Discrimination and Harassment

Seyfarth Synopsis: Dominating this spring’s planting of proposed employment-related legislation are bills aimed at ending sexual harassment and promoting gender equity. Among the secondary crops are bills regarding accommodation, leave, criminal history, and wage and hour law. It threatens to be another bitter fall harvest for California’s employer community.

California legislators stormed into the second

Seyfarth Synopsis: The California Legislature has introduced a new bipartisan bill, AB 1870, that would give all employees—not just those claiming sexual harassment—three years to file DFEH complaints of unlawful discrimination, instead of the one year provided by current law.

More time to report discrimination

With the #MeToo movement sweeping the nation, California legislators are

Seyfarth Synopsis: The natural inclination is to ignore attempts to dredge up claims of harassment that happened long ago. But no harassment claim is too old to investigate. Having strong anti-harassment policies and investigation procedures, along with a good work culture, can help employers avoid getting caught in the cross-fire of the “me-too” harassment dialogue.

By Shireen Husain, Kristina Launey, and Laura Maechtlen

In 2013, the Legislature made significant changes to California’s Fair Employment and Housing Act, including empowering the Department to file civil actions directly against employers, authorizing the award of attorneys’ fees to the Department, and creating the Fair Employment and Housing Council.

The Council has been feverishly proposing and enacting regulations pursuant to its new authority, including proposed amendments to the Fair Employment and Housing Act (FEHA) regulations.  If enacted, these amendments could mean substantial changes to your sexual harassment and discrimination policies and procedures.

What’s new?

Last Thursday, the Council met to consider amendments.  Currently before the Council is a proposed new section 11023, entitled Harassment and Discrimination Prevention and Correction, which would require employers to develop  written sexual harassment and discrimination policies that:

  • Specifically address the liability of supervisors
  • Create a “confidential” complaint process (although employers should not promise that the investigation will be completely confidential)
  • Provide for complaints through channels other than the complaining employee’s direct supervisor
  • Designate a company representative to receive complaints and facilitate internal resolution of disputes
  • Provide for fair, timely, and thorough investigations of complaints and provides due process to all parties
  • Are provided to all employees with an acknowledgment return form or using a method that ensures employees receive and understand the policies
  • Are provided in every language that is spoken by at least 10% of the workforce

In addition, the amendments include a 2 year record retention requirement for all sexual harassment training materials, including sign in sheets and course materials.  Training must include information regarding potential employer and individual liability in civil actions and highlight supervisors’ obligations to report sexual harassment, discrimination and retaliation.

Important Highlights

While many of the proposed amendments do not substantively change the law, the changes may be an indication of the focus of the Council in 2014 and a good reminder of employer best practices.  Don’t forget:
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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

Oh, L’Amour.  As Valentine’s Day approaches and the flowers and cookie bouquet deliveries start roaming the hallways, it is time for us to turn our sights on one of the most innocent-seeming, yet problematic, aspects of employment law:  the workplace romance. 

Despite the fact that quid pro quo harassment claims continue to decline in favor of the much more popular hostile work environment claim, we must recognize that some entirely consensual workplace relationships go bad.  And the result is a claim that “I only did that because I didn’t feel like I had a choice” or “I wouldn’t have dated her if she weren’t the boss.”  This type of situation is enough to turn any cupid into a devil. 

Work romance statistics:  With work hours longer, and more women than men entering the workplace, an estimated 60-75% of employees have entered into an office romance at one time or another.  Of those, 20% claimed to have been dating a boss or supervisor.  Many of us know someone who met his or her significant other at work.  However, despite the commonplace of workplace romance, it is shocking that almost 75% of employers have no policy on office romance at all.

So how do you keep those little flings from getting flung into the courtroom?  Contrary to what you might believe, a policy that prohibits all dating in the workplace is rarely appropriate, unless very specific conflict issues have arisen as a result of workplace relationships.  In fact, policies forbidding all dating have backfired on many employers, creating an environment where employees seem to enjoy breaking the policy because of the risk involved and lose respect for other management policies.  In addition, California employers must stay aware of the broadly worded provisions of the California Labor Code that forbid employers from discriminating against an employee or applicant for lawful off-premises conduct during nonworking hours. 

What about a “love contract”?  The idea of a “contract” may seem distasteful when it comes to romance.  After all, there is nothing romantic about sitting down with a human resources representative, copping to a relationship with a co-worker or supervisor, and committing the nature of that relationship to paper.  However, as an employer, failing to do this could lead to a sticky situation in the event the relationship fails and no one bothered to document it in its honeymoon phase.

What is a love contract?  A love contract is essentially an agreement between two consenting adults to clarify that the relationship itself is, in fact, voluntary and legitimate and not the product of a subordinate being forced into something untoward because of the imbalance of power between him or her and his or her supervisor. 

It is intended to capture the intentions when the relationship is working—so that when it isn’t—a party will have a significantly harder time demonstrating this was part of a sexually predatory scheme on the part of a randy colleague.  Both parties acknowledge up front that’s not the case.  At this time, there hasn’t been a case where the validity or coercive nature of a love contract has really been challenged, but regardless of the result, this type of agreement will serve as a powerful evidentiary tool and, at the outset, a reminder to the employees that they need to behave appropriately in the workplace.

When to use a love contract:  To decide whether a love contract is appropriate, review the following factors:
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Both federal and California law have long forbidden religious discrimination in employment, while also requiring employers to grant reasonable accommodations for religious observances.  A common accommodation is to modify a policy to enable an employee to engage in a particular religious observance (such as not working on the Sabbath).  California has now set itself apart with the recent amendments to the FEHA

Federal Law:  Since 1977 the federal law has recognized that employers need not provide accommodations that would impose more than a minimal burden on the employer’s operations.  And federal cases have also allowed employers, in enforcing personal-appearance codes, to accommodate certain grooming or dress practices by having the employee work in a designated area of the workplace.

California Peculiarities:  The FEHA amendments essentially codify cases holding that employers must reasonably accommodate religious dress and grooming practices.  But the Legislature has now made California quite distinct from federal law in two fundamental respects: 

  1. It is now clear, if it was not before, that California law, unlike federal law, requires employers to show a truly significant “undue hardship” to avoid providing a reasonable accommodation.
  2. California now categorically disallows, as a form reasonable accommodation, the practice of having the employee work in a designated part of the workplace to avoid, for example, contact with customers.

Workplace Solutions:  From a practical perspective, the new FEHA amendments will cause employers to review their policies and procedures relating to dress and grooming codes to ensure that they comply with California’s new, stricter provisions. The employer’s use of the interactive process in addressing disability accommodations could serve as a good model in addressing issues of religious accommodations, especially now that the undue hardship analysis in both kinds of cases will be essentially the same.

Another Perspective:  Our guest author, Alan J. Reinach, Esq., Executive Director of the Church State Council, was instrumental in lobbying for these new amendments to FEHA.  His legal practice emphasizes First Amendment religious freedom cases, and religious accommodation cases under Title VII of the Civil Rights Act of 1964 and related state civil rights laws.  While his views do not necessarily reflect those of the authors or Seyfarth Shaw LLP, Mr. Reinach offers a thoughtful perspective worthy of careful consideration.   

California Dresses Up Religious Accommodation Law

By:  Alan J. Reinach, Esq.

On September 8, 2011, Governor Jerry Brown signed AB 1964 into law before a crowd of several hundred Sikh-Americans who had gathered to remember those slain at a Wisconsin temple earlier that summer.  He spoke passionately about how California is a state of immigrants representing hundreds of nations, languages, and religions.  His grandfather drove a wagon train in gold country, and only spoke German.
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