Frequently Asked Questions
Why should I hire your firm?
Stephen Danz & Associates is California's largest ‘EMPLOYEE ONLY' law firm. We only represent employees and never take cases defending employers. Our attorneys have been hand-picked by Stephen Danz himself, and are all skilled in negotiation and trial practice. We are first and foremost litigators, which scares most employers, because going to trial costs them a great deal.
What kind of experience do you have?
Stephen Danz himself has over thirty years of experience ONLY DEFENDING EMPLOYEES against the unlawful acts of their employers. When you add up all of the years of experience of Stephen and his associates, it amounts to hundreds of years of practice!
How much will hiring you cost me?
Unlike many firms, we do not ask for costly retainers up front. In fact, we do not collect any attorney's fees unless YOU WIN YOUR CASE OR REACH A SETTLEMENT. We take cases on a contingency, as we feel that this gives us some ‘skin in the game' right there along with you. We suddenly become ‘partners' wishing for a judgment or settlement right there alongside you.
How many cases have you won?
This is a common question and one that is impossible to answer. We spend a considerable amount of time going over the facts of your case with you before we even agree to take your case. As such, we have a pretty good idea with each client whether or not they will see a favorable recovery. So most of our cases settle or proceed to trial. And a win can mean different things to different clients. Some clients only want to tell their side of the story, want reinstatement, or a letter of apology. Some clients want a huge settlement or judgment.
Do we have to go to trial to win?
The simple answer to this common question is, NO. But as an attorney, I can't just give a one word answer to any question, no matter how simple! The truth is many cases settle during settlement conferences, mediations, or arbitrations. Very few of them actually proceed to trial simply because employers run the risk of generating HUNDREDS OF THOUSANDS OF DOLLARS in attorney's fees if they do decide to fight these cases.
Now, having said that, WE MUST ALWAYS BE PREPARED TO GO TO TRIAL, and we treat every case as if it is going to trial. We never give the other side an indication that we are doing anything but proceeding to a trial on your case. If they back down and offer us the settlement we are requesting, then we talk settlement. Until then, we intend to fight every case to the end.
Will I have to testify?
If you case does proceed to trial, you will probably need to be prepared to testify. Judges and juries want to hear your side of the story, if they are going to award a judgment in your favor. Now, having said that, if your case does proceed to trial (or even if it doesn't), you will be completely prepared long before then to answer any questions the defense attorney might throw our way. You will have gone through depositions (where we sit down with opposing counsel, usually in our conference room, and a court reporter and they ask you questions with one of our attorneys by your side) and we will have gone over your testimony with you so that you are comfortable with the back and forth questioning by defense attorneys and how to handle objections when they are raised. We will not put you on the stand until you have been fully prepared by our expert litigators.
When will I get my money?
Many attorneys and law firms accept cases and then enter a lengthy SETTLEMENT PHASE. During this part of the case they send letters back and forth between attorneys for both sides, each attorney then meets with his or her client, they discuss how to respond and then the attorney writes a letter back. This back and forth exchange can take months, if not a year. Attorneys prefer to do it this way on the chance that they might be able to get a settlement without actually having to do much work. They write a few letters, make a few phone calls, have a meeting or two and then get a check.
We do not believe that this attitude serves the best interest of our clients. It does not force employers to take us seriously and it does not motivate them to return with their best possible offer. When we take a case, we gather the facts and prepare to go to trial. We file a complaint with the court, thereby forcing your employer to take the case seriously in order to avoid lengthy and expensive discovery. Discovery is the part of a case when each side must produce the evidence requested by the other side and send its witnesses to attend depositions. This can be incredibly expensive for employers and an effective motivating factor in getting them to settle the case. Once they see how seriously we take the case, and how expensive it is going to be for them to fight it, they often approach the settlement negotiations with a willingness to make a reasonable offer.
However, this process can often take a year to complete…setting court hearings is no quick matter as courts are backlogged for months at a time. Setting depositions and settlement conferences can also take several months. Rest assured, we do everything we can to move your case along. Any stalling only hurts our chances of recovery.
What are the laws that protect me from discrimination?
There are two types of laws that protect employees (and in California others, as well) from discrimination: Federal and State laws.
