in compliance.

How Often is Sexual Harassment Training Required in California?

For employers that are required to provide sexual harassment prevention training in California, it must be attended by their employees every two years. Nonsupervisory employees are only required to have one hour of training while supervisory employees are required to have at least two hours of training. The training may be completed in multiple segments or all at once. However, the training may not be required during an employee’s personal time and must be a part of the individual’s employment.

New employees must be trained within 6 months from when they were hired. However, if they received training within the past 2 years from another employer (current or prior), they are not required to retake the training until they would normally be due. As proof that employers have complied with this requirement, they must retain records of all employees’ training for at least 2 years.

What Must be Included in a California Sexual Harassment Prevention Training?

A sexual harassment training in California should include practical guidance on federal and state laws involving sexual harassment. It should provide information on what these laws are designed to prohibit and prevent. The training should also detail how these laws attempt to correct sexual harassment and the remedies that are available to any victims.

It’s also recommended to include an understanding of what is considered sexual harassment with real-life examples of harassment and discrimination based on sexual orientation, gender identity, and gender expression. Finally, the training should provide practical information on how to prevent this type of abusive conduct.

In addition to the training, employers are required to provide their employees with either a fact sheet or a poster regarding sexual harassment. State law requires that it contains the following minimum components:

The illegality of sexual harassment;
The definition of sexual harassment under applicable state and federal law;
A description of sexual harassment, using examples;
The internal complaint process of the employer available to the employee;
The legal remedies and complaint process available through the department;
Directions on how to contact the department;
The protection against retaliation for opposing any prohibited act of sexual harassment, filing a complaint, or participating in an investigation, proceeding, or hearing by the DFEH; and
A link or website address for the sexual harassment online training courses developed to comply with California state law.

Who Can Give Sexual Harassment Training in California?

This training must be provided by a qualified trainer. This includes the following:

Attorneys – must be admitted to practice in any jurisdiction in the United States for at least 2 years and have employment law experience related to Title VII of the Civil Rights Act of 1964 or the FEHA.
Professors or Instructors – must have either a postgraduate degree or a California teaching credential and either 2 years’ experience teaching employment law under FEHA or Title VII or 20 hours of instruction.
HR Professionals and Harassment Prevention Consultants – must have a minimum of 2 years of practical and relevant experience.

Training can be provided online, live, or in any other effective format. This includes traditional classroom training, E-learning, and webinars. The training must have questions that assess the trainees learning as well as a way in which the attendees can obtain answers to their questions within two business days of the training.

While there are plenty of resources, online sexual harassment training is provided by the Department of Fair Employment and Housing through California’s Civil Rights Department.

Do Contractors or other non-traditional employees have to take Sexual Harassment Training in California?

No, independent contractors are not required to take this training. Volunteers and unpaid interns are also not required to take this training. However, part-time, temporary, and seasonal employees are required to take the training. For short-term employees, they must be trained within 30 calendar days (or 100 hours of work) from when they began working, whichever occurs first.

What is California Senate Bill 1343?

On January 1, 2019, California Senate Bill 1343 amended the California Fair Employment and Housing Act (FEHA) to require mandatory sexual harassment prevention training for a larger group of employers and employees than the previous bill. The previous bill only required employers to provide the training if they had 50 or more employees, while this bill reduced the requirement to only 5 employees. Also, the previous bill only required this training for supervisors while this bill has expanded the training to nonsupervisory employees as well.

Conclusion

California has taken proactive steps to help identify and prevent sexual harassment. Mandatory sexual harassment training in California is a great way to help employers and their employees in the state identify and prevent sexual abuse in the workplace.

That being said, providing this training, does not absolve employers from liability for any potential sexual harassment claims. Employees every day have to deal with unlawful sexual harassment in the workplace. If you believe you have become a victim of sexual harassment, as with most employment law issues, it is highly recommended that you seek the opinion of an experienced California employment lawyer. They will be able to assist in evaluating your claim and determining your best course of action.

understanding the difference between sexual assault and sexual harassment

Sexual Harassment vs Sexual Assault, and Sexual Abuse. What’s the Difference?

December 17, 2022December 17, 2022 admin

Sexual misconduct is not acceptable in any scenario, including the workplace. Depending on the type of misconduct it may be either inadvertent or deliberate and malicious. Regardless of the motive, sexual misconduct in its many forms is illegal and can have a devastating impact on its victims. Those that think that something like this will never happen to them should be aware that sexual misconduct can happen regardless of gender, age, sexual orientation, or cultural background.

