EMPLOYMENT

Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) is the federal law applicable to most cases of employment discrimination. Title VII outlaws employment discrimination based on race, color, religion, sex or national origin. (42 U.S.C. § 2000e-2.)⁽²⁾ Title VII applies to employers with 15 or more employees. (42 U.S.C. § 2000e.)⁽³⁾ Employers who receive federal funds are also prohibited from discriminating on the basis of physical and mental disability. (Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.) Disabled employees are also protected by the Americans with Disabilities Act (ADA); 42 U.S.C. § 12111 et seq.,⁽⁴⁾ and employees with substance abuse problems are protected by the Alcohol and Drug Rehabilitation Act (ADRA, Lab. Code §§ 1025). The federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., prohibits age discrimination against those over 40 years of age.⁽⁵⁾

The Fair Employment and Housing Act (FEHA, Gov. Code, §§ 12900 et seq.) is the California law that deals most directly with employment discrimination. The FEHA is broader in scope than Title VII. The FEHA prohibits discrimination in employment based on race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition (controlled cancer), marital status, sex or age (over 40)⁽⁶⁾ (Gov. Code, §§ 12940-12941.)⁽⁷⁾ The FEHA generally covers employers with five or more employees, whether employed full-time or part-time.⁽⁸⁾   (Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226.) However, it prohibits harassment by any employer with one or more employees. (Gov. Code, § 12940(h)(3)(A); religious associations or corporations not organized for private profit are not considered to be employers, according to Government Code section 12926(d)(1).)

Although the FEHA does not cover employment discrimination based upon sexual orientation, Labor Code §1101 et seq. prohibits this form of discrimination. For purposes of these sections, the definition of employer excludes "a religious association or corporation not organized for private profit, whether incorporated as a religious or public benefit corporation." (Lab. Code, § 1102.1.) However, the time within which to file a complaint is very short. Accordingly, if you feel that you have been discriminated against because of your sexual orientation, you should contact the California Labor Commissioner right away. (415-975-2080.)

The Equal Pay Act of 1963 (29 U.S.C. § 206 (d)) and the California Equal Pay Act (Labor Code § 1197.5) are also integral to the protection of women's employment rights. However, they are much narrower in scope than either Title VII or the FEHA. The two Equal Pay Acts do exactly as their titles suggest---they guarantee equal pay for equal work.

You cannot be paid less than a man because of your sex, unless otherwise required or permitted by regulation. (29 U.S.C. § 206(d)(1); Labor Code § 1197.5; Cal. Code Regs., tit. 2, § 7291.1(a)(1).)

It is unlawful for an employer to pay you less because you are not the principal wage earner or head of your household. (Dean v. United Food Stores, Inc. (D.N.M. 1991) 767 F.Supp. 236.) Likewise, it is unlawful for an employer to condition the availability of fringe benefits on whether you are the head of your household. (Health plans may provide greater benefits to employees with dependents than to those without dependents, or to those with fewer dependents.) (Gov. Code, § 12940(a)(3)(B); Cal. Code Regs., tit. 2, § 7291.1(b)(2).)

Taken together, the above laws require that women and men be treated fairly and equally when applying for a job, and in all aspects of the job---hiring, firing, wages and benefits, training, and advancement through promotion or transfer. The law says there cannot be different pay scales for male and female employees who perform equal work; that is, jobs performed under similar working conditions that require the same skills, effort, and responsibilities must be equally compensated. The law outlaws employment practices that treat male and female employees unequally, and practices that appear neutral, but have a disparate impact on the employment of men and women. (Watson v. Fort Worth Bank and Trust (1988) 487 U.S. 977, 991.)

Federal and California laws that prohibit discrimination in employment deal with a whole range of employment issues, from hiring practices to retirement age. This chapter discusses the organizations covered by these laws. It explains illegal discriminatory hiring practices and describes a few instances in which discriminatory hiring is illegal. It also discusses legal guarantees of equality of employment benefits and working conditions. Finally, this section describes resources to contact if you feel that you have been discriminated against and have decided to seek a legal solution.

The employment rights of women discussed in this chapter have been primarily drawn from some combination of Title VII, the FEHA and the Equal Pay Acts. However, other noteworthy laws, court cases, administrative findings and opinions of the Attorney General will be cited where applicable.

ORGANIZATIONS COVERED

Laws prohibiting discriminatory actions with respect to employment are not limited to discrimination by employers. They also cover discrimination by labor unions, employment agencies and training programs. The purpose of this section is to provide a broad survey of potential employment practices that are discriminatory and therefore illegal.

Employers

It is generally unlawful for an employer to engage in any of the following practices on the basis of your sex:

Refusing to hire you.

Refusing to select you for an apprentice program.

Refusing to choose you to go through a training program that leads to being hired.

Taking you out of a training program that leads to being hired.

Firing you.

Paying you less.

Denying you benefits.

Discriminating against you in any way.

Harassing you.

Refusing to allow you to take a pregnancy disability leave or a family care leave (if eligible).

Labor Organizations

It is generally unlawful for a labor organization to engage in any of the following practices on account of your sex:

Refusing you or excluding you from membership.

Providing you with an inferior, segregated, or separate membership.

Refusing to allow you to participate in the elections of officers, staff or organizers.

Refusing to allow you to participate in the union at the office holders' level.

Discriminating against you in any way.

Harassing you.

Employment Agencies

It is generally unlawful for an employment agency to engage in any of the following practices on the basis of your sex:

Refusing to allow you to apply for a particular position.

Refusing to refer you to a potential employer.

Discriminating against you in any way.

Harassing you.

Training Programs

All of the discriminatory practices illegal for an employer to engage in are also outlawed for training programs. Therefore, it is generally illegal for a training program to engage in any of the following practices on the basis of your sex:

Refusing to hire you.

Refusing to select you for an apprenticeship program.

Refusing to allow you to go through a training program that leads to being hired.

Taking you out of a training program that leads to being hired.

Firing you.

Paying you less.

Denying you benefits.

Discriminating against you in any way.

Harassing you.

What's more, California law requires apprenticeship training programs to include women within their affirmative action plans. (Gov. Code, §12940(a).) ⁽⁹⁾

For more information on apprenticeship training programs, contact:

California Department of Industrial Relations/Division of Apprenticeship Standards, that has offices in Fresno, Los Angeles, Oakland, Sacramento, San Francisco, San Jose, and Santa Ana.

Licensing

It is unlawful for a licensing board to require any examination or establish any other qualification for licensing that has an adverse impact on any class by virtue of sex unless such practice can be demonstrated to be job-related. (Gov. Code, § 12944(a).) It is unlawful for any licensing board, unless specifically acting in accordance with federal equal employment opportunity guidelines approved by the Fair Employment and Housing Commission (FEHC), to print or circulate or cause to be printed or circulated any publication, or to make any non-job-related inquiry , either verbal or through use of an application form, that expresses, either directly or indirectly, any limitation, specification or discrimination as to sex, or any intent to make such limitation, specification or discrimination. (Gov. Code, § 12944(c).)

HIRING PRACTICES

Unlawful Discrimination in Hiring

Looking for Work

From the moment you start looking for work, you are covered by the laws that make employment discrimination illegal.

Job and help wanted advertisements are for anyone. It is illegal for an employer, advertising agency or union to advertise for only male or only female job applicants, unless being male or female is absolutely necessary to job performance, for example, if the employer, advertising agency or union is looking for a woman to model brassieres. So, if you are looking for a job, you are legally entitled to apply for any job for which you believe you are qualified. (42 U.S.C. § 2000e-2(b); Gov. Code, § 12940(d).)

Employment agencies must refer all qualified applicants. It is unlawful for an employment or placement agency to discriminate in job referrals against a woman solely on the basis of her gender, unless specifically acting in accordance with federal equal employment opportunity guidelines and regulations. When you go to an employment agency, list all your qualifications and ask to be referred to all job listings whose requirements meet your qualifications. (42 U.S.C. § 2000e-2(b); Gov. Code, § 12940(d).)