· The United States Constitution, Amendments 4, 5, and 14 begin the prohibition against discrimination, by requiring federal agencies to afford ‘due process' and ‘equal rights' to individuals, guaranteeing the rights to life, liberty and the pursuit of happiness, and then applying those same ideals to the States.
· Section 1981 of the US Code provides additional federal remedies to deter harassment and intentional discrimination in the workplace.
· Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination based on race, color, religion, sex, or national origin;
· The Equal Pay Act of 1963 (EPA) requires employers to pay men and women equally if they are performing substantially the same work;
· The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older from all forms of discrimination in hiring, firing, promoting, overtime assignment, wages, benefits and any other terms or conditions related to employment;
· The Americans with Disabilities Act Amendments Act (ADAAA) prohibits employment discrimination against individuals who are otherwise qualified for the job but are disabled, also requires employers to provide reasonable accommodations to employees with disabilities, applies to private and public sector employers;
· Sections 501 and 505 of the Rehabilitation Act of 1973 applies prohibitions against discrimination against people with disabilities that work for the federal government; and
· The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination laws.
Other federal laws, not enforced by EEOC, also prohibit discrimination and reprisal against federal employees and applicants. The Civil Service Reform Act of 1978 (CSRA) contains a number of prohibitions, known as prohibited personnel practices, which are designed to promote overall fairness in federal personnel actions. 5 U.S.C. 2302. The CSRA prohibits any employee who has authority to take certain personnel actions from discriminating for or against employees or applicants for employment on the bases of race, color, national origin, religion, sex, age or disability. It also provides that certain personnel actions cannot be based on attributes or conduct that do not adversely affect employee performance, such as marital status and political affiliation. The Office of Personnel Management (OPM) has interpreted the prohibition of discrimination based on conduct to include discrimination based on sexual orientation. The CSRA also prohibits reprisal against federal employees or applicants for whistle-blowing, or for exercising an appeal, complaint, or grievance right. The CSRA is enforced by both the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB).
The Department of Fair Employment and Housing, is responsible for enforcing (much like the EEOC on a federal level) the provisions of Fair Employment and Housing Act (FEHA), Unruh and other state laws designed to protect workers from discrimination in California. The Department also enforces the California Family Rights Act, and The Ralph Civil Rights Act.
· CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT (FEHA) protects California employees from discrimination, sexual harassment and retaliation. The Act protects not only California employees but also prohibits discrimination in housing.
The Act prohibits discrimination based on:
o Age (40 and over)
o Religious Creed (including religious dress and grooming practices)
o Denial of Family and Medical Care Leave
o Disability (mental and physical) including HIV and AIDS
o Marital Status
o Medical Condition (cancer and genetic characteristics)
o Genetic Information
o National Origin (including language use restrictions)
o Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding)
o Gender, Gender Identity, and Gender Expression
o Sexual Orientation
· THE UNRUH CIVIL RIGHTS ACT is more pervasive than the Fair Employment and Housing Act as it goes well beyond employment practices and applies to ALL BUSINESSES such as hotels and motels, restaurants, theaters, hospitals, barber and beauty shops, housing accommodations, and retail establishments, protecting clients, customers, and others. It prohibits any form of discrimination based on the characteristics listed as being protected by FEHA. The Act says specifically:
"All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."
An action in Unruh can be brought to DFEH or pursued privately, without the need for a Right to Sue letter.
· THE CALIFORNIA FAMILY RIGHTS ACT (CFRA) was established to protect an employee's right to a leave of absence in the event of:
o Child birth for bonding
o Placement of a child through adoption
o For the serious health condition of a child, parent or spouse
o For the employee's own serious health condition.
The Act also allows for protection from discrimination for pregnancy and pregnancy related conditions and for retaliation against employees for taking advantage of its leave provisions.
· THE RALPH CIVIL RIGHTS ACT prohibits violence or threats of violence based on an individual's:
o Genetic Information
o National Origin
o Marital Status
o Medical Condition (cancer and genetic characteristics)
o Political Affiliation
o Position in a Labor Dispute
o Sex (which includes pregnancy, childbirth, and medical conditions related to pregnancy or childbirth, gender, gender identity, and gender expression)
o Sexual Orientation
Which lead to a bigger judgment, State or Federal laws?
