Federal & State Regulations | Discrimination - Other - California

...

Select All / Clear All

Summary of differences between federal and state regulations

The federally protected classes include race, color, religion, national origin, age (40 and over), sex (including pregnancy, sexual orientation, and gender identity), disability, and genetic information.

California’s fair employment law recognizes the following protected classes with regards to unlawful employment practices:

Race (inclusive of traits associated with race, including hair texture and protective hairstyles such as braids, locs, and twists),
Religious creed (all aspects of religious belief, observance, and practice, including religious dress and grooming practices),
Color,
National origin (includes discrimination on the basis of possessing a driver’s license or identification card),
Ancestry,
Physical disability,
Mental disability,
Reproductive health decision making (includes a decision to use or access a particular drug, device, product, or medical service for reproductive health),
Medical condition (any impairment related to cancer),
Genetic information (information about genetic tests or manifestation of disease or disorder of employee or family),
Marital status,
Sex (includes pregnancy, childbirth and breastfeeding, including their related medical conditions),
Gender,
Gender identity,
Gender expression,
Age (40 and over),
Sexual orientation (means heterosexuality, homosexuality, and bisexuality),
Veteran or military status of any person (member or veteran of U.S. armed forces, reserve, national guard, and California national guard).

Note: Both state and federal law prohibit discrimination based on national origin. However, under California's Fair Housing and Employment Act (FEHA), national origin discrimination includes discrimination the basis of possessing a driver's license granted to individuals who are unable to submit satisfactory proof that they are authorized to be in the United States. Employers must still, however, verify all employees' identity and work authorization as part of the Form I-9 process.

Crown Act

To further deter discrimination in education and employment, the California CROWN Act, enacted on July 3, 2019, expanded the definition of “race” in the Education and Government Codes to include traits historically associated with race, including, but not limited to hair texture and protective hairstyles. The Act also defined “protective hairstyles” for purposes of these Codes to include, but not limited to, braids, locks, and twists.

Employer defined

Any employer regularly employing five or more persons is covered. Employers include the state, other government bodies, and private employers. Also subject are labor organizations, employment agencies, and apprenticeship programs.

An exception to the five-employee minimum occurs when harassment is at issue. Every employer employing one or more persons or receiving the services of one or more independent contractor(s) is covered by the prohibition of harassment. Additionally, an employee is personally liable for any unlawful employment harassment of another employee.

Religious associations or religious corporations not organized for private profit may be exempt under certain circumstances. Employees of the federal government are protected from discrimination under federal laws.

Unlawful employment practices

Unlawful employment practices based on marital status, medical conditions, and sexual orientation are the same as the employee protections for other classes. The sexual orientation protections include gender identity, and thus protects cross-dressing and transgender people. The provisions regarding medical conditions are similar to those for disability discrimination.

The provisions regarding discrimination on account of marital status do not:

Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the Fair Employment and Housing Commission rules and regulations; or
Prohibit bona fide health plans from providing additional or greater benefits to employees with dependents than to those employees without or with fewer dependents.

The provisions regarding gender discrimination specifically requires employers to respect employees’ requests to be identified by a preferred gender, name, or pronoun, and prohibits discrimination against employees who are transitioning from one sex to another. FEHA also gives an employee the right to use the restroom or locker room that corresponds with his/her gender identity or expression, and prohibits employers from requiring proof of sex, gender, gender identity, or gender expression from an employee.

The FEHA also prohibits an employer from requiring any medical or psychological examination or inquiry of any applicant or to make any inquiry whether an applicant has a mental or physical disability or medical condition. It is also unlawful to make an inquiry regarding the nature and severity of a mental or physical disability or medical condition. However, an employer may inquire into the ability of an applicant to perform job-related functions and may respond to an applicant’s request for reasonable accommodation. Once an employment offer has been made, but prior to the commencement of employment duties, an employer may require a medical or psychological examination provided that:

The examination or inquiry is job-related and consistent with business necessity; and
That all entering employees in the same job classification are subject to the same examination or inquiry.

