Articles Posted in Discrimination

A decision recently handed down by the U.S. Supreme Court is going to make it more difficult for those making employment-related claims of discrimination and retaliation to win their cases.
However, Riverside Discrimination Lawyer Houman Fakhimi is not discouraged and nor should you be. We are dedicated to ensuring that your discrimination/retaliation case is strong before ever setting foot in the courtroom.

What’s more, the recent decision by the court may result in Congressional intervention to strengthen worker protections, as Justice Ruth Bader Ginsburg urged in her dissenting opinion.

Decisions on both issues came down along the court’s partisan lines of 5-4. The first of those decisions limited the liability of an employer by determining that only someone with the ability to hire and fire could be considered a supervisor for purposes of discrimination litigation. That could make it tougher to sue a company for racial or sexual harassment if such action is carried out by a co-worker.

What those cases will depend more heavily on is what action, if any, the employer took to mitigate or eliminate problems.

In the second decision, the court set limits on how juries may decide lawsuits claiming retaliation. What this decision establishes is that it’s not enough for an employee to say that illegal retaliation or bias was part of the reason for termination. Rather, it must be established that it was THE reason for the termination.

In her dissenting opinion, Justice Ginsburg said the decision erodes worker protections, adding that it was reminiscent of the 2007 Lilly Ledbetter decision in which the court tossed the pay discrimination verdict of a female plaintiff in Alabama. That later was the basis for Congressional action in the equal pay legislation that now bears Ledbetter’s name – the first piece of legislation President Barack Obama signed upon taking office. Ginsburg hoped that similar action might be taken with these measures.

It’s worth noting that when Ginsburg was a practicing lawyer, she represented sexual discrimination victims.

The first case had involved a discrimination lawsuit brought by a black cafeteria worker at Ball State University. According to court documents, the worker did not get along well with the white cafeteria manager, who was her direct supervisor. The manager had reportedly made a number of derogatory comments about the worker. The court upheld an earlier ruling finding that her case had been properly dismissed because the manager was not an individual with hiring and firing power. Therefore, it was questionable whether she could be considered a “supervisor.” As one justice reasoned, there was no evidence to suggest that the employer had empowered the manager to make “tangible employment actions” against the cafeteria worker.

The second case involved a Texas doctor who sued his former hospital/university employer after he said racial bias on the part of a top official at the hospital led to his ouster. He had alleged he was the victim of illegal retaliation when he was forced to resign.

The court, however, reversed an earlier $700,000 verdict in the doctor’s favor, saying that the doctor had not proven that illegal retaliation was the “motivating factor” for negative employment actions taken against him.
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A federal discrimination lawsuit filed against the Hooters restaurant chain alleges that the company forced a waitress out after brain surgery left her with a shorn head and an unsightly scar.
Our Fullerton employment discrimination attorneys know that this certainly is far from the first time that Hooters – and establishments like it – have been embroiled in this kind of litigation.

On one hand, you have a business model that relies heavily on the appearance of its employees. Yet on the other hand, you have to balance that with the rights of workers.

Such a model doesn’t excuse discrimination any more than it would excuse sexual harassment (as evidenced by a $275,000 sexual harassment case the chain lost last summer in Kentucky, where a 24-year-old waitress had been the victim a laundry list of unwanted sexual advances demeaning behaviors and odd recrimination from her managers).

As some legal scholars have pointed out, a lot of cases such as the one before us now are settled before they ever go to trial, which means it is difficult to measure the success of the company’s argument that they are not only selling food, they are in fact selling an atmosphere of sexuality.

But this woman, now a nurse, may have a strong claim on the basis of the Americans With Disabilities Act. This is the law that forbids employment discrimination on the basis of a person’s disability, which can be defined as:
–An actual mental or physical impairment;
–A history of an impairment;
–A perception of an impairment, based on appearance.

This woman’s situation could potentially fall into all three categories. As a spokesperson with the U.S. Equal Employment Opportunity Commission pointed out, a company can not shield itself from a discrimination claim by simply citing customer preference, so long as the plaintiff has the ability to perform the job’s essential functions.

According to court documents, here’s what happened:

The plaintiff began working at the restaurant back in 2005. She had no issues, and by all accounts was a good employee.

Then last summer, doctors found a large mass in her brain. Specialists determined that she had to undergo immediate brain surgery, an intensive procedure in which a part of her skull had to be removed in order to extract the mass from her head.