Company hiring departments must interview equally. When an employer has its own "company" or internal hiring department, it must provide fair and equal methods for interviewing interested job applicants. It may be unlawful for an employer to fill job openings by relying solely on the recommendations of its own employees. This would constitute a practice neutral on its face, but which is prohibited because it freezes the status quo of prior discriminatory employment practices and has a disparate impact on minorities. (Griggs v. Duke Power Co. (1971) 401 U.S. 424.)

If an employer considers prior work experience when hiring or promoting, unpaid volunteer work experience must also be considered. (Cal. Code Regs., tit. 2, § 7291.0(d).)

Job Applications

When you apply for a job, most employers will ask you to fill out a questionnaire or job application form. The form may ask questions, such as whether you are male or female, or your height and weight. Such questions are lawful, as long as they are asked of all job applicants, and as long as the information is used for legitimate jobs screening/record-keeping purposes and not to discriminate. (29 C.F.R. § 1604.7; Cal. Code Regs., tit. 2, §§ 7286.7(b) and 7287.3(b)(1).) An employer may only ask questions about your health that are directly related to the working conditions of the job involved and whether you would endanger your health or the health or safety of others. Once you are hired, an employer may ask for additional information, if necessary, for any insurance or other fringe benefit program. That information may not be used in a discriminatory manner. (Gov. Code, §§ 12940(a)(1); 12940(d); Cal. Code Regs., tit. 2, §§ 7286.7 and 7287.3(b)(1) and (2).)

An employer may not ask you questions about childbearing, pregnancy, birth control, or family responsibilities unless they are related to specific and relevant working conditions of the job in question. (Cal. Code Regs., tit. 2, § 7290.9(b)(3).)

Job Requirements

With only a few exceptions, it is unlawful for an employer to set requirements for employment that would restrict those eligible to only male or only female applicants. (The few legal exceptions are listed and explained in the next section, Lawful Discrimination in Employment.) An employer may not refuse to consider your application for employment simply because he/she assumes that women are not physically able to do the job in question.

Use of minimum height and weight restrictions is limited to cases where such restrictions are clearly necessary for safe and efficient job performance. (Dothard v. Rawlinson (1977) 433 U.S. 321, 332; Cal. Code Regs., tit. 2, §§ 7286.7; 7290.8; and 7291.1.)

An employer may not use separate height and weight requirements for men and women, unless pursuant to a permissible defense, such as a bona fide occupational qualification (BFOQ). (42 U.S.C. § 2000e-2e; Cal. Code Regs., tit. 2, §§ 7286.7 and 7291.0(b)(2).)

An employer may not make generalizations about physical ability or sex. For example, an employer may not refuse to hire a woman for a particular job solely because the employer believes that women are "too weak" for the job. You have a right to demonstrate your capability to perform a job. (29 C.F.R. § 1604.2; Cal. Code Regs., tit. 2, § 7291.0(a).)

An employer may not discriminate against a particular gender because of customer preference. For example, it is unlawful for an employer to have a policy of hiring only men because its customers do not like being served by women. (29 C.F.R. § 1604.2(a)(1)(iii); Cal. Code Regs., tit. 2, § 7290.8(a)(3).)

An employer may not discriminate against a particular gender because of traditional job classifications. For example, a women's clothing store may not refuse to hire a male sales clerk just because selling women's clothes is a traditionally female occupation. (29 C.F.R. § 1604.2(a)(1)(ii); Cal. Code Regs., tit. 2, § 7290.8(a)(5).)

An employer may not discriminate against one gender because the workplace has facilities for only one gender. For example, an employer may not refuse to hire women because there are no women's bathrooms on the premises. (29 C.F.R. § 1604.2(b)(5); Cal. Code Regs., tit. 2, § 7290.8(a)(4).)

An employer may not refuse to hire an applicant because she is of childbearing age. (29 C.F.R. § 1604.10; Gov. Code, § 12940(a); Cal. Code Regs., tit. 2, § 7290.9(b)(3).)

An employer may not usually consider your marital status in deciding whether to hire you. An employment application may ask whether you have ever used another name, but this information must be used only for checking your past work experience, or for other non-discriminatory purposes. (29 C.F.R. § 1604.4; Cal. Code Regs., tit. 2, § 7292.4 0(a).)

An application may ask whether your spouse is currently employed by that employer. This information may not be used in determining whether you should be hired, unless that particular job presents problems of security, supervision, morale or safety if both spouses are employed by the same employer. An employer may refuse to place both spouses in the same department if the employer can show that, for business reasons of supervision, safety, security, or morale, such placement would cause potential conflicts of interest or other hazards that would be greater than problems caused by the placement of persons other than married couples. (Cal. Code Regs., tit. 2, §§ 7292.4(c) and 7292.5.)

Dress Codes

It is an unlawful employment practice for an employer to refuse to permit an employee to wear pants on account of the sex of the employee, except that an employer can require employees in a particular occupation to wear a uniform, and can require an employee to wear a costume while that employee is portraying a specific character or dramatic role. (Gov. Code, § 12947.5.)

LAWFUL DISCRIMINATION IN EMPLOYMENT

There are rare circumstances in which an employer may discriminate. These practices are lawful only if there are no less discriminatory alternative practices available. Examples of discrimination that may be lawful follow.

BFOQs - (Bona Fide Occupational Qualifications)

An employer may discriminate against an entire class of persons if it can be shown that the practice is justified because certain people are not able to safely and efficiently perform the job, but this is a very difficult defense to prove. The employer must prove that the discrimination is necessary to preserve the legitimate nature of the business. Privacy considerations are one example of a BFOQ. If the job requires an employee to observe others in a state of nudity or conduct body searches, then the employer may possibly limit the job to members of the sex to be observed and searched. However, job duties involving such activities must be assigned so as to maximize the number of jobs for which either men or women are eligible. In a prison environment, allowing female officers to view male inmates in partial or total nudity does not violate inmates' rights of privacy if female contact is minimal, professional, and necessary to further the correctional system's legitimate goals and policies. (42 U.S.C. § 2000e-2(e); 29 C.F.R. § 1604.2; Gov. Code, § Cal. Code Regs., tit. 2, § 7286.7(a) and § 7290.8).)

Affirmative Action Plans

Bona fide affirmative action may be a valid defense to employment actions that would otherwise be unlawful discrimination.⁽¹⁰⁾ An employer may adopt a voluntary affirmative action plan, for example, setting aside a certain number of new trainee positions for women, so long as the affirmative action program meets certain tests set out by the U.S. Supreme Court. A bona fide affirmative action plan must break down traditional (past) discrimination, without unnecessary interference with the rights of other employees. Such a plan must be narrowly tailored to the achievement of its goal of remedying past discrimination, must not operate as an absolute bar to others, and should be of limited duration. (Wygant v. Jackson Board of Education (1986) 476 U.S. 267, 278; Local 28 of the Sheet Metal Workers v. EEOC (1986) 478 U.S. 421, 484-489; and 29 C.F.R. § 16081.1 et seq.)

Veterans

Veteran's preference laws have been held legal (Personnel Administrator of Mass. v. Feeney (1979) 442 U.S. 256), and veteran's preference is expressly permitted under California law. (Gov. Code, § 12940(a)(4).)

WORKING CONDITIONS AND BENEFITS

Equality of Working Conditions

Federal and state laws prohibit sex discrimination with regard to either the conditions of your workplace or the employment benefits you receive. (42 U.S.C. § 2000(e); Gov. Code, § 12940(a).)

If rest periods are provided, the conditions and amount of time must be equal for both sexes. (Burns v. Rohr Corp. (N.D. Cal. 1972) 346 F.Supp. 994; 29 C.F.R. § 1604.2(b)(4); Cal. Code Regs., tit. 2, § 7291.1(e)(1).)

