A group of five female prosecutors from Contra Costa County faced, and overcame, that kind of challenge. The women sued the county and the District Attorney’s Office in federal court, laying out a case with a variety of alleged instances where sex bias affected assignments and promotions.

The women asserted that the employer engaged in “systematically demoting and failing to advance, promote and assign supervisory roles to qualified” female prosecutors while, at the same time, systemically offering promotions to more junior male prosecutors. This process resulted in three-quarters of all prosecutors having a man as a supervisor and, in some situations, less experienced male prosecutors “supervising higher ranking, advanced level female prosecutors.”

The employer tried to get the case tossed based on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). A 12(b)(6) motion is one where the defendant argues that the plaintiff’s assertions are insufficient to make out a valid claim under the cause of action stated. In other words, the employer was arguing that the female prosecutors’ allegations, even if the court believed all of them, didn’t make out a valid case of sex discrimination under Title VII.

The trial judge disagreed, as the female employees’ case had allegations that covered each of the critical elements of a federal sex discrimination case. To state a valid claim, you need to assert that (1) you were a member of a protected class, (2) you were qualified for your job, (3) you suffered an adverse employment action, and (4) your membership in that protected class was a motivating factor in that adverse action.

These prosecutors all clearly stated that they were women (a protected class) and were qualified for the prosecutorial jobs they held. They also laid out some employment actions that clearly were adverse. One woman allegedly was demoted from a supervisory position to a lower position with less pay and that was usually held by a more inexperienced attorney. Two other women asserted that the employer passed them over for promotions, selecting men with inferior qualifications instead. Another woman allegedly had her supervisory role reduced.

This, according to the judge, was enough. Each of the women, according to the court, “alleged facts giving rise to a plausible inference that she was subjected to at least one (and often more than one) adverse employment action on the basis of her gender.”

What a case like this can tell you is that you do not need to spell out every little thing in your complaint. Your complaint does not need to say that, “On date X, Supervisor Y demoted me and told me that he was demoting me because I was a woman” to survive a motion to dismiss for failure to state claim. You just need allegations covering your status, your qualifications, the adverse action you experienced, and discriminatory motive.

Succeeding in your employment discrimination case is about more than being ready to win at trial. If you’re not prepared to succeed in the pre-trial phase, you may never make it to trial. Make sure you are ready to win at every phase of the process by retaining the Law Offices of Stephen M. Fuerch. Attorney Fuerch is a knowledgeable Oakland workplace discrimination attorney who has many years of helping workers to navigate the process and achieve positive outcomes. Contact this office through our website or call (925) 463-2575 to schedule your confidential initial consultation today.

Here’s an example. A.C., a certified surgical technologist at an outpatient surgery center in San Diego, allegedly endured a considerable degree of discrimination during her time at the center, including sex discrimination, race discrimination, sexual orientation discrimination, harassment, and retaliation. So, she hired a lawyer and took legal action.

There are several steps that you must take in this process. Before you go to court, you have to file with the Department of Fair Employment and Housing. After you file with the DFEH, you have to wait to receive a right-to-sue letter. After that, you can take your case to court.

A.C.’s lawyer did all of those things. The DFEH complaint named two variations of the employer’s registered business name. The complaint also accurately indicated who A.C.’s managers, supervisors, and co-workers were. Very shortly after getting her right-to-sue notice, A.C. filed a discrimination action in the Superior Court. A week later, her lawyer amended the complaint to include the correct legal name of the employer corporation.

Nevertheless, A.C.’s case got tossed on summary adjudication. The trial court said that the employee’s DFEH complaint named the wrong entity as her employer and “never corrected that omission.”

So, you may be wondering at this point, is that really the way the law works? As the appeals court made clear, the answer is “no.” The anti-discrimination and anti-harassment provisions in the California statutes exist to try to stamp out discrimination and harassment. To achieve that end, the courts generally are to interpret them broadly in favor of workers. That means that employers’ attempts to avoid liability based on hyper-technical imperfections often won’t succeed. Ruling otherwise would be “antithetical to the purposes of the FEHA,” according to the court.

As the appeals court put it, the law should never be interpreted such that a “plaintiff’s misdescription of an employer’s proper legal name on a DFEH complaint [serves] to provide a ‘get-out-jail-free card’ to the employer under California anti-discrimination law.” That’s especially true, the court said, if the worker’s legal representation has included so many other correct details that the minor error “could not possibly have hampered any administrative investigation or prejudiced the defendant in any judicial proceedings.”

