Los Angeles Employment Attorney Blog

In 1863 President Abraham Lincoln, as Commander and Chief of the Army and Navy, under Article II, section 2 of the U.S. Constitution issued two executive orders freeing slaves in the Confederate States. These executive orders are collectively referred to as the Emancipation Proclamation. On December 6, 1865, the U.S. added the 13th Amendment to the U.S. Constitution which abolished slavery.

In 1887 the U.S. added another amendment to the U.S. Constitution, the 15th amendment, which provides that suffrage can no longer be restricted by race. Then in 1964 the Civil Rights Act was passed guaranteeing civil rights and prohibiting racial discrimination. Most states have similar laws and expressed stated public policy that racial discrimination is unlawful.

Then why do we still have racial discrimination? People have fears and prejudices instilled at early ages while others develop those fears and prejudices as they move through life. But, it is a sad reality that racial discrimination exists and the victims of racial discrimination suffer severe emotional distress and economic disaster. The U.S. can do better. The U.S. needs to do better. Laws are not enough. We need a national push for education against hatred and racial prejudice. We need educational campaigns that tell the real story of those who fall victim to hatred and prejudice.

Don't think that racial discrimination is just happening in the dark corners of business. It isn't. Employers and companies engage in subtle, systematic racial discrimination. Sophisticated methods are devised to get around public policy and the common good which inevitably adversely target racial minorities. Recently the 9th Circuit Court of Appeals for the United States reversed a U.S. District Court ruling that would, in theory, have allowed an insurance company to use secret formulas to determine the cost of insurance which coincidentally and predictably resulted in higher premiums for racial minorities - African-Americans in particular than for Caucasians.

On May 12, 2009, the United States Court of Appeals for the Ninth Circuit handed down it decision in Ojo v. Farmers Group, Inc. et al which involved an African-American insured who filed a class action against Farmers and others to remedy alleged racial discrimination in assessing higher premiums for homeowner's property and casualty insurance for African-Americans than the premiums that are charged to Caucasians. The United States District Court for the Central District of California dismissed the claim reasoning that the claim was reverse-pre-empted by McCarran-Ferguson Act.

Briefly, MacCarran-Ferguson Act is a federal law that establishes inverse preemption prohibiting a federal law of general applicability from pre-empting a state regulating the insurance business. The District Court adopted Farmers' argument that although their secret scoring and protocol may adversely impact African-Americans who are not necessarily higher risks to be charged more than Caucasians, it did not violate any state law regulating the insurance business.

The 9th Circuit decision discusses the laws in detail. But for purposes of understanding an ugly fact of present day life, it is sufficient to know that Farmers argued that it should be allowed to use its secret, propriety scoring system that resulted in higher premiums for African-American than it charged Caucasians. The 9th Circuit explained that allowing a company to use credit scoring that resulted in disparate discrimination against minorities was contrary to law and well established public policy prohibiting racial discrimination.

While the case has not been tried and the facts are yet to be disclosed, it is astounding that a company would advance theories that result in higher premiums for racial minorities than are charged Caucasians. And, it is even more astounding that a federal district court could selectively reason certain laws to allow the disparate racial discrimination. Fortunately, the 9th Circuit Court reversed the Central District Court's ruling and thereby advanced the progress of prohibiting discrimination by employers and companies.

Wake up America! Our workforce, our businesses, and our entrepreneurial success are hindered by racial discrimination.

As an employer, do you seem to have a lot of internal complaints by employees claiming they are being mistreated because of race? Do the complaints point the finger at the same supervisors? Are there common themes in the complaints such as denial of promotions, denial of training, harassment? If you answered "yes" to any of these questions, your company should pay attention now rather than later. If you answered "yes" to more than one of these questions, you are probably just seeing proverbial "tip- of-the iceberg".

How an employer handles internal grievances charging racial discrimination is critical to employee morale as well as the financial bottom line. Employment litigation results in diversion of important human resources and money earmarked for advancing the business mission to fighting alleged illegal discrimination.

