Employment Discrimination

21 Nov Proving employment discrimination

Proving employment discrimination can be challenging. Most employers won't openly admit to discriminating against you. But that doesn't mean they haven't done so. Nor does it mean you can't prove that they did. You can still use circumstantial evidence to prove discrimination in court. Unfortunately, employers can sometimes convince a judge to throw out a lawsuit before it gets to a jury if there's not enough evidence. So how do you prove your case to the judge when you don't have any direct evidence of discrimination? And how do you convince a jury your employer discriminated against you when the employer can deny they did? Proving employment discrimination through direct evidence The first way of proving employment discrimination is through direct evidence of discriminatory animus. If your employer fired you and explicitly said it was because of your skin color, that's direct evidence of discrimination. In this instance, proving discrimination would simply mean proving what the employer said. If you have direct evidence of discrimination, that should be enough evidence to get you to the jury. If the jury believes that evidence, you're in a good position to win your case. But this is not typical. Usually, the employer offers some legitimate reason for taking the action it took. This can be anything, but it common examples are performance or trying to save money on labor. Even if the reason the employer gives is obviously untrue, you still don't have the same direct evidence of discrimination. In these cases, the employer will often file a motion asking the court to dismiss the case because there's no evidence of discrimination. So how do you prove discrimination in such cases? McDonald Douglas burden shifting Fortunately, the second way to prove employment discrimination, called the McDonald Douglas test, is made for these types of cases. This Supreme Court created this test in McDonald Douglas v. Green, hence the name. The Supreme Court created this test to help analyze cases lacking direct evidence of discrimination. Here's how it works. Initially, the plaintiff has the burden to establish a prima facie case of discrimination. To establish a prima facie case of discrimination, the plaintiff must show (1) that she was the member of a protected class, (2) that she suffered an adverse employment action (e.g. firing, demotions, etc.), (3) that she was qualified, and (4) that similarly situated employees not within her protected class were treated more favorably. For example, if you are an African-American who was terminated despite being qualified and performing adequately, while similarly situated non-African-Americans were not terminated, you would have a prima facie case of discrimination. This is a fairly easy standard to meet. You just need some evidence of each element. Once the employee has established a prima facie case, the employer has the burden to offer a legitimate non-discriminatory reason for the adverse employment action. Once, it does, the burdens flips back to the employee to show that the employer's offered reason was not actually what motivated it. If you can provide some evidence that the reason the employer offers wasn't the real reason, the judge should let your case go to the jury. Proving discrimination to a jury Once you get to the jury, the distinction between direct and circumstantial evidence goes away. You simply use whatever evidence you have to convince the jury that the employer took action against you for an unlawful reason. Of course, direct evidence is best. But you wont have that in most cases. At this stage, there's all sorts of ways to convince the jury. How you do so depends on the facts of your case. For example, say the employer insists they fired you because you were not performing well. In that case, you could use a recent positive performance review to show that's not a credible reason. Likewise, if your boss made derogatory comments about you, that's evidence that the employer's decisions was based on a discriminatory motive. If you believe your employer has discriminated against you, contact the Khadder Law Firm today for a free consultation. For more, follow us on Twitter and Instagram....

