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WORK & CAREERS | SHOP TALK

Is It Sex Discrimination or Performance-Based Action?

January 11, 1998

Q: For the last 10 years I have worked as one of several operations managers in a medium-sized company. In reviews of my performance for the early years, I was told that the company was happy with my work, and I received regular salary increases.

About two years ago, my immediate supervisor became the director of the facility. Since then, he has reduced the staff and laid off two managers, both men. Within weeks, he hired two women. Now I am the only man among the five operations managers. My director has told me that I should be looking for another job because he wants all of his managers to be female.

I have kept notes on the situation for a year. When I took these notes to the human resources director, she told my boss that I had submitted a complaint. Human resources took no other action. However, I am being harassed and berated continually by my boss and have concluded that I will be discharged in the next several months. Do I have a reasonable probability of gaining reemployment and lost salary through legal action if I'm discharged under the conditions described above?

--D.K., Anaheim

A: It is difficult to assess whether you will succeed in a lawsuit if you are terminated under these circumstances. Certainly, it is unlawful for your supervisor to terminate you solely because you are a male and he wants female managers. It is also unlawful for him to retaliate against you for making a complaint that you are being subjected to discriminatory treatment on the basis of your sex.

However, your manager can discipline and terminate you for performance-related reasons. Even if he does have a discriminatory or retaliatory motive for taking action, your company could still prevail in a lawsuit if it could prove that it would have taken the same action against you for performance-related reasons.

What you have not told me is whether your supervisor began being dissatisfied with your performance after the "early years," and has been disciplining or criticizing you since then. If so, you may have no claim. If not, then you probably stand a good chance of success if you are terminated for the wrong reasons.

To evaluate your chances more specifically, you should consult with an employment law attorney.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Religious Beliefs and Sunday Shifts

Q: Some members of our church say they are being compelled by their employers to work regular Sunday shifts, even though it is against their religious beliefs. Do employees have any relief under the law on this matter?

--A.P., Glendale

A: Employees have a right to be free from discrimination based on their sincerely held religious beliefs, and employers have a duty to "reasonably accommodate" the religious practices of employees unless such an accommodation constitutes an "undue hardship." Employers need not provide accommodations, such as schedule changes, that involve more than a minimal cost or that involve interference with other employees' seniority rights.

The lawfulness of Sunday work requirements typically depends on the circumstances at a particular workplace. If the work force is small or if the employee performs an essential function that cannot be easily replaced, requiring an employee to work on Sunday will probably be legal.

In addition, if seniority governs work schedules, an employer is not required to make a more senior employee work on Sunday to accommodate the religious beliefs of a more junior employee. If the work force is larger, or if seniority does not apply, and if giving certain employees a Sunday off would not bring a significant hardship on the employer or co-workers, such an accommodation might be required.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Reimbursement Checks Are Late

Q: I am currently employed by a firm that requires its field service technicians to use their personal credit cards for expenses (hotels, rental cars, parking fees, etc.) for which we are reimbursed. For the last two months the reimbursements have been late. How can I get the company to send the checks on time?

--A.J., Norwalk

A: An employer must reimburse its employees for expenses they personally incur on behalf of the business. If the expenses are unreasonable to begin with, the employee can insist that the employer advance those fees or pay them initially.

Reimbursements should be made within a "reasonable" time. If payments are delayed, you should receive reimbursement for lost interest or for charges you have incurred because of it.

If your employer retaliates against you because you complain, you would have a valid legal claim. I suggest that you put your request in writing and explain your need to be promptly reimbursed on these expenses. You also may want to ask for an advance for future expenses because of the delays.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or e-mail it to shoptalk@latimes.com. The column is designed to answer questions of general interest. It should not be construed as legal advice.

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