Phyllis W. Cheng | Director | California Department of Fair Employment & Housing

1. Program 72: Introduction to California Employment Discrimination Law WORKING WITH THE DFEH Phyllis W. Cheng | Director | California Department of Fair Employment & Housing Samson Elsbernd | Associate | Wilke, Fleury, Hoffelt, Gould & Birney, LLP Roya Ladan| Staff Counsel | California Department of Fair Employment & Housing

2. Introduction General Overview of Federal and State employment discrimination laws. Recent Case Law, Statutory and Regulatory Amendments regarding select employment provisions of FEHA. DFEH Investigation of Employment Discrimination Complaint. Statistics, Trends & Practice Pointers.

3. Federal and State Employment Discrimination Laws

4. FEDERAL • Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). • Employers with 15 or more employees. • Enforcing agency: Equal Employment Opportunity Commission (“EEOC”). • STATE • California Fair Employment and Housing Act (“FEHA”) (Gov. Code, §12900 et seq.). • Applicable to employers with 5 or more employees, but harassment protections applicable to all employers. • Enforcing agency: Department of Fair Employment and Housing (“DFEH”).

5. Workshare Agreements • Workshare Agreements: • 42 U.S.C. § 2000e-8(b); 29 C.F.R. § 1626.10(c). • Constructive Filing: • 29 C.F.R. §1626.10(c). • Compare, Amendments. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1729-30 (where DFEH deferred federal age claim to EEOC and litigant subsequently amended claim with EEOC but not DFEH, litigant could not avail herself of state remedies for additional claims).) • Dual Filing.

6. Deadlines for Filing Claims with EEOC or DFEH TITLE VII Claims: • 180 days to file a Title VII claim with the EEOC. • 300 days to file a Title VII claim with the DFEH (42 U.S.C. § 2000e-5(e)(1).) FEHA Claims: • 1 year to file a FEHA claim with the DFEH (Gov. Code, § 12960, subd. (d).) • 90-day extension for delayed discovery. • 1 year from 18th birthday for minors (Gov. Code, § 12960, subd. (d)(4).)

7. Deadline for filing runs from… Date of Alleged Unlawful Employment Practice. Title VII: • 42 U.S.C. § 2000e-5(e)(1). FEHA: • Government Code section 12960; California Code of Regulations, title 2, section 10002, subdivision (b). • Continuing violations.

8. Right-to-Sue Letters • Is DFEH right-to-sue letter sufficient for Title VII claims? • But, where employee entitled to receive a right to sue letter from the EEOC, see, Surrell v. California Water Service Co. (9th Cir. 2008) 518 F.3d 1097, 1105. • EEOC right-to-sue letter not sufficient for FEHA claims.

9. EEOC Deadlines in a Nutshell • Service of Complaint - 10 days after filing of complaint. (42 U.S.C. § 2000e-5(e)(1).) • Right to Sue – • Upon request after 180 days after filing of charges (42 U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.28(a)(1).) • Or sooner? • Filing Lawsuit - 90 days from “giving of such notice” (42 U.S.C. § 2000e-5(f)(1)) v. “receipt of authorization” (29 C.F.R. §1601.28(e).)

10. DFEH Deadlines in a Nutshell • Service of Complaint – 60 days after filing of complaint. (Gov. Code, § 12962; Cal. Code Regs., tit. 2, § 10021, subd. (b).) • Right to Sue- • Immediately .(Cal. Code Regs., tit. 2 , § 10005, subd. (a).) • Upon complainant’s request: • When DFEH closes file; or • When DFEH fails to bring civil action within 150 days after filing of complaint. • 1 year after complaint is filed. (Gov. Code, § 12965, subd. (b); Cal. Code Regs., tit. 2, § 10005, subd. (f).) • Filing Lawsuit – • By DFEH: • 1 year from filing of complaint. • 2 years from filing of complaint for Director’s, class or group actions. (Gov. Code, § 12965, subd. (a).) • By Complainant • 1 year after date on right to sue. (Gov. Code, § 12965, subds. (b) & (d).)

