Employment Law

Is It Discrimination If My Employer Doesn’t Use My Personal Pronouns?

The U.S. Supreme Court ruled in Bostock v. Clayton County, 140 S. Ct. 173 (US 2020) that Title VII of the Civil Rights Act of 1964, which bans sex discrimination, also protects both gay and transgender employees against discrimination. It was the first major victory for LGBTQ+ advocates at the federal level in years, because it specifically included protection for transgender employees, who often face unique challenges and prejudices at work.

One of those challenges is the use of personal pronouns. Because pronouns can indicate gender, it is important for many transgender employees that their employers and colleagues use the pronouns that correlate with their gender identity or expression. The same principle applies to non-binary and non-conforming employees. If you have had your rights violated reach out to us at Haeggquist & Eck and get a consultation for your case.

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Preferred Pronouns versus Personal Pronouns

As we continue to evolve and strive to be more sensitive, allies wanting to avoid misgendering have asked, “What are your preferred pronouns?” Although, well-intentioned, there is no need to qualify a pronoun by calling it a “preferred pronoun.” The definition of the word prefer is to like better or best; tend to choose. Deeming something a preference implies there are other options that work, they are just not their preference. We can simply ask, what are your pronouns? To be more inclusive, employers can create opportunities for employees to share pronouns if they are willing to share that information. However, employers cannot require them to disclose pronouns. 

It begs the question: Does an employer’s failure to use an employee’s accurate pronouns amount to discrimination?

Misgendering & Harassment

Before the Supreme Court’s opinion in Bostock, the California Fair Employment and Housing Act (FEHA) protected California employees who are transgender, persons who are perceived to be transgender, or gender nonconforming, non-binary, and persons undergoing gender transition against discrimination. That includes harassment when an employee is discriminated against based on their gender identity or expression. 

As previously mentioned, pronoun use is important for people to express their gender, especially if they identify as something other than what they were assigned at birth. Using a pronoun that contradicts one’s gender expression is known as misgendering. When people are misgendered, it can be demoralizing, create unsafe spaces, and negatively impact their mental health and ability to function in the workplace.

Can I file a lawsuit against my employer for using the wrong pronouns or misgendering me?

Is It Discrimination If My Employer Doesn’t Use My Preferred Pronouns?

Mistakes happen and failing to refer to an employee by the correct name or pronouns by accident will not be enough to merit a lawsuit. However, there are situations when “accidents” are more than honest mistakes. If coworkers or supervisors consistently and intentionally refer to an employee with the incorrect set of pronouns or by a previous name, despite being corrected numerous times, this may constitute workplace harassment. If the employer fails to intercede with a meaningful solution to correct the misgendering, the employee may have grounds for a lawsuit.

Sexual harassment may not necessarily be related to actual sexual interest – it may, instead, be a type of bullying based on gender, gender identity, or gender stereotyping. In either case, verbal sexual harassment is defined as inappropriate sexual or gender-related statements that become so serious or so pervasive that they create a hostile work environment in which the employee becomes unable to perform their job function. 

The California Gender Recognition Act (SB-179) also known as the Gender Identity Bill was signed into law in 2017 and became effective January 1, 2019. This law states that every person deserves full legal recognition and equal treatment under the law to ensure that intersex, transgender, and nonbinary people have state-issued identification documents that provide full legal recognition of their accurate gender identity. This allows for people in California to change their gender on state identification and birth certificates, including choosing a non-binary gender marker.

Whether or not an employee has taken the steps to change their legal name and gender is irrelevant.

Employers may attempt to explain that they will only refer to employees by what is on their driver’s licenses or other legal documents, but there is no legal basis for this. They must address and refer to an employee by the name and gender the employee identifies. Employers cannot require documentation as proof of sex, gender, gender identity or expression as a condition of employment. Employers may not ask interview questions designed to detect a person’s sexual orientation or gender identity, such as inquiring about an applicant’s marital status, spouse’s name, or relation to household members. 

We at Haeggquist & Eck, LLP understand these can be emotionally difficult experiences, especially when they are intentional. If you believe your employer or coworkers are harassing you, misgendering you, or discriminating against you because of your gender identity and expression, we can provide the legal support you need.

For more information about how Haeggquist & Eck, LLP can help, contact us online or call (619) 342-8000 to schedule a free initial consultation.

5 Examples of Discriminatory Company Policies

When you think about discrimination at work, you might think a lot about how people treat each other. While it’s true that discrimination is particularly noticeable on such a personal level, it can also exist on an institutional level through a company’s policies.

Here are five examples of company policies that may be discriminatory. If you believe you were subjected to a discriminatory policy at work, get in contact with an employment law attorney to assess your situation.

