Title VII

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....

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08 Oct #MeToo inspired sexual harassment bills await signature

Three #MeToo inspired sexual harassment bills await the governor's signature. The legislature passed each of the three bills partly in response to the #MeToo movement, which has grown in response to sexual harassment in the workplace. As part of the movement, #MeToo advocates have called for updates to California's sexual harassment laws. While the bills all aim to deter sexual harassment, they each address distinct issues. AB 9, inspired by #MeToo criticisms, would extend the statute of limitations for sexual harassment claims AB 9 would extend the time victims of sexual harassment have to file claims under state law. Currently, sexual harassment victims generally have only one year to take action. AB 9 would change the statute of limitations for sexual harassment to three years. Employment lawyers and supporters of the #MeToo movement have criticized the short statute of limitations California has for sexual harassment claims. They argue many sexual harassment victims don't immediately recognize they've experienced legally actionable sexual harassment. By the time they do, it may be too late to take action. Meanwhile, critics of AB 9 argue that it will increase employers' liability. Undoubtedly, this would be a major change to state employment law. But until the bill goes into effect, nobody can say for sure how much real world impact the change would have. AB 51 seeks to protect sexual harassment victims' right to sue in court AB 51 would prohibit employers from enforcing mandatory arbitration clauses against victims of sexual harassment. Employers are increasingly using mandatory arbitration clauses in their contracts with employees. Arbitration is essentially a private court system. Arbitration generally has similar procedures as court, but there are some important differences. These differences, tend to advantage employers. Moreover, it's very rare that a court will decline to enforce an arbitration agreement. Unsurprisingly, many #MeToo advocates have been critical of arbitration agreements, arguing they take rights away from sexual harassment victims. Moreover, because arbitration is private, it allows employers to sweep sexual harassment lawsuits under the rug. AB 51 would make it harder for employers to enforce such agreements against victims of sexual harassment. Advocates hope the legislation would help victims fight back more effectively against sexual harassment at work. Even if passed, however, it's possible that AB 51 would conflict with federal law regarding arbitration agreements. Where state and federal law directly conflict, federal law prevails. Therefore, it's possible AB 51 would have little or no impact on sexual harassment lawsuits. If AB 51 does become law, courts will have to work this out. AB 749 would prohibit employers from including "no rehire" clauses in sexual harassment settlements AB 749 prohibits employers from including "no rehire" clauses in settlement agreements with sexual harassment victims. These clauses give employers the right to refuse to hire or employ the victim in the future. #MeToo advocates argue this is a form of retaliation against employees who file sexual harassment lawsuits. By prohibiting such clauses, the legislature sought to ensure that victims can move on without sacrificing future opportunities. #MeToo advocates hope governor will sign the sexual harassment bills As of now, these three #MeToo inspired sexual harassment bills are not law. They will only become law with the governor's signature. The governor has until October 13, 2019 to sign them. Activists in the growing anti-sexual harassment movement are hoping the governor will sign them before the upcoming deadline. If the governor does not sign one or more of the bills, don't expect that to be the end of the line. This is only the beginning of what will likely to be a long effort to reshape California's civil rights laws to combat sexual harassment. If you believe you have been a victim of sexual harassment, contact the Khadder Law Firm today for a free consultation. For updates on these bills and more, follow us on Twitter....

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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 sexual orientation and gender identity are 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. This creates what's called a "circuit split." This means courts are split on the issue. 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....

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