If you have suffered discrimination on the job, don’t suffer in silence, and don’t try to take on the legal system on your own. For a knowledgeable legal advocate who can navigate your case through all of the mandatory steps and processes, look to the Law Offices of Stephen M. Fuerch. Attorney Fuerch is a skilled Oakland workplace discrimination attorney who has many years of helping workers just like you. Contact this office through our website or call (925) 463-2575 to schedule your confidential initial consultation today.

If a Bay Area member of the Assembly’s proposal becomes law, then California discrimination law would feel a very direct effect. AB 1119, proposed by Assemblywoman Buffy Wicks of Oakland, would expand the anti-discrimination protections available to workers and job applicants in this state by adding an additional protected class within the Fair Employment and Housing Act’s safeguards against employment discrimination.

That class is people with “family responsibilities.” The spectrum of people who may fall within this class is potentially a wide one. This class can include parents of young children, children with parents in need of care, and people who provide care to family members with disabilities.

Who Would Qualify as ‘Care Providers’ Under the Bill

Specifically, the bill would protect workers who “provide direct and ongoing care for a minor child” or to a “care recipient.” The bill goes on to define a “care recipient” as “a family member or a person who resides in the employee’s household and relies on the employee for medical care or to meet the needs of daily living.” A family member, in this context, could be a spouse, a child, a sibling, a domestic partner, or even a grandparent or grandchild, among others.

What this would mean is that, if the employee’s caregiver responsibilities placed her in the position of requesting a work accommodation, then the employer would be required to engage in the interactive process and to provide a reasonable accommodation for that worker.

The proposal would also take an important step in changing the law to reflect the new reality many working Californians face in this time of the pandemic. Everything from sheltering restrictions to economic changes to collective bargaining disputes has changed the landscape for California’s parents. Childcare facilities may be permanently closed and schools may be operating on a “virtual-only” basis. These limitations have imperiled many parents’ employment, especially working mothers.

AB 1119 specifically addresses this, as it would amend the FEHA to require an interactive process and a reasonable accommodation when an employee or job applicant has “known family responsibilities … related to obligations arising from needing to care for a minor child or care recipient whose school or place of care is closed or otherwise unavailable.”

To ensure that you have the legal advice you need from a seasoned professional possessing a complete and updated knowledge of California discrimination law, look to the Law Offices of Stephen M. Fuerch. Attorney Fuerch is a skilled Oakland workplace discrimination attorney who has been helping workers just like you for many years and is ready to get to work for you. Contact this office through our website or call (925) 463-2575 to schedule your free confidential consultation today.

Back on March 4, 2021, the Department of Fair Employment and Housing published an update to its DFEH Employment Information on COVID-19. The updated material was specifically targeted toward the issue of vaccinations.

In that updated document, the department confirmed that generally speaking, employers may require that their employees get one of the FDA-approved COVID-19 vaccines. What employers may not do, however, is demand that all employees get vaccinated, even those who presented the employer with an objection based upon his/her disability or sincerely-held religious belief.

For example, if you are someone who experiences a severe allergic reaction (anaphylaxis) to any of the ingredients in the COVID-19 vaccine, then you should not get a COVID-19 vaccine. An employer who fires you, refuses to hire you, or otherwise takes any sort of negative employment action against you for not getting vaccinated has very possibly engaged in illegal disability discrimination by taking this action.

The COVID-19 vaccine may also present serious moral issues for certain religious people. Catholics, for example, have recently been informed by the U.S. Conference of Catholic Bishops that they should not receive the vaccine manufactured by Johnson & Johnson because it uses cells obtained from aborted babies. Some members of some other smaller Christian denominations, such as the Dutch Reformed Church and Christian Scientists, oppose vaccines generally as something that thwarts God’s divine plan.

A Good-Faith Dialogue is Mandatory

If you are someone who has a medically-based reason why you cannot receive a COVID-19 vaccine or someone who has a sincere religious objection to vaccination, an employer cannot simply fire you or refuse to hire you. As with other similar issues of disability-based or religion-based needs for accommodation, the employer must engage in the interactive process. (That means that the employer initiates a good-faith dialogue regarding the details of the worker’s limitations and what possible reasonable accommodations may exist for that worker.)

The employer may deny a reasonable accommodation to a worker with a disability-based or religion-based reason for seeking accommodation but, to do so within the law, the employer must be able to demonstrate that providing an accommodation would impose an “undue burden” on the employer.

The law continues to change and evolve, but one thing remains true: if you provide your employer with a legitimate need for a religion-based or disability-based accommodation, that employer must engage you in a good-faith interactive dialogue about accommodating you. If your employer doesn’t, then it may be in violation of both state and federal laws. If you think you have a valid case of employment discrimination, reach out to the Law Offices of Stephen M. Fuerch. Attorney Fuerch is a knowledgeable Oakland workplace discrimination attorney who has many years of experience helping people with problems just like yours. Contact this office through our website or call (925) 463-2575 to schedule your confidential initial consultation today.

