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