The surgery went well, and she suffered no long-term effects. Her boss visited her while she was still in the hospital, and reportedly told her that as soon as she was physically able to do so, she could return to work. He also told her that she could wear jewelry or a chemo cap to detract from the bald patch and scar.

However, another supervisor disagreed. He told her that if she wanted to return to work, she would need to wear a wig. The problem was, wearing it was actually an impediment to her healing, not to mention the fact that she found it painful.

Due to her refusal to wear the wig, her supervisors slashed her hours significantly – to the point where she had no choice but to quit. This tactic, her lawyers argue, is a violation of state law.

Discrimination based on disability is just one form. It’s also illegal to deny employment or take adverse action against an employee on the basis of race, skin color, religion, gender, national origin or pregnancy. Additionally, California law specifically protects against sexual orientation discrimination.
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In a recent Orange County Employment Lawyer Blog entry, we noted the U.S. Supreme Court’s intention to take on the issue of whether any amount of discrimination resulting in adverse action was enough to warrant compensation to the plaintiff – or whether it had to be the sole reason. pregnancy.jpg

Now, Riverside Employment Attorney Houman Fakhimi has learned that the California Supreme Court has just rendered its own decision on this very same issue – and set a troubling precedent.

The court has overturned the award initially given to a Santa Monica bus driver who was fired in part because she was pregnant. In Harris v. City of Santa Monica, the court ruled that because the employee’s poor performance was likely to have resulted in her termination anyway, she was not entitled to compensation – even though she was able to prove that discrimination for her pregnancy did in fact play a role in the ultimate decision.

In this case, the new driver had been in two preventable accidents during her probationary period and further had not properly reported she would be late to work on two occasions. However, it wasn’t until receiving news that she was pregnant that her employer moved to fire her.

The jury ultimately sided with the employee, finding that although the city may have had mixed motives for its decision, but that those other legitimate reasons were not the motivating factor at the time of the firing. She was awarded $178,000.

However, in this highly-watched case, the California Supreme Court ruled 6-0 (with one justice not participating) to vacate that award on the basis that the employer had substantial reason to terminate the worker’s employment, regardless of the discrimination.

This is troubling because employers being accused of discrimination or sexual harassment are almost always going to come back with an alternate reason for the adverse employment action. It is almost never the case that an employer will outright admit discrimination, even when they reach a settlement. That’s because in addition to the monetary penalties, they will have to cope with a negative public opinion as well.

So this precedent allows companies to say that even if the plaintiff has proof of discrimination, “There was more to it.” It provides them yet another out.

The one hope we have that this ruling may not be universally applied is the upcoming U.S. Supreme Court hearing of a discrimination case with a similar issue at hand.

As we previously mentioned, that case University of Texas Southwestern Medical Center v. Naiel Nassar involves allegations of racial discrimination made by a doctor against administrators at the hospital where he used to work.

Here again, the question is, even if discrimination existed, must it be the sole cause of the adverse action, or is it only necessary for it to be one of the primary factors?

The U.S. Supreme Court will likely hear that case in June, and it is one which we will be closely following.
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We all know it’s illegal for a company to fire an employee in retaliation for complaints about sexual harassment or discrimination or any reason falling under Title VII of the Civil Rights Act of 1964.hammertofall.jpg

Such protections have been in place for 50 years and our Santa Ana employment lawyer have little doubt that companies know better.

But what if discrimination or complaints of sexual harassment are only part of the reason you were fired? What if adverse employment action was taken against you for other reasons – in addition to the alleged discriminatory factors?

Such arguments have long been a copout used by companies attempting to avoid serious penalties for breaking the law. They try to argue that, “No, no – it wasn’t the fact that she complained about being sexually harassed. It was because she was a bad worker.”

But now, the U.S. Supreme Court has agreed to take on the issue as it has been raised in University of Texas Southwestern Medical Center v. Naiel Nassar. The justices’ decision in this case could impact the burden of proof required of all wrongfully terminated workers in the country.

On the one hand, if the court sides with the employer, it would no longer be enough for plaintiffs to simply provide evidence that sexual harassment or discrimination existed and that it was a factor in the adverse employment action. They would be forced to take it a step further to show it was the only or primary reason for the adverse employment action.

On the other hand, if the court sides with the former employee in this case, plaintiffs need only show that such harassment or discrimination existed and that it was at least part of the reason for the negative employment actions.

Specifically in University of Texas Southwestern Medical Center v. Naiel Nassar, a medical doctor had filed a discrimination lawsuit against his former employer, a hospital and the supervisor of the infectious diseases department, saying he was discriminated against due to his Middle Eastern descent. Disparaging remarks regarding him and his race were reportedly made by the supervisor to his colleagues. She one time stated that “Middle Easterners are lazy” and complained to a co-worker when “another one” was hired.