Equal access to comparable and adequate toilet facilities must be provided to employees of both sexes. Locks may be installed on common facilities to ensure privacy. (29 C.F.R. § 1604.2(b)(5); Cal. Code Regs., tit. 2, § 7291.1(e)(2).)

An employer may not consider sex when providing clerical assistance, office space, or any other support service. (Cal. Code Regs., tit. 2, § 7291.1(e)(3).)

An employer may not assign job duties according to sex stereotypes. (Gov. Code, § 12940(a); Cal. Code Regs., tit. 2, § 7291.1(e).)

Family School Partnership Act (FSPA)

Labor Code section 230.8 provides that no employer who employs 25 or more employees at the same location shall discharge or in any way discriminate against an employee who is a parent, guardian or grandparent having custody of one or more children in kindergarten or grades 1 to 12 ⁽¹¹⁾ for taking off up to 40 hours each school year,⁽¹²⁾ not to exceed eight hours in any calendar month, to participate in activities of the school of any child, if reasonable notice is given. The employee shall ordinarily utilize existing vacation, personal leave or compensatory time-off for the planned absence. Written documentation from the school as proof of participation may be required. (See also Lab. Code § 230.7 regarding right of employee to be free of discrimination for required appearance in school after a child is suspended.)

Continuation of Insurance Benefits

Plan sponsors of employee benefit plans that provide medical insurance are required to offer continuing coverage for persons who would otherwise lose their coverage because of the death of their spouse, termination from employment, a reduction of work hours, or as a result of divorce or separation. (29 U.S.C. §§ 1161-1169.) If any of these events occurs, you should contact your plan sponsor to notify them that you want to continue medical coverage. The plan sponsor is required to provide you with information regarding rights and responsibilities relating to continuing coverage.

Any employee who is discharged, threatened with discharge, demoted, suspended or in any other manner discriminated against in the terms and conditions of employment because of rights exercised under this section shall be entitled to reinstatement and reimbursement for lost wages and work benefits. Any employer who wilfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure, arbitration or hearing authorized by law, shall be subject to a civil penalty in an amount equal to three times the amount of the employee's lost wages and work benefits. The Division of Labor Law Enforcement enforces the above-mentioned provisions. (See government listings in the white pages of your telephone book.)

Sexual Harassment

You, as an employee or job applicant, but not as an independent contractor, have an absolute right to be free from sexual harassment related to your employment. (42 U.S.C. § 2000e-2; Gov. Code, § 12940 (h).).) Sexual harassment includes, but is not limited to, verbal harassment, physical harassment, visual forms of harassment, and sexual favors. (Cal. Code Regs, tit. 2 § 7287.6(b)(1).) It must be severe or pervasive enough that it adversely affects the victim's work environment. (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 64-67; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608-609.)

In determining whether the harassment is sufficiently severe or pervasive to be actionable, California appellate courts judge it on a case-by-case basis, based on the reasonable person of the same gender standard. (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d 590, 609, n. 7.) At the federal level, the Ninth Circuit has adopted a gender specific standard. (Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 878-888.) In Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21, the Supreme Court used the term "reasonable person" in its discussion, but did not approve or disapprove the use of a gender-specific standard. In a post-Harris decision, the Ninth Circuit formulated a "reasonable person with the same fundamental characteristics" standard. (Fuller v. City of Oakland (9th Cir. 1995) 47 F.3d 1522, 1527.) The FEHC, which enforces the FEHA, has not adopted a gender-specific standard in a precedential decision.

Sexual harassment does not have to be outright or obvious to be illegal. Nor does the conduct have to result in the loss of some tangible employment benefit to be actionable. (Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 52.) Conduct that implies sexual demands are being made, such as verbal, symbolic or pictorial gestures that make work difficult for you, is illegal. (Cal. Code Regs., tit. 2, § 7287.6.) California law prohibiting sexual harassment in the workplace applies to all employers in California, except for religious nonprofit organizations,⁽¹³⁾ regardless of how few or how many people they employ. (Gov. Code, § 12940(h).)⁽¹⁴⁾

It is illegal for an employer to base employment decisions, such as hiring, firing or promotion, on whether or not you submit to sexual demands. (29 C.F.R. § 1604.11; Gov. Code, § 12940(h); Cal. Code Regs., tit. 2, § 7287.6(b)(1)(D).)

Sexual harassment that creates a hostile or offensive work environment for members of one sex is also unlawful. (Gov. Code, § 12940(h);) Cal. Code Regs., tit. 2, §§ 7287.6(b)(1) and 7291.1(f)(1); 29 C.F.R. § 1604.11(a)(3).)

It is not necessary that the plaintiff show that he/she has suffered actual psychological injury. (Harris v. Forklift Systems, Inc., supra, 510 U.S. 17, 22.) A plaintiff may be able to establish a "hostile work environment" under the FEHA, even if he/she was not personally the target of the harassing conduct, if her/she personally witnessed it in his/her immediate work environment. (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d 590, 611.) The creation of a hostile work environment does not have to involve sexual advances, as long as gender is a substantial factor in the discrimination and if the plaintiff had been a man, he would not have been treated in the same manner. (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348.)

Rights of free speech of other employees must be accommodated. (Cal. Code Regs., tit. 2, § 7287.6(b)(1)(E).) Thus, a male employee may be free to quietly possess, read and share Playboy magazine at work. (Johnson v. County of Los Angeles Fire Dept. (C.D. Cal. 1994) 865 F. Supp. 1430, 1442.) The California Supreme Court has before it a case in which it will address the question whether verbal harassment of an employee by a supervisor at work (in that case racial epithets) can be enjoined by a court without violating the free speech rights of the supervisor. (Aguilar v. Avis Rent A Car System , Case No. S054561, review granted September 4, 1996.)

Harassment because of sex includes sexual harassment, gender harassment, harassment based on pregnancy, childbirth or related medical conditions and same- sex harassment. (Gov. Code, § 12940(h)(3)(C); Mogilefsky v. Superior Court of Los Angeles County (1993) 20 Cal.App.4th 1409.) The United States Supreme Court recently decided that same-sex harassment could violate Title VII. (Oncale v. Sundowner Offshore Services, Inc. (1998) ___ U.S. ___, 98 Daily Journal D.A.R. 2100.)

Employers may be held responsible for acts of their employees. Employers' liability for employees is different under state and federal law. Specific law should be consulted, but an employer is strictly liable under state law for harassment by supervisors,⁽¹⁵⁾ even if the employer did not know about the harassment. (Gov. Code, § 12940(h)(1); Cal. Code Regs., tit. 2, § 7287.6(b)(2); 29 C.F.R. § 1604.11(c); Kelly-Zurian v. Wohl Shoe Company (1994) 22 Cal.App.4th 397, 415.)⁽¹⁶⁾ Under Title VII, employers are liable for supervisor sexual harassment in quid pro quo situations, where the victim's submission to sexual advances or conduct is made a condition of an employment benefit. (Nichols v. Frank (9th Cir. 1994) 42 F.3d 503, 513-514.) However, the United State Supreme Court has, to date, declined to issue a definitive rule on employer liability for supervisor harassment in pure hostile work environment cases. (Meritor Savings Bank v. Vinson, supra, 477 U.S. 57, 69-73.)

An employer may not be liable for sexual harassment by a supervisory employee if the employee is found to have been off-duty and away from the workplace when he/she committed the harassment. (Capitol City Foods, Inc. v. Superior Court of Sacramento (1992) 5 Cal.App.4th 1042; however, see Doe v. Capital Cities (1996) 50 (Cal.App.4th 1028, where the court found complainant did adequately plead a cause of action for sexual harassment against ABC for rape of an actor by a casting director on a Sunday at the cast director's home, because the reason the complainant was at the director's home was sufficiently work-related.)