Just why employers allow racial discrimination grievances to get out of their hands and into the courts is a mystery to me. Sure, some lawsuits can't be prevented by early intervention, but many can be.

Why aren't employers more effective at preventing lawsuits? It's not really complicated. In fact, based on my 26 years of litigation experience in the field of employment law, the answer is simple. Human ego. People want to be right. American business mentality is to fight for the top spot, be the best in the field, make more profit, be recognized or develop a strong brand. While most large employers have policies prohibiting discrimination, rarely do they have effective methods to address allegations of racial discrimination. And, it is even rarer for the employer to correct the racial discrimination that is occurring. It is easier to make the employee wrong and label that person a "problem" employee than it is to admit that something is wrong.

Here is the conundrum - by fighting the employee, the opportunity to settle goes stale. And that means the company will most assuredly spend precious resources fighting claims of unlawful racial discrimination instead of improving itself. It is common for me, as a litigator, to have a client say at the outset "All I wanted was the discrimination to be addressed" or "I just wanted to be transferred to another department that was begging to have me transfer."

Here is a suggested approach - Solve the problem. Solve as soon as possible. Don't allow allegations as serious as racial discrimination get stuck in the log-jam of bureaucracy. When there are easy solutions, take them. Don't engage in non-sense approaches such as hiring outside investigators who always find in favor of the company and dismiss the employee's grievance no matter how strong the evidence is.

Teach tolerance, the strength of diversity, and, of course, the mandates of the law to provide discrimination free workplace. Take prompt, fair, remedial action. Resolve grievances as quickly as possible. Most employees ask for simple and inexpensive remedies when the grievances are first filed. The remedies sought enlarge as time goes on without relief. And then the remedies sought geometrically increase when an employment litigator is retained.

Avoid the trouble and expense of litigation. Do the right thing as soon as possible. Don't let employees suffer unlawful discrimination in the workplace. Take care of your employees and watch your business become strong and prosperous.

On May 1, the United States Court of Appeals for the Ninth Circuit, in State of Alaska v. EEOC (2009) , held that the Government Employees Rights Act (GERA) eliminated Alaska's sovereign immunity. The court also held that the plaintiffs who had alleged they were wrongfully discharged after they complained about unequal pay because of race, sexual harassment, and retaliation for having reported this unlawful employment conducted, stated claims that constituted violations of the 14th Amendment to the U.S. Constitution.

The decision is not surprising or startling from a legal perspective. Rather, it makes common sense and is consistent with the well accepted principles that employees should not be unlawfully discriminated in the workplace nor retaliated against for speaking up about such wrongs. All states have laws protecting employees and their citizens from unlawful discrimination and retaliation. Moreover, the Federal Government has enacted numerous statutes to provide the same protection.

What is astounding is that the State of Alaska would fight all the way the a Federal Disctrict Court of Appeals arguing that it can abuse its government employees, allow them to be sexually harassed, and then fire them because they complain about it. The Ninth Circuit reiterated that the First Amendment to the United States Constitution prohibits retaliating against a public employee for speech made as a citizen on matters that are of public concern.

This is another example demonstrating much still needs to be done to eradicate race and gender discrimination, sexual harassment, and retaliation for those who engage in protected activity. It also illustrates how those with some power abuse it. Alaskan's tax dollars were spent arguing that the State was immune from actions that violate fundamental decency, basic constitutional rights, and well established public policy for the United States.

Alaska should have done the right thing at the beginning - paid employees fairly, stopped sexual harassment, and encouraged people to speak up. It would have saved a lot of money and improved workforce morale. Too bad Alaska - you can't pay women less than men for the same work, allow women to be sexually harassed or fire them because they object to such deplorable behavior.

California does not have immunity for these unlawful employment acts either. Los Angeles County has a population of more than 10 million people. There are thousands of government workers in Los Angeles. You can be sure that astute Los Angeles employment law attorneys have read this case. Expect them to bank on it if the state violates government employees' rights.