As an employee, you have a right to be protected from all forms of sexual misconduct in the workplace. That being said, it is important to understand the difference between sexual assault, sexual harassment, and sexual abuse.

Sexual Harassment

Sexual harassment can cover a broad range of situations. In California, any type of unwelcome sexual advances may be considered sexual harassment. This includes not only physical actions (unwanted touching), but also visual (sexually explicit gestures or images) and verbal actions (lewd comments or jokes) that are sexual in nature. Sexual harassment also includes actions that create a hostile, intimidating, or offensive work environment because of an employee’s sex.

Sexual harassment in the California workplace is typically seen in two different ways. The first is called “quid pro quo” where the perpetrator is usually in a position of power over the victim. “Quid pro quo” sexual harassment typically involves a superior pressuring an employee to engage in sexual activity for some type of employment benefit (e.g., pay raise, promotion, etc.). The second main category of sexual harassment is classified as a hostile work environment. This consists of any type of harassment that is either so severe or pervasive that it alters the entirety of an employee’s work environment.

Examples of Sexual Harassment

Sexual harassment can occur in many situations, but it is most often seen in the workplace or other types of professional settings. While sexual harassment may come in several forms, here are some examples of it:

Asking personal questions about an individual’s sex life.
Sending unsolicited texts or emails that are sexually explicit.
Requesting or making suggestions for sexual favors.
Touching someone without their consent in a sexual manner.
Lewd or offensive comments about an individual’s sex life or body.

Proving Sexual Harassment

To prove sexual harassment one must demonstrate the following:

(1) the conduct was unwelcome;

(2) the conduct was severe (serious conduct such as sexual assault that can occur in an isolated incident) or pervasive (occurred over an extended period of time or was evident throughout a company);

(3) the conduct was objectively offensive (a reasonable person in your situation would find the conduct offensive) and subjectively offensive (the victim personally found the behavior offensive);

(4) the conduct resulted in actual damages which can be either economic (e.g., lost wages for missing work) or noneconomic (e.g., emotional or physical distress).

Sexual Assault (vs. Sexual Harassment)

Sexual assault is much more specific than sexual harassment. Sexual assault requires actual contact, that is sexual in nature, and occurs without the consent of the other person. There is a wide range of actions that may be considered sexual assault and can be anything from unwanted touching to rape.

Examples of Sexual Assault

Forcing someone against their will to perform sexual acts.
Rape or attempted rape.
Sodomy or attempted sodomy.
Unwanted touching or fondling of another individual’s genitals or other body parts.

Sexual Abuse (vs. Sexual Harassment and Abuse)

Distinct from both harassment and assault is sexual abuse. While often seen with crimes against minors, sexual abuse is any type of sexual act that involves the use of manipulation, coercion, or force. Sexual abuse is most often seen in situations where the victims know each other and there is a level of trust. As a result, sexual abuse usually occurs when the perpetrator and victim have a close personal or familial relationship such as a partner, friend, or family member.

Examples of Sexual Abuse

Coercing someone to send sexually explicit videos or photos.
Threatening to release sexual photos or videos of someone without their consent.
Sexually assaulting someone when they are unable to consent (e.g., intoxicated or asleep).
Coercing someone to perform sexual acts they do not want to do.

Evidence for Proving Any Type of Sexual Misconduct

Whether it is sexual harassment, sexual assault, or sexual abuse, here are some of the common ways for providing proof:

Physical Evidence. This can include visible items such as torn clothing or scientific proof with the use of DNA.
Electronic Evidence. Any communication (e.g., text messages, emails, etc.) between the victim and the perpetrator that either directly or indirectly confirms that the illegal conduct occurred.
Medical Records. For instance, if the victim received medical attention for sexual assault, medical records from that visit may be used as evidence.
This can include testimony from both the victim and any eyewitnesses to the sexual misconduct.
Audio or Video Recordings. There are a lot of possibilities for using this kind of evidence. For instance, the victim may have recorded a conversation with the perpetrator. Or there may be a video recording of the incident by a witness with a cell phone or security camera footage.

If you are the victim of any type of sexual misconduct in the workplace or are simply looking to understand the difference between sexual assault and sexual harassment, an experienced California employment lawyer can help assist you with what you need to do next. They can help with the following:

Investigation. An attorney can conduct an investigation to help determine what type of sexual misconduct occurred and to gather evidence to support your claim.
Police Report/Restraining Order. An attorney can also help you take the initial steps to either file a police report or restraining order. This is essential for ensuring that the investigation is conducted properly and for keeping the perpetrator from making any contact with you.
Handling the Claim. An attorney can help determine the best course of action and either negotiate an appropriate settlement or, if necessary, take your case to trial.

