Three National Takeaways from California Discrimination Law 17:46, June 19, 2016

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Three National Takeaways from California Discrimination Law

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California recently amended regulations that interpreted the Fair Employment & Housing Act (FEHA), California’s anti-discrimination law. These regulations created new obligations for California employers, such as requiring new content in their sexual harassment training and company policies. The regulations also clarified laws that already existed, sending pointed reminders to employers to focus on compliance. Three main themes should provide any employer with tips for compliance.

Individualized Inquiry

The promise of discrimination laws is to ensure that no one is treated adversely based on protected characteristics, such as sex or disability. When on notice of an employee or applicant’s requested accommodation, however, an employer must give special attention to that individual’s request.

Employees and applicants’ pregnancy-related disabilities, other disabilities, and religious creed all may require employers to provide reasonable accommodations. The law forbids employers from rejecting requests outright. Rather, an employer should gather facts from the individual requesting a reasonable accommodation, consider the essential functions of the individual’s job, come up with possible accommodations (or reasons why it would be an undue hardship to offer a reasonable accommodation), and consider the individual’s proposed accommodations. It is a detailed process that must balance employer needs and individual privacy. The California Supreme Court’s decision on suitable seats provides an illustration of evaluating the job duties of employees. In any event, employers should dive into detail.

Sex is Broadly Defined and Applied

Sex is an expansive characteristic, which can include gender, pregnancy, and sexual orientation as well as gender expression, gender identity, and transgender. These last three characteristics have been recently codified, but have been applied to “sex” by many courts for some time. The regulations seek to ensure that no employee is “treated differently, paid less, [or] treated adversely” based on sex, which can include stereotyping, unequal pay for substantially similar work, or any adverse action substantially motivated by an employee’s sex. See Cal. Code of Regs., tit. 2 § 11029.

Sexual harassment is also a form of sex discrimination, and comes with its own set of clarifications. It does not require sexual interest and does not require adverse action. However, it must be subjectively and objectively offensive, unwelcome, and severe and pervasive enough to be actionable. Even so, given the broad definition of sex, employers should consider taking a preventative approach by focusing on educating employees about proper attitudes and language in the workplace that don’t exclude individuals based on their sex.

Culture of Compliance

While the new regulations get specific – such as also prohibiting discrimination against workers who have AB 60 drivers’ licenses – taking a step back from the regulatory language allows us to see a bigger picture. The new regulations make you even more responsible for the actions and attitudes of your entire workforce. Focusing on growth and opportunity can often lead to less focus on these responsibilities. You can, however, develop trust so that employees will do the right thing by complaining about unfair (or possible illegal) treatment or by not engaging in certain offensive behavior. Imbuing your core culture with compliance is a great way to ensure deeper understanding.

Developing that trust takes work, but it doesn’t have to be difficult. Compliance training is one way employers can incorporate compliance into their company culture. If you’re unsure about how to do it, this case study on Namely, an HR-compliance startup that combined growth and culture with training, provides more details.

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Douglas Kelly
Douglas Kelly is EverFi's lead legal editor. He writes on corporate compliance and culture, analyzing new case law, legislation and regulations affecting US companies. Before joining EverFi, he litigated federal and state employment cases and wrote about legal trends. He earned his JD from Berkeley Law and BBA from Emory University.

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