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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7322
Experience:  Significant experience in all areas of employment law.
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I have been working for this company for 2 years as a waitress

Customer Question

I have been working for this company for 2 years as a waitress and have expressed a desire to bar tend since I was hired. When a position came open, it went to another server, she had seniority, so that I understood. A couple of months later, another one came open and it went to a 23 year old, who hadn't worked there long, with no bar experience (didn't even know what a martini was). The manager at the time told me that I was too good of a waitress and that its why I wasn't promoted. Recently, another position came available, and again, went to another server, (who I trained as a waiter). I spoke with the new manager, (last one was fired) as to why I keep being passed over. "They" had a meeting and felt that because of my illness, that I would not be able to handle it. I have celiac disease and ulcerative colitis, and because of the harassment I received from the prior manager, led to stress and a flare up. I still did my job. I missed one day of work. I am 48 years old, I also, on my days off, do construction. And they are telling me I can't handle bar tending because of my illness. It's never slowed me down before. Is it legal for them to do this? Last year, because of the prior management and the way he scheduled me, I have documented proof of a decrease of about $8,000. in wages. During the months of November and December, I was never scheduled for any of the large holiday parties, it always went to one server. And no matter what time I started in the evening, he put me in the worst section of the restaurant, (not a money making section). I am one of their top servers, and have been discriminated against, first for race, (I'm white, prior manager was Hispanic and always took care of his own first), and now age and disability. What are my options, if any. I love working there, so quitting is not an option, I need this job.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to answer your question. I am very sorry to hear that you have continuously been passed up for a bartending position and completely understand your concerns.

The American Disabilities Act prohibits discrimination against employees who have a “qualifying disability." The determination of what constitutes a qualifying disability is a complex issue, but in general, in order to have a “disability” you must have a mental or physical condition that “significantly impairs a major life activity.” Digestion is, of course, a major life activity, and ulcerative colitis us commonly designated as a disability pursuant to the ADA.

If an employee is passed up for a position or otherwise discriminated against on the basis of their disability, they would typically have a viable discrimination claim, which they could pursue through either the California Department of Fair Employment & Housing or the federal Equal Employment Opportunity Commission. Both agencies are tasked with investigating claims of discrimination and claimants MUST file with one of these agencies before initiating a lawsuit in civil court, if that is what they decide to do. Many claims filed with the DFEH or EEOC are resolved before those agencies even conclude their investigations with a settlement or award of some kind (both agencies have the authority to actually issue judgments).

Employers are prohibited from retaliating against employees for making claims for discrimination. So, if you believe that any adverse employment action is taken against you as a consequence of you filing a claim, that would also be actionable and would simply add to your damages.

For information on how to bring a claim through California's DFEH, visit this link: http://www.dfeh.ca.gov/Complaints.htm For information on how to bring a claim through the EEOC, visit this link: http://www.eeoc.gov/employees/charge.cfm

This would be the first avenue of recourse for an individual in your circumstance, generally speaking.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Very best wishes to you.
Customer: replied 1 year ago.


How do I go about filing for discrimination? I have been discriminated against for race, age and disability on separate occasions within a year. Should I choose the most recent of the discriminations? My problem is, I am 48 and looking to advance in employment. The people they are promoting are kids, going to school and not looking at this as a career. This is my career, I am long term. I also have more experience and knowledge than the ones being promoted. I also have knowledge that these employees have come to work drunk and high. It's just so frustrating to be told you can't handle a job, when they don't even know what I am capable of doing. I can run circles around these kids. A few months ago, I worked 21 days straight, without a day off. I'd work 4 or 5 days at the restaurant and then work construction on my days off.

Expert:  Patrick, Esq. replied 1 year ago.
Diane,

Thank you so much for your reply. I'm truly sorry to hear about these difficulties and definitely understand where you are coming from.

You would file a claim for discrimination by following the links I provided above to the EEOC and DFEH. You don't need to file with both agencies but you must file with one.

The process is rather self explanatory from there. You will fill out a complaint form and the EEOC or DFEH will contact you and begin to conduct an investigation. They will ask what evidence you have to support your claim of discrimination. Your personal testimony will count, but if you have any emails, texts, witnesses, or anything else tending to support discriminatory motives, you will want to provide that, too.

Prospectively, you will probably want to keep a journal and write down the date and nature of all instances of what you believe amounts to discrimination. This will provide you with documentation that you can later reference to support a claim.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 7322
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 3 other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.


Does it matter what agency I file with? Is one better than the other?

Expert:  Patrick, Esq. replied 1 year ago.
It is generally better to file with the DFEH, as the EEOC cannot enforce California law (only federal since it is a federal agency) and California law offers greater protection to employees.

Please let me know if there is anything else I can do to assist you.
Customer: replied 1 year ago.

I went to file my complaint with the DFEH and it gives me two options, which do I choose? 1. For the DFEH to investigate or 2. For them not to investigate and give me the right to sue.


 


I'm confused as to what I should do.

Expert:  Patrick, Esq. replied 1 year ago.
Hi Diane,

I hope you are well. Unless you have an attorney to represent you, it is generally much better to have the DLSE investigate the claim. Otherwise, you will not only need to pay the hefty civil court filing fee (over $400 now), you will also have to navigate the extremely complex procedural rules of civil court. If the DLSE investigates, they pursue the matter on your behalf.

I hope this helps.

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