Conclusion

While there are differences between sexual harassment and sexual assault including sexual abuse, they can all have a devasting impact. None of this illegal behavior should be tolerated and should be reported immediately, whether you are the victim or an eyewitness.

However, it’s not always clear what type of sexual misconduct has occurred. Or it may be that you are not sure if what happened was illegal at all. If you believe that you may have been the victim of sexual misconduct at the workplace, it is highly recommended that you seek the opinion of an experienced attorney. They will be able to assist in evaluating and handling all aspects of your claim.

In case you’re wondering what’s your case and if you’re dealing with sexual harassment vs sexual assault or something else, don’t hesitate to book a free consultation with a JLG lawyer. Don’t hesitate to contact us directly at 818-630-7280.

man applying physical and verbal sexual harassment on a woman

What is Verbal Sexual Harassment in California? Verbal Harassment Laws & Examples.

December 11, 2022December 11, 2022 admin

Verbal sexual harassment in the California workplace may be considered an abuse of employees and employers may be sued for it. As an employee, you have a right to be protected from certain types of verbal harassment in the workplace. However, it may be difficult to know if a situation you faced would be considered verbal harassment or not. Further, even if it is verbal harassment, it does not automatically mean an employee can take legal action.

It’s important to understand what is considered verbal harassment in general and when you can take legal action. We will then talk about more specifically if you can be sexually harassed verbally. For professional advice, please seek an experienced California employment law attorney.

What is Considered Verbal Harassment?

While there is no bright line rule, verbal harassment can include any of the following: (1) threats, (2) yelling, (3) cursing, (4) slurs, (5) offensive jokes, (6) insults, (7) name-calling, (8) innuendos, (9) derogatory comments, and (10) mocking. In California, verbal harassment is only illegal if it is tied to an unlawful reason. The employee must be the target of this harassment due to some protected characteristic. This means that harassment, by itself, may not be considered a crime. That being said, there are many ways in which verbal harassment can be illegal.

In dealing with any type of action against an employee, including verbal harassment, a determining factor for whether the action qualifies as harassment is whether it has created a hostile work environment. This can occur if the action is frequent, severe, or both. In addition, for the action to be considered harassment, it must be both objectively and subjectively hostile or abusive.

When it comes to verbal harassment in California, as with other violations at the workplace, the law that provides the greatest protection to the employee is the law that will apply. The following laws may apply when there is an incident of verbal harassment in the California workplace:

Title VII of the Civil Rights Act of 1964 – this federal law prohibits discrimination on the basis of race, color, religion, sex, or national origin. Under Title VII, certain forms of verbal harassment may be considered discrimination depending on the basis for the harassment.

The Fair Employment and Housing Act (FEHA) – this California law protects employees against several types of discrimination and harassment. This law even extends to others such as independent contractors, job applicants, and unpaid interns. Unlike Title VII, FEHA applies their anti-harassment provisions to all private, state, and local employers, regardless of the number of employees.

The Age Discrimination in Employment Act of 1967 – this federal law prohibits employment discrimination (including harassment) against anyone at least 40 years of age.

The Americans with Disabilities Act – this federal law protects employees with physical and mental disabilities from discrimination and harassment based on their disability.

The California State Constitution – similar to Title VII, California’s state constitution prohibits discrimination (including harassment) against employees on the basis of sex, race, creed, color, nationality, or ethnic origin.

While any of these laws may be applicable to a situation involving verbal harassment, the laws that provide the strongest protections for employees are the FEHA and Title VII of the Civil Rights Act of 1964.

What is Verbal Sexual Harassment?

Verbal sexual harassment is often seen in “quid pro quo” (Latin for “this for that”) scenarios. Typically, a sexual favor is requested or demanded in exchange for a specific job benefit, or simply just to keep one’s job. For instance, verbal sexual harassment occurs when an employer indicates they will give their employee a promotion or raise if they perform a sexual favor for them. Verbal sexual harassment of this kind may also be either express or implied.

Verbal sexual harassment also occurs when a favor is not being asked, but rather, the language used is so offensive as to constitute harassment. To be considered verbal sexual harassment these comments need to result in a hostile work environment due to the severity and/or pervasiveness of the comments.

Examples of Verbal Sexual Harassment

Examples of verbal sexual harassment can include (1) unwanted sexual advances, (2) comments on an employee’s body, (3) requests or threats for sexual favors, (4) inappropriate discussions of graphic sexual acts; (5) jokes, insults, or slurs that are sexual in nature; or (6) crude or vulgar sexual comments.