An employer may not require any medical or psychological examination or make any inquiry of an employee, or inquire whether an employee has a mental or physical disability or medical condition or inquire into the severity of the disability or condition. However, an employer may require any medical or psychological examination or make inquiries that it can show are job-related and consistent with business necessity. An employer may conduct voluntary medical examinations, including medical histories, which are part of an employee health program available to the employee at the work site.

It is an unlawful employment practice for an employer to require any employee to be sterilized as a condition of employment.

Employers may not refuse to allow employees to wear pants on the basis of sex unless the employer has a good cause exemption (formally granted by the Fair Employment and Housing Commission) or the employer requires that uniforms or a costume (e.g., for dramatic roles or specific character portrayal) be worn as part of the employment.

Employers may not discharge or otherwise discriminate against an employee who participates in lawful conduct on non-work time. Such conduct must occur away from the employer's property to be protected.

Employers also may not discriminate against an employee for taking time off to perform emergency duty as a volunteer firefighter, reserve peace officer, or emergency rescue personnel (including an officer, employee, or member of a disaster medical response entity sponsored or requested by the state).

Areas of pre-employment inquiry that might indicate discrimination include the following:

Credit reports: Any report which would indicate information which is otherwise illegal to ask, e.g , marital status, age, residency, etc..

Arrest record or criminal records: General questions regarding arrest record. (Employers may ask job-related questions about convictions, except those convictions which have been sealed, or expunged, or statutorily eradicated.)

Military service: General questions regarding military service such as dates/type of discharge, or questions regarding service in a foreign military. (Employers may ask questions regarding relevant skills acquired during U.S. military service.)

Organizations or activities: General questions regarding organizations, clubs, societies and lodges. (Employers may ask questions requesting lists of job-related organizations, clubs or professional societies omitting indications of protected bases.)

Updating personal information

In California, employers also may not discriminate against an employee because he or she updates or attempts to update his or her personal information based on a lawful change of name, social security number, or federal employment authorization document.

Whistleblower protections

Employers may not discharge, discriminate, retaliate, or take any adverse action against an employee or job applicant because the individual engaged in protected conduct or made a complaint protected by the law. Employees are also protected from discharge, discrimination, retaliation, or any other adverse action because the individual's family member engaged in protected conduct or made a complaint protected by the law

Recordkeeping

Covered entities must maintain and preserve any and all applications, personnel, membership, or employment referral records and files for a minimum of two years after the records and files are initially created or received. They must also retain personnel files of applicants or terminated employees for a minimum of two years after the date of the employment action taken.

Upon notice that a verified complaint against it has been filed, entities must maintain and preserve any and all records and files until the complaint is fully and finally disposed of and all appeals or related proceedings terminated.

A licensing board must keep records of applications for licensing or certification for two years following the date of receipt of the applications.

Policy

Effective April 1, 2016, employers must develop a harassment, discrimination, and retaliation policy that:

Is in writing;
Lists all current protected classes under the state’s Fair Employment and Housing Act (FEHA);
Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers (with whom employees come into contact) from engaging in discrimination, harassment, or retaliation;
Creates a complaint process to ensure that complainants receive:
- The employer’s designation of confidentiality (to the extent possible).
- 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.
Provides a complaint mechanism that does not require employees to complain directly to their immediate supervisors, including, but not limited to, the following:
- Direct communication either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
- A complaint hotline; and/or
- Access to an ombudsperson; and/or
- Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenue s for employees to lodge complaints.
Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.
Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

An employer whose facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language shall translate the policy into every language that is spoken by at least 10 percent of the workforce.

Employers must disseminate the policy by one or more of the following methods:

Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
Sending the policy via e-mail with an acknowledgment return form;
Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;
Discussing policies upon hire and/or during a new hire orientation session; and/or
Any other way that ensures employees receive and understand the policies.

Posting

All employers are required to post the Department of Fair Employment and Housing’s poster "Harassment or Discrimination in Employment is Prohibited by Law" (DFEH-162).