Employers can violate employment law in a variety of ways. Common violations include neglecting to hire a qualified candidate because of their gender identity, passing someone over for a promotion due to their religion, refusing to approve protected medical leave, or punishing employees for reporting illegal activities.
Such unethical actions severely limit opportunities for workers who deserve them. They also create a reverberating impact on the entire work environment. Seeing others benefit—not from merit or ability, but from being on the boss’s “good side”—lowers morale, disincentivizes productivity, and breeds resentment.
When Does Favoritism Become Illegal?
Although it is unfair and upsetting when managers favor one employee over others because of their personality, connections, or factors other than ability and merit, this is often completely legal. Favoritism becomes illegal employment action when the preferential treatment results from discrimination, sexual harassment, or retaliation.
Federal and state employment law prohibits employers from making employment decisions based on protected characteristics including:
Race, color, origin, or national ancestry
Sex, gender, gender identity, gender expression, or sexual orientation
Religious beliefs, practices, or outward signs of religious affiliation
Pregnancy, perceived pregnancy, or intention to become pregnant
Physical, mental, or psychological disabilities
Military or veteran status
According to the Equal Employment Opportunity Commission, sexual harassment can be a form of illegal favoritism. When an employer makes sexual advances toward an employee or job candidate and either explicitly states or implies that agreeing to these advances will result in preferential treatment, this is considered “quid pro quo” sexual harassment and constitutes illegal favoritism. Along with workers directly impacted by the harassment, their colleagues can also file claims against an employer if they notice another employee receiving more pay, better assignments, or other types of benefits because they submit to the employer’s advances or put up with inappropriate conduct. This includes a wide range of behavior, from sharing lewd comments and insults to touching the victim, stalking them, or sexually assaulting them.
A third form of illegal favoritism is retaliation. When a worker complains about discrimination, harassment, or other illegal actions in the workplace or files a report with an outside agency like FEHA or OSHA, and they are subsequently punished for doing so, they can file a claim for illegal retaliation. Retaliation can occur in many ways, such as demotion, reduced pay, assignment to an unfavorable location, negative performance reviews, wrongful termination, or creating a work environment so hostile that a worker is forced to quit.
How Can I Respond to Illegal Favoritism?
If you are experiencing favoritism in any of the forms described above, you have several options for pursuing compensation in California. Many workers decide to file a claim with the California DFEH to investigate workplace civil rights violations of the FEHA, because this law offers the most comprehensive protection. To initiate your case, you must contact DFEH to file an intake form that includes any information relevant to your allegation, including:
The facts of the incidents (the dates they occurred, the names and contact information of the employers who acted illegally, and the specific details of the violation)
The names and contact information of witnesses
W-2 or 1099 forms
Written reprimands, grievances, transfer notices, and/or termination letters
Any other communication, such as emails and text messages
Medical documentation if you experienced disability or pregnancy discrimination
Any other records, documentation, or evidence that supports your claim
DFEH will review the information you provided in the intake form to determine if your allegation is covered by the FEHA. If they find it is covered, they will approve an investigation into your claim and prepare a complaint form that you will sign and deliver to your employer. DFEH will specify how long your employer has to respond and will then conduct an interview to request relevant documentation. During the investigation, if DFEH finds reasonable cause to believe you were in fact the subject of illegal treatment in the form of a civil rights violation, they will notify all involved parties of the outcome.
In most cases, DFEH will first order you and your employer to attend mediation. If mediation fails to resolve the issue, DFEH will file the claim on your behalf. If they find your employer guilty of the allegation, they may order relief in several ways, such as:
Damages for emotional distress
Can I Sue My Employer for Favoritism?
If you do not wish to wait for DFEH to complete an investigation, you can request an immediate “right-to-sue” that bypasses the investigation process and grants you permission to proceed with your own lawsuit in court. To take this approach, you must file a complaint with the DFEH within one year of the illegal workplace treatment and request a right-to-sue. DFEH will send you a closing letter with the right-to-sue document you will use to file a civil court case against your employer for violations of the FEHA provisions.
Filing your own claim rather than having DFEH investigate your allegation speeds the process of resolving your case and often leads to better results. However, it is important to note that if you receive a right-to-sue letter, you are surrendering the option for a DFEH investigation. As soon as the letter is issued, you have a limited amount of time to file your claim in court. Even slight mistakes can hinder your ability to recover compensation. Therefore, it is highly recommended that you begin this process with an employment attorney. A lawyer can explain how the state’s employment laws apply to your situation, ensure you choose the best legal strategy, handle all the technical components of your claim, and represent you in court.
Fight Back Against Illegal Favoritism
If you think you may be a victim of workplace favoritism, you need to secure legal representation immediately. At CA Employment Counsel, our attorneys are experienced in all areas of employment law and dedicated to helping our clients fight back against unlawful treatment. Whether you decide to let DFEH perform an investigation on your behalf, or you want to take your case to court, retaining an employment lawyer is crucial for protecting your rights and achieving the optimal outcome in your case. Contact us today to recover the compensation you deserve.