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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

Posted

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.

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3 comments

Asker

Posted

Another question? I had a religious prayer ceremony at home, asked general manager for time off so I could attend it. She put me on hold for more than 20mins a cashier picked up and answered then transferred to her again.she hesitated to give the time off I told her its really important,she gave the time off but when I returned to work the next day she brought 2yrs attendance and wrote me up.

Neil Pedersen

Neil Pedersen

Posted

If you can establish that the religious prayer ceremony is part of a closely held religious belief and that your discipline was because you asked for that time off, then your employer might have a problem with discrimination on the basis of religion. Much more would need to be known. Good luck.

Asker

Posted

Thank u very much for te advise but another thing, what would be the outcome for example if I win the case?

Posted

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: http://www.avvo.com/legal-guides/ugc/what-is-unlawful-employment-discrimination--california-law.

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)

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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Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

(continued from Answer above) There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful. Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place. I hope you can resolve your situation and wish you the best.

Asker

Posted

Well employees of there race can use benefit and get breavement days. Why can't I use or get breavement days. Isn't that's favoritism to there race, general managers uncle works at the same place and she always backs him up in regards to anything. I work for 51/2 yrs the place is the same, she even got reported to labor board.she changed for couple of days n was back to normal again the way she was.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Under state and federal law, to prove race discrimination, you must show the reason, or motive, for the employer's action was based on race. You must show the employer had no other reason for the different treatment. To do this, you must compare yourself to others who are similarly situated -- people in the same or comparable job classification, with the same/similar seniority, same /similar personal relationship to management, same/similar performance and discipline history, same/similar attendance, and everything else. You must persuade the court or jury that after ruling out every other reason for the different treatment, the only thing that remains is unlawful discrimination.

Posted

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.

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3 comments

Asker

Posted

I have left the company because of this reasons being treated unfairly. its been couple of months now being try to get help from EEOC finally got hold of them.

Christine C McCall

Christine C McCall

Posted

Well, in that event, good luck and find an attorney to assist you.

Asker

Posted

Thank you very much for the advise

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