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Oakland Employment Law Blog

Age discrimination in the tech industry

As many California workers are aware, tech startups and other companies within the technology industry are known for their youthful, hip work culture. While this free-spirited energy can make these types of places fun to work for recent college graduates, it creates a serious age discrimination issue as workers who are 55 years old and above tend to get relegated to jobs that are considered to be "old people" work.

According to a study of 18 large, well-known tech companies, the median employee age was 37 while the U.S. average is 42. However, when the ages of employees from various tech companies were analyzed, the businesses that have been well established for decades had median employee ages that were older than those that are new to tech scene. For example, HP and IBM had median employee ages of 36 to 37 while Amazon, Google and Facebook had median employee ages of 29 to 30.

Wage discrimination includes more groups than women

A review of filings at the Equal Employment Opportunity Commission shows that discriminatory pay practices by employers in California and nationwide do not emerge solely from discrimination against women. Race, age, national origin, disability and religion also inspire many wage discrimination claims.

Charge filings at the EEOC from fiscal year 2013 to fiscal year 2016 show that the percentage of cases of racial wage discrimination for each of those years was nearly equivalent to gender wage discrimination cases or exceeded their percentage by a small margin. Although the bulk of gender wage discrimination claims were filed by women, an average of 15 percent of allegations came from men over that period.

Workplace discrimination claims under Title VII or Section 1981

A California employee who is filing a workplace racial discrimination lawsuit may do so under a federal statute commonly referred to as Section 1981 or under Title VII of the Civil Rights Act of 1964. It is important to understand the difference between the two. For example, to file a claim under Title VII, it is necessary to first go through the Equal Employment Opportunity Commission. Once administrative remedies through the EEOC have been exhausted, a lawsuit can be filed. Under Section 1981, it is not necessary to file a claim with the EEOC first.

The statute of limitations under Section 1981 is also longer. A person has four years to file a lawsuit under Section 1981 while under Title VII, a person has up to 300 days to file with the EEOC.

Quitting a job raises legal bar for winning discrimination claim

California employees who are contemplating leaving their jobs due to harassment or discrimination should understand the different views that courts take of hostile work environments and constructive discharge claims. In general, a hostile work environment arises when an employee in a protected class experiences discrimination or harassment. A constructive discharge describes an employee leaving a job because the unfair treatment has become unbearable. The Supreme Court of the United States defines it as an act that a reasonable person would consider necessary to escape an unendurable situation.

Evidence of discriminatory treatment could suffice to win a hostile work environment claim against an employer, but a claim of constructive discharge faces a higher legal standard. In a case before the U.S. Court of Appeals for the 5th Circuit, the ruling specified that discrimination such as unequal pay did not justify leaving a job because additional aggravating circumstances were necessary to assign liability to the employer for lost wages after the employee chose to quit.

How men can help combat workplace harassment against women

According to a 2016 report from the Equal Employment Opportunity Commission, around one-third of women experience sexual harassment at work. However, women in California and throughout the country may be hesitant to report harassment for a number of reasons including concerns about how it will affect their careers or that they will not be believed. Three-fourths of women who suffered sexual harassment did not discuss it with a union representative or supervisor. Gender discrimination is also an issue, and women report that men are often paid more and promoted more frequently.

Men can help reduce the incidence of harassment and discrimination against women in the workplace by refusing to participate in conversations that include offensive sexual comments. Holding other men accountable is important. Senior management must hold people accountable as well. It is necessary to demonstrate that sexual harassment allegations will be dealt with promptly and that the perpetrators will be terminated if necessary.

Discrimination against female doctors common

Researchers at the University of California, San Francisco found that physicians who were also mothers faced discrimination at work. The study was inspired by comments made by female doctors on an online forum called Physicians Moms Group. Researchers created a series of questions that asked respondents to discuss their working conditions and whether they had experienced burnout or had been discriminated against.

Of the nearly 6,000 women who had responded to the survey, more than three-quarters said that they had been discriminated against at work. Of those who had experienced discrimination, 66 percent said that they experienced gender discrimination while 35 percent said that they have been the victim of maternal discrimination. The most common forms of maternal discrimination according to the survey were related to being pregnant or taking maternity leave. Breast feeding was another common source of discrimination, which surprised researchers because it is a generally accepted fact in the medical community that breast milk is good for babies.

Cancer patients and workplace discrimination

California residents who have cancer and are still working should know that many in their situation still face workplace discrimination. This is in spite of the Americans with Disabilities Act , according to a study published in a peer-reviewed medical journal. However, the study also shows that oncologists and oncology providers can help with creating customized and effective workplace accommodations for people with cancer.

The Americans with Disabilities Act was established in 1990. It was amended in 2008 so that the impairment due to chronic diseases could be one of the disabilities included in the ADA.

HR departments and allegations of sexual harassment

Some California employees who have faced sexual harassment in the workplace may have also found that their company's human resources department did not protect them or investigate as effectively as it should have. According to some obervers, some HR departments are more focused on protecting high performers and top executives than responding effectively to sexual harassment complaints. HR departments may run into conflicts because of a lack of independence, and they may find themselves investigating the very people they work for.

Experts say that while many companies may have sexual harassment policies in place, they do not follow through in upholding those policies. Once an employee files a complaint, HR departments should ideally conduct investigations and ensure that there are consequences for sexual harassment. The employee should also not face retaliation for reporting harassment.

Why companies have not stopped workplace sexual harassment

California employees may be aware that there has been an increasing number of sexual harassment scandals occurring in large companies. Some of the high-profile cases have included employers such as Fox News, Uber and Sterling Jewelers. There are several reasons why the scandals are occurring and will likely continue to occur.

In the above cases, it appeared that there were no policies in place that prevented sexual harassment incidents or that even allowed the company to properly investigate and effectively deal with incidents when they occurred. If the company does have a policy that deals with sexual harassment, it is often more about protecting the company than the affected employees. For example, several companies that offered hotlines used them as a way to prepare themselves against any potential legal action that may be taken against them.

Religious discrimination in the workplace

California employers must take steps to ensure that religious discrimination does not occur in their workplaces. It is important to keep in mind that for the purposes of determining religious discrimination, religion is not limited to the major world faiths like Christianity, Judaism and Buddhism. It may also include much smaller and lesser-known religions and belief systems as well as people who are atheists.

There are several types of religious discrimination that employers must keep an eye out for. One is treating people differently, including failing to hire or promote them, because of their religion. Another is remaining silent while an employee is harassed because of his or her religion. Not acting when an employee is harassed can make it appear as though the employer condones the behavior. Employers are also not permitted to retaliate against workers who report religious discrimination. Finally, a worker cannot be discriminated against due to the religion of another person with whom he or she has a relationship. This practice is known as associational bias.