Written By: Christopher B. Dolan and Mari Bandoma Callado
This week’s question comes from Elena in Dolores Heights, San Francisco who asks:
My child’s daycare had to close for a month due to COVID-19 exposure. I took time off from work to take care of my four-year-old. When I returned to work, my co-workers began treating me differently. They know about what happened at my child’s daycare. When I walk in a room, I see them whispering to each other and/or they leave the room altogether, as if to avoid me. One co-worker specifically asked me if I had the, “Kung-Flu.” I am Asian American and I was offended by this comment. Another co-worker said that it wasn’t fair that I got to take a, “month-long vacation.” I verbally complained to my manager about the racist remark and being treated differently by my co-workers and she assured me that she would take care of it.
A couple of weeks later, my manager told me that I was being transferred to the graveyard shift. My manager knows that I cannot work that shift because I have a young child. I told her that this was not fair and that I thought I was being retaliated against for taking time off because of a COVID-19 closure of my child’s daycare and/or complaining about my co-workers’ racist remarks. She denied it and said that it was a business need, and that my options are switching to the graveyard shift or quitting. I believe she is singling me out. I have been working for this company for two years and have always had a great relationship with my manager prior to my complaints. I don’t know what to do. What are my rights?
Dear Elena: I’m so sorry that this is happening to you in the midst of what already is such a difficult year. The Fair Employment and Housing Act (FEHA) prohibits discrimination and harassment based on race, national origin and disability (among others) in the workplace. The FEHA applies to public and private employers, labor organizations and employment agencies with five or more employees. Employees also have the right to be protected from retaliation for making a complaint or opposing a practice prohibited by the FEHA. Retaliation includes any adverse employment action taken in response to an employee’s complaint, including termination, demotion, pay reduction, job transfer and negative performance evaluation. In other words, your employer cannot punish you or treat you differently if you report race, national-origin or disability-based discrimination or harassment in the workplace. Employers who violate the FEHA’s anti-discrimination, harassment and retaliation provisions may be liable for damages including back pay, lost benefits, emotional distress, punitive damages, attorneys fees and costs, etc.
Your complaint to your manager regarding the, “Kung-Flu,” comment made by your co-worker and being treated differently by co-workers due to taking leave of absence are considered a protected activity under the FEHA as it is likely based on your race or national origin or as a perceived or associational disability (COVID-19 can be a disability, depending on how severe). Your manager forcing you to transfer to the graveyard shift would be considered an adverse employment action under the FEHA. The law requires proving a connection between these two things. The fact that this happened just two weeks after your complaint is some evidence that it is related to the protected activity.
Another source of protection may come from the Family First Coronavirus Response Act (FFCRA). The FFCRA, which expanded the Family Medical Leave Act (FMLA), covers leave and loss of income when an employee needs to care for children because of school or childcare closure and other leave related to COVID-19. Employers with 500 or fewer employees are required to provide job-protected leave for employees who are unable to work (or telework) due to a need to care for the employee’s child (under the age of 18) if the child’s elementary or secondary school or place of childcare has been closed, or the childcare provider is unavailable due to the COVID-19 emergency. This applies to employees who have been employed by the employer for at least 30 calendar days. This means that employers are prohibited from discharging, disciplining, or otherwise retaliating against any employee who takes leave under the FFCRA. Employers who violate the FFCRA’s expanded FMLA provision may be liable for damages including back pay, lost benefits, emotional distress, attorneys fees and costs, etc.
Assuming your employment has 500 or fewer employees, your leave of absence to take care of your minor child during the daycare closure is protected by the FFCRA and retaliating against you with a transfer to a graveyard shift is in violation of the FFCRA. We recommend that you contact an employment attorney to best protect your rights and to ensure that you do not miss any filing deadlines.