Imperial Valley Employment Lawyer Arsenal for Damages, Severance Pay and Employment in Imperial Valley for Job Discrimination or Retaliation

By admin on March 10th, 2010

Never have there been so many tools for Imperial Valley employment lawyers to help people recently fired to win damages for discrimination, to seek a better severance package, including not only a longer period of pay benefits, but also other items, most important of which can be a longer period of health insurance benefits following the termination, or even to save the employee’s job.

If you’ve been fired from your job as a result of discrimination or retaliation, been harassed or the victim of a hostile work environment, or paid less than a person of the opposite sex for the same work for no other valid reason, visit our website at http://www.CaliforniaAttorneysLawyers.com and call us at any of the numbers easily found on our website.

In Imperial Valley and throughout California where private employers and government offices have laid off people in the hundreds and thousands, sometimes on a weekly basis there is substantial fear among those who have recently been terminated and those who are in fear that they could be next to be let go. In areas such as the Imperial Valley area where unemployment and foreclosures are at their highest in the state, many employees who have been discriminated against or fired in retaliation for complaints of harassment and who previously feared making any complaint, now feel they have nothing to lose.

Some employees are filing class action lawsuits based on everything from age and sex discrimination to discrimination against veterans. Individual claims are being made for overtime pay that the employees never received and retaliation for whistle blowing or reporting harassment.

One of the best tools for Imperial Valley employment lawyers is often the employee’s company manual and other memos of the company which often lay out glowing descriptions of how fair the company will be in their employment practices. Such manuals often describe all of the types of actions which the company claims they will not tolerate including the various forms of harassment and how the company will never take a retaliatory action against anyone blowing the whistle on harassment at the company.

Such manuals provide a powerful tool to the employee and the employment lawyer to show the company exactly how they violated not only the law, but also the company’s own employment guidelines. Faced with such violations of the principles the company itself laid down and promised to their employees, it is difficult for such companies to argue that they didn’t realize how they were supposed to respond to an employee’s reports of harassment or that they didn’t know they couldn’t fire someone for making such reports.

Employees must keep in mind that under California law, complaints alleging discrimination or retaliation must be filed with the Division of Labor Standards Enforcement in California within six months of the alleged discriminatory or retaliatory action by an employer, except in certain circumstances.

Some of the laws enforced by the Labor Commissioner in the State of California which prohibit discrimination and retaliation include discrimination or retaliation for threatening to file a complaint with the Labor Commissioner, for taking time off to serve as a juror, be a witness in court or to attend judicial proceedings related to being a victim of a crime or related to a victim, for discharging victims of domestic violence, for taking time off to seek medical or psychological treatment related to domestic violence or a sexual assault, for taking time off to go to a child’s school at the request of a teacher, for disclosing his or her wages, for engaging in political activity, for being a whistle blower (not the real whistles), for being paid less than employees of a different sex for the same work unless based on a bona fide factor other than sex, or for complaining about safety or health conditions.

For Imperial Valley Employment Lawyers such as myself who are also Women’s Rights Lawyers, when President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 in late January, he remedied a great injustice and provided employment and women’s rights attorneys with yet another tool in our arsenal to fight for employee’s and women’s rights.

Now women in California and the rest of the nation have a law that gives them the ability to redress the wrong suffered upon them by society in allowing men to receive more money for the same work from an employer and limiting the rights of women to bring a claim for pay discrimination.

In the past, women were required to file suit within 180 days after first being paid unfairly, even if the discrimination of being paid less than male workers in the same jobs continued. And if a woman failed to discover that male workers were being paid more for the same work, a woman still could not hold her employer accountable if she didn’t learn of the unfairness and take action within 180 days of first being paid the lesser rate.

Under the Fair Pay Act of 2009 signed into law by President Obama, the statute of limitations of 180 days starts with each discriminatory paycheck, rather than when the employer starts to discriminate. So long as a woman in CA files her claim within 180 days of receiving any discriminatory paycheck, not just the first one, she is considered timely in bringing her claim.