1. Dress Codes & Grooming Standards

Many companies have a dress code and grooming policy. Generally speaking, if a company wishes to enforce certain dressing and grooming standards for its employees, that’s legally permissible.

However, bans on culturally or religiously significant garments, such as headscarves or skullcaps, can discriminate against one’s religion. And grooming standards that ban afros, beards, dreadlocks, and/or braids can discriminate against one’s race or religion.

These policies may also discriminate based on sex or sexual identify if they compel transgender or gender non-conforming employees to dress or groom in a manner that contradicts their gender identities or expressions.

2. Mandatory Retirement

In most professions, forced retirement based on age is illegal. Although mandatory retirement policies were once common, this practice was prohibited by the Age Discrimination in Employment Act (ADEA). The ADEA protects employees who at least 40 years old against discrimination based upon their age. This means that employees generally can’t be fired or compelled to resign simply because they’ve reached 65 or a certain age.

That said, there are a few exceptions to this general rule. An employer may consider age for the following:a. Public Safety Officers – such as firefighters;

b. Executives and policy makers – if the employee has worked for at least the past two years as an executive or in a high policy making position, and is entitled to an annual retirement benefit of at least $44,000 from the employer; and

c. Bona Fide Occupational Qualification (BFOQ) – an employer may set an age limit for a job if

(i) substantially all people older than the age limit would be unable to perform the job; or

(ii) Some people over the age limit would be unable to perform the job, and testing each person individually to determine if she could perform the job would be impossible or impractical.

3. Compulsory Participation in Religious Holidays & Observances

Many employers consider themselves to be faith-based even when the purpose of character of their business isn’t religious. An example might be a hardware store whose owners are deeply religious and strive to run their company according to a certain religious doctrine.

If the owners create policies that compel their employees to participate in religious holidays and observances, these are likely illegal as they impose religion upon workers. The employers would also open themselves up to liability if they attempted to discriminate on the basis of employees’ sex, religion, race, disability status, or another protected characteristic, using their own religious beliefs as a cover.

4. Pregnancy Termination Policies

For many years, employees who could become pregnant risked their jobs when they wanted to expand their families. The Pregnancy Discrimination Act of 1978 gave workers the protection they needed against employers who sought to discriminate against those who became pregnant.

Under no circumstances can employers have general policies that terminate pregnant employees. Quite to the contrary, employers are actually obligated to provide reasonable accommodation to pregnant employees who need it to continue performing essential job functions.

When it comes time to give birth or bond with new children, employees are further protected by the Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) to go on unpaid job-protected leave.

5. ‘U.S. Citizen-Only’ Policies

Citizenship status and national origin are two important protected characteristics. This means that employers can’t base any decisions regarding someone’s employment on them. It’s illegal for employers to adopt or enforce any policies that require their employees to be U.S. citizens unless federal, state, or local laws require U.S. citizenship for a particular job.

We Represent Employees Who’ve Experienced Discrimination

If you have been discriminated against, retaliated against or wrongfully terminated because of a company’s discriminatory policies, you may have a claim against your employer for damages, and we at Haeggquist & Eck, LLP can help. Get in touch with us today to schedule a free consultation where you can discuss your situation with an experienced attorney.

For more information, please contact us online or call (619) 342-8000 today.

What Is the CROWN Act?

When the CROWN Act passed in 2019, California became the first state in the U.S. to ban workplace and education discrimination based upon one’s hairstyle or texture, particularly when either is associated with race.

Employers are now prohibited from the following and other such activities:

  • Creating or enforcing grooming standards that discriminate on the basis of one’s hairstyle or texture
  • Choosing whether or not to hire an employee based upon their hairstyle or willingness to conform with a discriminatory grooming standard
  • Harassing an employee for wearing a natural hair style
  • Retaliating against an employee, including firing them, for refusing to conform to a discriminatory grooming standard

Creating a Link between Race & Hair

California’s CROWN Act effectively creates a legal link between race and hair, banning discrimination that has gone under the radar for decades. Specific hairstyles that are now protected by law include braids, locks, twists, afros, and other natural Black hairstyles.

Specific hairstyles that the law protects include the following:

  • Braids
  • Locks
  • Twists
  • Afros

Until the law took effect in 2020, it was possible for employers to enforce grooming standards and make decisions regarding one’s employment – including whether to hire or fire them – based upon how they styled their hair or their willingness to style it in an unnatural way.

This disproportionately affected Black Americans and other people of color with hair that was time-consuming, difficult, and costly to maintain in any other way than as it naturally grew from their heads.

Not only did hair discrimination create unnecessary barriers of entry for certain professions, but it also provided employers with a cover to conceal their intent if they wished to discriminate on the basis of race.

