San Francisco Employment Law Firm Blog

The California courts have long recognized that fact that direct evidence of discrimination or retaliation at workplace is rarely available. Employers whose mindset and who actions are discriminatory will rarely admit it to other or to themselves and will of course almost never openly tell an employee: “I am terminating you because you are a black / christian / disabled / participate in the union activity”. Workplace discrimination and retaliation is usually subtle. It can and should be proven through circumstantial (indirect) evidence. While each type of circumstantial / indirect evidence might not be enough to meet the burden of proof, several types combined may well established a real risk for the employer to lose at trial and face a significant verdict for violation of an employee’s civil rights.

Here are five common, subtle and “circumstantial” ways in which employers engage in discrimination against employees:

1. Applying the Rules of Discipline Unequally. If you have been terminated for being tardy 3 times but there are other employees who are in the same or similar position and rank as you are, who are late to work more often than you are without facing any discipline, it might be evidence of the employer’s attempt to get rid of you for reasons other than tardiness.

Under California Labor Code and a number of orders of the Industrial Welfare Commission, almost all employees (with few exceptions), who work for over 5 hours are entitled to a meal break of at least 30 minutes. The only way the employer may be relieved from this obligation is that if (1) the employee’s workday is no longer than 6 hours; and (2) the employee expressly consented to waive the right to a meal break.

An employer has to provide the employee with a second 30-minute meal break, if the same employee works for over 10 hours. This second meal break period can be waived by mutual consent, but only if the employee took advantage of the first meal break. In other words, the employee cannot waive both breaks if he/she works for over 10 hours.

Some positions make it impossible or impracticable for an employee to leave the work site in order to have a meal break (night employees at gas stations who work alone, security guards at different sites, etc…) In such cases, the employee is considered as having “on-duty” meal break because he is not relieved of all duties (being forced to stay at workplace during his lunch break), and he must be compensated for that time at a regular rate of pay.

Under California law, an employer is not liable for harassment or workplace discrimination committed by the victim’s worker if the employer did not know or had no reason to know that the unlawful conduct took place. This means that to protect yourself during employment and to make sure that you are able to recover damages for your potential wrongful termination claims, you must complain about the unlawful conduct to your hr department, your supervisor, or your supervisor’s manager.

Often, during the litigation of an employment dispute and in an attempt to disprove the claimant’s case, the employer will argue that the aggrieved employee never complained about the alleged discrimination and harassment and therefore the same employee does not have a case. This is exactly why it is so important that you complain in writing (e-mail to HR department with CC to the management is advisable) and save your e-mails, as it would be very hard for your employer to seriously dispute the fact that you complained, if you have date-stamped e-mails that contain the description of the wrongful conduct and your request that the conduct be addressed.

It is a common practice for many employers, especially the larger employers, such as the software companies in San Francisco and Silicon Valley, to offer a severance package to the employees who are about to be laid off due to downsizing or restructuring. The amount of severance depends on several factors, but the main ones usually are: (1) the company’s financial condition and it’s corresponding ability to make severance payments; and (2) the amount of employees to be laid-off; and (3) the length of service of any particular employee at the company.

It is much harder to negotiate a higher severance than the one offered in a mass lay-off, as the employer will argue (and justifiable so) that you shouldn’t be receiving greater severance than all the other employees. However, if you are the only person to be laid off from your department, or one of the few, you should take the opportunity to negotiate a higher severance directly or through an attorney. Like in many other aspects of work (and life), when it comes to negotiation of a severance package, and employee will normally get much more with “honey” than with “vinegar.” This means that accusing an employer of wrongfully terminating you, especially without having solid evidence to support your accusations, and threatening with a lawsuit will not help in these negotiations and will likely achieve the opposite effect from the one you desired, antagonizing your employer, which never leads to desire to help and generosity.

You must remember that unless paying out severance is a company’s formal rule/policy or one of your stated terms of employment (which is quite rare) such a payment is completely discretionary. Therefore, the right way to negotiate a severance package or a higher severance package is by trying to evoke empathy to your anticipated unemployment and financial hardship and forget about threats and accusations. If you have had a decent relationship with the decision maker during your career at the company, you might just be surprised as to his or her ability to relate to your situation, especially in these hard times, and your manager’s desire to actually make a step to help you in getting a higher severance upon lay-off. Like in politics, successful severance negotiation requires diplomacy and civility.

It is common for an employer to offer severance to an employee who is being terminated or laid-off. The size of the severance usually depends on the circumstances of the worker’s termination and the length of his or her employment. While severance is completely discretionary and there is no law that mandates lump sum payments upon separation of employment, it serves an important purpose for the employer. Every severance payment is conditioned upon signing a document, named “Release” or “General Release” through which the employee promises to never sue the company for any possible employment related claims and violations. Thus, by making a modest payment, the company “buys” a peace of mind – a guarantee that the employee will not bring a lawsuit against the company. This is particularly important for employers, if the circumstances of termination/lay-off are suspicious and may create an impression of unlawful conduct on the side of the employer (whether the termination was wrongful or not).

Regardless if the circumstances of employment separation, it is very important that you have your Release document reviewed by an experienced employment attorney before you sign the same, to make sure it is drafted properly and fairly, that it protects your rights as well as it serves the interest of the employer, and that you are not waiving potentially substantially greater rights than your severance package, if your termination is likely to be wrongful.

You may also consider negotiating a higher severance on your own or through an attorney.

The main challenge of proving discrimination and discriminatory discharge at workplace is showing that the reason an employee was discharged is because of his/her belonging to one or more of the protected classes of employees because of his/her gender, sexual orientation, ethnic origin, disability, familial status, political affiliation, etc. It is not hard to show that an employee was terminated, but it’s rarely easy to show why the same employee was terminated, especially when that employee’s performance, at least in the subjective view of the employer, was less than perfect and could have been grounds for termination.

There is rarely a direct evidence of discrimination, such as blunt discriminatory statements, such as “We are firing you because we don’t like blacks/disabled/republicans/married people. For obvious reasons, an employer will also almost never admit discriminatory motive in taking an adverse action against one of its employees. This means that in the vast majority of cases, the discrimination must be proven through circumstantial evidence, from which it is possible to infer that the reason an employee was terminated was discriminatory and thus unlawful.

The Second Appellate District engaged in a very important analysis of the various kinds of circumstantial evidence of discrimination in Johnson v. United Cerebral Palsy (2009). In that case, the court discussed a number of facts sited by an employee in support of her allegations of discriminatory termination and held that while each of the facts individually does not raise a suspicion that the aggrieved employee was discriminated. The court wasn’t persuaded that just because the employer lied about the true reasons for termination Johnson, that termination was discriminatory, reminding that while discrimination is unlawful, lying about reasons for termination is not. The court was also not impressed with an employee argument that the mere timing of her termination after taking pregnancy leave shows discriminatory motive in her discharge, as it has been established that timing of termination alone is not sufficient to prove discrimination. The court further refused to interpret the words of employer “we are firing you because of what happened” in a way that the employee subjective understood them (being fired because of her disability claim). The second district found the “because of what happened part” to be far too ambiguous to prove any animus toward the worker because of her pregnancy, and not because, as the employer argued, her substandard performance.