New deadlines for filing a discrimination or retaliation claim

Q:        After I came back from a two-month medical leave, my employer told me that my position was eliminated. However, I heard from a former coworker that the employer hired a person to replace me. Was I wrongfully fired? Can I still file a claim, considering that the firing occurred 11 months ago?

A:        The timing of your firing certainly sounds questionable, since it occurred immediately after you had returned from a protected leave. So yes, you may have been wrongfully terminated. As explained below, your employer seems to have engaged in unlawful disability discrimination. On whether you can still file a claim, the short answer is yes. Due to a new law signed by California’s lawmakers, the time for filing a complaint due to discrimination and retaliation has been extended.

Aggrieved employees usually have a specific period of time within which they can make a claim or file a lawsuit against their employers. Before an aggrieved employee can file a case in court, the employee must file an administrative claim with the California Department of Fair Employment and Housing (DFEH).

A new law was signed by California lawmakers and the California Governor, which will be effective on January 1, 2020. Assembly Bill No. 9 extends the claim period for employees to file claims of discrimination, harassment and/or retaliation with the DFEH from one year to three years.  If the DFEH declines to prosecute the case for the employee, it may issue what’s called a Right to Sue letter to the employee. The employee will then have one more year from the date of the Right to Sue letter to file a civil action in court.

This new law is certainly good news for employees as it gives employees more time to pursue remedies that they would otherwise be time-barred from pursuing. However, having practiced in this area of law for many years, I know it may sometimes be difficult to make a claim due to the lapse of time. Evidence are destroyed, documents are lost, and witnesses forget facts or move away. So if an employee thinks that they had been treated unfairly, I would generally urge them to consult with an experienced and knowledgeable attorney immediately in order to protect themselves.

It would be easier to stand up for one’s rights if employees are educated on the nature of discrimination, and what people can do to prevent victimization. As a law firm that works to protect the rights of employees, we would like folks to be vigilant in this area.

Discrimination occurs when an employee receives less favorable treatment because of a specific characteristic they have. Not all types of discrimination are illegal. Illegal discrimination occurs when one is being targeted for a specific characteristic that the law says should be protected. These protected characteristics include race or skin color; ancestry, national origin; religion or creed; age; disability (both mental and physical), medical condition and genetic information; sex and gender (including pregnancy, childbirth, breastfeeding or related medical conditions); sexual orientation; gender identity and gender expression; marital status; and military and veteran status.

Retaliation occurs when an employee engaged in protected activity, such as requesting wage payments due or complaining about safety issues, or opposing a practice which is forbidden by law (e.g. sex, race, or age discrimination), and the employer subjected the employee to an adverse employment action (such as a firing or demotion) because of the employee’s protected activity.

California law provides several remedies for victims of employment discrimination or retaliation, including: back pay (for past lost earnings); front pay (for future lost earnings); reinstatement to the job; out-of-pocket expenses; policy changes; reasonable accommodation(s); damages for emotional distress; punitive damages (where the employer’s conduct was especially bad); and attorney’s fees and costs.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a Presidential Awardee for Outstanding Filipino Overseas in 2018.