Does mix motive or "but for" apply for disability retaliation and disability discrimination under ADA. Filing with DFEH.

Asked 5 months ago - San Mateo, CA

Believe race might have contributed to the severity of discrimination suffered.

Attorney answers (2)

  1. Neil Pedersen

    Contributor Level 20

    4

    Lawyers agree

    Answered . Wow this question is all over the place. If you can file with DFEH why would you care about what would happen under the ADA. If you are filing with the DFEH then you would most certainly want to proceed under the FEHA and its related case law. When you speak of mixed motive and then raise disability and race, the mixed motive law that is recently developing would not apply because both motives are prohibited under FEHA. Instead of mixed motive, which suggests there was one lawful motive and one unlawful one, you would have a case of two unlawful motives and there is no need to worry about the mixed motive nature of the decision or conduct.

    You would be well served to get an attorney before you file anything. I prefer to walk my clients through the process. Most competent attorneys will think similarly. Unless you are right on top of your deadline to file, first 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 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.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed... more
  2. Marilynn Mika Spencer

    Contributor Level 20

    4

    Lawyers agree

    Answered . Mr. Pedersen is correct. Mixed motive is a legal term used when an employer has an illegal reason and a legal reason for firing an employee (or taking other adverse action).

    An employer is required to provide a workplace free of unlawful discrimination or harassment. Many people misunderstand the meaning of employment discrimination. “Discrimination” does not mean an employer has to be fair, respectful or has to make good decisions. Workplace discrimination means the employer treats one person or group differently from others who are not in the same group, but are similarly situated.

    The only workplace discrimination that is illegal is discrimination that is against public policy. Public policy refers only to things that are specifically prohibited by a statute (law) enacted by the legislature, or prohibited by a regulation promulgated (established) by a government agency. Public policy includes statutes prohibiting discrimination against people in specific protected groups, which include sex, race, national origin, disability, sexual orientation, age (40 years and older), religion, marital status, pregnancy and genetic information. Sexual harassment is considered a form of sex discrimination.

    Public policy also protects people who blow the whistle on a matter of public concern, complain about improper wage and hour practices, or who exercise voting rights, family leave rights, jury duty rights, domestic violence rights, and a few more rights protected by statute.

    An employer cannot refuse to hire, refuse to promote, change terms of employment or fire an employee if the reason for the change is against the law (against public policy). For example, an employer cannot increase your workload because of your race, sex, national origin, religion, etc. or because you blew the whistle on safety violations

    There are various ways to enforce these rights, depending on the particular public policy involved. For more information on discrimination law, please see my Avvo guide on this subject: http://www.avvo.com/legal-guides/ugc/what-is-un....

    @MikaSpencer * * * PLEASE READ: All legal actions have time limits, called statutes of limitation. If you miss... more

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