Examples of what is not Considered Verbal Sexual Harassment

It’s important to note that some verbal comments may be upsetting, embarrassing, and make you feel uncomfortable, yet not be considered verbal sexual harassment. While context is important, examples that are likely to not be considered verbal sexual harassment include (1) compliments on an outfit, (2) invitation to go out for dinner or coffee, or (3) other types of friendly non-sexual compliments.

That being said, if the innocent compliment or request is repeated it may rise to the level of verbal sexual harassment. For instance, one offer to a co-worker to go out on a date would not be considered sexual harassment. However, repeated requests after the co-worker informed them they were not interested may rise to the level of sexual harassment. The same may be true of compliments if an employee indicates that the comments make them feel uncomfortable and they continue.

What Could Be Non-Verbal Sexual Harassment?

In contrast with verbal sexual harassment, non-verbal sexual harassment is usually easier to determine. For instance, unwanted physical touching is clearly a form of sexual harassment. That doesn’t mean that every instance in which an employee is touched is sexual harassment. A friendly touch on the arm or back is likely not to rise to the level of sexual harassment even if an employee believes it was sexual in nature. That being said, if you request the touching to stop, and it continues, an employer’s touching may be considered a form of sexual harassment. Even then, a court may not consider the touching sexual harassment, even if the touching is inappropriate or offensive. Other factors will be considered, such as the severity and frequency of the touches.

Conclusion

The area of verbal harassment can be very subjective and it’s not always clear if one has become the victim of verbal harassment. Or it may be that you have suffered verbal harassment, but you are not sure if you can take any legal action. As with most employment law issues, it is highly recommended that you seek the opinion of an experienced California labor and employment law attorney. They will be able to assist in evaluating your claim and determining your best course of action.

woman figuring out how to report sexual harassment in california

How to Report Sexual Harassment in California and File a Claim?

November 24, 2022November 24, 2022 admin

Sexual harassment in the California workplace is a form of sexual discrimination which violates California’s Fair Employment and Housing Act and Title VII of the Civil Rights Act of 1964.

As an employee, you have a right to be protected from sexual harassment in the workplace. However, if you are a victim of sexual harassment, you may not know exactly what steps to take. For victims of sexual harassment in California, it is important to know how to report workplace sexual harassment and how to file a claim. Understanding this process is essential to stopping illegal behavior, preventing further harassment, and ensuring you are compensated for any damages you suffered.

How to Report Sexual Harassment in California?

Step 1 – Review your Company’s Sexual Harassment Policy

Employers are required to provide employees with basic information about sexual harassment as well as a policy that includes how they will handle this type of harassment.

Even before an incident occurs, it is important to know your company’s sexual harassment policy. If its not readily apparent whether there is a policy, you should reach out to your company’s human resources department. The sexual harassment policy may inform you how the company handles these types of incidents and how they should be reported.

Step 2 – Write a Detailed Record of the Event

As soon as an incident of sexual harassment has occurred you should put as much of the detail about the incident in writing, including the date, time, and people involved. Not only will this help when you notify your employer, but it may also be used to file a claim or a police report for sexual harassment.

Step 3 – Inform Your Employer about the Harassment in Writing

As soon as an incident of sexual harassment has occurred and you have documented it, you should inform your employer in writing. When reporting the incident, provide as much detail as possible. Make sure you keep a copy of this notification with a notation of the means used to deliver the notification and any other relevant information.

Step 4 – File a Complaint

After informing your employer you can file a claim with the California Department of Fair Employment and Housing (DFEH) online, by mail, or by phone. The DFEH in California is tasked with protecting employees from unlawful discrimination. Any claim filed with DFEH will also be cross-filed with the Federal Equal Employment Opportunity Commission (EEOC) which is tasked with enforcing federal anti-discrimination laws. If a California employee instead files a claim with EEOC, it will also be automatically filed with California’s DFEH.

An employee has three years from the date of the last incident of sexual harassment to file a claim with DFEH.

Step 5 – Mediation or Lawsuit

After a claim has been submitted, it will be evaluated, and a determination will be made as to whether it will be accepted for investigation. If an investigation proceeds the alleged offender will provide a response and either DFEH or EEOC will go over that response with you. Finally, if it has been determined that there is a violation of either California or federal law, the case will move to either mediation or a lawsuit.

FAQ

Here are answers to some of the most common questions California employees have asked when it comes to sexual harassment in the workplace.

