What Is Considered To Be Discrimination In The Workplace?
Under the law, workplace discrimination refers to being treated differently by the employer on the basis of a protected category, such as race, ethnic background, religion, gender, age, and disability. In order for something to be considered discrimination, there must be a substantial, significant difference in wages, opportunity for promotion, access to benefits, or other things of this nature which have a significant impact on the employee’s job opportunities and/or compensation.
How Do You File A Workplace Discrimination Charge? What Information Must Be Provided?
The rules for filing a charge of discrimination with a governmental agency vary depending on the circumstances of employment. Civilian employees of the federal government must adhere to very specific rules, and must go through the Equal Employment department of their agency, and follow a process within 90 days of the unwanted acts, discrimination, or harassment. There must be documentation and what’s called “exhaustion of remedies” that is very specific for federal employees.
The typical California employee who works for an employer of five or more full-time employees has protections under the Fair Employment and Housing Act (FEHA). FEHA protections do not apply to one-person employers, such as a doctor’s office that has one medical assistant.
Within one year of the last action that was discriminatory or harassing, the employee needs to have initiated a complaint with the Equal Employment Opportunity Commission (EEOC) or with the Department of Fair Employment and Housing (DFEH). Complaints are typically made online using a form that the employee will fill out. The form includes a section where the employee can provide narrative information about the types of discriminatory conduct that have occurred.
In my practice, the employee will work with my office to determine which areas to focus on and what kind of information needs to be provided for the charge. In the case of harassment, we need to make sure to list the harasser in the DFEH complaint. Typically, a right to sue will be issued by DFEH the same day the complaint is made, as long as it is requested. Once the charge of discrimination has been made and a right to sue has been issued, the employee will have one year from the date of issuance to file a lawsuit. If they file within that one-year time frame, then their lawsuit is timely and can proceed against the employer in court.
How Are Whistleblowers Protected From Retaliation Under California Or Federal Law?
The Sarbanes-Oxley Act is a federal law that pertains to companies whose shares are traded on public exchanges, and has a specific process for reporting illegal activity, and statute specific remedies listed. The federal Whistleblower Protection Act provides protections, and various federal statutes discuss where whistleblower complaints must be reported. There is another whole area of whistleblower reporting under Qui Tam rules, for things such as reporting defense department fraud or wasteful spending, that has extensive rules.
Federal employees have a number of options for reporting complaints, including using the Office of Special Counsel, which is a federal agency headquartered in Washington, D.C. with offices in the San Francisco Bay Area, Dallas, Texas, Detroit, Michigan. There are different protections and requirements for reporting that apply to employees who work for a California State agency.
Reports made by non-government employees must involve a wrong that is in violation of public policy, which can include anything from an explicit statute that prohibits selling tuna fish that has been canned a certain number of days after the fish was caught, to a failure to perform certain kinds of maintenance on vehicles that are transporting members of the public. In these cases, there is more of a concern regarding whether the employee has proof of the company committing a violation of a public policy (statute or regulation), or proof that the employer took retaliatory action against them after learning of their report (e.g. demotion, suspension, termination). For a non-government employer, possible remedies include returning a terminated employee to work, recovery of wages, compensation for medical expenses and mental and emotional distress, and attorney fees.
How Long Do I Have To File A Whistleblower Complaint?
Statutes of limitation change and differ depending on the circumstances. Federal employees are governed by very specific regulations and rules. It is best for the employee to communicate with experienced counsel as soon as possible in order to determine which actions need to be taken, and when, and to ensure that they are done before the statute of limitations expires. No one should sleep on their rights by just waiting for the employer to tell them their rights.
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