San Francisco Employment Law Firm Blog

May 13, 2025

Which Workplace Discrimination Cases Are Worth Pursuing

Winning any civil case, including an employment discrimination case, requires proving (1) liability and (2) damages (past and future wage loss, emotional distress, in some cases punitive damages). Because liability in many, if not most, wrongful termination and discrimination cases is disputed by employers, a practical assessment of how likely you are to prove liability and damages is essential before deciding whether to pursue that case in court.

If you have little to no evidence that the employer discriminated against you and/or terminated your employment for unlawful reasons, then that case is likely not worth pursuing no matter how significant the damages are. After all, if you can’t establish liability, you would never even get to present your damages. On the other hand, if the evidence of liability is compelling, then even the case with relatively modest damages is likely to be worth pursuing because the employer is more likely to settle that case in the face of that unfavorable evidence. And, even if the settlement is not achieved, you will have a better shot at winning your case at trial.

Establishing liability is inherently challenging, because in an at-will employment relationship you as an employee have a burden of proving that the unlawful discrimination or retaliation was the reason or a substantial reason for your termination, demotion, or failure to select and hire you for a particular job. “What else could it be” alone is never sufficient proof in court. Because “smoking gun” evidence of discrimination is rarely available, all the relevant circumstances surrounding the employer’s adverse action have to be carefully evaluated before deciding whether to pursue that case. This is often a judgment call that’s not based on black-and-white rules, and is more of an art than science.

May 10, 2025

How To Correctly Notify Your Employer Of Your Disability

by Arkady Itkin

An employer who isn’t aware of your disability prior to firing you for taking several days off work due to that condition cannot possibly be held liable for disability discrimination based on the disability that the employer simply didn’t know about. This is both logical and fair.

In Avila v Continental Airlines, Inc. (2008), the employee was terminated for missing seven days at work, four of which were due to hospitalization for acute pancreatitis. That employee had provided to his employer two medical forms that only indicated that he was seen for illness or injury and that he was unable to work for a number of days. Avila further stated that he gave the two medical notes to his supervisor, but could not recall if he gave them to the supervisor directly or left them on the supervisor’s desk. Avila also told his coworkers about his pancreatitis, but he did not directly discuss the illness with his supervisors.

After Avila was terminated he informed his supervisor that he was absent due to pancreatitis, but the employer refused to reinstate him anyway. In its opinion dismissing the disability discrimination portion of that case, the court found that Avila could not establish that the managers who terminated him knew about his disability, because the medical notes provided lacked diagnostic information or other information indicating the nature of the plaintiff’s illness or injury, and the plaintiff never told his supervisors about his pancreatitis.

January 13, 2025

A Singe Use of “N” Word Can Be A Basis For A Harassmet Case

by Arkady Itkin

In its decision in Bailey v San Francisco District Attorney’s Office, the California Supreme Court has recently affirmed that even a single incident of using “N” word by a coworker in reference to a black employee can be a sufficient basis for making an unlawful harassment and hostile work environment. The Court emphasized that the analysis of any racial harassment claim is fact specific, and it must take into account the totality of the relevant circumstances.

The court further noted that even though generally harassment by a supervisor is viewed more seriously than the same conduct by a co-worker, this is not a rigid rule. After all, many employees don’t see their manager very often, while having to work side by side with their (harassing) co-worker on a daily basis. The court also pointed out that not all co-workers are made equal. For instance, a coworker whom one sees at the water cooler is quite different than a coworker with whom one shares an office space or work duties. Also, it matters whether a supervisor is aware / condones the harassing conduct by coworkers , thereby further emboldening that type of behavior.

There is no magic number of slurs that create a hostile work environment. What matters is looking at the totality of the factors when determining whether the conduct is sufficiently severe and pervasive to be actionable as a claim in court.

December 4, 2024

Three Important Facts About Severance Agreements in California

by Arkady Itkin

November 24, 2024

Two Common Misclassification Mistakes Employers Make in California

by Arkady Itkin

September 20, 2024

Two Fundamental Deposition Tips Every Deponent Needs To Know

by Arkady Itkin

Keeping in mind the two principles discussed below should be helpful to your deposition testimony on the most fundamental level, no matter who you are and no matter what type of case you are involved in:

1.Do Not Overthink Each Question You Are Asked At Your Deposition. This especially applies to the most educated and professionally accomplished deponents, who naturally read between the lines and look for deeper meaning in just about anything they hear. Contrary to what courtroom dramas make us believe, most questions you will be asked at a typical deposition are straightforward and are not meant to somehow trick you. There is no reason for you to overanalyze each question especially if you are trying to be honest and truthful and you have nothing to hide. When you look like you are responding to deposition questions in a way that will best serve your side of the case, rather than simply telling the truth, the other side will likely notice that and will try to take advantage of it in a number of potentially creative ways, including simply making you look less credible and less believable. Also, if you end up testifying incorrectly about anything during your deposition, you will still have the opportunity to go back and correct your testimony later in the proceedings or even after that deposition concluded. Hopefully, your attorney is carefully listening to your testimony and he will be able to address any issues with your testimony during breaks and before your deposition is over.