Accidents that involve multiple vehicles can often be that kind of complex case. When you are hurt because one other driver rear-ended you, getting everything you deserve will be challenging, but parts of the case, such as who is liable, may be relatively straightforward. In multi-vehicle crashes, just determining who was to blame may be problematic.

Take, for example, a fatal accident from the pre-dawn hours of March 17. After a driver lost control along northbound Highway 101 in northern Sonoma County, his sedan hit the concrete center median, flipped, and came to rest wheels-down in the middle of the northbound travel lanes but facing south, according to a Press Democrat report.

A second car came along and sideswiped the sedan, then another car hit the front of the sedan. The driver of the first vehicle, who was attempting to exit the sedan when the third car hit, was ejected from the sedan as a result of the third car’s impact. He died from his injuries. The two passengers in the sedan suffered “moderate to major” injuries, while the driver of the third car also suffered moderate injuries, the report indicated.

A Wide Range of Possibilities When it Comes to Who Was Liable

If you were one of the seriously injured passengers in the first car, determining who to sue might be anything but clear. The facts and the evidence might, for example, possibly indicate that the driver with whom you were riding was driving at an unsafe speed and that the second and third drivers were driving safely and reasonably at all times. In a case like that, it’s possible that 100% of the blame would fall on the driver of the first vehicle and your legal action would be only against that driver’s estate.

It’s equally conceivable, though, that the evidence could tell a different story. Perhaps the person with whom you were riding had an unforeseeable tire blowout that caused him to lose control, that the second driver was speeding recklessly and that the third driver was texting or otherwise distracted by his smartphone. In that situation, you could have a case against each of the second and third drivers, but the first driver may not have been negligent at all.

In short, a case like this could yield evidence that places the blame for your injuries on any one of the drivers, two of the drivers (but not the third), or on all three. Getting the best possible outcome means determining who was liable and who wasn’t… and customizing your lawsuit accordingly.

Lastly, you should also keep in mind that, even if you were one of the drivers and were in some way negligent (e.g., speeding, driving while drowsy, etc.), you can still recover compensation in a lawsuit. The law in California says that you are entitled to recover a portion of your damages based upon your percentage of liability and the other driver’s percentage of liability. So, even if you were 75% to blame for the accident that injured you, you still can bring a lawsuit against the driver who was 25% at fault and recover ¼ of the total amount of damages you prove at trial.

An experienced legal advocate can help you to chart the best course for getting the compensation you deserve. If you’ve been injured in a vehicle crash, whether it was a multi-vehicle accident, two-car collision, or single-vehicle accident, you may be entitled to recover a significant sum. Look to the Law Offices of Stephen M. Fuerch to find out what legal options exist for you. Attorney Fuerch is a knowledgeable Oakland car accident attorney with extensive experience assessing cases and getting injured people the help they need. Contact this office through our website or call (925) 463-2575 to schedule your confidential initial consultation today.

When it comes to disability discrimination in California, a recent discrimination case from Los Angeles reminds readers of a couple of different – and equally important – truths about disability discrimination law in California.

The first is that, just because you may not have a federal disability discrimination case, that doesn’t mean you have no potential disability discrimination case in California. The federal disability discrimination law (the Americans With Disabilities Act or ADA) establishes what the law calls a “floor” for discrimination prohibition. That means that state law cannot do less to protect people with disabilities, but it can do more.

Second, just because your medical condition is something obscure, that obscurity doesn’t automatically mean that it is not covered by California’s law barring disability discrimination.

The employee in Los Angeles was a teacher who, according to her complaint, had electromagnetic hypersensitivity and began experiencing chronic pain, headaches, and nausea after the school district updated the Wi-Fi system at the school where she taught. The employer allegedly acted on none of the teacher’s requests for accommodation and eventually retaliated against her for making those requests.

The teacher pursued her lawsuit under the Fair Employment and Housing Act’s (FEHA) prohibitions against workplace disability discrimination. The school district, in seeking to get the case dismissed, relied upon federal cases that arose under the ADA.

FEHA Does More to Protect Workers than Federal Law Does

The teacher, however, was not pursuing ADA claims, but rather FEHA claims. The FEHA holds employers to a higher standard than the ADA does. The ADA acts as a “floor of protection” but, as the appeals court pointed out, the FEHA has always erected extra protections for workers. The California Legislature specifically stated that employees should be “protected from discrimination due to actual or perceived physical impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.”