Employers may be responsible for sexual harassment by co-workers and non-employees, where the employer knew or should have known of the conduct and failed to take immediate and appropriate action.  (29 C.F.R. § 1604.11(d) and (e); Gov. Code, § 12940(h)(1); Cal. Code Regs., tit. 2, § 7287.6(b)(3).) Additionally, supervisors may be individually liable for personally engaging in harassment under state law (Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1210-1217), or if they substantially assist or encourage continued harassment (Matthews v. Superior Court of Los Angeles County (1995) 34 Cal.App.4th 598, 603-606, ⁽¹⁷⁾ although not under Title VII.⁽¹⁸⁾ (Miller v. Maxwell's International, Inc. (1993) 991 F.2d 583, 587-588.)

Unlike Title VII, the FEHA also imposes an independent affirmative duty on employers and other covered entities to "take all reasonable steps necessary to prevent discrimination and harassment from occurring." (Gov. Code, § 12940(i); Flait v. North American Watch Corporation (1992) 3 Cal.App.4th 467, 476, (employee, as harassed employee's supervisor, had statutory duty to take immediate action to end sexual harassment).) Employers are required to post the current Department of Fair Employment and Housing (DFEH) anti-discrimination poster, and the DFEH information sheet on sexual harassment, or its equivalent. (Gov. Code, § 12950.) The Ninth Circuit Court of Appeal has interpreted Title VII to require employers, when faced with charges of sexual harassment among their employees, to do more than merely investigate, even if the harassment has ended by the time they learn of it. (Fuller v. City of Oakland, supra, 47 F.3d 1522, 1528-1529.)

If you file a harassment charge, the scope of permissible questions about prior sexual history with persons other than the alleged harasser is limited in federal and state court and administrative proceedings. (Cf. Jenson v. Eveleth Taconite Co. (8th Cir. 1997) 130 F.3d 1287, 1294-1295); Priest v. Rotary (N.D. Cal. 1983) 98 F.R.D. 755; Vinson v. Superior Court of Alameda County (1987) 43 Cal.3d 833, 844; Evid. Code, §§ 783 and 1106; Code of Civ. Proc., § 2017(d) and Gov. Code, §§ 11507.6(g) and 11513(c) and (o).)

A Court of Appeal has held that a claim for emotional distress arising out of sexual harassment is not preempted by the Workers' Compensation Act. (Accardi v. Superior Court, supra, 17 Cal.App.4th 341, 353.)

If you quit your job as a result of sexual harassment or sexual discrimination by your employer, you may be eligible for unemployment insurance benefits. However, you must meet all eligibility requirements under the Unemployment Insurance Code, as well as have taken reasonable steps to preserve your employment. (Unemp. Ins. Code, §§ 1256.2 and 1256.7.)

Other Common Law or Constitutional Causes of Action For Sexual Harassment

In Rojo v. Kliger (1990) 52 Cal.3d 65, the California Supreme Court determined that a complainant in a sexual harassment case was not precluded from pleading a cause of action for wrongful discharge in violation of public policy, even though she failed to file a timely DFEH complaint under the FEHA.

Sexual Harassment By Professional and Vocational Licensees

Effective January 1, 1995, Civil Code § 51.9 extended the prohibition of sexual harassment beyond the employment relationship and created a civil cause of action for sexual harassment in relationships between providers of professional or business services, such as physicians, attorneys, therapists, social workers, real estate agents and appraisers, accountants, trust officers, financial planners, collection services, building contractors, escrow loan officers, executors, trustees, administrators, bankers, landlords and teachers, and their clients. Other "substantially similar" relationships are also covered. The plaintiff must show that the defendant made sexual advances, solicitations, requests or demands for sexual compliance by the plaintiff that were unwelcome and persistent or severe, continuing after a request by the plaintiff to stop; plaintiff could not easily terminate the relationship without tangible hardship; and plaintiff has suffered or will suffer economic loss or disadvantage or personal injury as a result of defendant's conduct. This section is not enforced by the FEHC or DFEH, but plaintiffs can go directly to court.

Pregnancy

The law guarantees that women affected by childbirth or related medical conditions must be treated the same for all employment-related purposes, including the receipt of fringe benefits, as other persons with similar ability or inability to work.

In General

You cannot be discriminated against because of a pregnancy-related condition as long as you work for an employer with more than five employees. A working pregnant woman has the right to the same benefits and privileges of employment as a working nonpregnant person, as long as they are similar in their ability to work. It is unlawful for an employer to refuse to hire you, to fire you, to harass you, to refuse you a promotion, to reduce your pay, or to reduce your benefits or privileges of employment, solely because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. (42 U.S.C. § 2000e(k); Gov. Code, §§ 12926 (a), (j) and (o); 12940(a) and 12945(a).)

A Court of Appeal has held that article I, section 8 of the California Constitution contains a fundamental public policy prohibiting employment discrimination based on pregnancy, and that such a cause of action was not barred by the Workers' Compensation Act. (Badih v. Myers (1995) 36 Cal.App.4th 1289, 1296.)

An employer may not limit disability benefits for pregnancy-related conditions to married employees. (Gov. Code, § 12940(a); Cal. Code Regs., tit. 2, §§ 7291.1(b)(2) and 7291.2.)

An employer absolutely may not require you to be sterilized as a condition of employment. (Gov. Code, § 12945.5; Cal. Code Regs., tit. 2, § 7291.1(e)(5).)

Pregnancy and Leaves of Absence

State law requires employers of five or more employees (Gov. Code, § 12926(d)) to guarantee the jobs of employees who take a pregnancy disability leave, as medically needed, for up to four months,⁽¹⁹⁾ unless the employee would not otherwise have been employed in the same position for business reasons unrelated to the leave or transfer, or unless preserving the job would substantially undermine the employer's ability to operate the business safely and efficiently. If the above conditions are met, the employee has a right to reinstatement to a comparable position, unless there is no comparable position available, or filling the comparable position with the employee would substantially undermine the employer's right to operate the business safely and efficiently. (Cal. Code Regs., tit. 2, § 7291.9.)

In California Federal Savings and Loan Assn. v. Guerra, (1987) 479 U.S. 272, the U.S. Supreme Court upheld the constitutionality of this law.

The employee shall be entitled to utilize any accrued vacation leave during this period of time. (Gov. Code, § 12945(b)(2); Cal. Code Regs., tit. 2, § 7291.7 et seq.) If an employer allows employees with other disabilities to take more than a four-month leave, the same leave must be available to employees disabled by pregnancy. (42 U.S.C. § 2000e(k).)

If employees with other forms of disabilities are granted paid sick leave, then an employer must also grant paid sick leave to pregnant women. However, if the employer does not give paid leaves of absence to disabled workers, he/she is not required to grant a paid leave to pregnant workers. (42 U.S.C. § 2000e(k); Cal. Code Regs., tit. 2, § 7291.11(a).)⁽²⁰⁾

You cannot be forced to take a leave of absence because you are pregnant. You must be evaluated on the basis of your ability or inability to work. (29 C.F.R. § 1604.10(b); Cal. Code Regs., tit. 2, § 7291.2 .)

An employer has the right to require you to give reasonable advance notice of your plans to take a pregnancy leave and of the duration of that leave. If the employer requires a doctor's certificate to verify other temporary disabilities, the employer may also require a doctor's certificate in the case of pregnancy. (42 U.S.C. § 2000e(k); 29 C.F.R. § 1604.10(b); Gov. Code, § 12945(b)(2); Cal. Code Regs., tit. 2, §§ 7291.2 and 7291.10.)

Pregnancy and Employer-Provided Insurance

An employer covered by both Title VII and the FEHA must give equal treatment to all employees to the extent that health insurance protection is provided by the employer. For example, if a health insurance plan covers the cost of a private room for other conditions, it must also provide the cost of a private room for pregnancy-related conditions. If the plan covers office visits to doctors for other conditions, it must cover prenatal and postnatal visits for pregnant women. (42 U.S.C. § 2000e(k); Gov. Code, § 12945(a); Cal. Code Regs., tit. 2, § 7291.5.)

