Coronavirus and Employment Discrimination

coronavirus and employment discriminationCoronavirus related anxiety is palpable. The worldwide growth of those infected and those that have died from the virus has been exponential. With travel bans and World Health Organization alarms ringing, it is natural that fears related to the virus and its symptoms abound.  But when those fears become outright cases of xenophobia, it is a real problem. If your workplace no longer feels safe because of prejudice and unfounded fears directed toward people of Asian descent, it is an issue that may require the assistance of a local employment attorney. 

Common Maybe, but Not Normal

The University of California Berkeley Health Services made a serious mistake when they sent out an Instagram post to students telling them that bias and bigotry are normal and common when facing the coronavirus. The university surely realized as much, leading to their quick deletion of the post. The fact is, while it may be true that many Americans experience bias and bigotry, it is not normal, and is certainly not acceptable. The unfortunate truth is, Western culture sometimes reverts to unreasonable xenophobia when faced with such issues, and it is not a pretty sight. 

A Comparison of Health Issues

The flu season this year in the United States has resulted in 19 million ill individuals, 180,000 people being hospitalized, and 10,000 fatalities. Yes, the coronavirus has deadly potential and it is important to have some perspective when considering the potential issues related to coronavirus.

Workplace Issues

What is an employer to do?  There certainly is a real issue confronting us; an epidemic apparently originating in Wuhan, China, is wreaking havoc worldwide. Actions have been taken to shut down non essential businesses, limit travel and shelter in place. Confirmed coronavirus cases continue to mount here in America. Employers of essential businesses have a responsibility to keep the workplace safe even in the face of a frightening epidemic. Common sense practices like regular hand-washing are appropriate. Here is what is not:

  • Just because an employee is of Asian descent, it does not mean they are carriers of the coronavirus. If your employee has not been to China in recent weeks, there is no need to treat them any differently than any other employee. Ostracizing such employees by word or deed is both improper and illegal. That is true for all employees, regardless of nationality.
  • Allowing employee gossip to flourish can be extremely damaging to employee morale and performance. If an employer is aware of unfounded rumors related to Asian-American employees and coronavirus, those rumors must be dealt with promptly. Failure to do so could result in legal action.

[Read more…]

California’s Fair Employment and Housing Act

california fair housing and employment actCalifornia’s Fair Employment and Housing Act (FEHA) lays out the duty of employers toward their employees, as well as prohibited actions in the workplace. These policies address discrimination against individuals with disabilities, as well as other protected groups, including:

  • Age;
  • Military status;
  • Race;
  • Religion;
  • National origin or ancestry;
  • Marital status;
  • Physical or mental disability;
  • Gender, sexual expression, or sexual orientation.

Anti-discrimination rules have been on the books for years. Revisions to these policies in recent times are worth noting:

Sex Discrimination and the California Fair Employment and Housing Act

The law protects individuals from any form of discrimination on the basis of sex. This applies to both males and females and expressly covers gender identity and expression and transgender identification.

Fair Employment and Housing Act on Volunteers, Interns, and Other Unpaid Individuals

California’s Fair Employment and Housing Act protects unpaid persons from discrimination, just as paid workers are. In fact, for the purposes of a harassment claim, they are considered employees.

Discrimination on the Basis of Religion

Religion may not be a factor in hiring and firing decisions. Reasonable accommodations must be made to address a worker’s religious tenets. An employer may not isolate a worker from fellow employees or from customers due to religious beliefs or attire, unless it is something that is requested by the employee.


Employees are entitled to as much as four months of unpaid leave in association with a pregnancy. It is not necessary to for the time to be taken in one continuous break. Furthermore, discrimination on the basis of pregnancy, breastfeeding, or other conditions associated with childbirth is not permitted.

Discrimination on the Basis of National Origin

The California Fair Employment and Housing Act does not permit employers to require employees to demonstrate that they have a driver’s license except under particular circumstances:

  • State or federal law requires it for the position;
  • It is a mandatory item for the type of work required;
  • There is a legitimate business reason for the requirement, and all employees are held to the same standard.

Training for Anti-Bullying

Employers who employ 50 or more workers are required to provide training that encompasses key topics:

  • Definitions of “abusive conduct;”
  • Impacts of such conduct on both victims and employers;
  • Steps the company will take to rectify harassing behaviors, such as the policy for investigating complaints and responsive actions;
  • Obligations of supervisors to document claims of discrimination, harassment, and/or retaliation.

Employers must document attendance at these trainings with sign-in sheets and must keep training materials on hand.

Support Animals in the Workplace

Support dogs or other animals that are required to assist with vision issues, cognitive problems, or emotional support must be accommodated in the workplace. [Read more…]

Pregnancy or Career – Can You Have Both?

