California Ushers In Wave Of Sexual Harassment Laws In Wake Of #MeToo Movement

California Governor Jerry Brown recently signed a number of sexual harassment bills into law, which take effect January 1, 2019. Many of these laws were approved to address persistent sexual harassment issues in the workplace and elsewhere, as highlighted by the #MeToo movement. Below is an overview of the new sexual harassment laws, which affect employers and other businesses and professionals:

California Enacts New Transgender Employment Laws

California’s new transgender regulations took effect July 1, 2017. The new regulations expand on Fair Employment and Housing Act laws that prohibit employers from discriminating or harassing applicants and employees who identify as transgender regardless of the person’s sex assigned at birth. An employee’s right to appear and dress consistent with their gender is now protected. In addition, new regulations, set forth in California Code of Regulations, Title 2, sections 11030, 11031, and 11034, now protect gender identity and gender expression. These regulations specifically define the following:

  1. 1. Transgender. Transgender is now defined as a person whose gender identity differs from his/her sex assigned at birth.
  2. 2. Gender expression. Gender expression refers to a person’s gender related appearance or behavior. 
  3. 3. Gender identity. Gender identity is defined as a person’s internal understanding of his/her gender. It also includes the perception of a person’s gender identity.

Key changes to the FEHA include the following:

  1. 1. Transitioning

The new regulations briefly describe the notion of transitioning. Transitioning may include hormone therapy, surgical alterations, or undergoing other medical procedures related to gender. An employer cannot discriminate against an employee who is transitioning or who has transitioned. Employers are also not allowed to directly or indirectly ask employees whether or not they are transitioning.

  1. 2. Employee Names & Gender Requests

Employers are required to honor an employee’s request to be identified by a preferred gender, name, or pronoun. Employers are allowed to use an employee’s legal name or gender as indicated on an official government issued document to fulfill a legally mandated obligation.

  1. 3. Gender Information

Employers are prohibited from requesting proof of an applicant or employee’s sex, gender, or gender identity or expression. An employer can request for the information to be provided on a voluntary basis. An employee can also initiate conversation regarding their gender orientation without recourse to the employer. An employer can require an employee to state their gender to determine whether he/she meets a “bona fide occupational qualification.”

  1. 4. Facility Accessibility

Employers must ensure all employees, including transgendered, now have equal access to comparable, safe, and adequate facilities regardless of the employee’s sex. An employee now has a right to use a facility that corresponds to his/her gender identity or gender expression. Facilities include restrooms, locker rooms, and showering areas.

  1. 5. Signage

Gender-neutral signage is required for single-occupancy facilities under an employer’s control.

California employers should review their equal employment opportunity laws to make sure they are following the new regulations of the FEHA. Under the new rules, if an employee requests to be identified with a preferred gender, and an employer fails to honor such a request, the employee can file a lawsuit against the employer under the new regulations. An employee’s gender identity should be respected. Employers should train managers and supervisors on the new regulations to ensure that they follow them.

California Department of Fair Employment and Housing Releases New Workplace Harassment Guide For Employers

In May, the California Department of Fair Employment and Housing (DFEH) released a Workplace Harassment Guide. The new step-by-step guide, available here, provides employers with specific recommended practices to prevent harassment in the workplace, to respond employee complaints of harassment, and to conduct a fair investigation of the employee’s complaint. Prepared by DFEH’s California Sexual Harassment Task Force, this guide gives employers helpful, practical guidance and steps to comply with employers’ legal obligations to prevent and address workplace harassment.

Patterson v. Domino’s Pizza, LLC: Franchisor Not Liable As An “Employer” For Sexual Harassment By Franchisee Employee

by Sayema Hameed

Is a franchisor liable for the wrongful acts of a franchisee employee?  The short answer is, “It depends.”  The longer answer involves an analysis of whether the franchisor demonstrates the characteristics of an “employer” under California law.

In a recent case, Patterson v. Domino’s Pizza, LLC (Cal. Sup. Ct. Case No. S204543, filed August 28, 2014), the California Supreme Court held that a franchisor, Domino’s Pizza, LLC, did not satisfy the criteria to be deemed an “employer” and was, therefore, not vicariously liable for alleged sexual harassment by a franchisee employee (a male supervisor) against another franchisee employee (a female subordinate employee).

Specifically, the franchisor here was not involved in the day-to-day decisions involving hiring, supervision, and discipline of the employees, and nothing in the franchise agreement contractually required or allowed the franchisor to make or control such employment decisions.