If an employer's medical insurance plan covers the medical expenses of husbands of female employees, it must also cover the expenses, including pregnancy, of wives of male employees. (Newport News Shipbuilding & Dry Dock v. EEOC (1975) 462 U.S. 669.)

Pregnancy and Hazardous Work Conditions

An employer who wants to protect an employee's unborn children from hazardous employment⁽²¹⁾ may not exclude all women of childbearing age. However, the employer may determine if the hazards affect the reproductive systems of both men and women. If the conditions are hazardous to both men and women of childbearing age, the employer must transfer the employee, unless to do so would impose an undue hardship, or must eliminate or minimize the number of hazardous working conditions. (Cal. Code Regs., tit. 2, § 7291.1(d); Johnson Controls, Inc. v. Fair Employment & Housing Com. (1990) 218 Cal.App.3d 517.)

The U.S. Supreme Court in Internat'l Union, UAW v. Johnson Controls, Inc. (1991) 499 U.S. 187, held that an employer's policy barring all women, except those whose infertility was medically documented, from jobs involving actual or potential lead exposure, was discriminatory, and that the employer did not establish that sex was a BFOQ.

The existence of a greater risk for employees of one sex than the other does not justify a BFOQ defense. (Cal. Code Regs., tit. 2, § 7291.1(d)(3).)

It may be unlawful for an employer to deny the request of a pregnant employee to be transferred to a less strenuous or hazardous position or to less strenuous or hazardous duties when the employer has a practice of transferring temporarily disabled employees to less hazardous positions for the duration of their disability. In the absence of such a policy, it may be unlawful for an employer to refuse to transfer a pregnant employee to a less hazardous position for the duration of the pregnancy, provided the request for transfer is based on the advice of a physician, and provided that the transfer can be reasonably accommodated by the employer and the refusal is not excused by business necessity or a job-related defense. However, if to facilitate such a transfer, an employer must create additional employment that would not otherwise have been created, discharge another employee, violate the terms of a collective bargaining agreement, transfer an employee with more seniority, or promote or transfer any employee who is not qualified to perform the new job, then the employer will not be required to facilitate such a transfer. (Gov. Code, § 12945(c)(1) and (2); Cal. Code Regs., tit. 2, § 7291.6.) An employer may require the employee to transfer temporarily to an available alternative position with an equivalent rate of pay and benefits, if the employer is qualified and it is medically advisable for the employer to take intermittent leave or leave on a reduced work schedule. (Ibid.)

If you have been transferred to a less strenuous or hazardous position for the duration of your pregnancy, you must not be penalized for the transfer when you return to your original job. This means that you must be allowed to return to your original job, or a similar one, with no loss of seniority or decrease in pay, unless you would not otherwise have been employed in the same position for business reasons unrelated to your leave or transfer, or preserving your job would substantially undermine the employer's ability to operate the business safely and efficiently. If the above conditions are met, you have a right to reinstatement to a comparable position unless there is no comparable position available, or placing you in a comparable position would substantially undermine your employer's right to operate the business safely and efficiently. (Cal. Code Regs., tit. 2, §§ 7291.6(d), and 7291.9.)

Family Leave

CFRA

The California Family Rights Act or CFRA, (Gov. Code, § 12945.2), provides for mandatory family and medical leave for any of the following: 1) leave for reason of the birth of a child of the employee, the placement of a child with an employee in connection with the adoption or foster care of the child by the employee, or the serious health condition of the child of the employee; 2) leave to care for a parent or spouse who has a serious health condition; and 3) leave because of an employee's own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth or related medical conditions.

CFRA applies to employers that directly employ 50 or more full or part-time persons⁽²²⁾ to perform services for a wage or salary and to the state and any political or civil subdivision of the state and cities. (Gov. Code, § 12945.2(c)(2)); Cal. Code Regs., tit. 2, § 7297.0(d)(1).) To be eligible for leave, the employee must have 12 months of service with the employer and at least 1250 compensable hours of work for the employer during the previous 12-month period. (Cal. Code Regs., tit. 2, § 7297.0(e).) (The latter requirement cuts out part-time workers who work less than 25-30 hours per week and may eliminate employees who were absent from work for any number of legitimate reasons.)

CFRA allows an eligible employee up to a total of 12 work-weeks in a 12-month period for family care and medical leave. If both parents work for the same employer, only 12 weeks total leave for birth, adoption or foster care placement of a child need be given. (Cal. Code Regs., tit. 2, § 7217.19(c).) Many employers, however, are deciding not to enforce this limitation to avoid the FEHA's prohibition against marital status discrimination.

CFRA leave does not have to be taken in one continuous period of time. If the leave is common to both CFRA and the Family and Medical Leave Act of 1993 or FMLA (29 U.S.C. §2601 et seq.), the 12-month period will run concurrently with the 12-month period under FMLA, unless it is leave taken under the FMLA for disability on account of pregnancy. An employer may choose any of the methods specified at 29 C.F.R. § 825.200(b) for determining the 12-month period, as long as it applies the chosen method consistently and uniformly to all employees. (Gov. Code, § 12945.2(5); Cal. Code Regs., tit. 2, § 7217.3.)

An employee is required to give at least verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave, and the anticipated timing and duration of the leave. Thirty days' notice of the leave should be given where practicable, and it is the employer's responsibility to inform the employee of any notice requirement, and of his/her right to take a CFRA leave. (Cal. Code Regs., tit. 2, § 7297.1.)⁽²³⁾

As a condition of granting the leave for the serious health condition of the employee or the employee's child, parent, or spouse, the employer may require a medical certification, that in most cases, should be provided within 15 calendar days of the employer's request. The employer shall respond to the leave request as soon as practicable, and in any event, no later than two calendar days after receiving the request.⁽²⁴⁾

The certification should provide, where applicable, the date on which the serious health condition commenced (but need not identify the condition), the probable duration of the condition, the amount of time needed to care for the individual, the reason participation of the employee is required, or a statement that the employee is unable to perform the function of his/her position. (Gov. Code, § 12945.2(j); Cal. Code Regs., tit. 2, § 7297.0.) If the employer has reason to doubt the validity of the certification, a second and third medical opinion may be sought. As a condition of an employee's return from medical leave, the employer may require the employee to obtain a release to return to work from his/her health care provider if such release is uniformly required of other employees returning to work after illness, injury or disability. (Cal. Code Regs., tit. 2, § 7297.4(b).)

An employee taking a leave may elect, or an employer may require the employee to substitute, accrued vacation leave, other accrued time off, any other paid or unpaid time off negotiated with the employer, or sick leave, if the leave to be taken is because of the employee's serious health condition. (Gov. Code, § 12945.2(e); Cal. Code Regs., tit. 2, § 7297.5.) A serious health condition includes any illness, injury, impairment, and physical or mental condition (including on-the-job injuries) that incapacitates the employee for more than three consecutive calendar days and requires some treatment by a health care provider. It also includes chronic medical conditions (such as arthritis or asthma) that may flare up periodically and thus compel a need for intermittent time off, but not necessarily three consecutive days. Also covered are conditions that require regular multiple treatments, such as physical therapy or radiation. Thus, for instance, an employee may take four hours of protected CFRA time off every week to take his/her child to physical therapy if the child's doctor certifies that such treatment is medically necessary for the child's medical condition. (Cal. Code Regs., tit. 2, § 7297.0(o).) For a leave due to a planned medical treatment or supervision of a sick family member, etc., the employee is required to make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer. (Gov. Code, § 12945.2(i).)

