San Francisco Employment Law Firm Blog

In a unanimous opinion filed on October 27, 2008, the California Supreme Court held that when an employee voluntarily pursues an internal administrative remedy prior to filing a Fair Employment and Housing (FEHA) complaint, the statute of limitations (of one year) on the FEHA complaint is subject to equitable tolling.

This decision is important to those employees who are concerned about missing the one-year deadline on filing a Discrimination Charge with DFEH (Department of Fair Employment and Housing) and wonder if they should pursue internal administrative remedies first, provided optionally by their employer, skip the internal remedies altogether, or pursue both - the internal administrative action and DFEH procedures.

The recent Supreme Court holding establishes that an employee no longer need to worry about missing the DFEH deadline while pursuing an internal remedy. This decision makes a lot of sense as it reiterates the Court's continuing efforts to encourage employees/potential litigants to seek and find out-of-court remedies to their grievances before filing a court action.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Fair Employment and Housing Act (FEHA) , Internal Remedies

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The California Fair Employment and Housing Commission (FEHC) defines "harassment" as:
- verbal harassment, such as epithets, derogatory comments or slurs (or repeated sexual comments and jokes or prying into one's personal affairs);
- physical harassment, such as unwanted touching, rubbing against someone, assault and physical interference with movement or work; or
-visual harassment, such as derogatory cartoons, drawings or posters, lewd gestures or leering.

California Fair and Employment Housing (FEHA) generally provides a broader protection to employees in California than Title VII in the following aspects:
- it specifically prohibits "harassment" (and retaliation) as well as "discrimination";
- it extends protection to independent contractors (persons providing services pursuant to a contract) as well as employees and job applications. Cal. Gov. Code 12940(j)(1)
- the FEHA ban on harassment extends to all employers (unlike Title VII, which applies only to employers of 15 or more employees, or the FEHA's general ban on discrimination, which applies only to employers of five or more employees). Cal. Gov. Code 12940(j)(4)(A).
- the FEHA ban on harassment extends to nonprofit hospital and health care facilities affiliated with or owned by religious entities.
- and under the FEHA, liability for harassment extends to any employee of a covered employer.

For these reasons, among others, most employees bases sexual harassment and other harassment claims primarily on the FEHA and only secondarily on Title VII.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Fair Employment and Housing Act (FEHA) , Harassment at Workplace , Sexual Harassment , Workplace Harassment

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The second district made an important distinction between disability discrimination and failure to provide reasonable accommodations in Jensen v. Wells Fargo Bank 85 Cal.App.4th 245 (2000). In that decision, the court noted that the elements of a failure to accommodate claim are similar to the elements of disability discrimination under under California Gov. Code section 12940(a), but there are several important differences. For the purposes of the failure to accommodate claim, the employee does not need to show that he is able to perform the essential functions of his present job (like it is necessary to show in order to prove discrimination), but only that he or she is able to perform the duties of the job which he or she is seeking to be reassigned to.

Even more importantly, in claims for failure to accommodate, it does not matter whether the employee was terminated, suspended or otherwise disciplined in retaliation for his disability (like it is required in discrimination claims). The employer's mere failure to reasonable accommodate a disabled individual is a violation of the statute in and of itself. Cal.Gov. Code section 12940(k).

In other words, prevailing on a disability discrimination claim is harder than proving failure to accommodate, because it requires showing that the employee suffered an adverse employment action, and that there is a causal link between the disability/medical condition and the adverse employment action, while no adverse employment action needs to be shown in order to prevail on a separate claim for failure to provide reasonable accommodations to a disabled worker.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Disability Discrimination , Fair Employment and Housing Act (FEHA) , Interactive Process , Reasonable Accommodations , Wrongful Termination

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An individual harasser at workplace in California, whether he / she is a co-workers or a supervisor, may be personally liable for sexual harassment under the Fair Employment and Housing Act (FEHA). This means that the employee who is a victim of sexual (or other) harassment, may be able to pursue legal action against both his or her employer and the individual who causes harassment and creates hostile work environment.

FEHA defines "supervisor" as an individual who has either (1) the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees; or (2) the responsibility to direct other employees, adjust their grievances, or effectively recommend such action on grievances, provided that the exercise of the authority or responsibility requires the use of independent judgment. Cal. Government Code section 12926(r).

