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Employee Rights Update: Sex Discrimination, Immigration, & Hiring

In this segment of Danz’ ‘Weekly Employee Rights Update’, we aim to provide our subscribers with educational and timely information from recent cases and laws. Enjoy.

(1) Have you been subjected to sex-based discrimination? The recent Ellen Pao v. Kleiner Perkins case may forever change how sexual discrimination is viewed in the workplace as well as analyzed by California state courts. Ms. Pao, who worked for a venture capital firm, claimed that she experienced sexual discrimination. However, the defendant firm argued that Ms. Pao was involved in a romantic relationship with a junior partner, was difficult to work with, as well as other reasons why Ms. Pao was not promoted. What resulted was a timely analysis by the court of an industry that exemplifies decades of male-dominated gender disparity. This was obviated from the court’s instruction to the jury to seek out more information from any witnesses before they begin their deliberations. If you are working in a male-dominated industry, the resulting effects from this case will reverberate by giving you additional advantages if and when you feel like you have been sexually harassed. See our other blogs in this area for more up to date trends.

(2) Should criminal background checks and credit history verifications by employers be outlawed in the employment application process? In recent months, the Equal Employment Opportunity Commission (“EEOC”) has taken this fight to California’s courts with limited success, for now. The EEOC believes that an employer’s use of criminal background checks and credit checks results in the unlawful employment practice in violation of Title VII because these policies undoubtedly create an imbalanced bias disfavoring minorities who experience a higher likelihood of arrest when compared to non-minorities. Therefore, as the EEOC continues to bring cases like EEOC v. Freeman from last month, we will most likely see changes that will impact whether your next employment application will be permitted to be filtered by a pre-determined and harsh hiring mechanism.

(3) Employers may no longer ask a job applicant for a driver’s license if it is not required to do the job. At the beginning of 2015, the Safe and Responsible Driver Act permitted more than one million unauthorized immigrants in California to obtain a driver’s license. The law amended the FEHA making it a violation for entities to discriminate against individuals with driver’s licenses issued to undocumented workers. This law follows AB 60, enacted in 2014, which authorized the DMV to issue the driver’s licenses. The amended FEHA ensures that discrimination against individuals who have this new type of driver’s license is a now a form of national origin discrimination. Therefore, if the job does not require a driver’s license, employers may not require applicants to present a driver’s license as part of the job application.

Importantly, if you have a potential employment law matter, prompt calendaring and action to preserve your client’s rights is critical. Employment law, especially within employee rights, is an area ripe for malpractice, and deadlines can be as short as six months. Moreover, a well-pled employment law complaint will routinely include common law, statutory and constitutional causes of action – each with a different statute of limitation.