reverse discrimination against US citizens at workplace in CaliforniaIn 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.


fired for not meeting goals - disability discriminationA 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

Religious accommodations to religious practices under Title VII of theThe 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.

effective attorney client relationshipIt’s important to recognize the reality that just about any case can be looked at from different angles, and the opposing party in your case probably feels just as strongly about them being right as you are. Too many people, who are involved in litigation, are convinced that they are 100% right, the truth is on their side, and that the opposite party has zero chance of winning because their position is devoid of merit.  When they start working with an attorney, they exaggerate the facts that support their case and understate or neglect to mention the unfavorable aspects of their situation altogether. All too often this type of underestimating of the other side and their potential arguments backfires and leads to unpleasant surprises at different stages of litigating a case.

Instead, one of the best ways to approach any case is by putting yourself in the other side’s shoes and coming up with the best arguments you believe they can make. Just pretend that you were hired to be the other side’s lawyer and you are supposed to come up with the best defense for their position in your case. Then work on formulating the best ways you could refute or at least address the arguments. The better prepared you are for the riskiest facts and the most difficult questions in your case, the less likely the other side is to be able to surprise you and undermine your side of the story.

This is also why you should share with your attorney all the information about all the potential issues you see yourself in your case however insignificant you think they are. Let your attorney decide which facts matter more or less. The more informed your attorney is about all the strengths and actual or perceived weaknesses of your case, the better equipped he will be to present your case as effectively as possible. This type of openness and objectivity will also make you appear as a more honest and thus a most trustworthy client.

tough lawyerAbout 10 years ago a client was unhappy when he saw me shaking the opposing attorney’s hand in court right before the hearing. The client went as far as to suspect me of colluding with the other side due to being “too friendly”. I suppose he saw too many lawyer movies which make it look like being disrespectful or downright rude is the way to go, when nothing could be further from the truth in reality. I wanted to tell him that there are very few situations where being mean toward opposing counsel is a good idea, I couldn’t think of a single such situation.

Going back to the question of whether it’s always better to have a tough lawyer – this depends on what being tough means and it also depends on your case. If being tough means being thorough and putting a lot of effort into positioning your case for trial or the best settlement outcome, while also being honest with you about the potential challenges in your case, then it certainly cannot hurt. If being tough means not being afraid to take a calculated risk of going to trial and not settling under the right circumstances, then it is great to have this type of lawyer on your side, although not always necessary. However, if being tough means being stubborn or being a bully for the sake of being a bully, fighting a losing battle just to fight while disregarding unfavorable evidence, then this type of attitude is likely to hurt the outcome of your case more than be of benefit in any way.

Above all, who said that your lawyer can’t be nice and respectful and at the same time be knowledgeable, thorough, and firm when needed? These qualities aren’t mutually exclusive but in fact, usually complement each other.  Being represented by an asshole isn’t nearly as exciting as some of the legal shows make it look, and you certainly don’t need your lawyer to be one in order to achieve the best results for you in your case.

religious exemption request in CaliforniaUnder California law, when you apply for a religious accommodation at workplace – your employer is entitled to request further information to better understand the reasons behind your request. The law is not clear what information the employer can inquire about, but they are entitled to a basic follow-up, reasonably necessary to address your request. This right has to be balanced against the idea that a claimed religious belief must generally be presumed true. Let’s look at two examples of religious accommodation requests and discuss one common mistake that an employee should avoid making in this process:

  1. Let’s say you are a Sabbath-observing Jew. You request that your employer allow you not to work on Saturdays to accommodate your religious practice. The employer would likely be allowed to ask you how long you have been observing Sabbath, and how strict your observance is, i.e. – whether you also do not drive, do not cook, and do not use a computer / TV on Saturdays. It would likely be unlawful for that employer to demand to test you on your knowledge of Judaism or condition granting your accommodation on your presenting some kind of documentation of your temple attendance.
  2. Let’s say you request a religious exemption from your employer’s requirement to be vaccinated against Covid-19 on the grounds of your adherence to an Eastern religion that cherishes purity of life and sanctity of body. Your employer is likely entitled to ask you for more information about your religion, even if it’s not an organized religion, and whether you also refrain from taking other vaccines or medications, and since when. The employer is likely not allowed to demand that you share with them your medication history from birth, a list of all of your religious beliefs, and other types of information that go far beyond what would be directly relevant to understanding the reasons behind your religious request.

