The California Fair Employment and Housing Council has recently amended the regulations to the California Fair Employment and Housing Act, which take effect on April 1, 2016.  These amendments provide basic provisions to a mandatory anti-harassment policy, and clarify some of the protected categories in the Act.  The following are a few highlights of these amendments.

The Regulations Mandate an Anti-Harassment Policy

Although many California employers already have an internal anti-harassment policy in their employee handbooks, the amendments to the regulations now make it mandatory, and require the inclusion of certain elements in the policy.  With these amendments, starting April 1st, every California employer must have a written harassment, discrimination, retaliation and prevention policy in the workplace.  The policy must be translated into every language that is spoken by at least 10% of the workforce, and it must be distributed in a method that ensures that the employees receive and understand the policy.  This may include providing a hard copy, sending a copy via electronic mail with an acknowledgment form for the employees to sign and return, posting the policy on the internet with a system to ensure all employees have read and acknowledged receipt of the policy, and/or discussing the policy upon hire and/or during new hire orientation.  Employers are also required to distribute the Department of Fair Employment and Housing’s Brochure 185 on Sexual Harassment.

To meet the requirements of the amended regulations, the policy must include the following:

• List the categories of individuals protected under the Act, which currently are as follows:
  –     Age (40 and over)
  –     Ancestry
  –     Color
  –     Religion (including religious dress and grooming practices)
  –     Denial of family and medical care leave
  –     Physical or mental disability (including HIV and AIDS)
  –     Marital status
  –     Medical conditions (meaning cancerous/related health impairments and genetic characteristics)
  –     Genetic information
  –     Military and veteran status
  –     National origin (including language use restrictions and possession of driver’s license obtainable by undocumented persons)
  –     Race
  –     Sex (including pregnancy, childbirth, breastfeeding and related medical conditions)
  –     Gender, gender identity, gender expression and sexual orientation

• Indicate that the law prohibits managers, supervisors, co-workers and third parties from engaging in conduct prohibited by the Act
• Create a complaint process to ensure confidentiality, a timely response, impartial and timely investigations by qualified personnel, documentation and tracking for reasonable progress, appropriate options for remedial actions and resolutions, and timely closures
• Provide a complaint mechanism that does not require the employee to complain directly to his or her supervisor
• Instruct supervisors to report complaints to a designated company representative
• If the employer has 50 or more employees, to include this as a topic in mandated sexual harassment prevention training
• Indicate that if the employer receives an allegation of misconduct, it will conduct a fair, timely and thorough investigation
• Provide all parties appropriate due process, and reasonable conclusions based on the evidence collected
• A statement that confidentiality will be kept by the employer to the extent possible, but to also indicate that the investigation will be completely confidential
• A statement that if misconduct is found, appropriate remedial measures shall be taken
• A provision that makes clear to employees that they shall not be exposed to retaliation as a result of lodging complaints or participating in a workplace investigation.

Employers should review and update their policies to reflect the new regulations.  The new regulations also provide that an employer may still be liable for sexual harassment even if the conduct was not motivated by sexual desire.

New Requirements for Mandatory Sexual Harassment Training for Supervisors

Prior to the amendments, the legislature already passed mandatory sexual harassment training for employers with 50 or more employees.  The amendments to the regulations impose new requirements with respect to this mandatory training.

Most significantly, the regulations now require training regarding “abusive conduct.”  The elements of the training require the following topics to be covered:

• A discussion regarding the definition and specific elements of “abusive conduct”
• Defining “abusive conduct” as “conduct of an employer or an employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests”
• Emphasize that a single act shall not constitute abusive conduct unless the act is especially severe or egregious
• Cover the negative effects of abusive conduct on the victim, others in the workplace and the employer, for example, reduced productivity and morale
• Address in a meaningful way the prevention of abusive conduct

Examples of abusive conduct may include verbal abuse, or undermining a person’s work performance.  Employers must retain its training records for a minimum of two years and keep a complete set of the training materials, a list of attendees, the training provider, the date of the training, the sign-in sheet and copies of all certificates of attendance.

Definitions for Sex-Based Discrimination and Sexual Harassment

The regulations have also been amended to prohibit discrimination on the basis of “gender identity” and “gender expression.”  The new regulations define “gender expression” as a person’s gender-related appearance or behavior, regardless of any stereotypical perceptions associated with the person’s sex at birth.  In addition, “gender identity” is defined as a person’s identification as either male or female, regardless from and person’s sex at birth.  “Transgender” is defined as a person whose gender identity is different from the person’s sex at birth.

