2013 FEHA Update Series: Pregnancy and Disability Regulations

Phyllis W. Cheng is the Director of the California Department of Fair Employment and Housing.

A 2012 state budget trailer bill revolutionized California’s Fair Employment and Housing Act (FEHA), the state’s preeminent civil rights law.  As of January 1, 2013, in addition to saving the state $784,000 annually, the measure further:  

  • Eliminated the former Fair Employment and Housing Commission (FEHC), which previously conducted administrative hearings and rulemaking. 
  • Ended administrative adjudication and authorized the Department of Fair Employment and Housing (DFEH or Department), the state’s enforcement agency, to file cases directly in court.   Prior to the DFEH filing a civil action, all parties must undergo free mandatory dispute resolution in its internal Dispute Resolution Division.  
  • Authorized courts, upon the Department prevailing, to award the DFEH reasonable attorney’s fees and costs to be deposited into a special fund.   
  • Created within the DFEH the Fair Employment and Housing Council (Council) to conduct rulemaking.  Council membership is comprised of seven volunteer members appointed by the Governor and confirmed by the Senate, as well as the DFEH Director as an ex officio member.   

The DFEH has swiftly moved forward on all these changes. 

Expediting Investigations: Under its new HoudiniESQ cloud-based case management system, the Department expedited complaint investigations from 11 to nine months to ensure sufficient time for mandatory dispute resolution required by the new amendments. 

Expanding Dispute Resolution Services: The DFEH expanded its former Mediation Division to a Dispute Resolution Division.  Seven experienced attorney mediators in Northern and Southern California offices now provide both voluntary and mandatory dispute resolution services.  In addition, a non-attorney mediator provides voluntary mediation services for small housing cases.  In prior years, the DFEH mediators’ successful settlement rate has been 82 percent.

Filing Civil Actions: The Department is now filing civil actions in Superior Court on investigated cases with merit findings that were not successfully resolved through dispute resolution.  No damages caps are available in civil actions.  The DFEH can be awarded reasonable attorneys’ fees and costs, including witness fees, upon prevailing.  The Department pegs its attorney hourly rate to that of the California Office of the Attorney General.


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We all know that agency regulations can be informative guidance but, by their nature, extremely detailed and—let’s face it—dry as toast.  The new disability regulations, which went into effect on December 30, 2012, are no exception.  

The regulations seek to “clarify” statutory definitions and employers’ obligations to an employee with an actual or perceived disability.  However, these “clarifications” expand employers burdens under California law.

Expanded Definition Of “Disability” Including: 

  •     post-traumatic stress disorder
  •     autism spectrum
  •     palsy
  •     heart disease
  •     multiple sclerosis
  •     seizure disorder
  •     clinical depression
  •     obsessive compulsive disorder
  •     schizophrenia
  •     bipolar disorder 

Before the regulationsWhether these conditions met the definition of “disability” under California law was subject to debate, as many other conditions. 

After the regulations:  Not much to debate.  The new regulations specifically say that the analysis as to whether a condition is a disability should not be extensive, regardless if it is a condition explicitly recognized by regulations as such. 

Expanded Definition of “Major Life Activities”:  The definition of “major life activities” now includes sleeping, thinking, and interacting with others (which implies that social disorders will now also be considered disabilities).

How To Determine When Functions Are Essential?  The regulations provide additional guidance as to when a job function is essential.  Updated and accurate job descriptions are crucial and are now actually required by the regulations.  Performance evaluations will also assist in determining whether a function is essential.   

The Growing List Of Reasonable Accommodations:  Similar to the new pregnancy disability regulations that we discussed here and here, the disability regulations include a broader list of reasonable accommodations.  


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Continuing in this series on new California regs, this post calls out three additional areas where the pregnancy disability regulations have changed as of January 1, 2013.  Last time, we talked about expanded definitions, time periods for leave, and required notices.  This time, we are talking reinstatement, interplay with other leaves and reasonable accommodation.  For

After almost two years of public comment and editing, the California Office of Administrative Law finally settled on a crop of regulations that substantially alter the way Pregnancy Disability Leaves (PDL) are administered in California.  The regulations (effective December 30, 2012) have created additional burdens for employers that many may find onerous:    

Expanded Definition