11. Recent Case Law, Statutory & Regulatory Amendments

12. Prohibitions: Fair Employment & Housing Act • Discrimination • Harassment • Retaliation • Employment • Age • Ancestry • Color • Disability • Family Leave Gender • Gender Identify • Gender Expression • Genetic Information • Marital Status • Medical Condition • Military and Veteran Status • National Origin • Race • Religion • Sex • Sexual Orientation

13. Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336 Jurisdiction • Background: Former employee brought action against employer and its owner-manager for sexual harassment, retaliation, and wrongful termination in violation of public policy. • Holdings: The Court of Appeal, Ikola, J., held that: (1) employer and owner-manager forfeited exhaustion of administrative remedies argument; (2) employee's claim of wrongful termination in violation of public policy did not require proof that employer had at least five employees; and (3) finding owner-manager personally liable for wrongful termination was harmless error.

14. Ellis v. U.S. Security Associates(2014) 224 Cal.App.4th 1213 Limitation Period • Background: An employment application required applicants to agree to shorten the statutory period for filing an employment complaint from one year to six months. Former employee brought post-resignation action against former employer, alleging three claims under the Fair Employment and Housing Act (FEHA) and two nonstatutory claims arising out of sexual harassment and failure to obtain promised pay raise. • Holding: The Court of Appeal, Richman, J., held that six-month limitations period contained in employment application was unreasonable and contrary to public policy.

15. Harris v. City of Santa Monica (2013) 56 Cal.4th 203 Mixed Motive/Same Decision Defense • Background: After being terminated by city, bus driver brought action against city under Fair Employment and Housing Act (FEHA) for pregnancy discrimination. • Holdings: The Supreme Court, Liu, J., held that: (1) FEHA liability requires proof that illegitimate criterion was “substantial motivating factor” in the employment decision; (2) same-decision defense limits an employee's relief to declaratory and injunctive relief, fees, and costs; (3) same-decision defense may be proved by preponderance of evidence; and (4) city's failure to plead “same-decision” defense did not bar jury instruction on the defense.

16. Salas v. Sierra Chemical Co. (2014) 173 Cal.Rptr.3d 689Immigration Status/Unclean Hands • Background: Former employee brought action against former employer, alleging disability discrimination in violation of the Fair Employment and Housing Act (FEHA) and denial of employment in violation of public policy after employer failed to allow employee to return to work after employee suffered a back injury. • Holdings: The Supreme Court, Kennard, J., held that: (1) the statute extending state law employee protections to all workers “regardless of immigration status” is preempted by federal immigration law only to the extent it authorizes lost pay awards for any period after an employer's discovery of an employee's ineligibility to work in United States; (2) fact issue existed as to whether doctrine of after-acquired evidence barred employee's FEHA claim; and (3) unclean hands based upon employee's status as unauthorized immigrant was not a complete defense to employee's FEHA claim.

17. Escriba v. Foster Poultry Farms, Inc.(9th Cir. 2014) 743 F.3d 1236 FMLA Leave • Background: Employee at poultry processing plant brought action against her former employer, alleging violations of Family and Medical Leave Act (FMLA), California Family Rights Act (CFRA), and California public policy. • Holdings: The Court of Appeals, Gilman, Senior Circuit Judge, held that: (1) an employee can affirmatively decline to use FMLA leave; (2) employer did not interfere with employee's FMLA rights; (3) there was substantial evidence that employee elected not to take FMLA leave; (4) any error by district court in admitting evidence of employee's prior FMLA leave was harmless; and (5) District Court did not err in denying costs to employer, as prevailing party.

18. 2013 SB 1038 FEHA Amendments • Eliminated the DFEH’s sister agency, the Fair Employment and Housing Commission (Commission), operative January 1, 2013. (Stats.2012, c. 46 (S.B.1038), § 34, eff. June 27, 2012, operative Jan. 1, 2013; Legis. Counsel’s Dig., Sen. Bill 1038 (46 Stat. 2012) (Reg. Sess.) Summary Dig. p. 3.) • Transferred the Commission’s regulatory function to the DFEH Fair Employment & Housing Council. (Ibid.) • Ended administrative adjudication of FEHA claims. (Ibid.) • Provides for free mandatory dispute resolution by the DFEH. (Ibid.) • Authorizes the DFEH to file cases directly in court. (Ibid.) • Authorizes the DFEH to collect attorney fees and costs when it is the prevailing party in FEHA litigation. (Ibid.)