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sources of employment law

21 Oct Different Sources of Employment Law

There are different sources of employment law in California. You've probably heard about Title VII. This is federal law, which Congress enacted as part of the Civil Rights Act of 1964. Title VII prohibits harassment and discrimination in the workplace. But California also has its own version of Title VII: the Fair Employment and Housing Act, also known as the FEHA. Like Title VII, the FEHA prohibits workplace harassment and discrimination. Both Title VII and the FEHA apply in California. If you're considering suing your employer, you may be able to choose between the two. Different sources of employment law, similar rules and remedies After the federal government enacted Title VII, many states passed their own versions of the law. The FEHA is California's version of Title VII. Because the FEHA is based on Title VII, there are many similarities between the two laws. For example, both prohibit harassment and discrimination based on certain characteristics, such as race, gender, and religion. They both also prohibit employers from retaliating against employees who oppose harassment or discrimination. Moreover, they both set up a mandatory administrative process. Title VII created the Equal Employment Opportunity Commission. If you want to sue your employer under Title VII, you have to go to the EEOC first. Likewise, the FEHA has the Department of Fair Employment and Housing. Like under Title VII, you must go through the DFEH's administrative process before you sue your employer in court under the FEHA. Finally, Title VII and the FEHA both authorize punitive damages and allow victorious plaintiffs to collect attorney fees and costs. They both also have asymmetrical cost shifting. This means prevailing plaintiffs can recover fees and costs as a matter of right, but when defendants win, they can't recover fees and costs unless the plaintiff's lawsuit was frivolous. Though similar, there are important differences between Title VII and the FEHA While similar, there some key differences between Title VII and the FEHA. Perhaps the most important difference from a plaintiff's prospective is Title VII's damages cap. While the FEHA allows for unlimited compensatory and punitive damages, Title VII limits recoverable damages. Additionally, Title VII is federal law. This means that federal courts automatically have jurisdiction over Title VII cases. While California courts can hear cases involving federal law, a defendant being sued under federal law has the right to remove the case to federal court. While this doesn't affect the substantive law, federal courts use different procedural rules. For example, California courts do not require plaintiffs to win unanimous jury verdicts, while federal courts do require unanimous verdicts. Moreover, it's often more expensive to litigate in federal court and plaintiffs' attorney are generally less experienced there. Accordingly, plaintiffs often prefer state court. Because the FEHA is not federal law, defendants have a harder time removing FEHA cases to federal court. Finally, there are some differences in the substance of the two laws. For example, the FEHA prohibits discrimination based on sexual orientation and gender identity. It's unclear whether Title VII does so, though the Supreme Court is expected to conclusively resolve this issue in the spring of 2020. Different sources of employment law: which law should I use? Now you know there are different sources of employment law in California. If you're considering suing your employer, you might be wondering: which source of law should I use? The answer: it depends. Most plaintiffs' attorney probably prefer the FEHA. But that doesn't mean that every plaintiff in every situation should proceed under the FEHA. There are some instances in which Title VII is the way to go. First, in some situations, Title VII is your only option. For example, if you are an employee of the federal government, you generally can't use the FEHA to sue the federal government in state court. There are also some areas, called federal enclaves, where only federal law applies. If the offending conduct occurred in a federal enclave, Title VII may be the exclusive remedy. Additionally, you may be in an area where the juries are not favorable for plaintiffs. Because the applicable federal court may be in a different city or county, it's possible you could get a more favorable jury in federal court. Because you probably can't bring your FEHA claims in federal court, you may want to use Title VII if this is the case. These are only a few of the many factors involved in choosing whether to pursue claims under Title VII or the FEHA. Ultimately, this is a decision you'll need make in consultation with your attorney. It's also important to remember that there are other laws, both state and federal, that might apply in the employment context. If you believe you have a claim against your employer, contact the Khadder Law Firm today for a free consultation. To stay up to date on our blog posts and more, follow us on Twitter and Instagram....

