When is Termination Wrongful in California? How do I protect myself?

Although California is indeed, an at-will employment state, that doesn’t mean that your employer can fire you for any reason. While they can let you go for no reason at all, if you are terminated for any one of the reasons below, your employer may have broken the law. If you see familiar facts surrounding your firing in any of the examples below, you may have a strong wrongful termination or retaliation case.

Gender

Being a woman doesn’t paint a target on your back.  You shouldn’t be paid less, or put up with inappropriate comments, or otherwise be singled out for being a woman.  California has also added inquiries into the pay scale of co-workers as a protected activity. Now that women must by law be paid in equal measure to their male counterparts in similar jobs, asking what the guy next to you makes is allowed, and if your employer fires you for doing so, you may have a case.

Sexual Orientation or Gender Identity

Discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is illegal under multiple state and federal laws.  Should you be fired merely for being yourself, contact an employment attorney.

Pregnancy

Being pregnant can be physically taxing, but we know it doesn’t mean women can’t execute their tasks properly while on the job and pregnant.  No woman should have to worry about losing her job during the process of bringing a person into the world. Under the Pregnancy Discrimination Act, employers are required to treat pregnancy as no different that other medical conditions in regards to all leave policies.  It is unlawful for an employer to treat a pregnant woman in the workforce any differently than they would any other employee.

Race

Under Title VII of the Civil Rights Act, employees cannot be discriminated against because of race or personal characteristics associated with race.  In some instances, race bias has been found in an employer’s responses to a particular hair style or manner of ethnic dress.  These may be unlawful.

Religion

This nation was founded on religious freedoms; therefore, your employers cannot fire you based upon your beliefs. Title VII protects employees who belong to organized religions as well as individuals who sincerely hold religious, ethical, or moral convictions. The spouses of the religious faithful are also protected under this federal law.

Age

We all know it is happening.  Mature employees making the highest wages due to seniority and years of faithful tenure are laid off in favor of younger workers, or forced into early retirement. As Baby Boomers defer retirement in favor of remaining employed, the problem only increases. If you are 40 or over, the Age Discrimination in Employment Act, protects your right to work.

Disability

Having a disability should never automatically disqualify you from the workforce. Under the Americans with Disabilities Act, qualified individuals who can perform the essential functions of the job with or without reasonable accommodation should be treated like every other employee.

Retaliation

Your boss cannot fire you for such things as reporting a safety issue in the workplace, nor can you be fired for reporting unlawful treatment of others, for example, supporting a co-worker in a sexual harassment claim, or standing up to discrimination.

What you can do to protect your rights:

1) Keep detailed notes. Begin a diary, and make a note of the date, time and location of each incident, exactly what was said, details of the event, and the names of co-workers or other witnesses who overheard or participated in the discussion or event.  These notes can be extremely useful for an attorney in ultimately proving someone was victimized under the law, and they form a strong record to support your case. If you choose to  keep a record on a computer, or in your mobile device, make sure it is one that belongs only to you.  If this data is kept on company property, it may have to be left with them upon your termination, and then will only serve to provide defense counsel with a great set of talking points to defend in litigation, not to mention giving them first crack at your witnesses.

2) Retain your evidence.  Keep any physical evidence of the unlawful behavior.  If there are objects or pictures which were posted, left for you, or given to you in the workplace that you believe were discriminatory or harassing, hang on to them. If offensive material is left on your computer by a co-worker, take a photo with your smart phone. If you are sent offensive emails, preserve the evidence by retaining copies for your records.  Check your employee handbook to be sure there is no prohibition against removing company data, and be certain to exclude anything that is prohibited or proprietary in any materials you may remove from your workplace.

3) Report your complaints to the appropriate party.  Letting your employer know that you feel you are being discriminated against or harassed is an important step.  Make a complaint as soon as possible.  If you do not let the offender know that the behavior is unwelcome, or that it is making you uncomfortable, an employer may be able to avoid litigation. In many cases it is a necessary component to your case. If the person harassing you is your supervisor or the HR representative designated to receive such complaints, take your complaint up the ladder to a superior.

Note: If your immediate supervisor is the person you feel is being discriminatory or harassing, and you feel uncomfortable confronting him or her directly, report the matter to his or her superior or to a human resources representative.  If he or she is the owner, or the only person above you to whom you can make a complaint, contact an attorney to help determine how to accomplish your duty to report.

4) Ask your employer to make a written record of your complaint(s).   It is important to put your employer on notice that you think the matter should be taken seriously. Ask that an investigation be made into your allegations and that disciplinary or corrective action against the offenders be taken. Employers are required by law to give prompt consideration to all reports of discrimination and harassment.  If they fail to do so, contact an attorney.

5) Read your Employee Handbook.  Read up on your employer’s policies with regard to anti-discrimination and sex harassment in any materials provided to you during your course of employment. These guidelines can be useful to determine if your employer is aware of its duty to protect employees, or whether it has acknowledged to the workforce that the company will not act in a discriminatory way.  The presence of a written acknowledgment of those policies may serve to benefit your position. If you have a copy of the policy in a handbook or other handout, retain a copy of it.

If you believe you have been discriminated against or wrongfully terminated, you should seek the advice of an experienced employment law attorney as soon as possible.

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