An important aspect of the Act is that the effective date of the Act is retroactively set at May 28, 2007, which will allow it to apply to all compensation discrimination claims that have been filed on or after that date.

Women can sue for back pay awards for up to two years before she files her employment discrimination claim under Title VII of the Civil Rights Act of 1964. The Fair Pay Act of 2009 does not change the two-year back pay limit.

Under the Act, an unlawful practice occurs when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to the decision or practice, or when a person is affected by the decision or practice, including each time wages, benefits or other compensation is paid.

California also has it’s own version of the Federal WARN Act which in certain circumstances requires 60 days warning before laying off workers. Under the 2003 California version of the Act, the requirement of 60 days warning applies to establishments with 75 or more employees who have been employed for at least 6 of the previous 12 months, who layoff or relocated 50 or more employees within a 30-day period. There are also various exceptions to the rule.

For the elderly employee laid off, an important ruling by the U.S. Supreme Court has given added protection to older workers. Elderly persons who file employment discrimination lawsuits no longer need to prove that an employer acted intentionally. It is enough that the employee can prove that the layoffs had a disparate effect on the elderly workers.

Layoffs of caregivers providing care to sick family members may also violate federal law.

And all of these tools are still in addition to the tools Imperial Valley employment lawyers have against employers who practice discrimination based on sex, religion, race, age, or sexual orientation, or who subject their workers to a workplace that constitutes a hostile environment.

Visit our website at http://www.CaliforniaAttorneysLawyers.com and call us if you have been discriminated against or are the victim of retaliation by an employer in Imperial Valley or if you have been receiving less pay than a person of the opposite sex for the same work by your employer for no other valid reason.

It is thus imperative that an employee being laid off who is provided with a separation agreement and release of all claims against his employer consult with an employment attorney to determine if there weren’t violations of any of these laws and others that can assist the employee and his or her attorney to negotiate a larger severance package.

If you have recently been fired, are in fear of losing your job or if you have been presented with a separation agreement or severance package and have been discriminated against, harassed or are the victim of retaliation in Imperial Valley by your employer, we invite you to call our office.

Southern California Employment Lawyer Arsenal for Damages, Severance Pay and Employment in Southern California for Job Discrimination or Retaliation

By admin on March 8th, 2010

Never have there been so many tools for Southern California employment lawyers to help people recently fired to win damages for discrimination, to seek a better severance package, including not only a longer period of pay benefits, but also other items, most important of which can be a longer period of health insurance benefits following the termination, or even to save the employee’s job.

If you’ve been fired from your job as a result of discrimination or retaliation, been harassed or the victim of a hostile work environment, or paid less than a person of the opposite sex for the same work for no other valid reason, visit our website at http://www.CaliforniaAttorneysLawyers.com and call us at any of the numbers easily found on our website.

In Southern California where private employers and government offices have laid off people by thousands, sometimes on a weekly basis there is substantial fear among those who have recently been terminated and those who are in fear that they could be next to be let go. In the areas of Southern California where unemployment and foreclosures are at their highest in the state, many employees who have been discriminated against or fired in retaliation for complaints of harassment and who previously feared making any complaint, now feel they have nothing to lose.

Some employees are filing class action lawsuits based on everything from age and sex discrimination to discrimination against veterans. Individual claims are being made for overtime pay that the employees never received and retaliation for whistle blowing or reporting harassment.

One of the best tools for Southern California employment lawyers is often the employee’s company manual and other memos of the company which often lay out glowing descriptions of how fair the company will be in their employment practices. Such manuals often describe all of the types of actions which the company claims they will not tolerate including the various forms of harassment and how the company will never take a retaliatory action against anyone blowing the whistle on harassment at the company.

Such manuals provide a powerful tool to the employee and the employment lawyer to show the company exactly how they violated not only the law, but also the company’s own employment guidelines. Faced with such violations of the principles the company itself laid down and promised to their employees, it is difficult for such companies to argue that they didn’t realize how they were supposed to respond to an employee’s reports of harassment or that they didn’t know they couldn’t fire someone for making such reports.