Based on this greater level of protection, the teacher’s complaint laid out a viable case of disability discrimination, even if the federal law under the ADA did not “recognize” electromagnetic hypersensitivity as a valid disability.

Certainly, electromagnetic hypersensitivity may not be as prevalent as diabetes, depression, or heart disease, but under the FEHA that doesn’t matter. There is no “list” of disabilities that are “recognized” to the exclusion of all others. The FEHA, instead, casts a wider net than that.

When it comes to employment discrimination law, there is federal law and there is California law. Just because you don’t have a case under one doesn’t automatically mean you don’t have a case under the other. Instead of just giving up on your case, call upon the Law Offices of Stephen M. Fuerch to find out what legal options exist for you. Attorney Fuerch is a knowledgeable Oakland workplace discrimination attorney who has many years of experience helping people in situations just like yours. Contact this office through our website or call (925) 463-2575 to schedule your confidential initial consultation today.

A Riverside County Republican senator has proposed a bill that, if it becomes law, would add yet another class that is protected against discrimination under the FEHA, according to East County Today. That class would be political affiliation. The “Diversity of Thought Act,” introduced by state Sen. Melissa Melendez, would insert “political affiliation” into the FEHA in three places. Those are Section 12920, Section 12940, and Section 12955 of the California Government Code.

The bill represents, according to the senator, an important protection against a rising societal problem, which is the so-called “cancel culture,” in which people may suffer a variety of harms, including employment discrimination, because of their political views, beliefs, and affiliations, according to the report.

A fatal incident that took place in San Francisco’s South of Market neighborhood on New Year’s Eve is a reminder of how devastating these accidents can be. Two vehicles, a Honda and a Ford, met at an intersection. The Ford had the green light, but the driver of the Honda didn’t stop. The impact sent the Honda into two female pedestrians who were crossing in the crosswalk. One woman died at the scene, while the second died later at a hospital, according to a KPIX report.

The driver of the Honda fled on foot, but the police captured him a short time later. The state charged the driver of the Honda with an array of charges, including: “two counts of voluntary manslaughter, two counts of hit and run, driving a stolen vehicle, driving under the influence of drugs, two counts of DUI causing injury, speeding, running a red light, burglary” and other weapons and drug crimes, according to KPIX.

The younger of the two women, who died at the hospital, was a 27-year-old data engineer who came to the United States from Japan. In addition to supporting herself, the woman used part of her income to support her family in Japan, including a father with an aortic condition and a mother with lung cancer.

In a fatal accident case, if the wrongdoer who caused the harm was engaged in felony criminal action at the time, there may be an opportunity for punitive damages.

To get everything to which you may be entitled, including an award of punitive damages, you have to know the correct method for seeking those damages. For example, here in California, there are two actions that can arise from a case like this: wrongful death and survival.

The difference between wrongful death and survival lawsuits

Wrongful death is the lawsuit that seeks to compensate immediate family for the loss they have suffered. In California, the people who can file a wrongful death action include the deceased’s surviving spouse and his/her children. If the deceased had no surviving spouse and no surviving children, then his/her parents are entitled to file. There may be others who can file in some situations, such as a stepchild who was dependent on their now-deceased stepparent or a grandchild (if the grandchild’s parents are dead.)

There are several types of damages you can obtain in a wrongful death claim. These include funeral/burial costs, medical expenses associated with the fatal injury, lost financial support and legal/court costs, among other things.

One thing that you cannot get in a wrongful death action is punitive damages. Punitive damages are available in California, but they are only available in a survival, not a wrongful death, lawsuit. A survival action is the case that addresses the harm done to the deceased. For that reason, this type of lawsuit must be brought on behalf of the deceased’s estate.

In addition to possible punitive damages, this is also where you can seek compensation for other things, as well, like your loved one’s medical expenses incurred before her death.

When you’ve lost a loved one due to a tragic accident, you are undoubtedly going through a horrific time. While money won’t bring back your loved one, that doesn’t change the fact that some of the harm your family has suffered is financial. When it comes to seeking the compensation the law says you deserve, count on the Law Offices of Stephen M. Fuerch. Attorney Fuerch is a seasoned Oakland wrongful death attorney who has helped numerous families over the years, and is here to help you, too. Contact this office through our website or call (925) 463-2575 to schedule your confidential initial consultation today.

This concept proved very important to a police department employee in her recent sexual harassment case. S.A. had been a bomb tech for seven years when a male coworker, H.L., decided to make a play for her affections. He told her he had been “madly in love” with her for more than six years and planned to leave his wife due his love for her. S.A., who was a lesbian and had a female partner (all of which H.L. knew,) told H.L. that she didn’t love him and to leave her alone.