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New Sexual Harassment Bills

14 Oct Sexual Harassment Bills Become Law

Governor Newsom has signed a suite of sexual harassment bills that will now become law. The legislature passed the three bills a while back, but Newsom's predecessor, Governor Jerry Brown, vetoed them. While advocates were optimistic Newsom would reverse course and sign them, the bills lingered on the Governor's desk for several months. After a prolonged pressure campaign from #MeToo advocates and the California Employment Lawyers Association, among others, Newsom signed the bills into law, less than a week before the deadline. The sexual harassment assembly bills: what they would do Assembly Bill 9 will extend the statute of limitations for sexual harassment claims from one year to three years. In addition, Assembly Bill 51 will limit the use of mandatory arbitration clauses in the employment context. Finally, Assembly Bill 749 will prohibit the use of "no rehire" clauses. Some believe these updates were long over due, others are less enthusiastic Taken together, advocates hope these changes will make it easier for victims of sexual harassment to fight back. Conversely, business interests, such as the California Chamber of Commerce, have concerns. They claim the new laws will be job killers. By expanding employees' rights, they argue, the bills will invite increased litigation against California employers. This would make doing business in California more expensive, they contend. This may be true, but there are also costs to sexual harassment in the workplace. Accordingly, some of the concern from the business community may be shortsighted. If the changes have the desired effect, they could a boon to business in the long term. The fight against sexual harassment continues After helping these sexual harassment bills become law, advocates will turn their attention to other anti-sexual harassment efforts. While these changes to the law will help to fight against sexual harassment, there is still a long way to go. If you believe you've been the victim of sexual harassment, contact the Khadder Law Firm today for a free consultation. For updates on these new laws and more, follow us on Twitter and Instagram....

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Title VII sex discrimination oral arguments

14 Oct Title VII Sex Discrimination Oral Arguments

The Supreme Court heard oral arguments in two landmark Title VII sex discrimination cases on October 8, 2019. The two cases involve whether Title VII prohibits employment discrimination based on sexual orientation and gender identity. The Court's decisions in these cases could transform federal employment discrimination law. Bostock v. Clayton County Georgia: Does Title VII's sex discrimination provision prevent employers from discriminating against gay employees? The first of the cases was Bostock v. Clayton County Georgia. This case is actually two cases that the court consolidated because they raise the same issue. The Bostock plaintiff was an employee of Clayton County in Georgia. When the county found out he was gay, it fired him. The Plaintiff sued the county, arguing it unlawfully discriminated against him for being gay. The county argued that Title VII does not cover sexual orientation. At the Supreme Court, the plaintiff's argument started with the text of Title VII, which prohibits discrimination "because of...

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Title VII Supreme Court case

03 Oct Court case on gay, transgender employment discrimination

The Supreme Court will decide whether discrimination against gay and transgender employees is illegal under federal law. The Court has agreed to hear three cases on the issues in the fall term. The cases involve Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on protected classes such as race, gender, and national origin. In these cases, the Court will decide whether Title VII makes sexual orientation and gender identity protected classes. Lower courts are divided on whether employment discrimination against gay and transgender workers is unlawful under Title VII Courts are split on whether Title VII protects gay and transgender employees. Most courts have found Title VII does not protect sexual orientation and gender identity. Where this is the law, employers can discriminate against gay and transgender people. For example, an employer can fire an employee for being gay. Some courts, however, say Title VII does protect gay and transgender workers. This means that gay and transgender employees can sue their employers for employment discrimination under Title VII. Therefore, whether federal law protects gay and transgender workers from discrimination currently depends on location. In some places it does, in other places it does not. The Supreme Court's decision will set the law for the whole country. Many states do not have laws prohibiting employment discrimination against gay and transgender people Title VII is federal law so it applies across the entire country. Because many states do not have strong employment discrimination laws, Title VII is very important. If you live in a state that does not protect gay or transgender employees, Title VII is your only protection. Therefore, millions of gay and transgender Americans will be left with no protection if the Supreme Court decides Title VII does not protect them. The Court will hear arguments on gay and transgender employment discrimination on October 8 The court will hear oral arguments in these cases on October 8, 2019. Next, the Court will issue decisions. This will likely happen in the next several months. However, it's possible the Court could dodge the issue and resolve the cases on procedural grounds. Accordingly, the Court may not definitely resolve the issues raised in these cases at this time. The Supreme Court will decide whether employers can discriminate against gay and transgender workers under federal law only Fortunately, California law does protect gay and transgender people from employment discrimination. Therefore, whatever the Supreme Court decides, California law will still protect gay and transgender workers from employment discrimination. If you believe an employer has discriminated against you, contact the Khadder Law Firm today for a free consultation. For updates on these cases and more, follow us on Twitter and Instagram....

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