What is legally considered sexual harassment in California?

In California, any type of unwelcome sexual advances may be considered sexual harassment. This includes not only physical actions but visual and verbal actions that have a sexual nature. Sexual harassment also includes actions that create a hostile, intimidating, or offensive work environment because of an employee’s sex.

Sexual harassment in California is typically classified as either “quid pro quo” (pressuring an employee to engage in sexual activity for some type of employment benefit) or “hostile work environment” (harassment so severe or pervasive that it alters the terms of an employee’s work environment).

Who do you report sexual harassment to in California?

Employers have a duty to take reasonable steps to prevent and promptly correct harassing conduct. As a result, sexual harassment claims should be reported to one’s employer. In fact, an individual may not be able to pursue certain legal remedies if they do not notify their employer.

Depending on the severity of the sexual harassment, it may also be reported to law enforcement.

What happens when you file a police report for harassment?

When a police report is filed, the police will investigate based on the information you provided them. This may include a review of any evidence you provided, conducting interviews with eyewitnesses, and reaching out to the offender. If the police determine that there was a violation of a criminal statute charges may be pressed against the offender.

How do I prove sexual harassment in California?

To prove sexual harassment one must demonstrate the following: (1) the conduct was unwelcome; (2) the conduct was severe (serious conduct such as sexual assault that can occur in an isolated incident) or pervasive (occurred over an extended period of time or was evident throughout a company); (3) the conduct was objectively offensive (a reasonable person in your situation would find the conduct offensive) and subjectively offensive (the victim personally found the behavior offensive); and (4) the conduct resulted in actual damages which can be either economic (e.g., lost wages for missing work) or noneconomic (e.g., emotional or physical distress).

What if I am a victim of sexual assault?

You should immediately report the incident to local police and see a healthcare provider as soon as possible to receive a health exam and any necessary care. Seek out support from friends, family, and your community. If you do not know who to reach out to you can call a crisis hotline at 800-656-HOPE (4673).

Conclusion & Next Steps

It’s not always clear what to do when sexual harassment occurs in the workplace. Or it may be that you are not sure if what happened was actually sexual harassment. As with most employment law issues, it is highly recommended that you seek the opinion of an experienced California labor and employment law attorney. They will be able to assist in evaluating your claim and determining your best course of action.

California Vacation Rights and Requirements

October 10, 2022October 10, 2022 admin

Whether its going on a trip with your family, or just taking a few days off, everyone needs some time off from work. Wishing your employer provided vacation time? Unsure, if your employer’s vacation policy is legal? You’re not alone. So, what are the rules in California regarding vacation or paid time off?

Employees Legal Rights for Vacation of Paid Time Off

In California, employers are not legally required to provide vacation or paid time off. However, if your employer has an agreement or policy in place for paid vacation or time off, then there are certain conditions that employers must follow. The Division of Labor Standards Enforcement (DLSE) is responsible for the enforcement of labor laws, including an employer’s vacation policies.

What is Vacation Time?

Vacation time is considered a form of wages. As an employee works, vacation time is earned in proportion to how much time an employee has worked and the amount of vacation time an employer offers. For example, if an employer offers two weeks of vacation time per year, an employee has earned one week of paid vacation after working for 6 months. An employer’s vacation policy can designate the intervals in which it is calculated. For instance, it can be calculated on a day-by-day basis, per pay period, or any other reasonable basis.

Amount and Timing of Earned Vacation

An employer has flexibility with certain specifics of their vacation policy. One example of this is that employers are allowed to require a period of time for a new employee to work before they can earn vacation benefits. This is usually referred to as a probationary or introductory period. DSLE has found it reasonable even when this probationary period was the entire first year of one’s employment.

Also, employers are authorized to place a reasonable cap on vacation benefits. A vacation cap is used to provide a ceiling on the amount of vacation an employee can accrue without using it. Once an employee hits this cap, an employee must use their vacation time to get below this cap before they can continue to earn additional vacation time. However, a vacation cap has to be reasonable. For instance, it may not be reasonable if the vacation cap requires an employee to use their earned vacation time in a very limited time period.

While an employer can have a cap in their vacation policy, there are other means of restricting paid time off they are prohibiting from using. One of those is a “use it or lose it” policy. That is, California employers can not have a policy in which an employee forfeits their vacation time if it is not used by a certain date. As previously stated, vacation time vests as a form of wages, and any policy that takes away those earned wages is illegal under California law.

