California Employment Law
California Employment Law Questions Answered by Legal Experts
Good afternoon Eric,I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.
I've been a licensed CA attorney for nearly 3 decades, and for two of those, I have handled employment discrimination law and litigated cases against employers. Your description of the situation seems to indicate that there may be discrimination going on based on your sexual orientation. If that is true--then your remedy is to file a formal complaint of discrimination. CA law prohibits harassment and discrimination in the workplace and if this is happening to you, you do have a legal remedy. Workplace harassment/discrimination is any unwelcome or unwanted conduct that denigrates or shows hostility or an aversion toward another person on the basis of any characteristic protected by law, which includes an individual's race, color, gender, ethnic or national origin, age, religion, disability, marital status, sexual orientation, gender identity, or other personal characteristic protected by law. A conduct is considered unwelcome if the employee did not solicit, instigate or provoke it, and the employee regards XXXXX XXXXX as undesirable or offensive.
In CA you have two possible avenues of approach to dealing with discrimination. If your goal is to ultimately sue in Federal Court, then you will file a complaint with the EEOC, and if you want to be in the CA Superior Court---local to your county---then you will file with the DFEH and, if you want to, with the EEOC as well. You must file a formal complaint of discrimination with the EEOC within 300 days of the alleged discriminatory act, and within one year for the CA DFEH.
You may file a formal complaint with the CA Department of Fair Employment and Housing alleging discrimination based on your sexual orientation. To do this you must first make an appointment with the Department to be interviewed, either over the phone or at a local DFEH office. You may call the DFEH at(NNN) NNN-NNNN or apply on line by using the Department’s "Online Appointment System." The system will guide you through questions to determine whether an appointment is right for you. Alternatively, you may file a complaint with the EEOC (Equal Employment Opportunity Commission). If your company has 15 or more employees (the DFEH only requires that there be 5 or more employees), they are prohibited from discriminating against you. To file a complaint with the EEOC, contact the nearest Equal Employment Opportunity Commission field office. To be automatically connected with the nearest office, call(NNN) NNN-NNNN EEOC website: www.eeoc.gov Federal law specifically prohibits discrimination, based upon the Ethnicity, Color, Religion, National Origin, Age, Sex and Disability of an individual, with regard to hiring, promotion and firing.
After you file the complaint, your employer will be prohibited from any retaliatory action against you. The EEOC will investigate your claim, and 180 days after the filing of the complaint you may ask for a "right to sue letter". The EEOC will issue you the letter which gives you the right to institute a private civil action against your employer and seek monetary damages.
You may reply back to me again, using the Reply to Expert link, if you have additional questions.I wish you the best in your future,Doug
Wouldn't an attempt to get the specific reason or the specific "violation of policy" be helpful before I file a complaint with the EEOC? Also I was thinking that I should ask Corporate HR what my reference check will be at this time. I am applying for several jobs and I would like to know what type of reference or information they will tell a prospective employer.
Once I file a complaint with EEOC will my reference be jeopradized?
One thought I have is should I first attempt to call Corporate HR and let them know my concerns about my reference and try to negotiate a reference that doesn't reflect a termination? What would you recommend?
Hi Eric, The specific violation is only going to help the company. I assure you they are not going to say that you are being let go because you happen to be gay. What you describe is disparate treatment as between other employees who are straight, and you. That technically does not require an explanation of any rule you are alleged to have violated. And, the complaint process will take a few weeks at minimum before the employer is ever notified---so it isn't like if you begin the process Monday, they will know on Tuesday. Additionally, I will be surprised if they share with you anything like what rule you broke---you are already terminated, The company attorney have likely already told them don't get into discussions like this with terminated employees. Feel free to try and negotiate a reference---it can't hurt you---but don’t expect miracles. What do you have to offer them in exchange for a reference that omits that you were terminated for violation of company policy?-----Probably not much. But feel free to ask. It can't hurt you. You can file your complaints at any time within 300 days with the EEOC and a year with the DFEH. It is generally my preference to file at a minimum with the DFEH, so you can sue the employer in CA State court rather than hassle with federal court. You may reply back to me using the Continue the Conversation or Reply to Expert link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction. Please remember to rate my service to you when our communication is completed. I wish you the best in 2013, Doug
Your answers and information are very helpful.
Sounds like filling a complaint with the two agencies you mentioned will determine if my different treatment is because I am gay and that it makes sense to make this my first course of action. You said that by me filing a complaint that they can not retaliate. Does this mean that even if it's determined that my treatment was not discriminatory that they can not retaliate? Can they tell my future reference checks that I filed a complaint during or after it's complete no matter the outcome?
You asked: Does this mean that even if it's determined that my treatment was not discriminatory that they can not retaliate? Yes, absolutely, that is exactly what it means. Regardless of the outcome of the complaint---the employer is prohibited from any form of retaliation. Disclosing the fact that you filed a complaint, in and of itself, would constitute retaliation as well---because it would show the intent to harm you for having filed the complaint in the first place. If they disclose it in a reference---they have a real problem, and you have a new complaint and lawsuit. Thank you for your kind words. They are appreciated.Please keep in mind that until you rate me highly for my service, I will not be credited with helping you. Thanks again. Have a great day, Doug
One last question about negotiating a reference. Would it be appropriate for me to discuss with corporate HR my concerns about being treated differently and that I would be open to negotiating a reference for my signing away my right to sue? I realize I seem to have many questions but I just want to make sure I do the right thing, handle this most appropriately and not do anything that I will regret.
I will most definitely rate your service when finished. You have been informative and patient.
Good afternoon Chris, You wrote: Would it be appropriate for me to discuss with corporate HR my concerns about being treated differently and that I would be open to negotiating a reference for my signing away my right to sue? Chris, all you will accomplish by doing that will be to put them into full pre-litigation mode. Theta would almost certainly backfire---a really bad idea. By the time that you get the right to sue letter, you will want to have a local employment discrimination attorney representing you. I wish you success, Doug
Will I only get the right to sue letter if the investigations from the agencies determine it was discrimination? I don't have the funds to hire an attorney so that is why I am asking.
Chris, You can get the right to sue letter anytime you want. It is not necessary that the DFEH make a determination which is on your side. If you have a good case, you can get an attorney on a contingency basis---only paying a fee when you win... I have handled cases like yours in CA, first litigating a case like yours to a successful conclusion nearly 15 year ago. There are lawyers out there who will help you. Doug
Wouldn't a determination from DFEH saying they were on my side be a stronger reason for an attorney to assist me? Do you recommend filing a complaint first with DFEH and waiting for their outcome? Which steps would you take if you were me, knowing what you know about this law?
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