The plaintiff said that the supervisor more closely scrutinized his work and billing than she did the other doctors. When he resigned due to the harassment, he fired off a letter explaining why – and named names. This resulted in him being denied a position in a different branch of the same health system.

The doctor then filed a civil discrimination lawsuit – and won, $3 million.

But the hospital appealed, saying that the court made several errors. The appellate court affirmed in part, reversed in part and remanded the case back to the lower court for a recalculation of award.

But a key issue that the hospital raised was its claim that even if discrimination existed, his complaint of it wasn’t the sole reason for any negative employment actions taken against him. It was also a result of his work.

In its request for a hearing with the U.S. Supreme Court, the hospital’s lawyers note that while the earlier decision in Price Waterhouse v. Hopkins required only that a plaintiff prove that discrimination was a “motivating factor” for negative employment action, a contrasting decision in Gross v. FBL Financial Services, Inc. held that the ADEA legislation of 1967 required proof that the discrimination was the “but-for cause” of the negative action.

The Supreme Court agreed just this month to take the case on, and it will be one of the last cases the justices will hear this term, with a decision expected in June.
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A popular teen clothing retailer based in Orange County has been accused of racial bias, in a lawsuit filed by three former managers of the store. clothes.jpg

Orange County Employment Attorney Houman Fakhimi knows that racial discrimination still goes on in 2012 America and is committed to fighting on behalf of residents who are treated unfairly in the workplace. Sadly, it’s more pervasive than you would think.

Such cases can be difficult to prove definitively. For example, a class action suit filed on behalf of 1.5 million female workers across the country was dismissed because a federal judge said there simply wasn’t enough evidence to prove that discrimination was part of a company-wide policy. However, from what we know so far of this case, which has been filed in the Federal District Court of Santa Ana, the managers have company records and e-mails to back their claim.

Representatives for Wet Seal have denied allegations that they fired or withheld promotions to African American employees on the basis of race. The lawsuit against the company contends executives did so in favor of hiring white workers who were a better fit to the clothier’s “brand image.”

The former managers are seeking class-action status, which would be open to more than 250 managerial-level employees at some 550 locations across the U.S. The managers are seeking back pay, general damages and punitive damages.

As proof of these reported discriminatory tactics, the plaintiffs in the case have provided an e-mail that was sent three years ago by the senior vice president of operations to some of her staff. In that e-mail, the executive noted that the increasing number of African American staffers at retail locations was “a huge issue.”

One of those who has filed suit, an African American female, says that she was a manager at one of the store locations in Pennsylvania when she was fired back in the spring of 2009. A month prior to her firing, she contends that the same executive had visited that location and was overheard telling a district manager that the manager of the store should be someone with blonde hair and blue eyes.

Another African American woman, who worked at a New Jersey branch of the store, was told that she needed to diversify the staff there by hiring workers who weren’t black. She was given a month to do this back in 2009, and told if she did not, she would be fired. Before she could do anything, the decision of who to hire was taken out of her hands. She was let go the following year.

The executive also reportedly told managers they needed to “lighten up” their stores in order to reel in more white customers, and in another instance is accused of telling a regional manager that she must have been crazy to have promoted a black woman to a managerial position at a certain store.

The executive in question reportedly left the company last year, though the circumstances of her departure aren’t clear.

If the facts of this case are true as laid out in the lawsuit, this case should be an easy win for the plaintiffs. The fact is that even if there is some sort of consumer preference for employees of a certain gender or race or religious background, there is absolutely no exception in the law that allows you to discriminate. It doesn’t even matter if your sales suffer as a result (although we bet one would find little evidence to support that anyway).

There is simply no excuse for discrimination in any form.
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Chapman University will pay $175,00 to settle an Orange County gender discrimination case filed by a female professor who alleged she was denied both a promotion and tenure due to her sex.graduation.jpg

Orange County Employment Discrimination Lawyer Houman Fakhimi knows that these cases are quite common, but often it comes down to what’s provable in court and how hard a company or institution wants to fight back.

Oftentimes, discrimination cases are settled out of court because employers don’t want the negative press surrounding allegations of such egregious actions.

In this case, the federal Equal Employment Opportunity Commission got involved as well, and in addition to the payment the professor will receive, she’s also been promoted to the position of associate professor. However, because she no longer works at the university, a spokeswoman for the school said it was more of a resume-booster.