Employees must keep in mind that under California law, complaints alleging discrimination or retaliation must be filed with the Division of Labor Standards Enforcement in California within six months of the alleged discriminatory or retaliatory action by an employer, except in certain circumstances.

Some of the laws enforced by the Labor Commissioner in the State of California which prohibit discrimination and retaliation include discrimination or retaliation for threatening to file a complaint with the Labor Commissioner, for taking time off to serve as a juror, be a witness in court or to attend judicial proceedings related to being a victim of a crime or related to a victim, for discharging victims of domestic violence, for taking time off to seek medical or psychological treatment related to domestic violence or a sexual assault, for taking time off to go to a child’s school at the request of a teacher, for disclosing his or her wages, for engaging in political activity, for being a whistle blower (not the real whistles), for being paid less than employees of a different sex for the same work unless based on a bona fide factor other than sex, or for complaining about safety or health conditions.

For Southern California Employment Lawyers such as myself who are also Women’s Rights Lawyers, when President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 in late January, he remedied a great injustice and provided employment and women’s rights attorneys with yet another tool in our arsenal to fight for employee’s and women’s rights.

Now women in Southern California and the rest of the nation have a law that gives them the ability to redress the wrong suffered upon them by society in allowing men to receive more money for the same work from an employer and limiting the rights of women to bring a claim for pay discrimination.

In the past, women were required to file suit within 180 days after first being paid unfairly, even if the discrimination of being paid less than male workers in the same jobs continued. And if a woman failed to discover that male workers were being paid more for the same work, a woman still could not hold her employer accountable if she didn’t learn of the unfairness and take action within 180 days of first being paid the lesser rate.

Under the Fair Pay Act of 2009 signed into law by President Obama, the statute of limitations of 180 days starts with each discriminatory paycheck, rather than when the employer starts to discriminate. So long as a woman in CA files her claim within 180 days of receiving any discriminatory paycheck, not just the first one, she is considered timely in bringing her claim.

An important aspect of the Act is that the effective date of the Act is retroactively set at May 28, 2007, which will allow it to apply to all compensation discrimination claims that have been filed on or after that date.

Women can sue for back pay awards for up to two years before she files her employment discrimination claim under Title VII of the Civil Rights Act of 1964. The Fair Pay Act of 2009 does not change the two-year back pay limit.

Under the Act, an unlawful practice occurs when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to the decision or practice, or when a person is affected by the decision or practice, including each time wages, benefits or other compensation is paid.

California also has it’s own version of the Federal WARN Act which in certain circumstances requires 60 days warning before laying off workers. Under the 2003 California version of the Act, the requirement of 60 days warning applies to establishments with 75 or more employees who have been employed for at least 6 of the previous 12 months, who layoff or relocated 50 or more employees within a 30-day period. There are also various exceptions to the rule.

For the elderly employee laid off, an important ruling by the U.S. Supreme Court has given added protection to older workers. Elderly persons who file employment discrimination lawsuits no longer need to prove that an employer acted intentionally. It is enough that the employee can prove that the layoffs had a disparate effect on the elderly workers.

Layoffs of caregivers providing care to sick family members may also violate federal law.

And all of these tools are still in addition to the tools Southern California employment lawyers have against employers who practice discrimination based on sex, religion, race, age, or sexual orientation, or who subject their workers to a workplace that constitutes a hostile environment.

Visit our website at http://www.CaliforniaAttorneysLawyers.com and call us if you have been discriminated against or are the victim of retaliation by an employer in Southern California or if you have been receiving less pay than a person of the opposite sex for the same work by your employer for no other valid reason.

It is thus imperative that an employee being laid off who is provided with a separation agreement and release of all claims against his employer consult with an employment attorney to determine if there weren’t violations of any of these laws and others that can assist the employee and his or her attorney to negotiate a larger severance package.

If you have recently been fired, are in fear of losing your job or if you have been presented with a separation agreement or severance package and have been discriminated against, harassed or are the victim of retaliation in Southern California by your employer, we invite you to call our office.

