California Employment Law

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California Employment Law

Pregnancy discrimination

Customer Question
I have already put in...
I have already put in my 2weeks resignation notice, but have since discovered that I was discriminated against. I was not even made aware of an opportunity to apply for a promotion while I was out on maternity leave while everyone else who has my current job classification level was. Even people who have a lot less experience than I do was notified of the opportunity. Do I have a case and what should I do now? I live in California. Do I try to rescind my resignation or do I not need to do that in order to pursue legal matters? I have not talked to my company's HR or my manager for fear of retaliation.
Submitted: 5 years ago.Category: California Employment Law
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Answered in 31 minutes by:
3/1/2012
California Employment Lawyer: Patrick, Esq., Lawyer replied 5 years ago
Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 13,379
Experience: Significant experience in all areas of employment law.
Verified
Hello and thank you for entrusting me to answer your question.

California's Fair Employment and Housing Act may provide a cause of action for discrimination under the facts that you have described.

Specifically, Government Code section 12921 (part of FEHA) states: "The opportunity to seek, obtain, and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation is hereby recognized as and declared to be a civil right."

Section 12926(q) defines "sex" to include "pregnancy, childbirth, or medical conditions related to pregnancy or childbirth."

Thus, California law prohibits an employer from obstructing a pregnant woman's opportunity to obtain employment. Failure to provide notice to a pregnant woman of an opening within the company when notice of that open position was provided to all other employees would likely constitute an obstruction of the right to "obtain" employment, and give rise to a cause of action premised on violation of section 12921. This is so because you did not receive the same opportunity to apply for a promotion as other employees and the sole apparent reason for this differentiated treatment was the fact that you were out on pregnancy leave.

Rescinding your resignation would do nothing to change the fact that you were passed up for this position as a result of your pregnancy, and so likely would not impact the merit of your claim. However, I am not your attorney and so cannot actually advise you as to a preferable course of action, I am limited to providing information about the law.

If you would like to file suit for unlawful discrimination, you must first file a formal complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC) or California's Department of Fair Employment and Housing. Either the EEOC or the DFEH will issue you an authorization to sue after they investigate your claim. You don't need to file with both agencies. Finally, if you decide to sue, don't miss your deadline. Under federal law in California, you have 300 days from an act of discrimination to file a complaint.

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 brig a claim through the EEOC, visit this link: http://www.eeoc.gov/employees/charge.cfm

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Although I cannot always provide good news, I hope that my answer gives you a better understanding of the law and your rights so that you can obtain the best possible result under the circumstances. Also, please bear in mind that experts are not credited for unaccepted answers, so I greatly appreciate you taking the time to "accept" my answer and leave positive feedback.

Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.
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Customer reply replied 5 years ago
Thanks for your reply, it confirms my thought that I was already going in the right direction in terms of agencies to report it with. Just a quick follow up question, I only have two more work days left, do I even need to say anything to HR regarding the discrimination? I would rather not if I don't have to in order to proceed with filing a complaint with the above mentioned agencies.
California Employment Lawyer: Patrick, Esq., Lawyer replied 5 years ago
You are very welcome.

As stated above, I am limited to providing legal information and I cant advise you on a particular course of action because that may be construed as giving "legal advice." With this noted, I do not see how bringing this to the attention of HR changes the fact that you were passed up for a promotion. Assuming that they have already filled the spot, it is not as though mentioning this to HR will in any way put you back into the running for the promotion. Since it cannot change what has already happened, it cannot be argued (at least not very persuisively) that your failure to bring this issue up contributed the loss you suffered by not being considered for the job.

Finally, I should note that although a valid claim likely exists on the facts you have described, it will be difficult to prove substantial damages without showing that you would have likely received the promotion had you been made aware of it. In other words, your damages will be proportionate to how serious of a candidate you would have been for this job, and the less likely it is you would have gotten it, the weaker your claim for damages will be.

Again, my number one goal is that you are satisfied with my answer. If you are, I would greatly appreciate your "accept." If you still require further clarification, I am happy to continue assisting you.
Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 13,379
Experience: Significant experience in all areas of employment law.
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Patrick, Esq.
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