During the period that an employee takes CFRA leave, the employee shall maintain and pay for coverage under a group health plan for the duration of the leave. The employee also may have rights to participate in other employee benefit plans. (Gov. Code, §12945.2(f); Cal. Code Regs., tit. 2, § 7297.5(c).)

Upon granting the CFRA leave, the employer shall guarantee to reinstate the employee to the same or a comparable position, with no break in service for purposes of longevity or seniority, subject to certain defenses. One defense is if the employee would not otherwise have been employed at the time reinstatement is requested. The second is the "key employee" defense. (Cal. Code Regs., tit. 2, §§ 7297.2 and 7297.5.) (These defenses are extremely hard to prove and are not being asserted by most employers.) It shall be unlawful for the employer to refuse to hire, or to discharge, fire, suspend, expel, or discriminate against any individual exercising his/her right to a family care and medical leave or providing information with regard to such a leave. (Gov. Code, § 12945.2(1); Cal. Code Regs., tit. 2, § 7297.7.)

A federal district court has ruled that an employee may state a claim for violation of a public policy under CFRA. (Ely v. Wal-Mart (C.D.C. 1995) 875 F. Supp. 1422, 1425-1429.)

FMLA

FMLA is substantially similar to CFRA. Where there is a conflict between the provisions of FMLA and state law on any issue, the provision that provides the greater family or medical leave rights to the employee will prevail. (29 U.S.C. § 2651(b).) FMLA and CFRA both cover the same employers (29 U.S.C. § 2611(4)) and have virtually the same employee eligibility requirements. (29 U.S.C. § 2611(2).)

The major distinction between CFRA and FMLA lies in the area of pregnancy disability as a serious health condition. Under the FMLA regulations, "any period of incapacity due to pregnancy, or for prenatal care" is explicitly covered as a "serious health condition," thus entitling an employee to 12 weeks of FMLA leave (29 C.F.R. § 825.114(a)(2)(ii).) Under CFRA, "leave taken for [an employee's own] disability on account of pregnancy, childbirth, or related medical conditions" is specifically excluded from the statutory definition of "family care and medical leave." (Gov. Code, § 12945.2(3)(c).) Thus, the maximum possible combined leave entitlement for both pregnancy disability leave under Government Code § 12945(l)(2)), and CFRA leave for reason of the birth of a child is four months and 12 work weeks. (Cal. Code Regs., tit. 2, § 7297.6.) (This assumes the woman receives the maximum of four months pregnancy disability and 12 work weeks of CFRA birth leave.) This contrasts with the FMLA entitlement of 12 work weeks for both pregnancy disability and birth/bonding with the newborn child.

Both laws have the same rule for medical leave for the employee's own serious health condition, allowing the employer to demand a second and, under certain circumstances, even a third medical opinion if the employer has reason to doubt the validity of the original certification. The one exception is medical leave taken for the employee's own pregnancy disability. The state's pregnancy regulations provide that if the certification offered by the employee has all of the requisite detail, the employer "must accept it as sufficient." (Cal. Code Regs., tit. 2, § 7291.10(b).) Thus, in a FMLA/Pregnancy Disability Leave situation involving pregnancy, the employer may not require a second opinion.

If the requested leave involves the serious health condition of a covered family member, the two laws differ. CFRA requires the employer to accept the medical certification of the family member's health care provider if it is "sufficient" within the meaning of the statute. (Gov. Code, § 12945.2(j).) On the other hand, FMLA allows for the three-tiered medical certification process, even for family members. (29 U.S.C. § 2613.) Since state law is more generous (that is, less onerous) to the employee than federal law on this issue, California employers must be satisfied with the single certification for family member illnesses.

A further difference is that CFRA does not require the employee or his/her doctor to disclose the underlying diagnosis of the serious health condition. (Gov. Code, § 12945.2(j) and (k); Cal. Code Regs., tit. 2, §§ 7297.0(a)(i) and (2); 7297.4(b)(1) and (2); and 7217.11.) In contrast, FMLA allows the medical certification to contain "the appropriate medical facts within the knowledge of the health care provider regarding the [serious health] condition." (29 U.S.C. § 2613(b); 29 C.F.R. § 825.306-307.) Since state law is more protective of the employee's right to privacy, CFRA most likely would be the controlling authority on this issue.

Another difference between the two statutes concerns the use of an employee's accrued vacation time. When the employee simply asks to take his/her accrued vacation time without mentioning anything that would lead the employer to believe that the vacation was going to be used for a CFRA/FMLA qualifying event, the FMLA regulations allow the employer to "inquire further" to see if the request for paid time off is "potentially FMLA-qualifying." (29 C.F.R. § 825.208(a).) The CFRA regulations, however, take a different position and state that "[i]f an employee requests to utilize accrued vacation time or other paid accrued time off without reference to a CFRA-qualifying purpose, an employer may not ask whether the employee is taking the time off for a CFRA-qualifying purpose." ( Cal. Code Regs., tit. 2, § 7297.5(b)(2)(A).) The result is that under state law, the employee using up his/her vacation time would still have 12 weeks of CFRA leave available, if needed.

The two laws are also different regarding leave for the birth of a child or placement of a child in the employee's home for adoption or foster care. Under FMLA, this birth/bonding leave must be taken all at once, unless otherwise agreed to by the employer. (29 U.S.C. § 2612(b)(1); 29 C.F.R. § 825.203(b).) In contrast, CFRA states that CFRA leave may be taken in more than one period, and creates a basic two-week minimum duration, with two shorter exceptions, for CFRA birth/bonding leaves. (Gov. Code, § 12945.2(p); Cal. Code Regs., tit. 2, § 7297.3(d).) Again, since state law is more flexible, it would probably be deemed more generous to the employee and would prevail over FMLA. Both laws, however, require that any birth/foster care/adoption leave be concluded by the end of the 12-month period that begins on the date of the birth or placement of the child in the employee's home. (29 U.S.C. § 2612(a)(2); Cal. Code Regs., tit. 2, § 7297.3(d).)

A last critical difference between the two laws lies in the different remedies they provide. FMLA contains an enforcement scheme that allows for both civil and administrative enforcement, as well as liquidated damages that are capped at three times the actual out-of-pocket losses. (29 U.S.C. § 2617.) A violation of CFRA, however, is a violation of the FEHA--and the entire panoply of remedies, including administrative adjudication, is available. (Gov. Code, § 12965-12970.) These remedies include, in court actions, unlimited compensatory damages for emotional injury and punitive damages. Employers thus face significantly greater exposure to high damage awards under state law, rather than under federal law.

The CFRA regulations incorporate by reference the FMLA regulations, to the extent that they are not inconsistent with CFRA, for all leaves that are common to both laws. (Cal. Code Regs., tit. 2, § 7297.10.) This was done to assist all parties because the FMLA regulations are much more detailed on virtually every issue than are the CFRA regulations. Thus, if CFRA is either silent or less detailed on an issue, both employers and employees have somewhere to look for guidance and can be comfortable using the federal interpretation. In the end, however, it is important to look at both the state and federal laws and understand the overlap and interplay between them.

Abortion

You may not be discriminated against by your employer because you have had an abortion.

All fringe, benefits other than health insurance, that are provided for other medical conditions must also be provided for abortions. For example, if your employer provided sick leave in case of other medical conditions, sick leave must also be provided in case of an abortion. (42 U.S.C. § 2000e(k).)

Employers are required to provide coverage in their health insurance plans only for abortions in which carrying the fetus to term would endanger the mother or where medical complications have arisen from an abortion. (42 U.S.C. § 2000e(k).)

Retirement

An employer may not discriminate with respect to retirement benefits on the basis of sex. (42 U.S.C. 2000e-2(a); Arizona Governing Committee v. Norris (1982) 463 U.S. 1073; Gov. Code, § 12940(a).)

An employer may not have different optional retirement ages for men and women. (Gov. Code, § 12040(a); Cal. Code Regs., tit. 2, § 7291.1(4).)

