Q: I believe I have a discrimination case against my prior employer of 11 years. In the time I worked for them I was
continually praised for my work by all of the personal. Last Aug I was laid of due to Covid-19. I wasnt called back when things opened up, and I have learned that a man had been hired to do my job and has been doing it since I was laid off. Do I have a case?
A: What you have described may be discrimination; however, not all discriminations are unlawful. Specifically, only discrimination due to your membership in the protected class of people or because you engaged in protected activity are legally actionable. You have not mentioned any facts that indicate any protected membership or participation in the protected activity. You only mentioned that "a man had been hired," so I may assume you are a female and suspecting gender discrimination. However, this is my assumption only and far more details need to be known in order to fully evaluate your situation.
If you believe there are more facts to be explored in your case, I suggest you consult with an experienced employment law attorney who will further examine your situation and explain your options. You can look either on this site in the Find a Lawyer section or go to California Employment Layers Association (www.cela.org), an organization whose members are committed to representing employee’s rights. Most employment law attorneys in California offer free of charge initial consultations, and thereafter may take your case on a contingency basis, meaning you do not have to pay attorney’s fees unless and until there is a positive outcome for you. They may also advance either all or partial costs of litigation.
Maya L. Serkova
A: To establish that what happened to you was unlawful discrimination, you are going to have to prove more than just you were replaced by a man. You will have to prove that your gender was a motivating factor in the decision to replace you.
When you were furloughed, your employer had no legal duty to return you to work (unless you work in food service or hospitality industries protected by a relatively new law). The employer was free to hire anyone it wanted to hire when the position became available again. If the employer can establish a non-discriminatory reason for hiring this other person, such as superior qualifications, nepotism or the like, you lose.
At this point it would be wise for you to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.
Most employment attorneys who practice this area of law offer a free or low cost consultation in the beginning and then, if the matter has merit and value, will usually agree to work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.
Good luck to you.
A: I agree with Maya but offer a suggestion or two.
You can go to the website for the California Department of Fair Employment and Housing (DFEH.org) and learn how to file a claim of discrimination based on your sex, female (if my presumption, along with Maya's, is correct). You can either ask the DFEH to do an investigation, or give you a right to sue letter right away.
A right to sue letter gives you additional benefits if you have a claim to pursue. Your claim must be filed within three years from the date you were harmed, such as the date your employer told you that you were not eligible for rehire, or the date when you were laid off. My suggestion is that you use your lay off date as the date to start the statute of limitations running.
If you do have a case of discrimination on the basis of sex, filing a claim with the DFEH gives you the right to recover attorney's fees, and most good employment law lawyers know that. Therefore, filing a claim is an important first step, and you can do that even before you find a good attorney to represent you. There are many really good discrimination lawyers out there, so you should be able to find one easily enough. Maya gave you a really good suggestion about how to find one.
A: Under SB 93, employees who lost their position due to COVID related circumstances have a right of recall, including notice their employer is hiring for the same or similar position that they previously held. Below is a excerpt from a description of the law by an employer side law firm:
The right of recall is triggered when a covered employer establishes a job position. The statute lacks specificity concerning whether the recall must be offered only when a new position is created or also when existing positions become available.
Within five business days of establishing a position, the employer must offer eligible employee(s) "all job positions" that are available for which the laid-off employee(s) are qualified. The statute specifies that a laid-off employee is qualified for a position if the employee held the same or similar position at the time of the employee's most recent layoff. In the event that multiple employees are eligible for recall to a single position, the employer must offer the position to the laid-off employee with the greatest length of service based purely on time in service.
Employees must be notified of the available positions in writing by hand or mail, and by email and text message to the extent that the contact information is in the employer's possession. The employee shall have at least five business days from the date of receipt to accept or decline the offer. Employers may make simultaneous conditional offers of employment, with final offer conditioned on the application of the identified preference system.
You should speak with an employment attorney to make sure the law applies to you. Most provide a free consultation.
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