2. Answer The Questions Asked And Then Stop Talking and Wait For Next Question. This sounds so easy, and yet few people are able to follow this simple recommendation. All of us are used to speaking and elaborating on whatever we want to make a point. Also, saying more makes us less nervous if we are under any type of pressure when speaking. Your deposition testimony should be the opposite. You should be only answering each question asked and nothing more until you hear the next question. For instance, if you are asked if you have been sued in the past 10 years for any similar issue, the answer should be “yes” or “no”; not “no, but I have been sued 15 years ago.” No one asked you about what happened 15 years ago, so there is no reason to elaborate on this. Your deposition is not the time to try to prove your case or convince the deposing attorney of anything. Your only goal during your deposition is to answer the questions asked as best and as truthfully as you can and do nothing more.

August 11, 2024

California Remote Workers Can Sue For Discrimination In The County They Work

by Arkady Itkin

As one way of advancing the express purpose of the California Fair Employment and Housing Act to provide effective remedies for discrimination at the workplace, a special venue provision allows plaintiffs to file a lawsuit “in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked … but for the unlawful practice.” § 12965, subd. (c)(3) This provision has been interpreted broadly to allow remote workers to file a lawsuit for discrimination or any other type of violation of FEHA in the same county where they work remotely, even if their employer is located way outside that county.

Under the California Supreme Court case Brown v Superior Court (1984) case, the special provisions of this FEHA venue law “control in cases involving FEHA claims joined with non-FEHA claims arising from the same facts.” Thus, even if a remote worker files a lawsuit that contains non-FEHA claims (such as wage and other labor code violations, a defamation claim, etc…) along with at least one FEHA claim, he can still file that case in the same county where he resides and works out from. Showing that all these claims arise from the same set of facts is usually easy because these claims do involve the same parties (aggrieved employee and employer) and essentially the same set of facts regarding that employee’s employment.

The Malloy v Superior Court (2022) case, which involved pregnancy discrimination allegations recognized the need to interpret the FEHA venue provision liberally in order to afford the aggrieved employees the greatest protection in filing a lawsuit and also in light of the remote work becoming ever so more common in the post-pandemic world.

June 28, 2024

Reverse Discrimination Against US Citizens At Workplace Is Unlawful

by Arkady Itkin

In Rajaram v Meta Platforms, Inc. (2024), an employee sued Meta for giving a hiring preference to H1B visa holders over US Citizens. The 9th Circuit Court of Appeal held that section 42 USC 1981 prohibits employer from discriminating against United States citizens, because an employer that does so gives one class of people – noncitizens, or perhaps some group of noncitizens – a greater right to make contract than “white citizens”. The court relied in their decision, in part, on the Supreme Court case McDonald v Santa Fe Trail Transportation Co. (1976). In that case, white employees of a company were fired for theft, but a black employee charged with the same offense was not. The fired employees then successfully sued under section 1981.

The holdings in both of the above cases seems to be reasonable and consistent with the very idea that reverse discrimination is every bit as unlawful as a more conventional discrimination against employees who belong to historically marginalized groups. Reverse discrimination against whites or men, is and should be every bit as illegal as a discrimination against US citizens in hiring and employment privileges.

May 12, 2024

Disability Discrimination Claims By Salepeople Fired For “Not Meeting Goals”

by Arkady Itkin

A typical disability discrimination claim by a salesperson involves a situation where the employee was fired for not meeting goals due to, in whole or in part, his known medical condition / qualifying disability. The employer then terminates an employee and later argues that the termination was lawful, because meeting the sales goals of the company is an “essential function” of the job. Thus, if that employee wasn’t able to perform that essential function with or without accommodation, then terminating him didn’t violate the law, and the case should be dismissed. See Zamora v Services Specialists, Inc. (2021).

Claimants who find themselves facing the above argument by the employer in litigation should be aware of a number of important precedents that could help them survive a motion to dismiss, or even win their case on the merits:

“Evidence of ‘essential functions’ may include the employer’s judgment, written job descriptions, the amount of time spent on the job

April 22, 2024

Employers’ Obligations to Accommodate Religion Under Title VII

by Arkady Itkin

The Groff v Dejoy Postmaster General is a recent, significant Supreme Court case, which sets the employers’ obligation to accommodate employee religious practices. This case is extremely helpful to all those workers who need a religious accommodation at workplace, especially if it involves not working on certain days or holidays. In Groff, the highest Court has overturned a number of other decisions, which held that an employer is not required to “bear more than de minimus cost” in order to provide a religious accommodation.

The Supreme Court logically observed that these prior holdings are simply incompatible with the very language of Title VII, which requires employers to provide a religious accommodation unless it imposes “undue hardship” on their operations. “Undue hardship” is to mean a burden that is substantial in the overall context of an employer’s business. The Court further noted that even if the standard for relieving the employer of their obligation to accommodate was “hardship” and not “undue hardship”, it would still be a much higher standard than “more than de minimus cost”. The Court went on to reiterate this point: “What is most important is that “undue hardship” in Title VII means what it says, and courts should resolve whether a hardship would be substantial in the context of an employer’s business in the common-sense manner that it would use in apply any such test.” The Court further observed: “An employer who fails to provide an accommodation has a defense only if the hardship is “undue”, and a hardship that is attributable to other employees’ animosity to a particular religion, to religion in general, or to the very notion of accommodation religious practice cannot be considered “undue”.

The Supreme Court also clarified that faced with an accommodation request such as Groff’s (a request to be exempt from working on Sundays), it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary. This is another reminder to employers (and employees as well) that both sides are encouraged to be creative when searching for appropriate accommodations, as there is no set list of options by law, and availability and reasonable of any considered accommodations depends on that employee’s job duties, the nature of employer’s business and their resources, and other factors unique to that specific situation.