Revisions Regarding Pregnancy Discrimination and Pregnancy Disability Leave

The regulations related to pregnancy disability leave have also been amended with respect to the provision addressing when a woman is disabled by pregnancy, and defining who is an eligible female employee.  This has been made applicable to pregnant transgender individuals.  The regulations also clarify that a pregnancy disability leave does not need to be taken in one continuous period of time, but employees are eligible for up to four months of leave per pregnancy, not per year.

The regulations require employers to distribute and post a notice regarding the rights and obligations of pregnant employees.

Revisions Regarding Religious Creed Discrimination

The amendments to the regulations expand the definition of “religious creed” to include all aspects of religious belief, observance, and practice, including religious dress and grooming practices as defined by the Fair Employment and Housing Act.

In addition, the regulations also state that refusing to hire an applicant or terminating an employee to avoid accommodating a religious practice constitutes religious creed discrimination.  The regulations further clarify that unless the employee asks, accommodating an employee due to religion is not reasonable if it requires the employer to segregate the employee from customers or the general public.  It also makes unlawful for an employer to discriminate or retaliate against one who requests a reasonable accommodation for religion, irrespective of whether or not the request is granted.  This obligation to accommodate for religious observances, dress and grooming are extended to apply to apprentices and unpaid interns.

Amendments to Regulations Regarding Support Animals and Disability Discrimination

At the outset, the amended regulations provide that it is unlawful to discriminate or retaliate against a person for requesting reasonable accommodation based on a mental or physical disability.  The amendments also clarify that whether a “support animal” constitutes a reasonable accommodation shall, as in other contexts, be determined by “an individualized analysis reached through the interactive process.”  A “support animal” is defined as “…one that provides emotional, cognitive, or other similar support to a person with a disability, including but not limited to, traumatic brain injuries, or mental disabilities such as major depression.”  In addition, the new regulations no longer require that the support animal be trained to provide assistance for the employee’s disability.

Amendments Regarding Unpaid Interns and Volunteers

An unpaid intern and volunteer has been defined as an individual, usually a student or trainee, who works without pay in an unpaid internship or other limited duration program to provide unpaid work experience, or as a volunteer.  Under the amendments, it is unlawful for employers to discriminate in the selection, termination, training or other terms and treatment of interns.  It is also unlawful to harass unpaid interns, volunteers and persons providing services pursuant to a contract.

Discrimination Based on Undocumented Persons’ Driver’s Licenses is Prohibited

The regulations were also amended to comply with recent legislation that prohibits discrimination against applicants or employees who hold a driver’s license that can be issued to undocumented persons who are unable to submit proof that their presence in the United States is authorized under federal law.

Take-Aways

These amendments should prompt employers to review and revise their policies and to distribute them as soon as possible.

1. INTRODUCTION

California employers with five or more employees must comply with the California Fair Employment and Housing Act which prohibits discrimination on a multitude of protected categories such as race, sex, gender, religion, age, national origin and disability. This article focuses on disability discrimination, and when an employer is required to accommodate a qualified individual with a disability.

The California Fair Employment and Housing Act (FEHA) (Government Code Section 12900 et seq.) prohibits employment discrimination on the basis of physical disability, mental disability and medical conditions. The purpose of FEHA is to provide remedies to eliminate any type of discrimination on this basis. Although there is a federal statute that prohibits discrimination, known as the Americans With Disabilities Act, California’s version gives broader protection to employees.

For example, FEHA applies to employers with five or more employees while the Americans With Disabilities Act applies to employers with 15 or more employees (42 USC Section 12112(a); Government Code Section 12926(d)).

1. WHAT DISABILITIES ARE COVERED?

A person with a disability may be considered a qualified individual if the disability limits a major life activity. Government Code Section 12926.1(c), (d)(2). The protections of FEHA are very broad and one could qualify as a protected individual even based on the employer’s perception that the employee is disabled and thus, the Act would cover an employee who is “erroneously or mistakenly believed” to have or have had a physical or mental condition that limits a major life activity. Government Code Section 12926.1(d)(3); 2 California Code of Regulations Section 11065(d)(5), (6). The question arises as to what types of disabilities would constitute a physical disability, mental disability or medical condition. Under the Act, a medical condition can mean cancer, genetic characteristics, physiological and anatomical conditions and conditions that would limit an individual’s ability to participate in major life activities. Government Code Section 12926(m)(1); 2 California Code of Regulations Section 11065(d)(2)(A), (B). The following are examples of “physical disabilities”:

Chronic or episodic conditions such as HIV/AIDS;

Hepatitis;

Epilepsy;

Seizure disorder;

Diabetes;

Multiple sclerosis; and

Heart disease.