The Abel Law Offices, Los Angeles employment lawyers, represent employees and employers confronting racial and gender discrimination, sexual harassment, and retaliation claims.

In my 26 years as a Los Angeles employment law attorney, it still surprises me how many just can't believe they are being unlawfully discriminated against at work. People respond to ads, get hired, and think they will have the opportunity to flourish and grow professionally. In some cases that ends up being true. However, there are many who still fall victim to repugnant discrimination in the workplace despite our California and Federal laws enacted to protect employees from discrimination.

Victims of discrimination experience a range of emotions such as anger, frustration, humiliation, anxiety, and depression. The subtle acts of discrimination become a harsh reality that keeps the victims up at night and irritable during the day. Their work life becomes a living hell and frequently the more they speak up, the worse it gets. Employers may have the right policies, but not the right attitudes or the right managers and supervisors. So what should you do if you are the victim of unlawful discrimination in the workplace? Here are a few things that you can do so that you will not feel like a helpless victim. 

1) React decisively on the first unlawful discriminatory act. Email or write your supervisor detailing the unlawful employment discrimination. If the dsicrimination has been on-going, then document your plight.  Documentation may help you if you later file a lawsuit.  Request a written response.

2) If your employer has a Human Resources Department, make a formal complaint and make sure you keep a copy. In your complaint, you should be specific and state the precise nature of the discrimination. For example, if you are being discriminated against because of your age, you might state that you are over 40 years old and that employees under the age of 40 are routinely picked for promotion and you are denied promotion even though you earned it.

3) Keep a diary marked "for my lawyer". Write down what, when, how, who, and where regarding the race, national origin, gender, disability, age or religious discrimination.

4) Even though your job is important, stand up for your rights. Utilize all resources offered by your employer to try to get relief.

5) If you are suffering emotionally, get counseling.

6) If others witness the discriminatory acts, try to get the witnesses to sign a writing memorializing what was observed or heard.

7) Make a copy of your personnel file.

8) File a charge of discrimination with the California Department of Fair Employment and Housing (DFEH). You would be well advised to seek the counsel of an experienced Los Angeles employment lawyer becasue the way charges are written can make a difference if a lawsuit is filed. If you want to file a lawsuit instead of having the DFEH investigate, request a Right-To-Sue Letter from the DFEH.

9) Consult with a Los Angeles employment law attorney who is familiar with the Los Angeles courts and judges, the local court rules, and understands the jury pool.

Los Angeles is the second largest city by population in the United States. And, it is a diverse culture with races and people from around the world. While one might think that in the 21st Century there would be less racial discrimination in a large metropolitan area like Los Angeles, it isn't so. Racial discrimination is just more subtle now. Employers turn a blind eye and prejudiced people are just more clever about how they pull-off discrimination.

In a city that has a large percentage of Hispanics, Hispanics do not occupy a pro-rata share of professional and administrative jobs. African-Americans still have to fight for training opportunities, promotions, and to be treated fairly. Other minorities face a similar plight. Employers should implement anti-discrimination strategies and policies to educate all its employees about the value of diversity in the workplace and the illegality of discrimination in the workplace. It is not enough to have policies. Policies must be vigorously and diligently enforced.

Los Angeles employees should fight racial discrimination it by reporting racial discrimination to supervisors, Human Resources Departments or even the CEO. Don't take it. Fight it. If you don't get prompt relief, file a charge of discrimination with the Los Angeles District offfice of the U.S. (EEOC) or the Los Angeles District Office of the California Department of Fair Employment and Housing (DFEH). Another option is to retain seasoned employment law legal counsel to discuss your rights and remedies.

Employees and employers should fight racial discrimination in the workplace.  It is divisive, counter-productive, and wreaks havoc on people's lives. Fight racial discrimination.

We often think of helping people get better wages or work conditions and admire those who speak up to make working people's lives better.  Frederick Douglass was one of the first great worker's activists. Mr. Douglass escaped the cruel bonds of slavery and then spent his life working and speaking out for those who were still enslaved and for all people deprived of their civil liberties. Mr. Douglass said:

"To those who have suffered in slavery I can say I, too, have suffered. And he also said "To those who have battled for liberty, brotherhood and citizenship I can say I, too have battled."

