California Employers Must Note Expansive Anti-Discrimination Rules

This is the final article in a three-part series about California-specific workplace compliance issues. Part One focused on four leave-law idiosyncrasies and Part Two highlighted four wage and hour compliance challenges specific to California.

California's Fair Employment and Housing Act (FEHA) prohibits employment discrimination against workers on the basis of age (40 or older), race, color, national origin (including ancestry), sex (including pregnancy, childbirth or related medical conditions), physical and mental disability, military status and religion.

Federal laws—such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, and the Rehabilitation Act—also prohibit workplace discrimination and harassment based on these categories—but FEHA is more expansive. For example, FEHA prohibits discrimination based on sexual orientation, gender identity and expression, medical conditions (including those relating to cancer or to genetic characteristics), and marital status (including domestic partnership).

In addition, FEHA prohibits discrimination based on the perception that a person has any of these characteristics or that an individual is associated with someone who has or is perceived to have any such characteristics.

[SHRM members-only HR Q&A: What is the California Fair Employment and Housing Act and what does it cover?]

This expansive application of anti-discrimination and anti-harassment laws generates many lawsuits and claims of discrimination, harassment and retaliation in California.

Covered Employers

Smaller employers in California may think that FEHA doesn't apply to them, but they should think again. While most federal anti-discrimination laws apply to employers with 15 or more employees (20 employees in the case of age discrimination), FEHA covers every employer with five or more employees.

Moreover, FEHA's provisions that deal with harassment apply to businesses with even a single employee. Workplace discrimination refers to when an employer takes adverse employment action—such as denying an applicant a job or firing a current employee—based on a protected characteristic. Harassment refers to when an employee is mistreated in the workplace (e.g., called offensive names) because of a protected characteristic.

Employers outside of California beware: A federal court has found that FEHA applies regardless of whether the given threshold number of employees work in the state. This means that if an employer has some workers located in California and some in other states, the out-of-state employees may be counted toward the threshold that triggers compliance with FEHA.

Although employees who are not located in California count toward the threshold,  courts seem to agree that non-California residents who work outside of the state for a California-based business can't bring claims under FEHA.

Costly Lawsuits

Unlike federal statutes, which provide caps on compensatory and punitive damages based on employer size, FEHA has no limits on these types of damages.

FEHA allows a prevailing plaintiff the right to recover attorney's fees and costs incurred for claims brought based on the statute. FEHA also gives an employee one year from the date of the last alleged unlawful act to file a charge of discrimination with the applicable state administrative agency—which is longer than the limitations period under federal laws.  

It is important to remember that California's expansive laws prohibiting discrimination and harassment in employment are not limited to FEHA, as there are various other provisions under California law. For example, the California Labor Code prohibits discrimination on a number of public-policy grounds and prohibits employers from taking adverse action against an employee for lawful conduct occurring during nonworking hours and away from the workplace.

Mandatory Training

A California law (known as A.B. 1825) requires employers with 50 or more employees to provide two hours of sexual harassment training to all supervisory employees—along with ongoing sexual harassment prevention training every two years. New supervisory employees must receive sexual harassment training within six months of becoming a supervisor.

The 50-employee threshold includes employees, contractors or temporary employees who work every workday in any 20 consecutive weeks in the current or preceding calendar year. While employers are only required to train supervisors located in California, it makes good business sense to provide such training to anyone who supervises California employees.

To satisfy the legal requirements, the training must be conducted via "classroom or other effective interactive training" and include the following topics:

• Information and practical guidance about laws that prohibit and aim to prevent sexual harassment.
  
• Information about how to correct sexual harassment and the available legal remedies.
  
• Practical examples aimed at instructing supervisors how to prevent harassment, discrimination and retaliation.
  

Furthermore, as of Jan. 1, 2015, covered employers are required to include an anti-bullying component in their trainings.

What if an employer fails to provide the training? This could bolster sexual harassment claims premised on the notion that the employer failed to prevent the harassment.

The training is a good opportunity to remind supervisors of policies prohibiting discrimination, retaliation and other kinds of harassment and to highlight that supervisors may be held personally liable for harassment under California law.  

With the ever-changing landscape of California's employment laws and training requirements, employers should not hesitate to consult with counsel regarding their training curriculum and policy implementation and in making employment decisions that could impact a protected group of employees. The likelihood that employers are not thinking about all the potential areas of exposure is higher in California than in most other states.

Mishell Parreno Taylor and Deidra A. Nguyen are attorneys with Littler in San Diego.

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