(Government Code Section 12926.1(c); 2 California Code of Regulations Section 11065(d)(2)(C).

This is not an exclusive list and the Courts have found other impairments to constitute “physical disabilities” under the particular facts of the case. As such, each situation must be analyzed on a case-by-case basis. In practical effect, California employers may not ask the employee for a diagnosis to determine whether or not the employee is disabled within the meaning of the Fair Employment and Housing Act because this would invade the employee’s constitutional rights of privacy. The employer, however, may ask the employee for information regarding the employee’s functional limitations.

In addition to having a physiological condition or impairment, an individual is not a qualified individual with a disability unless the condition “limits a major life activity.” This means that the limitation makes the achievement of a major life activity difficult. Government Code Section 12926(m)(1)(B)(ii); 2 California Code of Regulations Section 11065(l)(3). The key issue is that the employee’s impairment “limits” a major life activity when compared to a “normal” or “average” person that does not have the impairment. In addition to the above, the Fair Employment and Housing Act also defines “a physical disability” to also cover individuals that have a record or a history of physical disability or the employer regards the employee with having a physical disability. Government Code Section 12926(m)(4).

III.       MENTAL DISABILITIES

In addition to physical disabilities, FEHA also protects individuals with “mental disabilities.” This term includes any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities. As with physical disabilities, the mental disability must limit a major life activity. Government Code Section 12926(j)(1).

The regulations to the Fair Employment and Housing Act identify the following as mental disabilities:

Emotional or mental illness;

Intellectual or cognitive disability;

Organic brain syndrome;

Specific learning disabilities;

Autism spectrum disorders;

Schizophrenia;

Chronic or episodic conditions such as post-traumatic stress disorder and obsessive compulsive disorder.

2 California Code of Regulations Section 11065(d)(1). As with physical disabilities, FEHA also extends “mental disability” to individuals that have a record or history of a condition that is known to the employer and being regarded as having a mental disability. Government Code Section 12926(j)(3), (5); 2 California Code of Regulations Section 11065(d), (5), (6). Conditions excluded from the definition of disability are “mild” conditions that do not limit a major life activity and this is determined and analyzed on a case-by-case basis. For example, these are conditions with little or no residual effect such as common colds, minor cuts, bruises, abrasions, non-migraine headaches and minor and nonchronic gastrointestinal disorders. 2 California Code of Regulations Section 11065(d)(9)(B). Of particular note, although sexual behavior identity disorders are not disabilities under FEHA, the California employer must allow transsexual and transvestite employees to appear or dress in a manner consistent with their chosen gender identity, whether or not it is their gender identity of birth. Government Code Section 12949.

1. ACCOMMODATING EMPLOYEES WITH DISABILITIES

Once an employee is a qualified individual with a disability and is unable to perform the essential functions of the position, the Act requires the employer to make good faith reasonable efforts to accommodate the employee in order to afford the employee the opportunity to perform the essential functions of the job. This obligation requires employers to reasonably accommodate for the known disabilities unless doing so would produce an undue hardship to the employer’s operations. Government Code Section 12940(m); 2 California Code of Regulations Section 11068. Under this requirement, employers have an affirmative duty to accommodate employees. The issue that always presents itself is how the employer is to have notice that there is a need for an accommodation.

The most obvious is through the employee’s direct supervisor. If the supervisor has knowledge of the employee’s disability, the employer would have an affirmative duty to make reasonable accommodations for the disability. This obligation exists even if the employee did not ask for an accommodation. 2 California Code of Regulations Section 11068(a). This obligation to reasonably accommodate an employee exists even when the employer regards the employee as disabled when in fact the employee is not actually disabled.

1. TYPES OF ACCOMMODATIONS

Once it is determined that an individual is a qualified individual under the Act and is unable to perform the essential functions of the job, the employer has an obligation to accommodate the employee through a variety of accommodations. Selecting the right accommodation is determined on a case-by-case basis depending on the employee’s functional limitations. The Act and its promulgated regulations provide a nonexhaustive list of possible accommodations as follows:

Making facilities rarely accessible to and usable by disabled individuals;

Job restructuring;

Offering part-time or modified work schedules;

Reassigning to a vacant position;

Acquiring or modifying equipment or devices;

Adjusting or modifying examinations, training materials or policies;

Providing qualified readers or interpreters;

Allowing assistive animals on the work site;

Altering when and/or how an essential function is performed;

Modifying supervisory methods;

Providing additional training;

Permitting an employee to work from home;

Providing paid or unpaid leave for treatment or recovery;

Other similar accommodations for individuals with disabilities.