HAWAII EMPLOYMENT LAW BASICS: PREGNANCY DISCRIMINATION LAW UNDER FEDERAL AND HAWAII LAW

By admin on March 7th, 2010

HAWAII EMPLOYMENT LAW BASICS: PREGNANCY DISCRIMINATION LAW UNDER FEDERAL AND HAWAII LAW

 INTRODUCTION:

Along with other types of claims, there has been a significant increase in pregnancy discrimination complaints nationwide.  The increase in the number of complaints has outpaced the increase in percentage of women in the workforce during the same period.  

Accordingly, it is clear that employers need to become more aware of their obligations towards pregnant employees, especially under Hawaii state law, which covers all employers, and permits not only individual liability for violations of the law, but also unlimited punitive and compensatory damages to be awarded a plaintiff.

 FEDERAL LAW AND HAWAII LAW ARE SIGNIFICANTLY DIFFERENT WITH RESPECT TO PREGNANCY DISCRIMINATION:

Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for an employer to limit, segregate or classify employees or applicants for employment in any manner which deprives or tends to deprive an individual of employment opportunities because of the individual’s race, color religion, sex or national origin.  Generally, the law covers all employers engaged in an industry affecting commerce with 15 or more employees.

Title VII was amended by the Pregnancy Discrimination Act (“PDA”) to prohibit all forms of discrimination in employment based on pregnancy, childbirth, or related medical conditions.  Under PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances.

Under the PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances.  Thus, an employer that refuses to hire or promote a female because of pregnancy has violated PDA.  Also, an employer that forces a pregnant employee to take a leave of absence despite being able to perform her job has violated PDA.  Conversely, it is unlawful to force a pregnant employee to continue performing work she is incapable of doing due to her pregnant condition from which other similarly situated disabled employees are excused.

If the employee litigates her federal PDA claim the available remedies include the Court: Issuing an injunction prohibiting the employer from committing future violations of the law; granting equitable relief such as reinstatement or promotion; awarding back pay limited for a period beginning two years before the date the charge of discrimination was filed, less any interim earnings; awarding front pay, and; reasonable attorneys’ fees.

In addition, the total amount of compensatory and punitive damages are limited depending on the size of the employer.  Specifically, the caps are set by statute as follows:

Number of Employees            Cap

015-100 employees                $ 050,000

101-200 employees                $ 100,000

201-500 employees                $ 200,000

500 plus employees                $ 300,000

Under the Hawaii Employment Practices Act, HRS Chapter 378, covered employers are prohibited from discriminating in public and private employment on the basis of “sex.”  Like PDA, Hawaii law prohibits discriminating against women in employment because of “pregnancy.” 

There are significant differences between PDA and Hawaii law.  First, the Hawaii statute covers any employer with “one or more” employees, thus affecting many small business owners that perhaps lack resources to fully educate themselves on the law or implement risk reduction policies and procedures. 

Second, while it is clear under federal law that individual employees cannot be held individually liable for adverse decisions deemed unlawful under the law, there is virtually uniform authority amongst state court judges that no such protection is afforded under state law.  Thus, supervisors along with the employer are commonly named as individuals in lawsuits filed by plaintiffs in Hawaii state court pursuant to HRS Chapter 378.

Third, while federal law simply requires the employer to treat a pregnant employee as it would similarly situated non-pregnant employees under Hawaii law employers are required to do much more.  Specifically, Hawaii law requires by regulatory mandate that employers “make every reasonable accommodation to the needs of the female affected by disability due to and resulting from pregnancy, childbirth, or related medical conditions.”

Regardless of the policies applicable to non-pregnant disabled employees, female employees who are disabled due to pregnancy, childbirth, or related medical conditions must be permitted to take a leave of absence, paid or unpaid, for a “reasonable period of time.”  A “reasonable period of time” is that time determined by the employee’s health care provider.

Hawaii law requires the reinstatement of an employee returning from pregnancy leave to her original job or to a position of comparable pay, without loss of accumulated service credits and privileges.  Prior to the employee’s return to work the employer may request a physician’s certificate approving her return to work.

Finally, and in many cases most significantly, under Hawaii law a court may award unlimited punitive and compensatory damages in cases brought under HRS Chapter 378.   