Frederick Douglass was born Frederick Bailey, a slave in the United States of America. It was a time when it was legal for one American to own another human being. But this was not a state that young Frederick liked. When he was 18, he made his first attempt to escape that terrible condition, but was caught and imprisoned. A year later, in 1837, he escaped fro slavery. He changed his name from Bailey to Douglass to evade slave catchers.

Mr. Douglass fought for the freedom of others in slavery. He started a newspaper, he supported women's rights, and in 1850 he became involved in the Underground Railroad. The Underground Railroad was a name given to the movement of those who helped slaves to freedom.  Even today, Mr. Douglass is considered the ultimate workers' rights activist.

He, because of his intelligence, skill as an orator, and his work as a champion for civil rights, went from slavery to working in the Council of Government for the District of Columbia became the Marshal for the District of Columbia.  He also held diplomatic positions in the Dominican Republic and Haiti. Frederick Douglass - a man who escaped slavery and changed history.  His life story is still inspiring. A life of courage and accomplishment for the rights of others.

In celebration of the 4th of July in 1852 Frederick Douglass was asked to give a speech.  It was poignant and courageous; and, this speech has been re-enacted and read by many. To watch and listen to James Earl Jones read Mr. Douglass' famous 1852 speech, go to Youtube and search Frederick Douglass.

Los Angeles has named schools after him. He is honored by the National Parks and his papers are in the Library of Congress. Movies have been made about Mr. Douglass and his ground-breaking work for the down-trodden. Most importantly, though, his name and personage shine as inspiration for civil liberties and for the rights of those who are suppressed. Frederick Douglass ran to freedom and still leads the fight.

For more informatin on Frederick Douglass, click on the following links:

http://www.americaslibrary.gov/cgi-bin/page.cgi/aa/douglass

http://lcweb2.loc.gov/ammem/doughtml/doughome.html

The United States Equal Employment Opportunity Commission (EEOC) tracks charges of employment discrimination. Recently, the EEOC released charge statistics reflecting the individual charge filings for the time period covering 1997 through 2008. Well, with the laws in place and government enforcement of violations of the law, wouldn't you think there would be less discrimination? Despite the laws and the on-going efforts to enforce the law by EEOC, the number of charges in all categories have increased.

Individual employment discrimination charges increased almost 20% from 2007 to 2008. In 2007 there were 82,792 discrimination charges compared to 95,402 in 2008. Of the 9 categories of discrimination tracked, each and every category reflected an increase of filings from 2007 to 2008. For example, race discrimination filings increase from 30,510 race discrimination charges in 2007 compared to 33,937 in 2008. And there was almost a 20% increase in sex discrimination charges from 2007 to 2008. There were 11,000 more individual filings in 2008 than there were in 2007 (approximately a 20% increase) alleging retaliation for engaging in protected activities or some other type of retaliation.

 

Having laws isn't enough. Then, what is the solution? We need to educate employers, supervisors, and employees on the importance of diversity in the workplace and providing a discrimination free work environment. We need to train our employers, supervisors, and employees on effective and efficient methods to redress employee grievances and minimize discrimination in the workplace. Sexual harassment training is already a mandate, but it obviously that is not enough.

Employers could save tens of thousands of dollars or even millions of dollars by implementing effective training and educational programs to ensure their employees know, understand, and implement the laws mandating discrimination free workplaces. For example, a Phoenix, Arizona company, Wheeler Construction, agreed to settle claims by two individuals who alleged both had been the victims of natinoal origin harassment and then had been retaliated against for complainting about about the national origin harassment. Wheeler Construction will pay $325,000.00 to settle the EEOC lawsuit filed in the U.S. District Court for the District of Arizona.  Chester V. Bailey, the director of the Phoenix EEOC office said "These victims attempted to speak out and address their unlawful treatment, and their comlaints were ignored."

