March 18, 2016

The California Department of Fair Housing and Employment has released amendments to existing regulations that will take effect April 1. The changes touch on many workplace issues, including sexual harassment, discrimination of various types, liability for harassment, pregnancy disability leave, and contractor compliance with discrimination regulations. While the amendments generally formalize existing laws, regulations, and court decisions, employers will want to take note to ensure compliance with the new regulations.

The regulations incorporate the following bills and court cases, among other changes:

AB 1825 (2004, Reyes) requires all employers with more than 50 employees to provide two hours of training and education to all supervisory employees every two years.

AB 887 (2011, Atkins) defines gender to include gender identity and gender expression, and includes these terms in existing laws that require equal rights and opportunities regardless of gender and prohibit discrimination.

AB 1964 (2012, Yamada) includes religious dress or grooming practices as a belief or observance covered by protections against religious discrimination, and specifies that an accommodation that requires that person to be segregated from the public or other employees is not a reasonable accommodation.

SB 292 (2013, Corbett) specifies that sexually harassing conduct need not be motivated by sexual desire in order to be unlawful.

AB 1443 (2014, Skinner) provides that discrimination in the process of selecting, terminating, training, or other treatment, including harassment, of an unpaid intern or other unpaid worker is an unlawful employment practice.

AB 1660 (2014, Alejo) makes it a FEHA violation for an employer to discriminate against an individual because he or she holds or presents a driver’s license for undocumented persons.

AB 987 (2015, Levine) prohibits an employer from retaliating or discriminating against a person for requesting accommodation of his or her disability or religious beliefs, regardless of whether or not the accommodation request was granted.

Harris v. City of Santa Monica, a case in which the California Supreme Court found that employers are “entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision” in cases of mixed-motive terminations, and that “if the employer proves by a preponderance of the evidence that it would have made the same decision for lawful reasons, then the plaintiff cannot be awarded damages, backpay, or an order or reinstatement.”

EEOC v. Abercrombie & Fitch Stores, a case in which the United States Supreme Court found that “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” and that “failure-to-accommodate challenges can be brought as disparate-treatment claims.”

Pregnancy Disability Leave, or PDL, regulations were amended fairly recently, but this new round of amendments makes additional changes. A simplified PDL notification must be posted and include certain specific information; the new regulations also contain requirements for where the information must be located and how it is translated. Additionally, the regulations clarify that PDL does not need to be taken in one block of time, and that the four months of PDL is per pregnancy.

Counties should review the amended regulations to be sure they are in compliance.