In addition to those terms, the school also agreed to set up a free hotline for staff to report sex discrimination complaints.

The professor had worked at the school since 1999 and was denied tenure in 2007.

When she first filed her grievance through the university’s appropriate channels, the grievance committee did agree with her. However, their ruling was rejected by the school’s executive board. In turn, she filed a complaint with the EEOC in 2008.

The EEOC launched an investigation that determined there was indeed reasonable cause to show she had been denied tenure because of her sex. In the face of that ruling, the school did an about-face, and agreed to settle the case in an a bid to avoid a civil court case.

Unfortunately, the one thing the settlement did not require the university to do was admit any guilt. However, it’s fairly clear based on the outcomes of two investigations – one of those internal – that the university was at fault here.

In addition to the hotline, they have also agreed to conduct further employment training in the areas of sexual harassment, discrimination and retaliation, with a more intensive program for managers and supervisors.

According to the local EEOC spokeswoman, sex discrimination is the third most common type of discrimination in the country, behind race and disability. Age discrimination was not far behind.

Sex-based discrimination violates Title VII of the Civil Rights Act of 1964, which states employment and/or promotion can not be denied on the basis of one’s gender (or religion, national origin, color, race, age or disability).

There are also other federal laws that prohibit this kind of discrimination, including the Civil Service Reform Act of 1978.

If you believe you may have looked over for a promotion or a job position because of your gender or any of these other protected statuses, it’s imperative that you contact an experienced Orange employment lawyer as soon as possible.
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The merits of a second employment discrimination class action suit against box store giant Walmart are being weighed by a federal judge in California. women.jpg

Riverside Employment Attorney Houman Fakhimi understands that U.S. District Judge Charles Breyer has expressed some “serious” doubts about whether the case may move forward, following the federal Supreme Court’s dismissal of a nearly identical suit last year.

However, those arguing on behalf of the plaintiffs – some 45,000 female employees of Walmart – say that there is new evidence that managers and supervisors systematically based promotion and pay scales on clear gender bias.

When the case was originally taken before the state’s supreme court last year, justices dismissed it after determining the plaintiffs were unable to establish that there was any decision by supervisors or a company policy that would have resulted in women receiving less pay or fewer promotions.

So in essence, the court never said discrimination didn’t occur. What it did say was that such decisions were made by store managers at hundreds of Walmart locations – without any direct guidance from the corporation (and thus that class-action status was not merited). Breyer asked the plaintiff counsel what was different in the current case.

The reply was that there is evidence that some of those in charge, including the 20 district managers and four regional managers in California, were biased against women. It was these individuals, the attorney said, who were responsible for approving promotions and pay.

So what does that evidence look like?

One piece involves statements made by the company’s former chief executive to district managers back in 2004. According to court records, the executive told his team that successful leaders are best when they have a single focus to see a job through to completion. Women, the executive said, were better at processing information, while men were better with focus.

Statements like this, the plaintiffs contend, were clearly behind the very wide disparity in terms of promotions and pay for female Walmart employees in California. And while on the surface the company touted equality, internally, the plaintiffs say, there was a clear policy of discrimination.

Walmart attorneys also aren’t denying that there may have been some level of discrimination. But they say that a class action suit is unwarranted because promotion and pay decisions were at the discretion of individual managers – not the top executives. In countering the statement made by the former chief executive, Walmart’s attorney characterized it as a “stray remark. ”

It’s worth noting that more than 2,000 female workers have filed claims against the company with the federal Equal Employment Opportunity Commission.

The first suit filed with regard to this issue was brought forth in 2001 by six women. As an approved Class Action, it was granted class status to more than 1.5 million women who had worked at the chain since late 1998.

The federal Supreme Court in that case said that neither the obvious disparity in pay (both in California and across the country) nor the sexist remarks made by managers were enough to prove that the women were discriminated against in any uniform policy standard.

Judge Breyer, whose brother is a Supreme Court Justice, declined to say when he would rule on Walmart’s motion to dismiss.
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San Bernadino employment discrimination has long been known to cover aspects such as national origin, religion and gender. smile.jpg

But what if the person alleging the discrimination is transgender? San Bernadino Employment Discrimination Attorney Houman Fakhimi is happy to report they are now explicitly included as well, thanks to a landmark civil rights case.

This may have seemed like a no-brainer, but until just this month, the rules, as laid out by the federal Equal Employment Opportunity Commission, weren’t clear in this regard. That led to denial of a claim of California transgender discrimination brought about by a woman (previously a man) who was applying for a law enforcement ballistics position.