Retaliation

An employer, labor organization or employment agency may not retaliate against you because you have opposed its discriminatory practices, or because you have assisted in bringing or have brought legal action against it, or because you have made a report pursuant to section 11161.8 of the Penal Code, which prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities. If retaliatory action has been taken against you, the law gives you the right to recover damages. (42 U.S.C. § 2000e-3(a);⁽²⁵⁾ Gov. Code, § 12940(e) and (f); Cal. Code Regs., tit. 2, § 7287.8.)

The California Supreme Court upheld a $1.3 million jury verdict that supported the claim of a tortious discharge against public policy of a plaintiff forced to resign for testifying truthfully concerning a co-worker's sexual harassment discrimination charge that had been filed with the DFEH. It also found that the cause of action was not preempted by the exclusive remedy provisions of the Worker's Compensation Act. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083.)

Workers' Compensation

Workers' compensation provides insurance coverage for all workers who are injured on the job in the course of employment. (Ins. Code, § 11630 et seq.) Injury to a fetus due to the mother's employment may be covered by workers' compensation. (Bell v. Macy's California (1989) 212 Cal.App.3d 1442.) ⁽²⁶⁾

Paid Domestic Workers

Regular domestic workers who are not related to their employers have the same rights as any employees under the Fair Labor Standards Act. Employers are required to deduct disability insurance from the paycheck of all employees who are paid more than a certain amount in a quarter. Employers are required to pay Unemployment Insurance and Employment Training taxes for all employees who are paid more than a certain amount in a quarter. For information on state and federal tax law pertaining to domestic workers and their employers, contact:

Employment Development Department

800 Capitol Mall (95814-6497)
P. O. Box 826880
Sacramento, CA 94280-0001
(916) 653-0707
or the Employment Tax District office nearest you

Internal Revenue Service
(Check 1-800 number in the white pages for governmental agencies in your phone directory.)

LEGAL REMEDIES

If you believe that an employer has discriminated against you in any condition of employment because of your sex, or denied you equal pay, contact one of the government agencies listed at the end of this section for advice and legal assistance. They may be able to help you get reinstated or obtain money to compensate you for lost wages, emotional distress, etc.

The FEHC, if it finds, after issuance of an accusation by the DFEH and the holding of an administrative hearing, that an employer has engaged in unlawful sex discrimination or sexual harassment of an employee, can order the hiring or reinstatement of an employee with or without back pay, the admission or restoration to membership in any labor organization, or the payment of actual damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses, in combination with the amounts imposed as administrative fines, not to exceed $50,000 per aggrieved person per employer. (Gov. Code, § 12970(a)(1-3).) Administrative fines, that go to the General Fund, can be awarded against all employers except public entities, if the employers are guilty of oppression, fraud or malice, as evidenced by such factors as willful, intentional, or purposeful conduct; refusal to prevent or eliminate discrimination; conscious disregard for the rights of employees; commission of unlawful conduct; intimidation or harassment; conduct without just cause or excuse; or multiple violations of the FEHA. Punitive damages are not authorized. (Gov. Code, § 12970(c) and (d).) The FEHC can now order an additional award of up to a maximum of $150,000 for actual damages and a maximum penalty of $25,000 to the aggrieved person if the harassment was accompanied by violence or intimidation in violation of Civil Code section 51.7. (Gov. Code, § 12970(a)(4) and (e).)

An employer can opt to transfer the action from an administrative forum to civil court if the accusation issued by the DFEH prays for damages for emotional injuries or for administrative fines or both, if it serves written notice. In such a case, the DFEH represents the state (the complainant is the real party in interest) in the court action. Complainants may also intervene and be represented by their own counsel in the action. (Gov. Code, § 12965.)

You may also want to have a private attorney file a civil lawsuit alleging violations of the FEHA. In such an action, you can obtain the same remedies as are available from the FEHC (except that there is no cap on the amount of compensatory damages), along with unlimited punitive damages to punish the employer in certain outrageous cases. (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211.) A court can also award prejudgment interest on sexual harassment awards. (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 998-1006.)

Under Title VII, if the Equal Employment Opportunity Commission ("EEOC"), the enforcement agency for Title VII, wishes to prosecute a case, it must file an action in federal court. (42 U.S.C. § 2000e-5(g).) The complainant can also opt instead for court action with a private attorney.

Title VII authorizes a court to order such relief as reinstatement or hiring, with or without back pay, cease and desist orders, posting of legal rights and of the fact that discrimination occurred and other equitable remedies. Federal law limits Title VII damages pursuant to the Civil Rights Act of 1991; these limitations range from $50,000 to $300,000 of combined compensatory and punitive damages per complaining party, based solely on the size of the employer. (42 U.S.C. § 1981(a).) Attorneys' fees and costs are also available. For information on how to get in touch with a private attorney, see the "General Legal Assistance" section in Chapter Nine, the Directory of Services.

Administrative Procedure and Right-to-Sue

When the FEHA and Title VII have concurrent jurisdiction over a case, complainants may file a complaint with either the DFEH or the EEOC. Pursuant to a work-sharing agreement between the two agencies, complaints filed with one agency will be cross-filed with the other agency, but the complainant will receive an investigation only from the agency with which he/she actually filed.

Under the FEHA, a complainant has one year from the date of the alleged discrimination/harassment to file a complaint with the DFEH, except that this period may be extended for up to 90 days if the complainant first obtained facts of the alleged unlawful practice after the expiration of one year from the date of their occurrence. (Gov. Code, § 12960.) This is longer than the 300-day time limit for filing complaints with the EEOC under Title VII. (42 U.S.C. § 2000e-5(e). At least some of the discriminatory or harassing acts must have occurred within the year prior to the complaint being filed. Evidence of conduct that occurred more than one year before the complaint was filed is admissible, however, to establish the existence of a pattern of harassment. ( Green v. Los Angeles Superintendent of Schools (9th Cir. 1989) 883 F.2d. 1476, 1480; Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d 590, 613.)

After the complaint is filed, the DFEH has one year in which to decide whether to issue a formal accusation in a case, or two years if treated by the director as a group or class complaint for purposes of investigation, conciliation and accusation. (Gov. Code, § 12965(a).) The EEOC has no comparable time deadline under Title VII. In essence, then, the DFEH has one year in which to investigate the complaint.

In practice, both the EEOC and the DFEH allow a complainant who wishes to pursue court action to obtain a right-to-sue letter any time after the complaint is filed. If none is requested, the DFEH will issue a right-to-sue letter at the close of its investigation or at the one-year mark, whichever is sooner. (Gov. Code, § 12965(b).) The EEOC will issue a right-to-sue letter at the conclusion of its administrative proceedings. (42 U.S.C. § 2000e-5(f)(1).)

Under the FEHA, a plaintiff has one year from the date of issuance of the right-to-sue letter in which to file a civil action in superior, municipal, or justice court. (Gov. Code, § 12965(b).) The Ninth Circuit has held, however, that this time limit is tolled during the EEOC's investigation of the complaint. (EEOC v. Farmer Brothers Co. (9th Cir. 1994) 31 F.3d 891, 902-903). Under Title VII, a plaintiff has only 90 days from the receipt of the right-to-sue letter in which to file a civil action in federal court. (42 U.S.C. § 2000e-5(f)1). The Ninth Circuit has held that the 90-day limit begins running on the date the right-to-sue letter is delivered to the most recent address provided the EEOC. (Nelmida v. Shelly Eurocars, Inc. (9th Cir. 1997) 112 F.3d 380, 383-384.)

Even if a FEHA claim is filed in a timely manner, the statute of limitations may pass for such claims as tortious wrongful discharge in violation of public policy, assault and battery, and intentional infliction of emotional distress--all of which have a one-year statute of limitations. (Code Civ. Proc., § 340.)