California Governor Brown Signs SB 292 To Amend FEHA: Sexual Desire Not Necessary To Prove Sexual Harassment

by Sayema Hameed

On Monday, August 12, 2013, Governor Jerry Brown signed into law Senate Bill 292, which amends the Fair Employment and Housing Act (“FEHA”), Government Code Section 12940, to state as follows:

Sexually harassing conduct need not be motivated by sexual desire.

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Photo Credit: Pixabay

This amendment, authored by California Senate Majority Leader Ellen M. Corbett (D-East Bay), is aimed at protecting the rights of individuals who are sexually harassed in the workplace and was proposed in direct response to the Court of Appeal’s decision in Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.

Sanchez v. Swissport, Inc.: Pregnant Employee Who Was Fired After Exhausting Pregnancy Disability Leave Stated A Claim For FEHA Employment Discrimination

by Sayema Hameed

What happens when a pregnant employee who exhausts all of her vacation time and pregnancy disability leave cannot return to work because she is disabled by a high risk pregnancy?  In the case of Ana G. Fuentes Sanchez, she was fired by her employer, Swissport, Inc., due to her failure to return to work.

Ms. Fuentes Sanchez filed suit against Swissport, alleging pregnancy discrimination under California’s Fair Employment and Housing Act (“FEHA”), Government Code Section 12900 et seq.  The trial court concluded that she failed to state a claim under FEHA because her employer had given her the maximum leave allowed under the Pregnancy Disability Leave Law, Government Code Section 12945.  The Court of Appeal, however, reversed the trial court, concluding that the plaintiff sufficiently stated a cause of action under FEHA for employment discrimination.  Sanchez v. Swissport, Inc. (filed February 21, 2013, Second District, Div. Four, Case No. B237761).

California Supreme Court Rules On Mixed Motive Defense in FEHA Employment Discrimination Case: Harris v. City of Santa Monica

by Sayema Hameed

The California Supreme Court has issued an important decision on the use of the “mixed motive” defense in employment discrimination cases brought under California’s Fair Employment and Housing Act (“FEHA”), ruling that employers will not be liable for damages such as back pay in employment discrimination cases where the employee would have been fired for legitimate business reasons in the absence of the discrimination.

FEHA prohibits employment discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation.  In order to prove employment discrimination, a plaintiff must show that the unlawful discrimination was a “motivating factor” or reason for the employer’s adverse employment action (such as termination, demotion, etc.) against the employee.

Employers commonly assert the “mixed motive” defense to defeat employment discrimination claims.  Under the mixed motive defense, if the employer can prove that it would have made the same adverse employment decision based on a legitimate reason, standing alone, even if no discrimination was present, then the employer will not be liable under FEHA.

In Harris v. City of Santa Monica (Cal. Sup. Ct. Case No. S181004, filed February 7, 2013), the California Supreme Court was asked to determine whether FEHA allows the “mixed motive” defense.  The Supreme Court held as follows:

We hold that under the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement. In light of FEHA’s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices.  In addition, the plaintiff may be eligible for reasonable attorney’s fees and costs.

California Assembly Bill 1964 – Workplace Religious Freedom Act of 2012 – In Effect January 1, 2013

by Sayema Hameed

On January 1, 2013, California bill AB 1964, the “Workplace Religious Freedom Act of 2012,” went into effect.  AB 1964, signed into law by California Governor Jerry Grown, amends California’s Fair Employment and Housing Act (“FEHA”) to explicitly state that religious dress and grooming practices are covered by FEHA’s protections against religious discrimination.

California’s New Pregnancy Disability Leave (PDL) Regulations

by Sayema Hameed

California’s new Pregnancy Disability Leave regulations took effect on December 30, 2012. The new regulations, which can be found in Title 2 of the California Code of Regulations, Sections 7291.2 through 7291.18, were adopted to provide clarity and guidance to employers and employees regarding their respective rights and responsibilities concerning pregnancy, childbirth and related medical conditions under California’s Fair Employment and Housing Act, California Government Code Sections 12940-12951 (“FEHA”).

Does FEHA Support A Retaliation Claim By A Partner Against Her Partnership? The California Court of Appeal Says “Yes.”

by Sayema Hameed

The California Court of Appeal has issued a new decision holding that the California Fair Employment and Housing Act (“FEHA”), Government Code section 12900 et seq., supports a claim for retaliation by a partner against her partnership for opposing sexual harassment of an employee.  Fitzsimons v. California Emergency Physicians Medical Group (filed May 16, 2012, First District, Div. Three, Case No. A131604).