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Santa Barbara Employment Law Blog

What is a hostile work environment?

When your work environment becomes unbearable and you face discrimination or harassment, you have every right to file a complaint. What you are dealing with is, under federal and California state law, considered a hostile work environment - but what exactly does this mean? How does your work environment classify as hostile?

The EEOC outlines conditions that define a hostile working environment. This involves either pervasive and/or severe conduct and actions that make your work environment feel hostile, intimidating or abusive. For example, if your manager assigns you a derogatory nickname based on race, gender, gender identity, sexuality, religion, or other personal factor and continues to use that nickname on a daily basis, you are in a hostile work environment created by pervasive conduct.

Can an employer threaten to report me to immigration?

Many workers in the United States, including in California, can find themselves in delicate situations regarding immigration status and employment. Renewing a work visa one day late can place you in a precarious position, while undocumented workers may have little to no recourse in many situations without being discovered. An unscrupulous employer may take advantage of this to exploit workers in delicate situations regarding immigration status - and may threaten to report your immigration status if you intend to report unsafe, discriminatory, or otherwise unethical work conditions. Can your employer legally do this, or do you have protections even in your situation?

Believe it or not, you are actually protected in this situation. This is called immigration-related retaliation, and the California Department of Industrial Relations states that if an employer threatens to report your immigration status as retaliation for you exercising your human rights under California Labor Codes, they may reported to the Labor Commissioner. Even if your immigration status is in question, you still have the right to not be exploited based on those conditions.

Am I protected from discrimination as an independent contractor?

Many times, it can seem as though the only difference between an independent contractor and an employee is who is responsible for deducting your taxes. Yet there are many other factors that differentiate contractors and employees under California law, and one major point is the protections offered to employees against discrimination, harassment, unfair wages and hours, wrongful termination and retaliation. As an independent contractor, are you afforded those same protections?

The answer to that is contradictory, and may require legal determination on a case-by-case basis. The California Department of Fair and Equal Housing states that yes, as an independent contractor you are protected from harassment or discrimination based on your age, ethnicity, religion, sexuality, gender identity, pregnancy and any number of other factors. The DFEH invites you to file a formal complaint as a contractor if you feel you have been a victim of harassment of discrimination.

Starbucks faces lawsuit over unpaid wages

Working for a large corporate employer is often a difficult position for entry-level employees. Many workers assume that the policies such companies have in place are legal and enforceable. After all, the company surely employs an army of attorneys to make sure it complies with the law. Still, many Starbucks employees learned recently that the coffee shop giant may have instituted illegal labor practices for hundreds -- or even thousands -- of its workers.

Now, many of those same workers may soon join a class action lawsuit alleging that the company required illegal overtime work without pay, if an ongoing suit against the company succeeds. In fact, many com009panies throughout the country may quickly reconsider some of the widespread business practices currently in place l throughout service industries and other sectors.

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.

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