Articles Discussing Sex Discrimination Claims In California.

By: New Pay Equity Reporting Requirements In California Are Due Soon

In September of last year, Governor Newsom signed SB 973, California’s first statutory employee data reporting requirement. SB 973 became codified as section 12999 of the California Government Code.  The bill was authored by Senator Hannah-Beth Jackson, who also authored

If passed, California Senate Bill 937: Lactation Accommodation, will require employers to provide a lactation room, or location, in close proximity to the employee’s work space, and it must include prescribed features such as access to a sink and refrigerator. SB 937 also would deem denial of reasonable break time or adequate space to express milk a failure to provide a rest period in accordance with state law.

Employers subject to California’s mandatory sexual harassment training requirement for supervisors will need to ensure their programs include prevention of harassment against transgender and gender nonconforming individuals following an amendment (SB 396) to California’s Fair Employment and Housing Act (FEHA).

With amendments to the California Fair Pay Act (“CFPA”) in effect for less than six months, the state legislature has introduced three new bills to further expand the state’s equal pay laws.

As we recently blogged, the California Fair Pay Act (CFPA), barely a year old, was expanded to prohibit pay differences based on race or ethnicity between employees performing substantially similar work. Effective January 2017, California employers are prohibited from paying differently employees who are performing substantially similar work, based on gender, race, or ethnicity.

In California, all business establishments, places of public accommodation, or government agencies with single-occupancy restrooms are now required to identify such toilet facilities as all-gender restrooms. In September 2016, California state governor Jerry Brown signed into law Assembly Bill 1732 (now codified as California Health and Safety Code section 118600), effective March 1, 2017.

On September 29, 2016, California Governor Jerry Brown signed AB 1732, which will require single-user restrooms in California business establishments, government buildings, and places of public accommodation, to be universally accessible to all genders, and identified by signage as all gender.

The California Department of Fair Employment and Housing (“DFEH”) recently issued guidelines on transgender employee rights, addressing what types of questions employers may ask transgender employees and applicants. The guidelines also address how employers can implement dress code and grooming standards, and make suggestions for maintaining employee restrooms.

Navigating the California laws on discrimination and accommodation of pregnant employees is a significant challenge for retail employers. The Golden State’s protections for pregnant employees are many and they differ from those of federal law and of other states.

The plaintiff must prove her pregnancy was a “substantial motivating reason” for her termination, not merely a “motivating reason,” the California Court of Appeal has ruled, reversing a jury verdict in favor of the employee in a pregnancy discrimination case under the California Fair Employment Housing and Employment Act (FEHA). Alamo v. Practice Management Information Corp., No. B230909 (Cal. Ct. App. Sept. 5, 2013). In addition, the Court held the employer was not entitled to an instruction that it would have taken the same employment action regardless of the employee’s pregnancy, the “mixed motive” defense, because it failed to plead that defense in its answer.

An employee who was disabled as a result of her pregnancy and had exhausted all leave under California Pregnancy Disability Leave Law (“PDLL”) and the California Family Rights Act (“CFRA”) was entitled to additional leave as a reasonable accommodation under the California Fair Employment and Housing Act (“FEHA”), the California Court of Appeal has ruled in a case of first impression. Sanchez v. Swissport, Inc., No. B237761 (Cal. Ct. App. Feb. 21, 2013).

The interplay among state and federal employment leave requirements can be confusing and often becomes a trap for the unwary, as occurred in the recent case of Sanchez v. Swissport, Inc., No. B237761 (Cal. Ct. App. Feb. 21, 2013).

In regulations that became effective December 30, 2012, California employers received additional guidance on how to handle leaves of absence for employees disabled by pregnancy, childbirth, or a related medical condition. This guidance comes in the form of amended pregnancy disability leave (PDL) regulations applicable to all California employers that employ five or more employees. According to the newly formed Fair Employment and Housing Council, these amended regulations are necessary to, among other things:

Amendments to California’s pregnancy anti-discrimination regulations will extend coverage to “perceived pregnancy,” defined as “being regarded or treated by an employer or other covered entity as being pregnant or having a related medical condition.” With no additional guidance as to who is included in this protected class (which may include those who are not pregnant, but, because of a perception that they are, suffer adverse employment actions), it remains to be seen how the Department of Fair Employment and Housing Fair Employment and Housing Commission or California courts will interpret this term.

On February 7, 2012, in a 2-1 decision a three-judge panel of the United States Court of Appeals for the Ninth Circuit ruled in Perry v. Brown that Proposition 8, a voter initiative that amended the California Constitution to provide, “Only marriage between a man and a woman is valid or recognized in California,” violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The majority affirmed the judgment of the district court on narrow grounds not considered by the lower court, ruling that Proposition 8 had taken away from same-sex couples the right to marry that they already had under California law without a legitimate reason for doing so. The court emphasized that it was not deciding the broader constitutional question of whether a state may deny same-sex couples the right to marry in the first place.