Government Code Section 12926(p); 2 California Code of Regulations Section 11065(p)(2).

1. ASSISTIVE ANIMALS AS AN ACCOMMODATION

Recently, an issue that has surfaced is whether or not employees have the right under the Act to bring assistive animals to work as a form of an accommodation. The regulations to the Act provide for assistance animals in the work place as a reasonable accommodation. 2 California Code of Regulations Section 11065(p)(2)(B). Assistive animals include guide or signal or service dogs or support dogs or animals that provide emotional or other support to the disabled person including those suffering from traumatic brain injuries and mental disabilities such as major depression. 2 California Code of Regulations Section 11065(a)(1).

In order to allow employees to bring assistive animals to the work place as a form of a reasonable accommodation, the employer may require the employee to produce a letter from a health care provider indicating that the employee has a disability and to explain why the assistive animal is needed in the work place. In addition, the employer may require the employee to provide confirmation that the animal is free from offensive odors and displays habits appropriate to the work environment, does not engage in behavior that endangers the health and safety of the disabled individual or others in the work place and is trained to provide assistance for the employee’s disability. 2 California Code of Regulations Sections 11065(a)(2), 11069(e).

VII.     LEAVES OF ABSENCES AS AN ACCOMMODATION

Another difficult form of an accommodation to process is granting an employee a paid or unpaid leave of absence for purposes of treatment and/or recovery. Generally speaking, a finite leave of absence may be considered a reasonable accommodation if, after the exhaustion of the leave, the employee can resume his or her duties. 2 California Code of Regulations Section 11065(c). On the other hand, it is not reasonable to require the employer to hold the position indefinitely for the employee’s medication to be corrected or allowing the employee to fully recover. However, there is no minimum under the leave as to the fixed duration of the leave of absence. As such, employers are cautioned to analyze any request for a leave on a case-by-case basis to determine whether or not the requested duration would impose undue hardship to the employer’s operations. By contrast, even though granting a short term leave of absence may be a form of a reasonable accommodation, if the employee can work with a reasonable accommodation other than a leave of absence, the employer may not require that the employee take a leave of absence. 2 California Code of Regulations Section 11068(c).

VIII.    REASSIGNMENT AS AN ACCOMMODATION

Reassignment to a vacant position may also be a reasonable accommodation even if the position pays less than what the employee is currently earning if the employee can no longer perform the current job duties. Government Code Section 12926(p); 2 California Code of Regulations Section 11065(p)(2)(N). On the other hand, the employer is not mandated under the Act to promote or to create a new position to accommodate a disabled employee. 2 California Code of Regulations Section 11068(d)(4).

1. THE GOOD FAITH INTERACTIVE PROCESS

As part of the accommodation requirements, the employer is required to engage in a “timely, good faith interactive process” in responding to a request for a reasonable accommodation by an employee with a known physical or mental disability or known medical condition. Government Code Section 12940(n); 2 California Code of Regulations Section 11069(a). Under the FEHA regulations, the employer must initiate this process if the employee with a known physical or mental condition asks for reasonable accommodation, the employer becomes aware of the need for the accommodation, the employer becomes aware of the possible need for accommodation because the employee has exhausted their leave of absence under law or under the employer’s leave policy and the employee or employee’s health care provider states that a further accommodation is necessary for recuperation or to allow the employee to perform the essential job functions.

The employee also has obligations in participating in this accommodation process. The employee is responsible to initiate the process by asking for reasonable accommodation. The employee must cooperate in good faith with the employer by providing medical documentation when the disability or need for accommodation is not obvious. 2 California Code of Regulations Section 11069. This interactive process contemplates that both parties, the employer and employee, will talk directly with each other to exchange information about what is necessary to accommodate the employee. However, even though direct communication is the preferred method, it is not absolutely required. 2 California Code of Regulations Section 11069(d)(4). As part of the accommodation process, the employer is required to give consideration to the employee’s preference.

1. CONCLUSION

The California Fair Employment and Housing Act has evolved to require employers to take proactive steps in identifying and initiating the good faith interactive profess. Failure to do so may result in a violation of the Act.