Employee’s Use of Vacation Time

Employers can manage the use of vacation time in a variety of ways. Employers are allowed to control when vacation time is taken and how much can be taken at a particular time. For instance, an employer can have certain peak times when vacation is restricted or limit the use of vacation time to no more than 2 weeks at a time. Employers can also decide to pay an employee for accrued vacation that was not used by the end of the year.

An employer’s rights get trickier when it comes to advanced vacation time. Employers can certainly allow employees to use vacation time in advance of when it is accrued. Since vacation time is considered a form of wages, allowing the use of advanced vacation time is essentially an advance in wages. However, if an employee is terminated or leaves before earning back the vacation time an employer cannot simply deduct those wages from their final paycheck. While it is considered a debt in that it is an overpayment of wages, an employer can not use any form of self-help to recover those debts.

Unused Vacation Time After Employment Ends

Any earned vacation time cannot be forfeited, even upon a rightful termination of one’s employment. That means that, upon termination, an employer must pay an employee, on a prorated daily basis, any earned and unused vacation at their final rate of pay. Any unused vacation time should be included in a former employee’s final paycheck.

Restrictions on Certain Employees

California employers can restrict a vacation policy to exclude certain classes of people, beyond just the probationary period that was discussed earlier. For instance, a vacation plan can be limited to certain jobs (e.g., managers) or only for full time employees. However, these restrictions cannot be made to discriminate against protected classes of people such as a vacation policy targeted at one’s race or gender.

Other Types of Leave

California law requires that employers provide a certain amount of paid sick days per year. However, sick leave does not fall under the same policies as vacation time. However, when an employer has a general paid time off policy that combines vacation time and sick leave, an employer is bound to follow the rules for vacation time in California. That means, among other things, the employee has the right to take these days off (or be paid) for any reason they choose.

Distinguished from vacation or paid time off is paid holidays. Future paid holidays that are tied to a specific event (e.g., New Year’s Day) does not need to be paid out to an employee upon termination of the employee-employer relationship. While personal days cannot be forfeited, paid holidays can.

Remedies for Violations

If an employer violates any of the above requirements, there are remedies for the employee. California’s labor commissioner is given the authority to resolve vacation claims. While you can file a lawsuit in court, it may be easier to start with filing a wage claim with the DLSE for lost wages or whatever appropriate remedy you are seeking. Once a claim is filed a determination will be made as to whether it should be referred to a conference or whether the claim should be dismissed. If a conference is held it will be used to further determine if there is a valid claim and if the claim can be resolved. If there is a valid claim and it cannot be resolved at the conference, it will be resolved by a hearing. After the hearing, the Labor Commissioner will issue an Order, Decision, or Award (ODA) which may be appealed by either party in civil court. If the appeal is made by the employer, DLSE may represent an employee who does not have the financial means to hire an attorney.

If you no longer work for this employer, you can make a claim for a waiting time penalty under Section 203 of California’s Labor Code. The waiting time penalty can be charged against an employer for up to 30 days and is the employee’s average daily wage for each day the penalty is assessed.

If an ODA is issued in an employee’s favor, and there is no appeal, the DSLE will enter a judgment against the employer. This judgment has the same effect as if you prevailed in a lawsuit in civil court. The only difference is, when a judgment is entered, you can either attempt to collect on the judgment yourself or you can allow DLSE to enforce the judgment.

Conclusion

It’s important to understand your rights when it comes to vacation time. While California law may not provide an explicit right to vacation time, it provides several protections if your employer has a vacation plan in place. If you have any questions or your employer has taken action that has impacted your vacation time, you should reach out to an experienced California employment attorney.

employer failing to pay a wage to an employee

Failure to Pay Wages in California

August 9, 2022October 25, 2022 admin

As an employee you expect to get paid. So does the State of California. When it comes to your wages, the California Labor Code provides requirements for employers to ensure prompt and full payment of your earned wages. In California, employers are legally required to pay their employees’ wages and pay them on time.

Understanding California Employers’ Obligation to Pay Wages

Definitions

Before we discuss an employer’s obligations it’s important to understand a couple of key terms.

Wage – Payment for any labor performed by an employee. This includes, not only your salary or hourly rate, but also things such as vacation time, sick pay and even room & board.

Labor – Any work or services performed by an employee for an employer.

Employer Obligations

In California, you have a right to be paid under either contract law or the California Labor Code. While this article will focus on the California Labor Code, be aware, that a formal written contract – or even an oral agreement – is enough to create an obligation for an employer to pay you any wages earned.

