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Santa Barbara Employment Law Blog

What does it mean to discriminate based on gender identity?

While California has some of the most progressive, employee-focused workplace discrimination laws in the country, discrimination still happens based on a number of factors. One of these factors is a person's gender identity, whether they are transgender, genderqueer, genderfluid, two-spirit or nonbinary. So what does it look like when discrimination based on gender identity happens, how do you recognize it and are you protected against it?

According to the Department of Fair Employment and Housing, employers should not make your gender identity a factor in the workplace at all other than to respect your chosen name, use your proper pronouns and make adequate provisions for utilities such as bathroom use. Employers are not allowed to even inquire into your gender identity or ask leading questions that may offer some insight into your gender identity, such as questions about your relationship or your body. Simply the act of asking is an act of discrimination that violates your privacy by seeking grounds to identify and label you for possible harassment, exclusion or other discrimination.

What if my employer has sexually explicit images of me?

We have all seen what happens when celebrities' intimate photographs are leaked to the public by vindictive exes and malicious parties. Yet such instances can happen to private individuals as well, with persons in power over them using possession of intimate or explicit images to coerce specific behavior out of them. This can even happen in the workplace; there are a number of ways employers can obtain intimate or embarrassing photographs of employees, including employees who may have more personal relationships with employers. If you are in such a situation, what are your options?

First, it is critical to know that for your employer to possess or distribute those materials is not only a violation of your privacy, but illegal under California state law in very specific statutes outside of the existing statutes governing sexual harassment in the workplace, which this also constitutes. You have the right to pursue action, including an immediate injunction to prevent distribution of private materials or cease any existing distribution that has already taken place. A temporary restraining order may also be granted.

What is pregnancy discrimination?

While discovering you are pregnant may be a cause for joy, before you welcome your little bundle of joy you must first navigate the difficulty of being pregnant in the workplace. While things might not be difficult before you begin to show, soon the effects of pregnancy on your body could impact your ability to work up to normal capacity even before you develop a hefty baby bump. You may fear that iif your pregnancy affects your performance, you could lose your job just when you need financial stability the most. But is it even legal for a California employer to fire you for being pregnant?

It absolutely is not. Per the California Department of Fair Employment and Housing, pregnancy is a form of disability. This means if your employer does not make reasonable accommodations for your disability, then penalizing you or firing you is a form of discrimination. Reasonable accommodations can include necessary breaks, seating that provides proper back support, and any other necessary changes or adjustments required to either allow you to perform your job appropriately or shifts expectations to more reasonable requirements based on your physical and mental capacity while pregnant.

How can I prove I was harassed in the workplace?

One factor that keeps so many victims silent in the instance of workplace sexual harassment is the fear they will not be believed. Many harassers do not commit their offenses in easily captured media such as emails or text messages, instead engaging in sexual harassment in private places with no witnesses. This results in "he said, she said" situations where the burden of proof may be on the victim, making you extremely reluctant to come forward out of fear of being dismissed or even punished. So how can you prove you were harassed when you are your only witness?

Often you cannot, but that does not mean employers can dismiss you outright without hearing your case and, if warranted, conducting a formal investigation before making a decision based on the evidence at hand. The California Department of Fair Employment and Housing sets out a guide for employers when dealing with claims of harassment, particularly those without tangible proof. Rather than using the type of standard one might in court in which incontrovertible evidence is required, instead employers are inspected to conduct an investigation into the plausibility of the events you described to determine if they are more likely than not.

What is disparate impact, and how does it affect me?

No one wants to face discrimination in their California workplace, but sometimes you find yourself dealing with a hard situation where your employer or coworkers has taken unfair action against you in ways that affect you as a member of a class protected by race, creed, religion, sexuality, gender, gender identity, disability or several other factors. Sometimes these offenses are blatant, but sometimes they arise because a seemingly fair policy actually has a negative effect on you. When this happens, it is called disparate impact.

According to the California Department of Rehabilitation, disparate impact involves an employment practice that is defined as technically neutral and yet, in execution, enforces an environment in which unfairness or workplace discrimination can take place. The reason it is called "disparate impact" is because it has a negative impact on a protected class that is unjustified by the policy itself or any California law.

Ageism: What you should know about age discrimination

Age discrimination isn't something everyone deals with, but for those who do, it's a devastating kind of discrimination to face. Instead of being supported for years of service and learning, you end up being mistreated just because you're a few years older than others in your industry.

Age discrimination is against the law thanks to the U.S. Equal Employment Opportunity Commission. It's not legal to discriminate against workers who are 40 years of age or older. However, there are no protections for those who are 39 years old or younger. It's also not illegal for employers to favor an older worker, even if they're both at least 40 years old.

Reporting sexual harassment should not be traumatizing

Letting others know that sexual harassment has taken place at work can be difficult for victims in California. FindLaw explains that one of the most important steps to making the behavior stop, though, is reporting it according to the company's procedures for handling sexual harassment complaints. A company that does not have policies and procedures for dealing with sexual harassment, or does not follow them, puts the employee in a position to face continued harassment, trauma and retaliation.

The Society for Human Resource Management notes that people in the position to deal with these complaints should take immediate action when someone reports sexual harassment, whether there is a formal, written complaint or not. Every complaint should be considered serious, even if a supervisor feels that the incident is minor, or involves someone he or she would rather not investigate due to popularity or position.

Can a California employer legally pay less than minimum wage?

After being hired by a California employer, they inform you that you will not be paid the state's minimum wage of $11.00 per hour for the first few weeks of your employment while you undergo training and on-boarding. Your first response may be dismay, and your second response may be to instinctively say that it is illegal. But is it actually illegal? Are there ever any circumstances where an employer may pay you less than minimum wage and still be compliant with state and federal labor law?

There are actually multiple instances where you may earn less than minimum wage, per the California Department of Industrial Relations - and believe it or not, it is not applicable to restaurant servers who earn tips, as many assume. For employees classified as "learners," those who have no prior experience in the role they were hired into, it is legal to pay 85 percent of minimum wage for the first 160 hours worked as part of the training period.

Are "use it or lose it" vacation time policies legal?

You have had a busy year with your California employer, and did not use all of your vacation time. Perhaps you simply did not have time, or perhaps you chose to save up your vacation time to use to take a more extended vacation later. But the end of the year is approaching, and your employer has informed you that if you do not use your vacation time now you may lose it once the year rolls over. Is your employer legally allowed to cancel out your unused vacation time at the end of the year?

No. Per California labor law, vacation time is another form of accrued wages earned over time during the course of your employment. For an employer to rescind any earned vacation time at the end of the year would be equivalent to denying you wages for time worked. Therefore it is illegal for an employer to claim that your vacation time must be used by the end of the fiscal or calendar year, or it will expire.

How do California's overtime laws differ from federal FLSA?

You may be familiar with the U.S. Fair Labor Standards Act, or FLSA. This act governs what qualifies as fair employment with regards to wages, overtime, and many other criteria. However, did you know that California law regarding overtime differs from FLSA in a number of significant ways? This may impact you and how your wages are calculated.

The Society for Human Resources Management offers a breakdown of the number of ways California law differs, primarily based on differences in California minimum wage law - but also broken down by certain job classifications that may make you exempt from federal laws regarding overtime. For instance, California has a "white collar" clause that exempts executives, administrative professionals, and professionally certified practitioners in specific fields from overtime laws as long as they meet certain criteria. One such criteria is that they must earn at least twice the state mandated minimum wage in salary per month for a work week of 40 hours or more.

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