In our opinion, it is generally more advantageous to file your case in California courts, rather than Federal court. State courts are far more concerned with employee's rights than are the Federal courts and often judgments favorable to employees are impossible to come by in Federal court. Of course, only an experienced employment law attorney would know this, which is the reason many employment attorneys only seek to go to settlement conferences or mediation, rather than proceed to trial in Federal court.
What Discriminatory Practices Are Prohibited by These Laws?
Under Title VII, the ADA, and the ADEA, it is illegal to discriminate in any aspect of employment, including:
· hiring and firing;
· compensation, assignment, or classification of employees;
· transfer, promotion, layoff, or recall;
· job advertisements;
· use of company facilities;
· training and apprenticeship programs;
· fringe benefits;
· pay, retirement plans, and disability leave; and
· other terms and conditions of employment.
Other forms of discrimination include:
· harassment on the basis of race, color, religion, sex, national origin, disability, or age;
· retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
· employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities; and
· denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
What other types of Discriminatory Practices are prohibited under the law?
Employers are prohibited from intentionally discriminating against employees (also known as disparate treatment) but are also barred from unintentionally discriminating (known as disparate impact). In other words, a policy that appears to be neutral on its face but that has the effect of discriminating is unlawful. For example, requiring all employees to speak English, whether speaking to customers is part of the job, or not, while it appears neutral would have the discriminatory effect of keeping certain minorities from applying for, and being given, jobs.
What are the time limits for filing cases under discrimination laws?
The answer to this question, like many of the others, varies depending on what law you are filing under and what the claims are. Many charges must be filed within 180 days of the alleged act of discrimination (or the most recent one), but some extend filing times out to 1 year. In order to advise you of the proper statute of limitations (filing deadline) you should contact our offices immediately so that we get your lawsuit filed BEFORE any impending deadlines.
In many cases one particular set of facts can lead to charges being filed under three or four different laws and/or resulting in multiple causes of action. Facts that lead to discrimination may also result in charges of harassment, retaliation, wrongful termination, and a whistle-blower complaint!
What is sexual harassment?
Harassment is defined as the act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands. The purposes may vary, including racial prejudice, personal malice, an attempt to force someone to quit a job or grant sexual favors, or merely gain sadistic pleasure from making someone fearful or anxious. Such activities may be the basis for a lawsuit if due to discrimination based on race or sex or any of the other protected classes listed in FEHA. A systematic pattern of harassment by an employee against another worker may subject the employer to a lawsuit for failure to protect the worker.
What if my employer punishes me for bringing a sexual harassment claim?
Punishing an employee for reporting, complaining about or filing charges of harassment is called retaliation and it is unlawful in California and the United States. In fact, it is unlawful for an employer to retaliate against any employee who reports unlawful employment practices or who file a claim for workplace discrimination or harassment. Employees are also protected from retaliation for appearing as witnesses in another employee's sexual harassment lawsuit.
Can men be sexually harassed? What about same sex harassment?
Harassment can be from a man to a woman, a woman to a man or same sex. Having said that, there are certain things a victim of same sex harassment must show that a victim of opposite sex harassment does not need to show, i.e. that the harassment was specifically because of the victim's sex (not just sexual desire) and that he or she was treated differently than employees of the opposite sex.
What about asking a co-worker on a date? Or saying they look nice? Is that sexual harassment?
In these cases it is better to be safe than sorry, but taking things to the extreme is not necessary. Asking a co-worker on a date is not sexual harassment unless it is accompanied by additional behaviors. Asking a co-worker on a date three times a day for a month is not only insane, it is harassment. Asking once, being rejected and then stopping, is not. Telling a co-worker he or she looks nice is not sexual harassment. Telling them they look nice after following them home from work and saying they need to sleep with you to avoid getting fired, is sexual harassment (and creepy). Be wise…ask, and if they say no, don't ask again. Say he or she looks nice and leave it at that…and just be polite.
Is it sexual harassment even if I've already dated a co-worker, but then stop and they keep harassing me after we've broken up?
