Fighting Workplace Discrimination

Several federal laws protect authorized workers from discrimination based on characteristics such as race, sex and age. But some state laws offer even more protection.

“California law is more favorable to employees than federal law in a lot of ways,” says Samuel Nielson, an employee rights attorney at Elite Employment Law APC in Laguna Hills. 

The state’s Fair Employment and Housing Act prohibits workplace discrimination based on race, gender, religion, disability, and other protected characteristics—similar to Title VII of the federal Civil Rights Act. However, in California, workers can bring a claim when an employer fails to engage in the interactive process for disability accommodations, even without proving a broader disability discrimination case—something federal law addresses only through the Americans with Disabilities Act. Employees in California also have up to three years to file a discrimination claim, compared to 180 days at the federal level. 

Documentation and Timing

Many of these protections hinge on thorough documentation and timing. Nielson says employees should report the incident to human resources or supervisors as soon as possible and send a blind copy to their personal email to create a paper trail. Keeping a written record can protect you from retaliation, which FEHA prohibits, even if no discrimination is ultimately found.

“If you don’t want to use the word ‘discrimination,’ you can simply say, ‘I feel I’m being treated differently,’” Nielson says. 

A valid claim requires an employee to demonstrate that they belong to a protected class and have experienced an “adverse action,” such as being terminated or passed over for a promotion, says employment lawyer Ann Fromholz, of The Fromholz Firm in Pasadena. The burden then shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for their decision. If the employer cannot do so, or if evidence suggests the stated reason is not the real motivation for the adverse action, the employee’s claim can move forward. 

Careful preparation is key. Nielson often works with employees to draft emails and letters to their employers to document workplace issues. He emphasizes that employees should never quit before an attorney helps ensure these safeguards are in place to preserve full legal protections. Laying this groundwork proves valuable, he says, in both settlements and constructive termination cases, in which an employee leaves a hostile work environment before the issue is rectified but can later pursue a wrongful termination claim. 

Employees should follow the company’s complaint procedures, Fromholz says. “When a worker brings a complaint forward—whether to management, HR or a hotline—the company is on notice, and at that point they have to do something,” she says. 

How They’re Resolved

Some employers engage outside investigators to address complaints as they arise. Fromholz, who frequently serves as a neutral investigator, says these investigations determine the facts and the company determines whether its policies were violated. Even if conduct isn’t unlawful, such as in cases involving conflicts between co-workers or poor management, addressing concerns can improve workplace culture, she adds.

“People are flung together in a workplace; they haven’t chosen each other, and there’s going to be conflict,” says Fromholz. “The goal for the employer should be to work toward a healthy workplace for everybody.”

Most cases are resolved through confidential settlements without ever going to court. “That benefits the employee, because then they’re not on record for having sued a past employer, which a future prospective employer can say, ‘I don’t want to hire you because I don’t want to be sued,’” says Nielson. “That’s a completely legal basis for a company to make that decision not to hire you.” Settlements also provide certainty and allow the employer to avoid negative publicity. 

While California law provides robust protections and investigative processes, changes at the federal level may raise questions about how discrimination claims are evaluated. That was the case last June, when the Supreme Court issued its Ames v. Ohio Department of Youth Services ruling on reverse discrimination. The court confirmed that all employees alleging discrimination must meet the same burden of proof. 

“It got a lot of press, but not that surprising of a decision at all,” Fromholz says. The decision essentially brought federal law in line with something California has been doing for years, she adds: evaluating all discrimination claims equally.