1. Religious Dress and Grooming Practices: Deviating from federal law, FEHA now expressly protects religious dress and grooming practices as protected practices/characteristics and narrows the employer defense of “undue hardship.”
California: Expressly includes protections for broadly defined religious dress practices and religious grooming practices as part of “religious belief, observance, and practice.” An accommodation is not reasonable if it requires segregation from the public or other employees.
The Rest of the Country: Title VII does not expressly protect religious dress or grooming practices (although that is the result of judicial interpretation).
California: Employers, to meet the affirmative defense of undue hardship, must demonstrate that a proposed religious accommodation would cause “significant difficulty or expense.”
The Rest of the Country: Employers can avoid liability where the proposed accommodation would result in anything more than a de minimis cost to the employer.
Workplace Solutions: Employers should investigate their current policies and practices to ensure that they reasonably accommodate religious dress and grooming practices. If you thought that you qualified for an exemption under federal law, you may no longer qualify for an exemption under California law.
2. Breastfeeding: In another deviation from federal law, FEHA amendments “declared existing law” that provides greater protections for breastfeeding. The amendment also highlights the increased focus on issues related to pregnancy discrimination on both the state and federal level.
California: Expressly includes protections for breastfeeding or medical conditions relating to breastfeeding by including them in the definition of “sex.”
The Rest of the Country: Title VII does not expressly protect breastfeeding. Indeed, in the past year, at least one court has expressly rejected an attempt by the EEOC to bring federal claims on this basis.
Workplace Solutions: Employers should be aware that accommodations for nursing mothers are subject not only to the FEHA, but to the Fair Labor Standards Act. Accordingly, employers should check their practices and policies to ensure that effective accommodations are made to treat nursing mothers in accordance with the law.
3. Elimination of the Fair Employment and Housing Commission: Effective January 1, 2013, the Fair Employment and Housing Commission is no more, the victim of an effort to streamline the Department and cut the costs of government. Assuming many of the FEHC’s functions is a new Fair Employment and Housing Council, located within the Department of Fair Employment and Housing (DFEH). The Council will consist of seven members appointed by the Governor and will have the power to issue regulations.
Why it matters to California Employers:
- The DFEH can now proceed directly to court, where it can seek all available remedies, including its costs and attorneys’ fees.
- Anticipating some DFEH victories, the Legislature has established a Fair Employment and Housing Enforcement and Litigation Fund in the State Treasury for purposes of depositing attorneys’ fees and costs, which the Legislature can use to help defray the costs of the DFEH.
- The cap on emotional distress damages that once applied to actions brought before the FEHC now no longer applies; the DFEH can seek unlimited damages in court.
Thus, while elimination of the FEHC might cut the costs of government, it promises only to create more costs for California employers who find themselves the subject of lawsuits brought by the DFEH.
If you would like to discuss strategies for effectively complying with the new laws, please contact a Seyfarth Shaw attorney.