Sexual harassment occurs when the victim is subject to ‘unwelcome conduct.' Conduct that was once okay can become unwelcome at any point. Once you say “Stop it” the conduct is clearly unwelcome. If this is the case, make it clear that you no longer wish to pursue a relationship with the co-worker and that any further advances are not acceptable. The simple fact that you had a prior relationship does not give your co-worker the right to create a situation that makes you feel uncomfortable. If he or she continues it is possible that he or she will create a work environment that is hostile because the unwelcome contact is so severe or pervasive that it begins to affect your work. At that point it has become unlawful.
Are comments about my clothes, how I dress, or about my appearance considered sexual harassment?
As mentioned above, simple compliments are generally not considered sexual harassment. The answer to this question does depend however, on the circumstances surrounding the comment or comments. If you have been called into the office and told to dress more appropriately, that is probably not sexual harassment, unless ‘more appropriately' means more revealing or if it is suggested that you should ‘dress like a man' or ‘dress like a woman.' Asking employees to dress in sexier attire in order to impress a client could be considered sexual harassment. But a simple comment like “That is a nice suit,” is not. Of course if that comment was followed by “it really shows off your breasts,” it becomes inappropriate could easily seen as adding to the sexual nature of a work environment, making it hostile or abusive.
I was up for a promotion at work, and even though I was more qualified than she is, my supervisor gave the promotion to his girlfriend. Is that sexual harassment?
Not without additional facts. This is what's called nepotism, which is defined as ‘the practice among those with power or influence of favoring relatives or friends, esp. by giving them jobs.' Nepotism is not unlawful, even though it may not be good for business. Some employers have specific provisions in their employee handbooks saying that nepotism will not be tolerated in the workplace, which may mean that your supervisor could be disciplined, but this does not mean that you can file a lawsuit for sexual harassment. Of course, if your supervisor has created a situation in which you must ‘become his girlfriend' in order to get a promotion, or any other benefit this is clearly sexual harassment.
Is downloading porn in the workplace considered sexual harassment? What if my co-worker shares it with other co-workers?
Possibly. If your co-worker downloads porn and it is visible to you or others, if he talks about it or comments on it and it bothers you, or if he continues to download porn after you have told him you find it offensive, then it could be considered sexual harassment. The simple fact that porn exists in the workplace, without more however, does not arise to the level of conduct that creates a hostile work environment. Behavior, like downloading porn does not have to be directed at you in order to be considered hostile, but it does have to affect you and be unwelcome.
My co-worker told a joke with some sexual content in a meeting the other day. Even though I wasn't offended and we both laughed at it, we got a memo from our supervisor saying that telling the joke was inappropriate and could be considered sexual harassment. Is telling a simple joke sexual harassment?
Again, this depends on the circumstances. Telling a joke could be considered sexual harassment if it is part of a larger environment of sexually charged comments or behavior, as this would create a hostile work environment. In your case, while YOU may not have been offended, someone else might have been, and your supervisor was correct in cautioning you that you may be violating company policies against sexual harassment. Would a ‘reasonable person' find the joke to be offensive? In your case someone thought the joke was offensive or they would not have reported it to your supervisor. In any event, consider the warning to be sound advice and accept the fact that not everyone considers a particular joke to be acceptable or humorous.
We have a client that continually makes sexual comments to me at work. Even though he isn't a co-worker or supervisor, can this be considered sexual harassment?
There are definitely cases where the actions of customers or clients have led to causes of action for sexual harassment. In your case you should be clear that the sexual advances are unwelcome and report the behavior to your supervisor or employer. Once reported, your employer has a duty to protect you from the sexual behavior by speaking with the client or simply arranging things so that you do not have to deal with him or her. Once they are put on notice that the client is engaging in inappropriate behavior and that you view it as unwelcome, their failure to insulate you could be considered harassment.
Is sexual harassment illegal, like is it a crime? Can it ever be considered a crime?
Depending on state law, harassment can be considered criminal behavior if it arises to the level of sexual assault, stalking, threats, unlawful detainer (blocking your exit or movements), criminal sexual conduct or any other crime. Sexual harassment can possibly lead to some of these other behaviors and should then be reported, not only to supervisors, but also to law enforcement.