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Do I have a racial discrimination case?

Sacramento, CA |

I am a temp to hire employee. I have been working for almost one year. The company's rule is, after one year hire or fire. There are few other temp employees that came to work after me at five months later. We all have the same title with very little difference in job duties.But since my contract is coming to a end. The boss wants to lay me off get me out of the way hire the other guy and then call me back to work. It seems he wants to keep me on my knees without benefit. He also made statements that he doesn't want to hire a certain group of people anymore. Which I belong in that group.

Attorney Answers 3

Posted

If this company has a track record of treating people of a particular race less favorably than those of other races and one of the decision makers or a person who can influence the decision to hire or fire has made comments which reflect racist considerations, you do have evidence which indicate racial discrimination.

These are facts that need to be investigated and evaluated by experienced employment law counsel. I suggest you contact one or more attorneys in your area to get a legal opinion and discuss your options. You can find employment law attorneys in your area by either using the "Find a Lawyer" function on this page, or by going to the website for the California Employment Lawyers Association at www.cela.org and search for a CELA memberin Sacramento.

Good luck.

They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.

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Posted

Most of which you discuss is not unlawful. However, when you say the employer does not want to hire a certain group of people any more, it raises a red flag of possible discrimination. However, not all discrimination is unlawful. If that comment was relating to a racial, national origin, cultural, gender, age, disability or other protected groups of people, then you have evidence of a discriminatory attitude. If the comment related to a group that was not based on the protected classes of people, the employer is likely going to be allowed to discriminate on that basis.

The inconsistency I am seeing in your question is that it appears the employer wants to hire you back, even though you are in that class of people.

One last thing that you need to understand - a refusal to renew a contract that has expired is not generally considered an adverse employment action. I have never thought that is good law, but it is the law nonetheless. If you are coming to the end of your contract, the employer has no legal duty to renew your contract, and the law provides that even if the employer refuses to renew the contract for a motive that would otherwise be unlawful, the employer may elect to not renew the contract.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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3 comments

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Neil: This scenario hasn't come up very often in my practice, but I have pursued a couple of these cases as a failure to hire, as opposed to failure to renew a contract. This is only possible where the employer does indeed hire some employees and keeps others as temps. Both cases settled without litigation, so I haven't tested the law on this.

Neil Pedersen

Neil Pedersen

Posted

I basically provided the content from my employment law class on the subject. I too have tried to convert to failure to hire but never got to a dispositive moment in the case. However, I was not confident it would work because the case law is unfortunately pretty clear on the failure to renew issue.

Craig Trent Byrnes

Craig Trent Byrnes

Posted

I disagree. The only case that seems to indicate what Mr. Pedersen states is Daly v. Exxon Corp., 55 Cal.App.4th 39 (1997). All Daly said was that failure to renew wouldn't constitute a wrongful termination in violation of public policy. It distinguished statutory violations, including FEHA, which broadly prohibit "other types of discrimination," as allowing these claims. Look also at Touchstone Television Productions v. Sup. Ct., 208 Cal.App.4th 676 (2012), which held that a Lab. Code 6310 retaliation case attached to a decision not to exercise an option to renew a contract.

Posted

I agree with Mr. Kirschbaum and Mr. Pedersen.

What is the "certain group" the employer does not want to hire? Is it based on your race? If the group is a protected group, there may be a violation of law. Together, state and federal law protects an employer from treating employees differently if that treatment is based on race, color, religion, sex, sexual harassment, sexual orientation, marital status, pregnancy, national origin (including language use restrictions), ancestry, mental or physical disability including HIV and AIDS, medical condition (cancer and genetic characteristics), age (40 and above), requests for family leave, requests for pregnancy disability leave, retaliation for reporting patient abuse in tax-supported institutions, failure to provide equal pay to similarly-situated male and female employees, or genetic information. Additional laws protect employees who requested, needed or took family leave, or who are whistleblowers.

For more information on discrimination law, please see my Avvo guide on this subject: http://www.avvo.com/legal-guides/ugc/what-is-unlawful-employment-discrimination--california-law.

Employment discrimination law is complicated and fact-specific. You may wish to consult with an experienced plaintiffs employment lawyer as your situation needs an assessment of the specific facts. The Avvo board is not set up to handle the kind of detailed analysis needed to offer helpful guidance. Avvo works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone can read the discussions on Avvo so they are not confidential. The employer or whomever is involved in the dispute can read everything written here.

You can find a plaintiffs employment attorney on the National Employment Lawyers Association (NELA) web site www.nela.org. NELA is the largest and most influential bar association in the country for attorneys representing working people. You can search by location and practice area. Also, NELA has affiliates in every state and many cities which are listed on the NELA site. Not all NELA attorneys are named on the web site or affiliate site. This should not influence your selection; attorneys can choose whether or not to purchase a listing in the national directory, and each affiliate has its own rules for listing.

I hope you can resolve your situation and wish you the best.

twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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