The Basics: Resolving a Lawsuit

If you are considering bringing a case against your employer, you may be envisioning a long and unpredictable battle in the courtroom. However, there are several ways that your disability discrimination or wrongful termination lawsuit may be settled, and not all lawsuits necessitate a formal courtroom trial.

When your employer discriminates against you and you decide to take action, the employer is subjected to major financial loss far beyond that any rational organization would care to lose. The cost to defend a disability discrimination or other wrongful termination lawsuit is astonishingly high. For example, defense attorneys in California may cost employers $450 per hour or more if the employer does not have the proper insurance. For these reasons it is often in the best interests of the employer to settle a pending claim without an expensive and potentially lengthy trial. That is not to say that every lawsuit will be settled out of court without trial, but the vast majority of non-frivolous lawsuits are. There are three primary ways to solve a discrimination lawsuit: negotiation, mediation, or arbitration.


Negotiation is a tactic that both sides will employ to get the case settled. There are many different styles and strategies of negotiation. Negotiation is often initiated with a demand letter, which may propose a formal negotiation meeting. If formal negotiations break down, negotiation can continue to play a key role in mediation.


Mediation is when the employer and employee meet and discuss the merits of their positions with a neutral 3rd party, a mediatory. The mediator will question the parties and attempt to get the parties to rethink their approaches and come to a final mutually agreeable solution. This process is informal, and generally non-binding, unless the parties agree to write out a settlement agreement during the mediation.


Arbitration is similar to mediation but is much more like a trial, although the arbitration rules are less formal than traditional court hearings. Arbitration may be the first resort for many employment cases because many large employers require their employees to sign arbitration agreements that require the employees to forgo suing the employer in court, leaving arbitration as the only resolution process.

There are many legitimate reasons why arbitration is the least favored dispute resolution system for employees.First, the employer’s arbitration agreement may require that the arbitrator be chosen from a specific panel of arbitrators. Although the arbitrators will not have any interest in the employer in particular, the employer may be a repeat player in arbitration so the arbitrator may slightly favor the employer so that the employer continues using arbitrators from the selected panel. Although most large arbitration organizations can avoid this problem, smaller arbitration panels are more easily susceptible to this bias. Second, arbitration may not allow the employee the benefits of having full discovery, which would allow the employee to obtain evidence that he or she might not otherwise ever get to see. Finally, arbitration generally takes away the right to a jury trial.

To learn more about lawsuit or settlement options for your disability discrimination or wrongful termination lawsuit, contact California employment attorney Michelle Baker today. Schedule your free consultation online or call us directly at (858) 452-0093.


Disability Discrimination Lawsuits Do Not Necessarily Result in Termination

One of the most easily misunderstood topics in discrimination law—including disability discrimination and retaliation lawsuits—is what actions actually constitute discrimination. In regards to disability discrimination, the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) offer two different definitions for discriminatory actions.

Discrimination According to FEHA

FEHA specifically lists actions that would be discriminatory under Government Code Section 12940, subd. (a). It includes all of the following employer actions that may be motivated by an individual’s perceived disability:

  • Refusing to hire;
  • Refusing to train for a program that would lead to employment;
  • Firing from a job or training program that would lead to employment;
  • Or discriminating in the terms of employment including compensation, conditions, or privileges.

Discrimination According to ADA

ADA, on the other hand, leaves the definition of “discrimination” open to more interpretation. ADA’s list of discriminatory acts includes the above list, but also includes discrimination in regards to job application procedures and job training. Additionally, Section 12112 of ADA forbids acts based on a job applicant’s disability that limits, segregates, or classifies the job applicant in a way that would “adversely affect the opportunities or status” of the applicant.

DisabilityAn Example from the California Court of Appeals

The California Court of Appeals recently reviewed a case that showed the limits of what an adverse employment action could be under California law. In the case of Jeffrey v. Temple City, 2013 WL 501426, (Feb. 11, 2013) an employee, Randolph Jeffery, brought a disability discrimination claim under FEHA. Jeffrey was a custodian for the Temple City School District who claimed that he was terminated from the school district after receiving a serious injury from a car accident. Jeffrey claimed that he was terminated directly because of the disability he received in the car accident.

However, the School District argued that it did not in fact terminate Jeffery. Rather, they sent Jeffrey a letter saying that he would be placed on a 39-month rehiring list, and that at the end of the 39 months Jeffrey would be rehired. However, Jeffery said that he believed that he was being terminated because the title of the letter he received read: “RE: Termination of Employment.” Ultimately, the court held that getting placed on a rehiring list in this case was not an act of discrimination, because Jeffrey could not prove that he could do his job duties with reasonable accommodation, and being placed on the list was not actually a termination because he was to be rehired at a later date.

The Jeffrey case demonstrates the limits of what a discriminatory action can be, but it also demonstrates the importance of getting legal advice as soon as possible to help you understand the full extent of your rights. If you have been the victim of discrimination contact an experienced attorney right away. Contact the experienced California attorneys of Baker Law Group, LLP today for a FREE Consultation.


Pregnant Mothers May be Entitled to More Than 19 Weeks Leave

Pregnancy DiscriminationAn Overview of Pregnancy Leave Law:

Pregnancy Disability Leave Law (PDLL) and the California Family Rights Act (CFRA) allow women to take disability leave while pregnant and after delivery. However, even with the above-mentioned leave afforded by both acts, some women experience complications or unique situations that keep them from returning to work before the statutorily imposed time frames.

According to the California Court of Appeals, some women may now be entitled to even more pregnancy leave.

Sanchez v. Swissport

In the case of Sanchez v. Swissport, Inc., Cal. Ct. App. Feb. 21, 2013 an employee, Ms. Sanchez, was diagnosed with a high-risk pregnancy that required extended bedrest. She applied for and pregnancy leave and was granted 19 weeks of leave from her employer as required by PDLL. However, Ms. Sanchez was still unable to return to work after the leave period expired and still had 3 months to go before she could return to work. As a result, her employer terminated her position. Ms. Sanchez then filed a lawsuit based on gender discrimination, citing the employer’s failure to engage in the interactive process to determine whether she could be provided with reasonable accommodations.

Her employer argued that it was not required to provide Ms. Sanchez with additional leave because she had exhausted all leave that was required by PDLL and CFRA. However, the trial court disagreed. The employer appealed and the California Court of Appeals upheld the decision that the employer was wrong.

The Role of FEHA and CFRA

The Court ruled that simply providing 4 months of leave under PDLL does not entitle the employer to avoid the separate requirements of the Fair Employment and Housing Act (FEHA), in which an employer must provide reasonable accommodations to employees with disabilities. Ms. Sanchez argued that she would have been able to return to work shortly after delivery and that it would not have been an undue hardship on her employer. The court agreed that this in theory could have been a reasonable accommodation.

Although the court did not address the issue of CFRA, it is worth mentioning that after giving birth an employee is entitled to up to 12 weeks of leave under the CFRA in order to care for a new child.

If your employer or former employer has taken action against you or terminated you after taking pregnancy disability leave, you may be entitled to a lawsuit to recover your wages and other damages. To learn more contact the experienced California Employment Law attorneys of Baker Law Group, LLP.  Schedule a free consultation by calling (858) 452-0093 today.

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