Employers should spend more resources on preventing and promptly addressing employee greivances alleging discrimination in the workplace instead of marshaling assets to fight claims. A discrimination free workplace means a more productive workforce and high morale. It's time to get smart.  Educate against hate.

Bruce Abel, Attorney-At-Law, is a 26 year veteran handling employment discrimination cases for employers and employees. Mr. Abel has offices in Los Angeles, Orange, and Ventura Counties. He is available to consult with businesses on effective training methods and resolution protocols regarding employment discrimination laws.

50 years ago California led the forefront when it enacted what is now referred to as the Fair Employment and Housing Act (FEHA) which is codified in California Government Code Section 12920 and following. This act declares that it is in the public interest for California employers to provide a discrimination free workplace and prohibits discrimination based on a number of protected categories such as race, national origin, age, gender, medical condition, and physical disability. California created the Department of Fair Employment and Housing Department (DFEH) to investigate and enforce this statutory scheme. Individuals, however, may also may sue in court to enforce the provisions of FEHA.

DFEH is a progressive and aggressive agency. It utilizes its resources to educate, investigate, and, when appropriate, seek remedies for employees who are victims of discrimination, harassment or retaliation in violation of FEHA.There are offices throughout the state, including Los Angeles, toll free numbers, and an excellent internet site with useful information, explanations of the law, and forms.

If you believe that you are or have been the victim of an unlawful employment practice such as race discrimination, you have the right to file a charge of discrimination with the California Department of Fair Employment and Housing (DFEH). After contacting the DFEH, an appointment will be scheduled for you to be interviewed about the facts pertaining to the discrimination, harassment or retaliation. To assist the person wishing to file a charge of discrimination, the DFEH sends the complainant a pre-complaint questionaire. This document can be obtained by contact a DFEH office or on-line on the DFEH Publications page.

Based on the interview and the pre-complaint questionnaire, the DFEH personnel draft a formal complaint using DFEH's form. Then you will sign it and it will be served on your employer or past employer whichever the case may be. It is not hard. Don't delay because there are time limits within which charges of discrimination must be made. Generally, a victim of discrimination must file a charge of discrimination within one year of the wrongful act. It is a good idea to consult with an attorney who knows employment law before signing the charge of discrimination because the charges of discrimination are pre-requisites to a lawsuit and are also admissible in a lawsuit.

Here in Los Angeles, Hispanic Americans are teachers, police officers, firefighters, soldiers, doctors, lawyers, journalists, and actors. Hispanic-Americans are active citizens engaging in the vital aspects of our communities and national life. There are over 44 million Hispanics in the United States according to the U.S. Census Bureau. That constitutes a significant minority of the population of the United States.

Then why don't we see them in T.V. commercials? I mean those in English that target the general population. Yes, there are Hispanics in Spanish speaking commercials, but where are all the Hispanic Americans in the main media? Just watch T.V. and pay attention to the commercials. You will see Caucasians, Asians, and African-Americans, but almost never an Hispanic. Hola, where are all the Hispanics?

Our country (and especially Los Angeles), is built on diversity, which is one our great strengths. Hispanics are good enough to teach our children, police our streets, fight our fires and wars, heal our sick, defend our rights, report on the news; but when it comes to our marketing dollars, they just don't count. The Association of Hispanic Advertising Agencies researched the marketing budgets for the top 500 national advertisers for 2007. No surprise here, 40 % of the top 500 advertisers spend less than 1% of their marketing dollars targeting Hispanics. Of the top 500 advertisers, only 11 % spend more than 10% of their budget targeting Hispanics.

Guess what, it is against public policy not to hire a qualified Hispanic for an acting part in a commercial just because he or she is Hispanic. If you are Hispanic and can't seem to get an acting position for a commercial, maybe it is because you are being discriminated against because of your race. Contact the U.S. Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment Housing (DFEH) to file a charge of discrimination. Charges of discrimination must be filed in a timely manner. Contact either of these agencies or an experienced race discrimination attorney for more information and assistance.