The California Supreme Court has held that a plaintiff bringing a nonstatutory claim for wrongful termination in violation of public policy, as stated in the FEHA, does not need to exhaust FEHA remedies. (Rojo v. Kliger, supra, 52 Cal.3d 65, 88.)

Governmental agencies to contact:

California Department of Fair Employment and Housing. Offices in Bakersfield, Fresno, Los Angeles, Oakland, Sacramento, San Bernardino, San Diego, San Francisco, San Jose, Santa Ana, and Ventura. The department's toll-free telephone number is (800) 884-1684.

California Department of Industrial Relations, Division of Labor Law Enforcement (for equal pay, sexual orientation discrimination and Family School Partnership Act claims). District offices are located in Bakersfield, Eureka, Fresno, Long Beach, Los Angeles, Marysville, Oakland, Redding, Sacramento, Salinas, San Bernardino, San Diego, San Francisco, San Jose, Santa Ana, Santa Barbara, Santa Rosa, Stockton and Van Nuys.

Federal Equal Employment Opportunity Commission. Offices: check the white government agency pages of your telephone book for listings.

U. S. Department of Labor, Office of Federal Contract Compliance/Employment Standards Administration, for employment discrimination by federal contractors. Check the white government agency pages of your telephone directory for listings.

1. The Court of Appeal recently ruled that this public policy against discrimination does not protect independent contractors. (Sistare-Meyer v. Young Men's Christian Association of Metropolitan Los Angeles (1997) 58 Cal.App.4th 10.)

2. This handbook will primarily cover sex discrimination and sexual harassment in employment. For further information on discrimination on the basis of age, race, color, national origin, religion and sexual orientation, see the latest handbook on Civil Rights published by the California Attorney General.

3. Both Title VII and the Age Discrimination In Employment Act have limited application to United States citizens working abroad.

4. For further information on this topic, see the latest edition of the California Attorney General's Handbook on the Legal Rights of Persons with Disabilities.

5. In a recent decision, the Court of Appeal found that an employer's use of salary levels to differentiate between employees in a layoff is not age discrimination under the ADEA or the Fair Employment and Housing Act, because it is considered to be a reasonable factor other than age, even if cost-based layoffs had a disproportionate effect on older workers generally. (Marks v. Loral Corp. (1997) 57 Cal.App.4th 30.

6. Many older women feel doubly disadvantaged in the job market. There are organizations in California and nationally that help women over 40 who feel that they have been discriminated against or who are trying to gain re-entry into the job market. (See Chapter Nine, Directory of Services, for the names of these organizations.)

7. See footnotes 1 and 4, supra.

8. The Court of Appeal has ruled that a temporary employee could file suit under the FEHA when she was passed over for full-time employment and was allegedly fired because she filed a complaint with the Department of Fair Employment and Housing. (Sada v. RFK Medical Center (1997) 56 Cal.App.4th 138.)

9. Some or all of the California state and local government affirmative action programs may be invalidated by the courts in light of the passage of Proposition 209.

10. But see footnote 9, supra, for validity of local or state statutory or regulatory affirmative action programs.

11. Effective January 1, 1998, the FSPA was broadened to cover employees with children attending a licensed day-care facility. (Assem. Bill No. 47, 1997-1998 Reg. Sess.)

12. Effective January 1, 1998, this provision was modified so that employees may take up to 40 hours of leave in a calendar year. (Assem. Bill No. 47, 1997-1998 Reg. Sess.)

13. The California Supreme Court has before it two cases in which it will decide how to determine if an organization qualifies for the religious nonprofit exemption from the FEHA. (Kelly v. Methodist Hospital of Southern California, Case No. S053888, review granted, August 14, 1996); and McKeon v. Mercy Healthcare Sacramento, Case No. S054783, review granted, August 14, 1996.)

14. A Court of Appeal has ruled that the FEHA does not apply to non-residents working for California-based companies where the sexual harassment took place outside California. (Campbell v. Arco Marine, Inc. (1996) 42 Cal.App.4th 1850, 1852.)

15. A Court of Appeal recently confirmed that an individual in the chain of command over an employee who has been invested by the employer with sufficient authority in the employment workplace that he or she has sufficient actual or reasonably perceived power or control or direction in the work environment to significantly affect an employee's employment status is a supervisor for whose guid pro quo or hostile work environment sexual harassment the employer is strictly liable under the FEHA. (Lai v. Prudential Insurance Company of America (1998) ____ Cal.App.4th ____, 98 Daily Journal D.A.R. 2654.)

16. A romantic relationship between a supervisor and an employee does not, without more, give rise to a sexual discrimination or sexual harassment claim under the FEHA or the public policy of the state. (Proksel v. Gattis (1996) 41 Cal.App.4th 1626, 1627.)

17. In Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 79-80), Division Two of the Second District Court of Appeal held that individual supervisory employees were not personally liable for making personnel decisions of a discriminatory nature, in contrast to the personal liability that could be imposed for sexual harassment. Division Five of the Second District Court of Appeal ruled that there was no personal liability for a non-harassing supervisor who took no action to prevent sexual harassment as either an aider and abettor of the harasser or as the agent of the employer. (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1322.) This was considered to be more in the nature of a personnel management decision, rather than harassment. (But see Reno v. Baird (1997) 57 Cal.App.4th 1211, review granted December 19, 1997, for a contrary decision by Division Two of the First District Court of Appeal.)

18. The United States Supreme Court has agreed to decide which standard should be used under Title VII to determine when employers can be held liable for sexual harassment by their supervisory employees that creates a hostile work environment. (Faragher v. City of Boca Raton, Case No. 97-282.)

19. See discussion, infra, of the leave for pregnancy disability that may also be obtained pursuant to the Family and Medical Leave Act of 1993, 29 U.S.C., § 2601 et seq., or FMLA.

20. In a recent case, Pacourek v. Inland Steel Co. (N.D. Ill. 1996) 916 F.Supp. 797, a district court ruled that infertility is a physical impairment under the ADA, that reproduction is a major life activity, and that infertility substantially limits reproduction; therefore, the protections of the ADA are available to an employee receiving infertility treatment. The United States Supreme Court will decide whether reproduction is a major life activity in the case of Abbott v. Bragdon, Case No. 97-156.

21. California Labor Code section 6311 forbids employers from terminating or laying off an employee who refuses to work in conditions that violate worker-safety laws and that create a real or apparent hazard to workers. Employee pay cannot be withheld while refusing to work under such conditions.

22. The 50 employees do not all have to be employed within California, as long as the employer is engaged in business in California and the employee seeking the leave works in California. (Cal. Code Regs., tit. 2, § 7297.0(d).) The employee seeking the leave must be employed by an employer who maintains on the payroll, as of the date the employee gives notice of the need for a leave, at least 50 part-time or full-time employee within 75 miles, measured in surface miles, using surface transportation, of the worksite where the employer requesting the leave is employed. (Cal. Code Regs., tit. 2, §7297.0(e)(3).)

23. FMLA requires a more detailed notice to the employee of the employee's obligations; California employees are advised to follow these requirements, rather than the CFRA requirements, since when there is a conflict, the provision that provides the greater rights will prevail. (29 C.F.R § 825.301; 29 U.S.C. §2651(b).)

24. Title 2 of the California Code of Regulations, § 7297.4(a), provides for a calendar day response time, but since FMLA provides for a shorter response time (29 C.F.R. § 825.208(b)(1) and (c)), employers should comply with FMLA regulations, rather than the state regulations.

25. This section has been interpreted to apply to former employees as well. (Robinson v. Shell Oil Co. (1997), U.S. , 117 S.Ct. 843, 849.)

26. The California Supreme Court has held that the California Worker's Compensation Act does not bar a child from bringing a tort claim against her mother's employer based on injuries the child allegedly sustained in utero while the mother was working. (Snyder v. Michael's Stores Inc. (1997) 16 Cal.4th 991.)