What allegedly ensued was a pervasive pattern of stalking. According to the complaint, H.L. showed up at restaurants where S.A. was eating, “bombarded” her with phone calls, texts and emails, and even showed up to S.A.’s job sites though he was assigned to a different detail. Eventually, the man allegedly cornered her and forcibly kissed her.

S.A. reported H.L. to her supervisor. According to S.A.’s lawsuit, despite some scheduling changes, H.L. continued to stalk her. Allegedly, H.L. was ordered to stay away from S.A., but he didn’t and no punishment arose from that failure to stay away.

S.A. sued but, in her lawsuit, there was a problem. The complaint did not contain a specific heading dedicated to “sexual harassment” under the Fair Employment and Housing Act.

According to the appeals court, that technical error did not prevent the woman from pursuing her sexual harassment claim.

California law says that injured plaintiffs’ complaints should be “construed broadly,” which means avoiding hyper-technical readings that work against the plaintiff. Construing S.A.’s complaint broadly, it was clear that she had presented the pieces of a claim of sexual harassment under the FEHA.

Even though she didn’t have a heading labeled “sexual harassment,” she had allegations in her complaint that H.L. “repeatedly subjected” her to “unwanted romantic advances,” that she reported the stalking and other harassment to a supervisor, and that the department responded in a way that was inadequate and too slow.

All the elements of a ‘hostile work environment’ claim

Despite the absence of a “sexual harassment” heading, S.A.’s complaint had laid out the components a potential claim of “hostile work environment” sexual harassment, based on all the specific allegations she had in the body of her complaint. Additionally, in the caption of the complaint (which is a part that comes at the beginning of the complaint document,) she had listed sexual harassment as a claim.

In this case, the allegedly harassed employee was entitled to continue pursuing her case. Success at trial, of course, will require a presentation that is well organized, clear and powerfully persuasive. When you need to seek compensation in civil court for the harm you’ve suffered, you’ll need that kind of powerful representation. Look to the skilled Oakland employment attorneys at the Law Offices of Stephen M. Fuerch to provide you that sort of effective advocacy. Successfully representing clients from across the East Bay, we are eager to get to work getting results for you. To learn more about how to put our office to work for you, contact us through our website or call our office at (925) 463-2575 to schedule your confidential initial consultation today.

The Families First Act went into effect in April of last year. That law expanded the availability of family and medical leave. Once you return to your job after a period of leave, your employer is forbidden by California law from punishing or taking any kind of adverse employment action against you (like termination, demotion, reduction of hours, reduction of benefits, negative performance assessment, reassignment to a less desirable shift, etc.) because you took that leave.

Say, for example, that you take several weeks of leave to care for your three-year-old child because your child’s previous daycare closed due to COVID-19, and you could not find a new one immediately. Once you returned to work, your coworkers began treating you differently. Three weeks after your return, your supervisor gave you a negative performance review, which you had never before received in your seven years with the company.

You complained to your company’s HR department, but nothing was done. A week after you made that complaint, your supervisor cut your hours by 25%

All of that may make for the factual basis of a potentially successful discrimination and retaliation claim in California. Except for certain very small or very large employers, employers generally are required to provide you with leave when you need to care for your school-aged child whose school is closed (or is offering only remote learning) or your younger child whose provider of childcare is not offering services due to the pandemic.

There may be multiple legal claims available to you

Treating you differently based on having exercised your leave rights arguably amounts to a case of disability discrimination or associational discrimination. Giving you a negative performance review and reducing your hours because you exercised your protected right to object to discrimination is the basis of a potentially viable case of retaliation.

Of course, you have to have more than just proof that you were engaged in a protected activity and that you were the target of an adverse employment action. You have to tie that protected activity to the adverse action in a way that makes it clear that your engagement in the protected activity caused the adverse action. Proof that an adverse action occurred just a short time after you engaged in a protected activity (such as the span of only a few weeks, as was the case in the example above) can often be strong evidence of this required linkage between the protected activity and the adverse action.

Nearly a year into the COVID-19 pandemic, times remain very challenging for most Californians. As someone dealing with a job and parenting young children, one thing you shouldn’t have to deal with is discrimination or retaliation for taking leave to care for your children. If that’s happened to you, you have legal options. To get the most out of them, you need a knowledgeable and powerful advocate on your side. Count on the Law Offices of Stephen M. Fuerch to provide that sort of representation. Proudly serving clients from across the East Bay with employment matters, personal injury claims, and other issues, we are eager to get to work for you. To learn more, contact us through our website or call our office at (925) 463-2575 to schedule your confidential initial consultation today.