19. 2014 FEHA Amendments • SB 292 (Corbett) (Sexual Harassment) Amended the FEHA to clarify that sexual desire is not required to prove a sexual harassment hostile work environment claim under the Act. • AB 556 (Salas) Expanded the FEHA’s protections by adding military and veteran status to the bases upon which employment discrimination is prohibited. States that it does not affect existing law, which allows employers to award veterans’ preference points in hiring and promotions.

20. 2015 FEHA Amendments and Related Laws • AB 1443 (Skinner ) (Harassment: Unpaid Interns). Discrimination against unpaid interns in selection, termination, training, or other terms or treatment is unlawful employment practice. • AB 2053(Gonzalez) (Employment discrimination or harassment: education and training: abusive conduct). Require sexual harassment training to include prevention of abusive conduct. • AB 1522(Gonzalez) (Paid Sick Leave). The Healthy Workplaces, Healthy Families Act of 2014 provides that an employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the commencement of employment is entitled to paid sick days for prescribed purposes, to be accrued at a rate of no less than one hour for every 30 hours worked.

21. FEHA Pregnancy Regulations In definition of “disabled by pregnancy,” expand non-exclusive list of medical conditions related to pregnancy. Clarify that “four months” of leave means 17 1/3 weeks of leave. Clarify employer responsibilities regarding reasonable accommodations and transfers. Add prohibitions against “perceived pregnancy” discrimination or harassment. Amend notices required to be posted and given to employees affected by pregnancy for employers with fewer than 50 employees (Notice A), and employers with 50 or more employees (Notice B). (Available at www.dfeh.ca.gov.) Employers who choose to require medical certification must notify the employee in writing and provide a form for the medical provider to complete. Employers may develop their own form or use the template in the regulation. (Available at www.dfeh.ca.gov.) Regulations available on DFEH webpage at www.dfeh.ca.gov

22. FEHA Disability Regulations Provide that “limiting” a major life activity means the condition makes achieving a major life activity “difficult. Replace mental retardation with “intellectual or cognitive disability.” Provide more specific examples of mental disabilities such as: specific learning disabilities, clinical depression, bipolar disorder, post-traumatic stress disorder & obsessive compulsive disorder. Provide standards for determining when a job function is essential, as well as examples of potential reasonable accommodations (e.g., bringing assistive animals to work, job restructuring, reassignment to a vacant position, leaves of absence, teleworking, reserved parking spaces). Also provide rules for assistive animals. Cite the holding in Green v. State of California that the applicant or employee has the burden of proof to establish that he or she is a qualified individual capable of performing the essential functions of the job with or without reasonable accommodation. Defenses: Danger to self & danger to health and safety of others; however future risk is not a defense. Regulations available on DFEH webpage at www.dfeh.ca.gov

23. Proposed CFRA Regulatory Amendments • Amendments cover 11 sections: • Definitions; • Right to CFRA Leave: Denial of Leave; Reasonable Request; Permissible Limitation; • Right to Reinstatement: Guarantee of Reinstatement; Rights Upon Return; Refusal to Reinstate; Permissible Defenses; • Computation of Time Periods: Twelve Workweeks; Minimum Duration; • Requests for CFRA Leave: Advance Notice; Certification; Employer Response; • Terms of CFRA Leave; • Relationship between CFRA Leave and Pregnancy Disability Leave; Relationship between CFRA Leave and Non-Pregnancy Related Disability Leave; • Retaliation and Protection from Interference with CFRA Rights; • Notice of Right to Request CFRA Leave; • Relationship with FMLA Regulations; and • Certification Form. Proposed Amendments available on DFEH webpage at www.dfeh.ca.gov

24. DFEH Investigation Employment Discrimination Complaint

25. DFEH Mission and Jurisdiction • Fair Employment and Housing Act (Gov. Code, § 12900 et seq.). • Disabled Persons Act (Civ. Code, § 54 et seq.). • Unruh Civil Rights Act (Civ. Code, § 51 et seq.). • Ralph Civil Rights Act (Civ. Code, § 51.7).