 CONCLUSION:

            PDA and the Hawaii Employment Practices Act are significantly different in scope and breadth.   Under federal law employers must remember to treat pregnant employees the same as similarly situated employees.  However, under Hawaii law employers are required to afford pregnant special protections regardless of how similarly situated employees are treated. Employers should seek counsel if they have questions regarding the law.

Roman Amaguin, Esq.; romanamaguin@yahoo.com; www.amaguinlaw.com

Roman Amaguin, Esq. is a Hawaii lawyer specializing in employment law, labor law, and civil litigation.

Self-Employment Tax

By admin on March 5th, 2010

This article addresses some of the key issues regarding self-employment tax. A careful reading of this material could make a big difference in how you think about self-employment tax.

Who must pay self-employment tax and why? Well, if you’re self-employed, you will be responsible for self-employment tax. How do you determine your liability? For the purpose of determining self-employment tax, you are self-employed if you are a sole proprietor, an independent contractor, a member of a partnership, or are otherwise in business for yourself. If you are a self-employed individual, you will have a Schedule C to attach to your Form 1040, and self-employment tax is computed on Form 1040, Schedule SE. Individuals must pay self-employment tax is they have net earnings of $400 or more and there are several sources of net earnings that are used when figuring your self-employment tax liability. In most cases, net earnings include net profit from a farm or nonfarm business; if you operate more than one business, your net earnings from self-employment are the combined net earnings from all your businesses. The upside to operating more than one business: If you have a loss in one business, it reduces the income from another. self-employment tax is the self-employed individual’s contribution to social security and Medicare taxes; the old-age taxes of employment. The only difference between the employee and the self-employed is the employee’s social security and Medicare taxes are paid half by the employee and half by the employer, when an individual is self-employed; he/she is responsible for the entire amount.

There are alternative methods that can be used for figuring liability of self-employment tax and they are: The Farm Optional Method and the NonFarm Optional Method. These methods may qualify an individual to claim a larger Earned Income Credit or Child Tax Credit; they may also, however, increase your self-employment tax liability.

The maximum amount of earnings subject to self-employment tax is currently $87,000.00. Now, when figuring your adjusted gross income on Form 1040, you may deduct up to one-half of your self-employment tax liability and if you are member of the ministry or clergy you may request an exemption from self-employment tax from the IRS.

It’s really a good idea to probe a little deeper into the subject of self-employment tax. What you learn may give you the confidence you need to venture into new areas.

When must self-employment taxes be paid? Generally, the self-employment taxes aren’t due until the end of the year, when your personal tax return is filed. Why is it this way? The self-employment tax isn’t due until the end of the year simply because of the fact that many self-employed business owners don’t file the net profit or net loss figures on their self-employment earnings, until the year’s end. If there is a net loss, the self-employed individual receives a credit of self-employment tax due, in the amount of one-half of the amount due.

The self-employment tax is the self-employed individual’s equivalent to the social security and Medicare tax deducted from employee’s paycheck each week. The wage earner’s taxes are configured by their employer and are deducted on a weekly basis. The self-employed individual isn’t required to make weekly payments of self-employment tax, but they are held liable for the full 15.3 rate, that is split between the employee and the employer in wage earning situations. In general, however, if you expect to owe taxes in excess of $1000 for the year, you are required to pay estimated taxes each quarter.

In summary, if you are self-employed, have net earnings of $400 or more, and file a tax return, you will be subject to self-employment tax. To learn more about individual liabilities, exemptions, and alternative tax methods, please visit the online site for IRS Forms and Publications at www.IRS.gov . Topic 554, Publication 517 and 533 will provide more detailed and situation specific information.

Of course, it’s impossible to put everything about self-employment tax into just one article. But you can’t deny that you’ve just added to your understanding about self-employment tax, and that’s time well spent.