PregnancyAre you currently pregnant or considering pregnancy? Well the decision to start a family is complex and requires a number of considerations, but pressure from your employer should not be one of them. The law offers specific discriminatory protections for mothers or potential mothers in the workplace. An experienced employment lawyer can help you with issues in the event you feel you are experiencing pregnancy discrimination.

Federal Protections

The Pregnancy Discrimination Act (PDA) prohibits workplace discrimination related to pregnancy. That means that being pregnant cannot influence any decisions regarding hiring, pay, job assignments, training opportunities, layoffs or firing. Additionally, benefits relating to health insurance or leave cannot be determined based on this status.

Physical Limitations

If your pregnancy interferes with your ability to perform duties normally associated with your position, your employer must provide alternate assignments, disability leave, or other leave just as it would for any other temporarily disabled employee. If your pregnancy results in additional health issues, such as preeclampsia, for example, the law requires reasonable accommodations.  These types of medical conditions are covered disabilities under the Americans with Disabilities Ace Amendments Act of 2008.

Reasonable Modifications

Modifications must be based on individual circumstances and needs.  Some common accommodations that might be required include:

  • Eliminating non-essential functions (such as heavy lifting) from the workload for a period of time;
  • Allowing frequent restroom breaks;
  • Modifying daily schedules to accommodate morning sickness;
  • Allowing an employee to be seated when standing might normally be expected.

What is Harassment and Discrimination?

Clearly, harassment, intimidation, and any discrimination surrounding pregnancy or childbirth is unlawful. Any behavior that creates an offensive or hostile work environment due to its frequency or severity, or that results in an unfavorable job action, may be actionable. Refusing to provide reasonable accommodations could also be considered discrimination.

Pregnancy and Maternity Leave

If an employer allows disabled persons to take disability leave with or without pay, the same must be offered for pregnancy-related issues. Pregnancy cannot be singled out with special rules or procedures. In addition, the Family Medical Leave Act (FMLA) of 1993 allows any new parents up to 12 weeks of paid or unpaid leave for the care of a new child, given the employee has worked for a year prior to the requested leave.

Finally, the Fair Labor Standards Act (FLSA) provides that nursing mothers must be afforded the time and private location (not just a bathroom) to express milk. [Read more…]

Employment Discrimination Case Davis v. Farmers Insurance Exchange

Employment Discrimination CaseWhat happens in an employment discrimination case, if a jury finds that the employer had a discriminatory motive for firing an employee, but also finds that the employer had legitimate reasons and would have fired the employee even without the discriminatory motive?

Courts have long struggled with how to properly resolve these types of cases. The Supreme Court of California laid out its standard in 2013, in the case of Harris v. City of Santa Monica, in which Wynona Harris, a bus driver, alleged that the city improperly fired her because of her pregnancy. The Court ruled that if illegal discrimination is a substantial factor motivating an employee’s firing, but the employer can prove that it would have made the same decision without that motive, then it is improper for a court to award the employee with damages or back pay – or to require the employee’s reinstatement.

However, the Court also held that employers in such cases may still be on the hook for their employees’ attorneys fees and costs. Also, it may be appropriate for a court to take action against the employer to prevent further discrimination in the future by issuing an injunction or declaratory relief.

Employment Discrimination Case – The Davis Ruling

While some forms of relief are available for plaintiffs like Harris, they are not guaranteed. This was reinforced in the 2016 case of Davis v. Farmers Insurance Exchange, in which a California appeals court has applied the rules of the Harris decision.

William A. Davis filed a complaint against Farmers after being terminated from a district manager position. He alleged that Farmers had discriminated against him on the basis of his age, in violation of public policy. When his case was pending, the Harris decision was issued, which led the trial court to instruct the jury that Farmers is not liable for damages if Davis would have been fired even without the presence of age discrimination.

The jury found that age discrimination was a substantial motivating factor in his firing, but also found that Farmers would have fired him anyway for legally permissible reasons. Accordingly, the trial court dismissed the case without awarding Davis any damages. The court also ruled against Davis’s requests for declaratory relief, injunctive relief, and attorney’s fees.

On appeal, the Supreme Court of California ruled that the jury instructions were proper under Harris. Davis had argued that Harris only applied to cases under California’s Fair Employment and Housing Act (FEHA), but the Court held that the jury instructions related to causation and motivation apply to both FEHA cases, and cases involving wrongful termination in violation of public policy.

The Court held that Davis was ineligible for declaratory or injunctive relief because he failed to seek these forms of relief in his complaint, and there was no threat that the wrongful conduct would continue to harm Davis in the future. The Court held that Davis was not entitled to attorney fees, either, because the jury’s verdict did not “result in the enforcement of an important right affecting the public interest,” and it did not provide a significant benefit to others. (The case was remanded for retrial, however, on a separate wage claim.)
[Read more…]


The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.