While many cases of discrimination in Newport Beach relate to on-the-job issues, it is possible for a person in the public to face these same problems.

Newport Beach discrimination lawyers have seen examples of consumers who are denied service or rights based on an employee’s bias or racism. Discrimination in public has no place in our society just like discrimination in the workplace. People have the right to be treated equally, regardless of how they look or talk.
In a recent case in Newport Beach, an upscale steakhouse printed receipts for a black customer with a racial epithet instead of the man’s real name. The case was scheduled to be heard by a jury, but the two sides reached a settlement. The amount of the settlement hasn’t been revealed.

According to news reports, the settlement came after the Newport Beach discrimination lawyers for the man were able to investigate the restaurant’s receipts to look for other examples of widespread racism. After being allowed by the court to search the restaurant’s records, attorneys allegedly found 12 other examples of blatant racist comments, the Orange County Weekly is reporting.

The restaurant’s owners stated that the restaurant group doesn’t discriminate against any group of people. While there may not be the view at the top, clearly some employees think otherwise. The newspaper reports that a bartender was responsible for the actions and that employee has been fired.

The customer apparently frequented the restaurant, had brought guests there and was even a generous tipper. But after noticing his receipt after a return to his home, the man confronted restaurant managers and other employees, who apologized and tried to downplay any notion of bigotry.

There have been other recent examples of employees who have printed receipts for customers using racial names. This type of bigotry has no place in our society. If immature workers think this sort of thing is funny, they shouldn’t be working.

And sometimes the problem isn’t just with the individual employee. The problem may start at the top and trickle down. If there is an environment of discrimination, where it is seen as acceptable or a joke, then employees feel more comfortable having these attitudes.

Consumers, like employees, have rights. They must be treated fairly and can’t face discrimination based on race, religion, gender, age, disability, national origin, sexual orientation or other bogus reasons. If they do, both California and federal laws are designed to protect them from these types of actions.

But the only way to stop these sorts of actions is to fight back. Filing a discrimination charge with the government is a start. Sometimes litigation is necessary to ensure that this wrong doesn’t go unpunished. In either situation, the victim should have strong legal representation to ensure his or her rights are protected and the best possible outcome is reached.
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The Los Angeles County Sheriff’s deputy who arrested actor Mel Gibson for DUI in 2006 has agreed to a $50,000 settlement with the sheriff’s department for retaliation, the Los Angeles Times is reporting.

Retaliation in Newport Beach can be a problem in a variety of situations in the workplace. If a worker speaks out about discrimination and then starts to feel he or she isn’t getting the same type of opportunities, accounts, training or promotion, this may be a classic case of retaliation. California employment laws are designed to protect employees who may need help being treated fairly.
Newport Beach employment lawyers understand that retaliation has no place in an employee-employer relationship. A person shouldn’t be looked down upon for trying to do what is right. Whether it’s reporting discrimination or following ethical guidelines that may ruffle some feathers, the law is designed to ensure those employees are protected.

According to the news article, the 2006 arrest, which made international headlines, has been causing the deputy problems ever since. The deputy alleges that his supervisors retaliated against him ever since he refused to remove the actor’s anti-Semitic slurs from the initial police report.

It was those slurs — more than the arrest itself — that made the story such a big one. The deputy’s Fullerton employment lawyer told the Times that the settlement wasn’t done for the money, but rather the principle of the matter. The deputy said he was “constantly in fear” when he went to work.

The deputy, who was assigned to handling DUI arrests in Malibu at the time, said he included the actor’s words, “the Jews are responsible for all the wars in the world” to illustrate the level of intoxication.

A supervisor told the deputy that the material in the police report was “not acceptable” because the comments weren’t relevant to the DUI arrest. He said bosses instructed him to remove the comments and include them in a supplementary report that wouldn’t have been available to the public initially.

He eventually followed orders and created a separate report that was placed in a locked safe, along with recordings and evidence found in Gibson’s car. But the report was leaked to celebrity news site and officials later discovered calls between the deputy’s home and TMZ founder Harvey Levin.

The sheriff’s department was criticized for its handling of the case, including allowing Gibson to leave the station without being fingerprinted and without signing a statement to appear in court. He was also driven to the tow yard by a sergeant.

The deputy did the right thing for standing up for the correct way of handling things. If law enforcement is going to be starstruck because of an actor, policies and personnel need to change. It appears from the article that deputy was placed in a difficult work environment after the fact, which qualifies as retaliation. No worker should have to deal with that.
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