Loans for Self Employed : Supporting the idea of being independent

By admin on March 3rd, 2010

“Dreams are the gateway to success ” – If you think you can you surely can make it , though its easy to dream but tough to mark one’s presence. Self employment is chosen by people who want to mark their individual presence in the world of business. Desire to rule the world is a trait commonly found in self employed persons. Your dedication, hard work and sincerity towards your work without adequate capital resource are futile.However, for people who are self employed and don’t have access to that extra sum of money that can make the task easier.Hoe to get hand onto that extra sum of money which can be used for investing in a new venture or to buy that latest technology that has just hit the market.Well, the answer to this question can be easily traced with the introduction of loans for the self employed in the loan market.

With the entry of loans forself employed it has become easier for self employed people to get an easy financial help. With the increasing number of people who prefer to work for themselves, loans for self employed have now become affordable and widely available. Loans for self employed are tailored to meet the financial needs of self employed people. They may need funds to expand or to start a new business. Self employed people are identified as people who operate their own business as a sole owner or as a partner or a profession. Independent consultants and contractors are also classified as self employed. Loans for self employed can be secured or unsecured one. Secured self employed loans are secured against the collateral of the borrower such as a car or a house. Unsecured self employed loans are not secured by any collateral,best suited for those who can not afford to offer collateral.Loan for self employed becomes one of the most popular finance options for the self employed people because it moulds repayments according to the income of the self employed. How much is to be paid and when it is to be paid will be decided by the borrower himself. The feature of flexibility comes in three forms- underpayment, overpayment, and payment holiday.

Another feature of loans for self employed is that they allow the borrowers themselves to certify their income. In the absence of any accounts or not well maintained accounts, self employed borrowers are refused loans by most loan providers. The self employed people are normally seen to not disclose their actual income as this will require them to pay higher tax. However, when they approach loan providers for loans, they do not want the income revealed to be considered. This will qualify them for a lower value of loan. However, the loan providers who know how the self employed people function, create specific finance options for them. They allow the self employed people to themselves certify their income.
Therefore, self employed people need not feel that they do not have sufficient finance opportunities. Proper search can lead them to loan providers who are ready to mould the features of their loans in order to serve the self employed people.

Racial Discrimination Related Victimization in Employment

By admin on March 2nd, 2010

RACIAL EQUALITY VICTIMIZATION IN EMPLOYMENT

Race relations victimization is different than color discrimination or ethnic discrimination or racial harassment or racial segregation -race victimization or color victimization need not include discriminatory practices to be illegal ~it need only be about race equality.

It is possible for one in race relations law, even if not subjected to race discrimination, to suffer unlawful race relations victimization, entitling to legal remedies.

Race relations victimization is, on its own, contrary to nondiscrimination policy -in race equality legislation under the Race Relations Act, and in employment law, unlawful.

In race relations laws also workplace victimization can be without race discrimination or racial abuse; and, employment tribunal compensation for race relations victimization, if it is with racial discrimination or ethnic relations abuse -be it racial segregation or color discrimination or ethnic prejudice or any other kind of racist abuse, for ‘injury to feelings’ is limitless -racial victimization exempts on its own from a year’s service requirement to sue, if terminated, also for reinstatement.

Only indirectly is race relations victimization to do with one’s color, race, ethnicity, religion, nationality, citizenship; it is not directly about racism in ethnic relations, racial segregation, race equality, as such -it is about detriment over concern with those at the workplace caused one by way of retaliation, and because it is about race equality it is called race relations victimization.

Race relations victimization is, in racial equality legislation -under the Race Relations Act, basically, this:-

If one complains…

…that one has been, or is being, treated less favorably on racial grounds by one’s employer -to the employer or to a tribunal or to the race relations board or seeks advice from the advisory arbitration and conciliation service (or friend or colleague -or anyone)…

…or if one agrees to, e.g., give evidence or support anyone, or lawfully do anything, in relation to race discrimination to the detriment or possible detriment of the employer…

…or if one does not do any of those things but is suspected by the employer that has done or would or could or might do so…

…and because of that race relations related act or suspicion if one is subjected to a detriment by the employer or for or on behalf of the employer, in respect of one’s employment…

…that is unlawful race relations victimization of one.