Both employees and employers in California need to know that even if they don’t sign a formal employment contract, their conduct alone, without many or any actual documents to that effect, can form an employment or business relationship. This is because to form a contract, a manifestation of mutual assent is necessary. Mutual assent may be manifested by written or spoken words, or by conduct. Restatement of Contracts § 19. “Contracts are often spoken of as express or implied. The distinction involves, however, no difference in legal effect, but lies merely in the mode of manifesting assent. . . . assent may be manifested by words or other conduct . . . intention to make a promise may be manifested in language or by implication from other circumstances, including course of dealing or usage of trade or course of performance.” See also CCP 1619  [contracts are either express or implied], and 1621 [“`An implied contract is one, the existence and terms of which are manifested by conduct.’  The distinction between express and implied in fact contracts relates only to the manifestation of assent; both types are based on the expressed or apparent intention of the parties.” 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts § 11, p. 46.

“. . . the actions of the parties may show conclusively that they have intended to conclude a binding agreement, even though one or more terms are missing or are left to be agreed upon. In such cases courts endeavor, if possible, to attach a sufficiently definite meaning to the bargain. An offer which appears to be indefinite may be given precision by usage of trade or by course of dealing between the parties. Terms may be supplied by factual implication, and in recurring situations the law often supplies a term in the absence of agreement to the contrary.” Restatement § 33, com., a.

Thus, in a rather common situation where one party performs services for another after not fully completing the negotiations over the terms of that engagement, that party can still show that it is entitled to the compensation discussed and promised during those negotiations along with the work performed to reflect that the parties generally agree to be engaged in that relationship. Thus, an employer cannot avoid paying their employee or vendors for the work performed simply because they didn’t sign a contract after exchanging emails and phone calls with each other about the terms of their relationship, even though it might be challenging to determine what the compensation due is under such circumstances.

Just like making all of your workers remote is often not a great idea for a business, asking every remote employee to come back to the office just because that’s your new policy can also be a bad decision. It is in your best interest as an employer to consider the individual circumstances of every employee and ask yourself certain questions about each one of them: do you really want them to be in the office or is that some type of power move on your part? How well is each specific employee doing performance wise while being remote? Is thgat worker likely to be doing better in the office given their job duties, their own preferences, the length of their commute, and their other personal circumstances? How much harder will you make that employee’s life by having them come to the office, and finally – how much are you willing to risk losing that employee as a result of your new policy? These are important types of  questions to ask and the answers will be different each time.

Speaking of talking to your employees, perhaps the first step toward deciding whether to require any employee to return to the office should be testing the waters with them and asking them a hypothetical question  – “hey, what do you think about returning to work in the office # days a week?”  You can then factor their response into your overall decision making.Some of the most unfortunate stories are where workers, in reliance on their company’s remote work policy, move away to another city with their family, buy a house, put their kids in new schools, do very well at their job, but then their employer all of a sudden announces that they have to come back to the office for no other reason than “it’s our new policy”. In these types of situations, most workers don’t move back because they already have a new life set up, and they just decide to quit and look for a new job at their new location instead. In many of these cases, the employer loses a good worker for no good reason.

If you run a private business, you have all the authority and all the reasons to be flexible and make individual decisions about each employee’s returning or not returning to the office that would work best for you and for them. You can make your own rules as a private business, so why not take advantage of it? And, as long as there is no evidence that you make these decisions on a discriminatory basis, i.e. due to age, race, disability, sexual orientation, etc… you shouldn’t be facing any legal issue assessing each employee’s returning or not returning to the office individually.

Under California Labor Code section 232.5(c): “No employer may … discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer’s working conditions.” It is not uncommon for employers to become unhappy about their employees complainign about safety issues at worksite or lack of regulatory approval to complete a certain project, as illustrated in Zirpel v Alki David Productions, Inc. (2023). The burden of proof for section 232.5 is “substantial motivating reason”. In other words, the employee doesn’t have to prove that their complaints about working conditions were the only reason for termination, as long as it was one key reason.

This is particularly helpful to victims of retaliations in situations where a protected complaint is followd by a hostile verbal exchange between the complaining employee and employer before actual retaliatory discipline or firing occur.  In these types of cases the employer will often argue that the employee was terminated not in retaliation for making that complaint but due to subsequent “verbal violence” or “insubrodination.” The employee will then have the opportunity to show that his complaints were a major factor that lead to retaliation because, for instance, workplace arguments weren’t considered serious offenses by the employer before, based on the employer’s previous ways of handling such issues. Evidence of prior verbal conforntations with the same manager who ended up not punishing the employees or punishing them more leniently can be used as one type of evidence to show that the true reason for termination was making of those work conditions complaints.

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