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Discrimination at Employment: Acts Vs Common law

San Francisco, CA |

I learnt that some form of discrimination are protected by Act. There are few others that are illegal and protected by common law.

Could someone shed some light into this?

The matter is employees stealing from a public company (btw, does it matter if it is a private company of the same size, ie many employees) - whistle blower get fired. Would this be only protected by common law? Is there anything to reference such a common law?

Should the terminology Discrimination be used in this case or rather retaliation and wrongful termination?

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Attorney answers 3


There are some acts that are prohibited by a specific statute. For example, under the California Fair Employment and Housing Act, it is illegal for an employer to discriminate against employees due to protected classifications, such as race, age, gender, handicap, and a number of other categories itemized in the law itself.

In common law, there may not necessarily be a specific statute the prohibits an activity but it has been recognized by case law to be unlawful as a matter of public policy. For example, it has been recognized that it is in the public interest that employees be paid wages timely and correctly as a matter of law. We do not have a statute that says it is unlawful to fire an employee who asks that an employer pay correct wages for overtime worked, but the courts have held that common law prevents an employer from doing so. Firing an employee for asking to be paid correctly is a violation of public policy.

I hope this helps you understand better.

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.


Please look at my Avvo guide on California's at-will employment law, which should help you understand your rights:

Employment discrimination is against the public policy of California and the United States. 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 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:

*** 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. ***


Your whistle-blower example would probably be statutory, depending on the facts of the theft and reporting.

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