That should end now that the CROWN Act is in effect, but those who still face discrimination because of their hairstyle or hair texture should consult with an attorney to learn more about their legal options.

If you’ve experienced this type of discrimination after Jan. 1, 2020, Haeggquist & Eck, LLP can help you validate your claim and even pursue legal action against your employer. We offer a free consultation to help potential clients understand their rights and how our services can help them assert them.

For more information or to schedule your free initial consultation, please contact us online or call (619) 342-8000 today.

HAEGGQUIST & ECK REPRESENTS OC’S FIRST FEMALE HELICOPTER FIRE PILOT IN GENDER DISCRIMINATION LAWSUIT AGAINST ORANGE COUNTY FIRE AUTHORITY

Haeggquist & Eck’s Alreen Haeggquist and Jenna Rangel have filed a gender discrimination lawsuit against the Orange County Fire Authority on behalf of Desiree Horton, OCFA’s first female helicopter fire pilot.

Horton, a career pilot with 30 years of flying experience and 16 years of aerial firefighting experience, joined OCFA in 2019 as the agency’s first permanently employed female fire pilot. Prior to joining OCFA, she was a fire pilot with the California Department of Forestry and Fire Protection (CalFire), where she also was that agency’s first female fire pilot.

In the lawsuit filed in Orange County Superior Court, the HAE team alleges that despite her experience (more than any of her male colleagues at OCFA) and despite glowing reviews from former employers and colleagues, OCFA failed Desiree after her one-year probationary period – and without the required one-year evaluation flight. The suit alleges that during Desiree’s time at the OCFA, she was unfairly and discriminatorily scrutinized by the male pilots, crew chiefs, and helicopter technicians, held to unfair and higher standards than her male counterparts, deprived of training opportunities offered to the male fire pilots, unfairly evaluated without proper training and often with little or no advance notice, lied to about the conditions of her passing probation, and forced to work in a hostile environment in which she was ignored, undermined, disrespected, disparaged, and made to feel as though she was incompetent.

Horton wants her job back — and she wants transparency and accountability from OCFA so women and underrepresented groups are treated fairly in recruitment, hiring, and training.

The HAE legal team was joined by representatives from California National Organization For Women, Democratic Party of Orange County, Stentorians of Los Angeles City, Orange County Veterans Democratic Club and Lavender Democrats at a virtual press conference June 9 announcing the case. Watch the news conference here.

Check out reporter Andrew Gumbel’s piece on the issues facing the fire industry (and highlighting Desiree Horton’s case) here.

Three Myths About Hostile Work Environments

You probably have heard of a hostile work environment before. You may have been exposed to this term through the media or a friend or family member who was being discriminated against at work.

Unless you’ve dealt with a hostile work environment before, you may have also inadvertently learned a few myths about what one is and what it means to work in one. In this blog, we’ll address four of the most stubborn myths about this topic and why they’re incorrect.

Common Myths about Hostile Work Environments

Myth 1. A Hostile Work Is One Where Tempers Flare

Lots of people think that “hostile work environment” is a self-evident term, but it isn’t. Contrary to what many believe, there is more going on than a boss having a tantrum, threatening to fire people on a whim, or other kinds of bullying behavior.

This kind of conduct can certainly feel hostile, but it doesn’t legally cross the line until it discriminates against a protected class. In other words, if harassment of any kind targets people with certain legally protected characteristics (skin color, age, disability status, sex, etc.) then it violates the law and creates a hostile work environment.

Also, the harassment doesn’t have to be as over-the-top as outbursts or threats. Much more subtle behavior such as offensive side-comments can also lead to a hostile work environment.

Myth 2. Hostile Work Environment Claims Only Apply to Certain Types of Discrimination

Any form of discrimination can give rise to a hostile work environment claim. California and the federal government recognize a number of protected characteristics, including include age, race, sex, religion, gender identity, sexual orientation, disability status, and several others. Should someone experience harassment or other adverse behavior based on one of these characteristics, they may have a valid hostile work environment claim.

Myth 3. A Single Incident Isn’t Enough to Argue the Existence of a Hostile Work Environment

People may feel powerless to fight back if they experienced discrimination or harassment as an isolated incident. If the incident was severe or pervasive, however, it can indicate the presence of a hostile work environment. This is especially true if the employer failed to take any meaningful action to change the conditions that led to the incident or to prevent it from occurring again.

“Severe or pervasive” might sound like a high bar to meet, but it may be much lower than you’d think. The best way to assess whether you have a viable claim is to consult with an employment law attorney, like one of ours at Haeggquist & Eck, LLP.

