Discrimination |
March 01, 2017

7 Key Factors San Francisco Lawyers Consider in Employment Discrimination Cases

Employment attorneys in San Francisco ask important questions about employment discrimination

The San Francisco employment lawyers at Minnis & Smallets evaluate a number of factors when assessing an employment discrimination case. Although every case is different, here are seven questions that we commonly ask when we consider whether clients have been subjected to employment discrimination.

1. Does the Employee Belong to a Protected Class?

employment discrimination lawyers

California and federal discrimination laws protect individuals who belong to a class of people that have historically been subjected to unfavorable treatment by employers. The classes protected by law in California include:

  • Race and color
  • National origin and ancestry
  • Sex and sexual orientation
  • Pregnancy
  • Gender identity, gender expression, and sexual orientation
  • Disability
  • Age (over 40)
  • Religion
  • Marital status
  • Citizenship (when an employee holds a green card)
  • Military service history
  • Medical condition and genetic information

San Francisco employment lawyers can bring discrimination claims on behalf of job applicants or employees who have been subjected to discrimination because of their membership in one of those classes.

2. Did the Employee Suffer a Financial Loss Due to Discrimination?

While proof of financial loss is not necessarily required in every discrimination case, an employee who experienced discrimination must typically prove that he or she was subjected to an adverse employment action. An employment action is adverse if it negatively affects the terms and conditions of employment. Examples include:

  • Failure to hire
  • Termination
  • Demotion or failure to promote
  • Suspension
  • Reduction of hours
  • Reduction of wages
  • Reduction or denial of benefits
  • Formal disciplinary action

In some cases, an employee can recover compensation after quitting due to the oppressive conditions created by a hostile work environment, provided that the employee was targeted because of his or her membership in a protected class. Quitting because of an intolerable work environment is known as a constructive discharge. However, an employee who quits will not always be in a good position to make a discrimination claim, so it is advisable to obtain legal advice from employment lawyers in San Francisco before deciding whether the employee should quit his or her job.

3. Was the Employee Treated Less Favorably than Employees Who Do Not Belong to the Same Protected Class?

One way to prove employment discrimination is to present evidence that the employer had a discriminatory motive, as shown by a supervisor or decision-maker’s discriminatory comments. These discriminatory comments can be used as evidence of discrimination.

However, in most cases this kind of evidence is not available. Proof of discrimination often depends on proving that the employee was treated less favorably than employees who do not belong to the same class.

For example, an employer might hire African American employees, but might only promote white employees to management positions. Or an employer might pay female employees less than it pays male employees who have similar qualifications and experience. This kind of disparate treatment is often strong evidence of discrimination.

4. Was the Employee Subjected to a Hostile Work Environment?

Employers are required to protect employees from harassment that is based on their membership in a protected class. Sexual harassment includes making unwanted sexual advances, among other offensive behaviors. Race-based jokes or insults are examples of racial harassment, while mocking an accent is an example of harassment based on national origin.

When harassment becomes pervasive or severe, it can create an unlawful hostile work environment for the employee. Some acts of harassment, such as conditioning employment or advancement on providing sexual favors, may be unlawful even if they only occur once. A San Francisco employment lawyer will evaluate the circumstances of each case to decide whether an employee who has been harassed should bring a discrimination claim or take some other action.

5. Did the Employee Report Workplace Harassment?

When an employee is subjected to discrimination or harassing insults, abuse, or offensive conduct based on membership in a protected class, the employee may decide to report the problem to the employer to put the employer on notice of the problem and to give the employer an opportunity to take corrective action. Employment attorneys in San Francisco want to know whether the employee reported the offensive conduct and, if a report was made, how the employer responded to it.

6. Did the Employee Ask for an Accommodation of a Disability?

Disabled employees who are qualified to perform the essential functions of a job have the right to ask for, and receive, reasonable accommodations that will make it possible for them to do the job or to enjoy opportunities that are available to other employees. Time off for doctor’s appointments, a leave of absence, a flexible work schedule, or some modification to the employee’s job duties, are examples of accommodations that might be reasonable for an employer to implement.

An employers may have no obligation to grant an accommodation unless the disabled employee asks for one. The employee should talk with his or her health care provide about what types of accommodations are appropriate given how the employee’s health condition affects his or her ability to perform her job duties. The employer and employee must then work together to find an accommodation that will meet the employee’s needs without causing an undue hardship to the employer. If the employee has been refused a reasonable accommodation, or has been subjected to retaliation for seeking an accommodation, a San Francisco employment lawyer may be able to assist the employee.

7. Did the Employer Retaliate Against the Employee?

Employers are prohibited from retaliating against employees who complain about discrimination or who engage in protected activity, such as requesting accommodation for a disability. The same laws protect employees who testify on behalf of, or otherwise assist, another person who has been subjected to employment discrimination.

Since retaliation is the most common issue raised in discrimination cases, San Francisco employment lawyers will always want to know if an employee was threatened, treated unfairly, or otherwise subjected to retaliation for making or participating in a discrimination complaint.

The employment discrimination lawyers at San Francisco’s Minnis & Smallets ask these basic questions when talking to employees who believe they have been the victims of discrimination. For a free evaluation of a potential employment discrimination claim, call us at 1-415-551-0885 or submit our online contact form.