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Racial discrimination at work include benefits very stressing.what should I do?

Modesto, CA |

My grandfather passed away got one breavement day n was told by general manager to use vacation.The handbook states 3 breavement days, Talk to the regional manager, said ya that's not right but nothing happened.A month later general managers brother passed away she took couple weeks off work.we can't use the benefits we are given, she even told me Iam on her black and white book which I don't know of. The place is/was very stress full because of her.

Attorney Answers 3

  1. If you can prove that you are being treated differently with regard to benefits of employment because you are of a different race or national origin, then you would have a case for violation of the law. If all you can prove is that you are of a different race, but you are being treated differently simply because they treat some people more favorably than others unrelated to their race, then you probably have no claim.

    If you believe that race is the motivating factor and you believe it can be proved, you should either find an employment law attorney to consult with, or you should report this conduct to the California Department of Fair Employment and Housing.

    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.

  2. I'm sorry to hear about the your grandfather's death. Some losses are irreplaceable.

    If the company actually follows its handbook, it should do so consistently. However, most likely there is language in the front of the handbook that tells you it is not a contract and is only a guide, or words to that effect. While not 100 per cent conclusive, that kind of language makes it very difficult to enforce a term in the handbook.

    In many workplaces, management is given much more freedom and has greater rights than other workers. Unless you are also high up in management, there really is no comparison between the rights of a regular worker and the rights of upper management.

    You mentioned race discrimination. 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.

    To prove discrimination, you must show that you are a member of a protected class (you are a whistleblower, you have a disability, etc.) AND that you suffered adverse treatment on the job AND that the reason for the adverse treatment was because of your membership in the protected class.

    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:

    Other than this kind of thing, employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

    (continued in Comment below) *** 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. ***

  3. Of course an in-depth consultation with a skilled and experienced employment attorney is the only way to be sure, but on the facts that you have offered here, it seems unlikely that you would be successful in a claim or suit for racial discrimination. If you seek a consultation with an attorney, be sure to take your employee handbook with you. The handbook very likely contains strong and unambiguous language reserving to the employer the right to change or modify the policies and provisions of the handbook, but an attorney can tell you whether any of its statements is binding and enforceable on your behalf.

    It maybe important to remember that bereavement leave is not required to be made available to employees at all. It is a discretionary benefit, even in the most heart-rending circumstances. Where offered, most bereavement leave policies vary depending on the degree of the relationship with the deceased. So, for example, the death of an employee's child will ordinarily cause a more generous leave than the passing of a grand-parent. Some leave policies don't extend to grand-parents unless living in the employee's home. And in many employment circumstances, bereavement leave will be discretionary depending on the employee's work assignment, position, and the demands of the job at the relevant time. So, for example, many employers will be more generous during non-rush or low-demand periods and not at all flexible during delivery season, Christmas production, or other seasonal or high demand time periods. It is lawful for the employer to implement varying, fluctuating, and flexible standards so long as the variations are not motivated or based on racial grounds (or other protected bases such as religion or gender.)

    Finally, it is completely beside the point what bereavement leave the general manager takes when her relatives pass, or what leaves her relatives are allowed in such circumstances. Mangers have a much better deal than employees in every conceivable way beginning with the pay check. That better deal extends to leave allowances. And one of the perks of managing may be that additional benefits can be allowed by the manager to the manager's relatives, or even friends. It's not fair; it's not sound management principles; but it's not unlawful.

    What may bear saying here is that it is important for you not to nurture this issue inside and allow yourself to become visibly resentful or hostile about it. At least not until you have found a better job. Bad (surly, angry, uncooperative, etc.) attitude is a lawful reason for termination for most employees in this country, and the origins of the reasons for the attitude will not insulate the employee in that situation.

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.