The California Labor Code provides several rights employers must provide for their employees. These include things such as a minimum wage as well as overtime wages. However, the California Labor Code only applies to employees, not independent contractors. If you have unpaid wages in California and you have been classified as an independent contractor, you should seek the advice of a California Employment law attorney. It is illegal for an employer to classify an employee as an independent contractor simply to avoid paying wages in accordance with California laws.

The California Labor Code also instructs employers on how wages must be paid, what wages must be paid and when wages are due. A couple of important takeaways on these requirements:

Employees are entitled to the unused portion of vacation time they have earned regardless of an employer’s requirements that a fixed period of work be completed before being given vacation time.
The timing of when wages are due are largely based on whether the employee is terminated or if they resign.

Penalty for Final Unpaid Wages in California

If, after an employment ends, an employer willfully fails to timely pay all final wages a penalty can be enforced against them. The penalty is a full day wages (typically calculated by adding base wages, commissions, bonuses, and vacation pay that the employee earns in a year, dividing that sum by 52 weeks, and dividing that result by 40 hours) for each day payment of your wages has been delayed. This penalty can accumulate for up to 30 days, depending on when full payment has been made. This penalty also applies if an employer intentionally provides an employee with a check that cannot be cashed or deposited because of insufficient funds.

When determining if an employer’s action was willful, they are provided an exception if the employer has a good faith dispute about the employee’s claim of unpaid wages. This exception is provided to employers even if they do not ultimately win the dispute. Whether or not it will be considered a good faith dispute will be based on the legal and factual defenses presented by the employer.

Remedies for Employer’s Failure to Pay Wages

California employees are protected by both federal and state law. If your employer has wrongfully failed to pay your wages, you have the following options:

Informal Resolution with the Employer

Ideally, the quickest way to resolve a dispute regarding unpaid wages is to attempt to resolve the matter informally with your employer. This could include anything from a conversation between you and your employer to a formal letter prepared by your attorney. It may be that taking these simple steps are all that is needed to resolve this issue.

California Administrative Wage Claim

You can also file an administrative claim for unpaid wages and penalties. This type of claim is filed with California’s Division of Labor Standards Enforcement (DLSE). Filing an administrative claim is typically quicker and less complicated then filling a formal lawsuit. That being said, it still provides many of the same functions as a civil court, including: (1) a hearing; (2) issuing subpoenas; (3) compelling witnesses to testify; and (4) requiring employers to produce documents. Considering the similar functions and the broad protections provided by the California Labor Code, this is usually the best option if you cannot settle your claim informally with your employer.

Wage Claim with Federal Agency

There is a similar option to the California Administrative Wage claim. An employee can file a wage claim with the Federal Labor Department’s Wage and Hour Division. A claim with the Labor Department would be brought under the Fair Labor Standards Act which controls workplace rules at the federal level. Typically, for California employees, this is not the best option as California’s Labor Code tends to provide broader protections. For instance, when it comes to wages, the California labor code provides greater overtime rights and a higher minimum wage.

Civil Lawsuit

Another option is to file a civil lawsuit for the money you are owed from your employer. Lawsuits are a more formal option than filing an administrative claim. Generally, filing a lawsuit is going to be a more costly and complicated process. In addition, a civil lawsuit could be an incredibly time-consuming process. However, if you have several complex legal issues or a substantial amount of money on the line, your best option may be to bring your claim in civil court. Another reason you may want to file a civil lawsuit is to potentially recover attorney fees. The administrative options do not provide this particular remedy.

Private Attorneys General Act (PAGA) Claim

This is a unique type of claim that is filed by an employee who is owed wages but continues to work for the employer. In a PAGA claim, an employer can be issued fines which are paid directly to the State of California. However, it can also result in employees being able to recover up to 25% of the penalties issued against their employer.

Conclusion

As with most employment law issues, the best option for you depends on your specific situation. In order to determine your best option, it is recommended that you seek the opinion of an experienced California labor and employment law attorney. They will be able to assist you in determining your best option and helping you navigate the entire process.

How To Know If You Were Illegally Terminated

July 12, 2022October 25, 2022 admin

As an employee, being terminated from your job can be devastating. If your employer wrongfully terminated you, it may feel like an overwhelming situation. Fortunately, if you were fired for any illegal reason under California law, you may be able to bring a claim against your former employer. Understanding what is considered wrongful termination and your potential remedies is half the battle.

What is Considered Wrongful Termination in California?

There are three primary ways in which employers unlawfully terminate an employee. A wrongful termination claim typically will fall under one of the following broad categories: (1) Breach of Contract; (2) Retaliation; or (3) Discrimination.