For more information about FEHA please visit the site of California Department of Fair Employment and Housing.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Fair Employment and Housing Act (FEHA) , Sexual Harassment , Workplace Harassment

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I get calls from many workers in the San Francisco Bay Area who turn to Equal Employment Opportunity Commission or California Department of Fair Employment and Housing for help, filing a complaint against their employer with one or both of those agencies for harassment, discrimination and/or wrongful termination. There is a tendency among workers to expect that these agencies will actually aggressively defend employees' rights pursue resolution of their discrimination and harassment claims, when in fact this hardly ever happens.

While the objective of establishing those agencies was to prevent unlawful discrimination, In the vast majority of cases, EEOC and DFEH are of little use in representing employees in their discrimination, harassment and/or wrongful termination claims. These agencies commonly send a notice to the aggrieved employee that they were not able to determine whether discrimination or any other wrongful conduct took place due to "insufficient evidence." Unless the employer admits fault, these agencies will not issue any clear findings. Having said that, there is still value in having those agencies involved and having them contact your employer, which will likely "motivate" the employer to take some action to remedy the situation. This is especially useful if you continue being employed by the same employer.

However, if you have been unlawfully terminated, waiting for EEOC of DFEH to take action is a waste of time as those agencies have no power to either reinstate you or force your former employer to pay damages for unlawful conduct. You are much better off requesting an immediate right to sue letter (which can be obtain online at the DFEH site after filling out a simple questionnaire) and filing a civil complaint against the employer and/or individual harasser.

If you would like to discuss your situation at workplace, feel free to contact San Francisco employment lawyer Arkady Itkin.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Equal Employment Opportunity Commission (EEOC) , Fair Employment and Housing Act (FEHA)

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Under California Fair Employment and Housing Act ("FEHA"), an employer must make "reasonable accommodation" for individuals with known disabilities unless it can demonstrate that doing so would be an undue hardship on the business. Failure to make a reasonable accommodation is itself an unlawful practice than can give rise to a civil suit and damages under FEHA.

Under the law, the employer must engage in a timely, good faith, interactive process to determine effective reasonable accommodation. Reasonable accommodation may, but does not necessarily include the following: making existing facilities readily accessible to and usual by individuals with disabilities, such as wheelchair users; restructuring job schedules and responsibilities to allow an employee to attend medical appointments or reduce work load; acquiring or modifying equipment or devices, such as ergonomic chairs and keyboards, etc. Further, the employer has affirmative duty to inform a disabled employee of other job opportunities and lean whether the employee is interested in and qualified for them.

It is important to remember that an employer is not obligated to choose the best accommodation or the one sought by the employee. Rather, the employer has the ultimate discretion to choose among effective accommodations.

Further, under FEHA the employer does not have to provide reasonable accommodation if the employee or job applicant cannot perform the essential duties of the job, even with an accommodation. In that case, the employer can discharge or refuse to hire the individual.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Disability at Workplace , Fair Employment and Housing Act (FEHA)

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It is common for an employee who charges the public employer (government office) with discrimination and harassment claims to receive a response from the government attorney, claiming that the employee's claims are rejected for non compliance with the Tort Claims Act. This legal argument, however, has no merit, when it comes to claims made under the Fair Employment and Housing Act ("FEHA"). It is well established that actions seeking redress for employment discrimination and harassment pursuant to the FEHA are not subject to the claim presentation requirements of the Tort Claims Act. Snipes v. City of Bakersfield 145 Cal.App.3d 861 (1983). A local government entity may not impose a claims requirement where, because of special procedural provisions of the FEHA, the California Tort Claims Act provisions do not apply. Pasadena Hotel Development Venture v. City of Pasadena 119 Cal.App.3d 412, 414-415 (1981). Thus, the compliance with the Tort Claims Act is not necessary in order to purse legal action under FEHA.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Fair Employment and Housing Act (FEHA)

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The California Fair Employment and Housing Act ("FEHA") prohibits an employer from taking any adverse action (such as refusing to hire or employ, refusing to select for a training program leading to employment, demoting or discharging from employment or training program leading to employment, discrimination in compensation or terms or conditions of employment) based on his or her: race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, sexual orientation, age (if 40 or over), or pregnancy, childbirth or related medical conditions of any female employee.

It is also unlawful for employer to act upon the perception that the aggrieved individual has one of the above protected characteristics, even if he or she does not. Thus, if an employee discriminated or harassed based on his perceived homosexuality, he is protected under FEHA and the employer will be likely liable for discrimination and harassment even if that employee is not gay.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Fair Employment and Housing Act (FEHA)

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