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Los Angeles Employment Law Blog

Federal appeals courts divided on age discrimination

Older workers know that age discrimination is a real issue in the workplace, but federal appeals courts throughout the country have been unclear about how to interpret certain aspects the Age Discrimination in Employment Act. The U.S. Court of Appeals for the 9th Circuit which has jurisdiction over California ruled in a June case that protection extends to employees of public entities regardless of the number of people employed.

Language in the act sets a threshold of 20 employees at an organization before the law applies, but the 9th Circuit decided that an amendment to the act from 1974 extended protection to all government workers regardless of the number of staff. The 20-employee rule should only exempt small private employers. In the case in question, the 9th Circuit examined the claims of two men, ages 46 and 54, who were dismissed by the Mount Lemmon Fire District.

Employee blames termination on retaliation for online review

The ability of disgruntled employees in California to vent online about their employers has raised legal questions about lawful and unlawful retaliation. A former employee of IXL Learning Inc. filed two complaints through the National Labor Relations Board and the Equal Employment Opportunity Commission alleging wrongful termination due to retaliation.

The employee, a transgender person who wrote a negative review about the company on the site Glassdoor.com. He claimed that he was fired because of the review, which stated that the company discriminates against people. Glassdoor.com enables companies to recruit employees and allows people to post reviews about different businesses. The NLRB administrative law judge dismissed the claim on the basis that it hurt IXL's ability to recruit. According to the judge, this differs from negative posts about an employer on social media sites like Facebook.

Gender identity disorder conditions may be protected by ADA

California employees who have conditions related to gender identity disorder might be protected under the Americans with Disabilities Act according to a federal court ruling. A woman had filed claims of retaliation and disability discrimination against her employer. She said that her gender dysphoria limited some of her life activities, but her employer argued that this was not covered under the ADA. The woman said that her rights to equal protection under the Constitution had been violated.

The U.S. District Court for the Eastern District of Pennsylvania used an approach called the "constitutional-avoidance canon" in its decision. This allows a court to ignore the plaintiff's constitutional question. Furthermore, the court looked at conditions that are specifically excluded from ADA protection. One is a condition that may result in conduct that is harmful or illegal. The others are conditions related to sexual identity and orientation that are not disabling. In reaching its decision, the court held that disabling conditions that do not lead to harmful or illegal actions are not excluded.

Constructive dismissal in employment discrimination cases

Workers in California and around the country who are subjected to discrimination may file claims under Title VII of the 1964 Civil Rights Act, but they are expected to mitigate their damages by remaining in their jobs whenever possible. However, there are situations where workplace environments become so toxic that the courts have allowed workers to collect damages including back pay even though they resigned. According to a 2004 Supreme Court ruling, the constructive discharge doctrine applies when working conditions are so unbearable that any reasonable person would hand in their resignation.

The doctrine has been applied in pregnancy, race, national origin, sex and age discrimination cases, but plaintiffs must overcome a number of hurdles in order in order for these arguments to be successful. In addition to proving that discrimination or harassment existed, workers must generally be able to establish that the discrimination was intentional and aggravating factors made resignation the only reasonable course of action.

Appeals court sides with nursing assistants in overtime claim

California employees who are subject to a collective bargaining agreement could still have protection under the Fair Labor Standards Act. A ruling from the U.S. Court of Appeals for the 3rd Circuit highlighted the protections applied by the FLSA in a dispute between certified nursing assistants and a nursing facility regarding overtime pay and unpaid breaks.

The employees asserted that their employer had violated the FLSA as well as state wage and hours laws and failed to pay them for 30-minute meal breaks although they frequently worked when trying to eat meals. At the trial level, the employer had tried to get the case dismissed because the employees' claim should have gone to arbitration. The employer cited the terms of the collective bargaining agreement although it did not specifically require that FLSA disputes go through arbitration.

Ways of proving age discrimination on the job

California workers over 40 may face age discrimination when applying for jobs. While age discrimination can be difficult to prove, there are some scenarios in which it may be possible. One of the most common situations is an employer that hires a younger person who is less qualified. To avoid discrimination, the employer must give a reason besides age that the less-qualified person was hired.

Some employers, knowing they cannot specify that they only want young people, recruit in ways that shut out older workers. For example, a company might only recruit through colleges or avoid putting entry-level positions on its website. A company might also specify the need for a certain type of program or training that has been only recently available. Another tactic a company may use is specifying a low number of years of experience. Two class-action lawsuits, one against Pricewaterhouse Coopers and another against R.J. Reynolds, deal with these scenarios. In a few cases, someone in a company's human resources department might become a whistleblower to highlight age discrimination.

Employment discrimination against transgender people

Some transgender people in California might experience job discrimination. This could range from not being hired at certain positions to people in the workplace using the wrong pronoun or not being allowed to use the bathrooms that is consistent with their gender identity. The Human Rights Campaign, an advocacy group, reports that between 1996 and 2006, about 20 percent of transgender people had experienced workplace discrimination that included being fired, harassed or denied promotion.

Transgender persons might not disclose their biological gender when they apply for a job, but an employer might be able to find out in another way. For example, background checks may reveal this information. The American Psychological Association reports that transgender people may earn less, and a study found that 64 percent made under $25,000 annually.

Former city aide files lawsuit claiming wrongful termination

On May 4, a former aide for a California councilman told a jury that she had been fired after she acted as a witness in an investigation involving allegations of improper electioneering and harassment. A lawyer for the city of West Hollywood claimed, however, that the former aide and several others were fired due to business reasons.

The woman said that she began working as a deputy to the councilman in March 2011. She was fired in January 2016. The woman's attorney claimed that the woman was fired in retaliation for being a witness in an investigation that was brought on by allegations made by a coworker. The coworker had alleged that he had been harassed by his boss and that there had been instances of improper solicitation and electioneering. The coworker had also filed a lawsuit against the city; although, he ended up settling out of court.

2nd Circuit rules for Muslim employee

California residents may be interested in a case involving a Muslim employee of New York-based bank who has filed a lawsuit claiming that she was subjected to a hostile workplace. Specifically, she claims that she was told to remove her hijab and that it was referred to as a "rag" by her supervisor. Furthermore, the woman claimed that she was subjected to many racist statements.

To prove that a person was subject to a hostile work environment, a plaintiff must show that hostile acts were severe and pervasive. In other words, it must rise above the level of generally rude or inconsiderate behavior to be actionable under Title VII of the Civil Rights Act of 1964. The acts must also be based on a person's protected status. A court will take a look at the facts of a case to determine if the acts could have posed a physical threat or unreasonably interfered with a person's ability to work.

Allegations of misconduct in workplace discrimination cases

Employers in California and around the country sometimes mount what is known as an after-acquired evidence defense when workers claim that they have been fired unfairly, and this strategy is sometimes successful even when discrimination based on gender, religion, race, age or national origin can be proven. Employers mount this kind of defense when they uncover information about the worker in question that would have led to termination for misconduct. Companies basically concede that they discriminated but would have fired the complaining worker anyway if they had known at the time what they subsequently learned.

This issue was addressed by the U.S. Supreme Court in 1995. The nation's highest court ruled that evidence of misconduct cannot prevent employees from pursuing job discrimination claims, but it may limit the amount of damages they are entitled to. For example, the amount of back pay awarded could be limited to the period between the unfair dismissal and the discovery of the misconduct.

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