Schedule Your Free Consultation with Us Today

If you believe you were subjected to discriminatory harassment at work, Haeggquist & Eck, LLP can help you evaluate your claim. When you take advantage of our free consultation, you can tell us about your situation in a fully confidential environment. An experienced attorney can then tell you more about how our firm can help you take advantage of legal options that may be available to you.

In many cases involving a hostile work environment, those who experienced discrimination can fight for monetary damages that address the impact of the behavior they endured at work.

For more information about our services, schedule your free consultation with Haeggquist & Eck, LLP by requesting it online or by calling (619) 342-8000 today.

Employers With Under 500 Employees May Voluntarily Offer FFCRA Leave Through September 30, 2021 in Exchange For Payroll Tax Credits

In the beginning of the COVID-19 pandemic, Congress passed the Families First Coronavirus Response Act (FFCRA) which temporarily expanded the existing Family and Medical Leave Act by requiring all private and most public employers with less than 500 employees to provide their employees with up to 12 weeks of paid job-protected leave for certain COVID-19-related reasons. In exchange, employers were able to claim payroll tax credits for the benefits paid for their employees who took FFCRA leave through December 31, 2020, when the FFCRA mandated leave requirement expired.

Since then, two additional laws – the Consolidated Appropriations Act of 2021 (CAA) and the American Rescue Plan Act of 2021 (ARPA) – amended the FFCRA to allow employers to claim these payroll tax credits through March 31, 2021 (under the CAA) and now through September 30, 2021 (under the ARPA) if they voluntarily continue to offer paid FFCRA leave to their employees. So, how does this work and what has changed?

FFCRA Qualifying Reasons Have Been Expanded

Under the FFCRA, an employee qualified for paid job-protected leave if the employee was:

  1. Subject to a federal, state, or local quarantine, or isolation order related to COVID-19;
  2. Advised by a health care provider to self-quarantine due to COVID-19 concerns;
  3. Experiencing COVID-19 symptoms and seeking medical diagnosis;
  4. Caring for an individual subject to a federal, state, or local quarantine, or isolation order, or advised by a health care provider to self-quarantine due to COVID-19 concerns;
  5. Caring for the employee’s child if the child’s school or place of care was closed or the child’s care provider was unavailable due to a public health emergency; or
  6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Under the ARPA, all these FFCRA grounds for eligibility still apply and have been expanded to qualify an employee who is:

  1. Seeking or awaiting the results of a COVID-19 diagnosis;
  2. Obtaining a COVID-19 immunization; or
  3. Recovering from any injury, disability, illness, or condition related to a COVID-19 immunization.

FFCRA Paid Leave Amounts Have Been Expanded

Under the FFCRA, qualified employees could receive the following amounts of paid job-protected leave:

  • Paid Sick Leave – up to two weeks (10 days, 80 hours) for qualifying reasons numbered 1 through 6 above, regardless of how long the employee had worked for the employer.
  • Paid Family Leave – up to 12 weeks (60 days, 480 hours), but only for qualifying reason number 5 above and only for employees who had worked at least 30 days for the employer.

Under the ARPA, the paid job-protected leave for qualified employees has been expanded as follows:

  • Paid Sick Leave – the two weeks of Paid Sick Leave has been reset for employees, meaning if an employee already took two weeks of Paid Sick Leave prior to April 1, 2021, the same employee will be eligible for an additional two weeks’ worth of Paid Sick Leave after April 1, 2021 under qualifying reasons numbered 1 through 9 above, and the employer can claim the payroll tax credits again.
  • Paid Family Leave – the qualifying reason for Paid Family Leave has been expanded to include all qualifying reasons numbered 1 through 9 above.

Despite these expansions, employee entitlement to FFCRA leave will be impacted and potentially exhausted based on the total amount of FMLA and/or FFCRA leave the employee has taken over the past 12 months. This means that if an employee has already used 12 weeks of FMLA and/or FFCRA leave within the past 12 months, their entitlement to leave has been exhausted and they must wait until they must wait until they are eligible again to take additional leave.

New Anti-Discrimination Provision Prohibits Employers from Discrimination in Offering FFCRA Leave Based on Salary, Hours, or Tenure

Because the extended FFCRA leave is voluntary, the ARPA implements a new non-discrimination provision that prohibits employers from discriminatorily choosing to offer these benefits only to highly compensated employees, full-time employees, or based on employee tenure. Essentially, if an employer chooses the tax credits, they must offer FFCRA leave equally to all qualifying employees.

What To Do if You Believe Your Rights are Being Violated

If you believe your employer is violating your rights, you may be able to hold them legally accountable. The employment law attorneys of Haeggquist & Eck, LLP will work with you to learn about your situation and seek fair and just compensation if your employer is breaking the law. Contact us online or call (619) 342-8000 to learn more about how we may be able to support your claim.

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