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Major Changes To California's Fair Employment And Housing Act Provide Increased Protections To Employees

Several sweeping changes to the California Fair Employment and Housing Act ("FEHA") took effect January 1, 2000. Considering the magnitude of the changes, there has been surprisingly little media coverage on the topic. The changes include new remedies for sexual orientation discrimination, genetic characteristic discrimination, discrimination based on a "perceived" characteristic which is protected by law, and "association" discrimination. The changes also extend FEHA's anti-harassment provisions to include independent contractors, add a requirement for employers to grant requests for reasonable accommodation to pregnant employees, add a fairly broad definition of "supervisor," and make expert witness fees a recoverable cost following litigation (in addition to attorney fees).

Both discrimination and harassment based on sexual orientation are now prohibited by FEHA. FEHA defines "sexual orientation" broadly, to encompass "heterosexuality, homosexuality and bisexuality." Even discrimination or harassment based on a "perceived" sexual orientation will now be prohibited by FEHA. Therefore, an employer can be liable for discriminating against someone it thinks is gay, even if it turns out the person is not gay. As with any other type of discrimination or harassment under FEHA, an employee who has been discriminated against or harassed because of his/her sexual orientation or perceived sexual orientation is entitled to tort damages (including emotional distress damages), punitive damages, attorneys' fees and (as of January 1) expert witness fees.

The new language regarding "perception" applies not only to sexual orientation, but to all the other characteristics protected by FEHA. As of January 1, it is against the law to discriminate against or harass an employee based on a "perception" that the employee is of a particular race, religious creed, ancestry, gender or sexual orientation, or based on a perception that an employee has a physical disability, mental disability, medical condition or a particular marital status.

In a dramatic change, FEHA's anti-harassment provisions have been extended to independent contractors. If a company harasses an independent contractor based on the contractor's race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex or sexual orientation, the company could be liable for unlawful harassment.

FEHA's job bias provisions have been expanded to preclude discrimination and harassment against employees based on their associations with persons in protected groups. For example, an employee cannot be demoted due to the race, religion, etc. of the employee's spouse, friend, etc.

Another change effective January 1, 2000, is that employers are required to grant requests for reasonable accommodation made by an employee, on the advice of her health-care provider, for pregnancy, childbirth or related medical conditions.

Another change to FEHA makes it unlawful for employers to subject employees, applicants or other persons to testing for genetic characteristics. The prohibition against discriminating based on genetic characteristics was added to FEHA effective January 1, 1999; it is the prohibition against testing for genetic characteristics which is new. The term "genetic characteristics" means "any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder . . . or is determined to be associated with a statistically increased risk of development of a disease or disorder . . . that is presently not associated with any symptoms of any disease or disorder."

Age discrimination is now easier for employees to prove. Increased protection has also been added for California's over-40 workers. As of January 1, 2000, employers are now prohibited from refusing to hire or employ, or from discharging, dismissing, reducing, suspending or demoting, any individual over the age of 40 on the grounds that a younger person will take the job for a lower salary.

Who is a "supervisor" for purposes of personal liability has been clarified. Court decisions over the past few years have held that supervisors may be held liable for harassment in violation of FEHA, and that employers are strictly liable for the supervisor's behavior. Reno v. Baird (1998) 18 Cal.4th 640; Matthews v. Superior Court (1995) 34 Cal.App.4th 598; Kelly-Zurian v. Wohl Shoe Company (1994) 22 Cal.App.4th 397. Court decisions are been inconsistent, however, on who is a supervisor. As revised, FEHA now includes a definition of who is a "supervisor." A "supervisor" is any individual with authority "to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees," and any individual with responsibility to "direct" employees "or to adjust their grievances, or effectively to recommend that action."

These numerous changes to the California Fair Employment and Housing Act make it easier for employees (and now even independent contractors) to sue, and to prevail in discrimination and harassment cases generally. Increased FEHA litigation is expected.

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