On April 1, 2016, the Fair Employment and Housing Council (FEHC) issued new regulations imposing added requirements on most employers and inevitably created new opportunities for violations. In addition, over the last few months, our employment attorneys also noticed interesting trends in these primary employment law areas.
In general, the following are what we consider the most employee-friendly, updated regulations. First, the Fair Employment and Housing Act (FEHA) expanded its reach by redefining what employers are covered. Second, employers must follow new requirements in the development, distribution and training of anti-discrimination and anti-harassment policies. Third, and what seems most revolutionary, is the new regulation that permits California’s Department of Fair Employment and Housing (DFEH) to receive non-monetary preventive remedies when employers neglect to stem out discrimination or harassment in the workplace even when there is no actual evidence of said discrimination or harassment.
Pregnancy Disability Leave Update
One of the most active areas for the DFEH is the promulgation of new policies and requirements pertaining to FEHA’s Pregnancy Disability Leave (PDL). Effective April 1, employees must either receive the updated notice titled, “Your Rights and Obligations as a Pregnant Employee” (See dfeh.ca.gov) in an updated employee handbook or as part of an annual notice. Also, keeping with the theme of expansion, the amendments broaden the definition of “eligible female employee” to include transgender individuals. Moreover, pregnancy-related harassment now comprises unlawful employer actions related to pregnancy-related medical conditions, childbirth and breastfeeding.
Even though these laws and subsequent lawsuits frequently make headlines, employers are nonetheless thoughtless in how they treat employees protected by PDL, Family Medical Leave Act (FMLA), or the California Family Rights Act (CFRA). PDL works in conjunction with the CFRA to protect the employee against discrimination, harassment and retaliation, as well as provide him or her with leave rights. Although the CFRA provides a new mother with the right to leave after childbirth, it provides no protection pre-birth – unlike the FMLA. Further, if a California employee suffers a disabling condition related to pregnancy prior to giving birth, she would have the option of seeking protected leave under the FMLA or FEHA. Please note that both the FMLA and CFRA have strict eligibility requirements. Moreover, FEHA provides protection for pregnancy-related disabilities allowing employees who have conditions related to pregnancy or childbirth to take up to four months of protected paid PDL.
Anti-Harassment and Anti-Discrimination Update
Similar to established pregnancy leave regulations, the new anti-harassment and anti-discrimination amendments require employers to distribute specific policies in writing that list the categories of individuals protected under FEHA. Further, employers must ensure that even co-workers, third parties, clients, or supervisors refrain from discrimination, harassment or retaliation. There is also a requirement to establish a formal confidential complaint system for employees and a methodical direction for supervisors to report complaints of misconduct to a designated company representative. Finally, the regulations require employers whose workforce has greater than 10 percent non-native English speaking employees to issue these policies in that foreign language.
Historically, when bringing an employment discrimination claim, the employee was required to prove that an employer’s discrimination was intentional. Today, however, a “disparate-impact” case requires no proof of intent. Instead, under FEHA, an employee must only show that a facially neutral employment practice had a disproportionately adverse impact on a protected group. Both Congress and the courts have recognized that while “some employment practices may be adopted without a deliberately discriminatory motive, they may be functionally equivalent to intentional discrimination.” See Pippin v. Burlington Res. Oil & Gas Co.
There are two California state agencies established to adjudicate instances of discrimination in the workplace – the DFEH and FEHC. In these forums, an employee who prevails is able to recover back pay, or out-of-pocket losses and up to $150,000 in combined emotional distress damages per respondent. However, if an employee brings his or her case in civil court, a successful outcome may result in unlimited monetary and emotional distress damages.
California’s courts are continually churning new cases interpreting the varied collection of pregnancy leave-related matters as well as discrimination, harassment and retaliation in the workplace. Human nature will inevitably engender bias and prejudices in the workplace resulting in unequal and thus, unlawful treatment. This domino effect will unequivocally lead to more protections by state agencies and accordingly, increase litigation. Stephen Danz