BREACH OF CONTRACT

The clearest form of wrongful termination in California usually is the result of a contract between the employee and employer. While this typically involves a written contract it can also be as a result of an oral contract or by what is known as an implied in fact contract (e.g., your employer as a written policy that states they will only terminate employees for “good cause”).

Breach of Contract – If you have a contract, it may contain terms and conditions of employment. One of those conditions may be that your employer can only terminate you for specific reasons or for good cause. If you are terminated for any reasons that are not consistent with your contract, this may be grounds for a wrongful termination claim.
Breach of the Covenant of Good Faith and Fair Dealing – California employers are obligated to not interfere with an employee’s ability to perform their duties. Employer’s that terminate an employee after engaging in certain behavior may be subject to a wrongful termination claim. Employer behavior that could lead to this type of breach include:
1. Deliberate inaction;
2. Interference or obstruction;
3. Poor or no communication with the employee; and
4. Lies or other forms of deceit

RETALIATION

In some instances, employers unlawfully terminate an employee in retaliation for a lawful action taken by an employee. These can include the following lawful actions:

Taking Family or Medical Leave – Employees are entitled to take any available sick leave to take care of a medical issue or even for preventative care for themselves or a family member. In addition, under the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) employees are entitled to take up to 12 weeks of leave to deal with their own medical condition or that of a family member. There is a presumption that if you are terminated within 30 days of requesting to use sick leave or 90 days within use of FMLA leave, that you were wrongfully terminated. The burden will be on the employer to prove that they did not fire you for either of those reasons.
Whistleblowing – In California, you cannot be fired for reporting any employer violations of local, state, or federal laws. This practice is commonly known as whistleblowing.
Complaint about Sexual Harassment – Employer’s are responsible for maintaining an environment free of sexual harassment. It is illegal for a California employer to terminate your employment because you reported a sexual harassment claim or participated in another individual’s sexual harassment claim as a witness.
Complaint about violation of California’s Wage and Hours Law – California employers cannot terminate an employee for reporting things such as unpaid wages, overtime pay, or violations of required meal and rest breaks.

DISCRIMINATION

The other often seen form of wrongful termination relates to discrimination. Discrimination can occur in almost countless ways. Here are some examples:

Protected Class Discrimination – There are several “protected classes” that California employers cannot terminate based on their class status. The list is long but several of those classes include (1) race, (2) color, (3) national origin, (4) sex, (5) age (if over 40), (6) disability, (7) sexual orientation and (8) gender identity. There are other protected classes as well. In addition, the specific city where you work may have their own additional classes of protected people.
Pregnancy Discrimination – In California it is illegal to terminate an employee for any of the following discriminatory reasons: (1) pregnancy; (2) planning to become pregnant; (3) pregnancy-related medical issues or (4) a request for workplace accommodations related to your pregnancy.

OTHER FORMS OF WRONGFUL TERMINATION

There are many other forms of wrongful termination and its impossible to list them all. Be aware that any termination in violation of California’s public policy is grounds for a wrongful termination claim. This can include anything from the disclosure of harmful working conditions to taking time off to serve jury duty.

Remedies for Wrongful Termination

California employees are protected by both federal and state law. If your employer has wrongfully terminated your employment, you may be entitled to damages and your former employer may also be subject to additional penalties and fines. Depending on the type of case, wrongfully terminated employees may recover the following damages:

Wages – This can include past wages (i.e., backpay), future wages, benefits and interest on these wages.
Job Reinstatement – While not often sought, certain cases may allow for one to have their job reinstated.
Additional Compensation – You can also receive compensation in certain cases for emotional distress and the pain and suffering you have endured as a result of the wrongful termination.
Punitive Damages – In certain cases, the Court may award punitive damages if they found willful wrongdoing by the employer.
Attorney’s Fees – Award of attorney’s fees is provided in a limited number of cases as well.

Remember that is important that you build a strong case. In addition to contacting a qualified California employment attorney, you are going to want to make sure you gather and preserve all relevant evidence. This may include written documents from your employer, such as job performance appraisals or the termination letter. The strength of your wrongful termination case is going to be based on the recorded communications you are able to present to prove your case. Other important information in proving your case include eyewitness accounts from co-workers as well as company employment data.

Conclusion

Understanding the details of a wrongful termination claim can be complicated. Or it may be that you are not sure if you even have a claim in the first place. As with most employment law issues, it is highly recommended that you seek the opinion of an experienced California labor and employment law attorney. They will be able to assist in evaluating your claim and determining your best course of action.