In race relations victimization it does not matter, e.g., if one’s complaint was of racial abuse in personal service (e.g. house help) exempted in nondiscrimination policy, or of race discrimination over a genuine occupational qualification (e.g. straight haired model) exempt under the Race Relations Act, or, if one was wrong and it was not race discrimination -if it is a complaint of race equality in good faith any detriment because of it caused one (even if not discriminatory practices detriment) is illegal race relations victimization.

Also, in race relations law, it does not matter if the employer did not know of the race relations victimization -if the racial victimization is by someone to do with that employment (including a colleague -unless the employer can prove that all reasonable steps were taken to ensure compliance with racial equality laws, including e.g. ethnic victimization) there is vicarious race equality liability for race relations victimization.

The motive or intention is irrelevant in race relations victimization -so is being unconscious of subjecting to racial victimization -if less favourable treatment (even if it is not itself race discrimination) is shown and it relates to racial equality, that is race relations victimization and there is racial victimization liability: Swiggs & Others -v- Nagarajan, 1999, HL.

Race relations case law suggest that for a claim to succeed under the Race Relations Act the employee’s complaint to the employer about racial equality which resulted in race relations victimization, must have been made before the race relations victimization took place if victimization was dismissal -before the employment contract ended: Post Office -v- Adekeye, and, Negorajam -v- Agnew 1974 EAT.

The employer needs the employee’s consent to put it right if it is not in an internal appeal, and also in race relations this is so, if the race relations victimization is termination -because that ends the employment contract (which, if not specifically made, the law deems to have existed): James -v- Waltham Holy Cross UDC, 1973, NIRC ~but an employee, before suing under the race relations law for racial victimization, must protest with written cause the race relations victimization to the employer for response in 28 days, considering arbitration for conciliation or settling.

It is not a defense in race relations victimization for the employer, if later information showed the employer to have erred, that at the time of the race relations victimization information was not available to suggest that the detriment would be racial victimization -the employer must put right that error ~this (Williamson -v- Alcan UK Ltd., 1978, EAT) is regarded a principle of employment law, and if does not, that too, in race equality law, is unlawful race relations victimization.

If one suffers race relations victimization, one may serve on the employer a racial discrimination questionnaire (within three months of when one first knew of the race relations victimization -or if one has lodged one’s racial victimization claim with an employment tribunal [for which there is a time limit of three months] within 21 days of lodging it), using the employer’s answers to why subjected to alleged racial victimization as evidence of race relations victimization -failure to answer or vague or ambiguous replies entitle drawing inference in race relations victimization claims.

In racial equality case law there appears to be a judicial expectation that a race relations complaint should specify or include the allegation that it relates to racial discrimination -British Airways Engine Overhaul Ltd. -v- Francis 1981 dismissed the case because the race relations complainant had not alleged that the complaint related to race discrimination (that in later protected acts [whistle-blowing, asserting a statutory right] reasonable clarity suffices may make same applicable to race relations victimization).

In race relations victimization the onus of proof is normally on the employee alleging racial victimization, but this can move to the employer because the employer must state a reason for the detriment alleged to be race relations victimization, and employment tribunals have to have regard to the reason stated by the employer -this applies also in race relations victimization cases ~it is important to show the employer’s reason not to be, or be capable of not being, the reason or main reason for a detriment alleged as racial victimization.

If it is not shown to be a race relations matter, even if the detriment is proven, it is not racial victimization -Baker -v- Cornwall County Council 1990, and, York Truck Equipment Ltd. 1990 EAT) held the detriment not related to racial equality but disciplinary and so, not race relations victimization ~in racial victimization one must show not only that there had been a race equality issue followed by a detriment but also that the detriment would not have arisen but for a race equality issue for it to be race relations victimization.

In race relations cases the basic consideration in race relations discrimination applies also to race relations victimization and is whether the alleged racial discrimination or race relations victimization arouse from a racial equality matter -the ‘but for’ rule: would the detriment have still been suffered, or would it not have been but for racial inequality, or in the case of race relations victimization a race equality enquiry or complaint or act of the employee -or the employer’s related suspicion? If the detriment alleged to be victimization would not otherwise have been suffered, it is unlawful race relations victimization, entitling to a remedy.

Laws change, these are brief guidelines.