26. DFEH Employment Flowchart

27. HYPOTHETICAL- Part I • Jane Doe is 25 years old. She recently started working as a full time bartender for Town Sports Bar. Jane’s schedule changes week to week, with Jane working weekdays and/or weekends. • The owner of Town Bar, Sally Town, manages the bar and handles all personnel issues. All 30 of the bartenders at Town Sports Bar are female. Sally encourages her bartenders to wear low cut tops and often playfully pinches and slaps the bartenders’ behinds as she walks through the bar. Jane did not participate in these practices. Sally pulled Jane aside and told her one time that it would be in her interest to participate because the customers liked it. Jane still did not participate after this conversation. Instead, Jane filed a complaint with the DFEH for sexual discrimination and harassment. Jane requested an immediate right-to-sue letter.

28. Filing a DFEH Complaint

29. Requesting a Right to Sue Letter

30. HYPOTHETICAL – Part 2 • Jane continued working for Sally. A few months later, Jane discovered she was pregnant by a patron. Town Sports Bar’s employee handbook prohibits employees from engaging in romantic relationships with patrons of the bar. When she began to show, she told Sally she was pregnant but not by whom. Sally remarked, “That’ll be bad for business.” • As the pregnancy progressed and Jane began to show more, Sally – without speaking with Jane - began only assigning Jane to work on weekdays at the bar. Jane asked Sally about the change. Sally told Jane it was because she could not keep up with the pace of the weekend shift. Jane assured Sally she could, but Sally still did not schedule Jane to work weekends. Jane file a complaint with the DFEH, alleging discrimination based on sex/pregnancy.

31. Investigation of DFEH Employment Complaint • Conciliation. • Employer Response. • Investigative Discovery. • Interrogatories. • Request for Copying & Inspection. • Investigative Interviews. • Onsite Inspection. • Merit/No Merit Finding.

32. Mandatory Dispute Resolution • Government Code section 12965, subdivision (a), states that prior to filing a civil action, DFEH “shall require all parties to participate in mandatory dispute resolution” in DFEH’s internal Dispute Resolution Division “free of charge to parties in an effort to resolve the dispute without litigation.”

33. Filing a Civil Complaint in Court • Authorizes the DFEH to file cases directly in court, operative January 1, 2013. (Stats. 2012, c. 46 (S.B.1038), § 34, eff. June 27, 2012, operative Jan. 1, 2013; Legis. Counsel’s Dig., Sen. Bill 1038 (46 Stat. 2012) (Reg. Sess.) Summary Dig. p. 3.)

34. HYPOTHETICAL- Part 3 • After filing the Complaint, Sally fired Jane. Jane amended her complaint to include a claim for retaliation. Following the termination, Sally learned that Jane was pregnant by one of the bar’s regular patrons.

35. Litigation • Verified Answer:An answer filed in response to a public entity’s complaint must be specific and verified. (Code Civ. Proc., § 446.)  • Attorneys fees: DFEH authorized to collect attorney fees and costs when it is the prevailing party in FEHA litigation. (Gov. Code, § 12907, subd. (a).)

36. Exhaustion • Of Administrative Remedies • Same persons. • Claims in charge, including like or related claims • Acts subsequent to complaint. • Of Internal Grievance Procedures • Common law claims • Simultaneous filing & statute of limitations.

37. Statistics, Trends & Practice Pointers

41. Examples of DFEH Prosecutions • In 2008, a $618,000 familial status discrimination class action settlement against an Orange County apartment complex, on behalf of the Fair Housing Council of Orange County and 9 families; • In 2009, a $260,000 settlement of an employment disability discrimination case against Loma Linda University Medical Center on behalf of a class of 10 job applicants denied selection. • In 2010, a $467,000 settlement against Verizon on behalf of 8 current and former employees denied accommodation for disability, as well as a $445,000 settlement against Verizon on behalf of 42 current and former female employees who suffered pregnancy discrimination; • In 2011, a $846,300 judgment against Acme Electric Corporation on behalf of a cancer survivor sales manager. • In 2012, a $450,000 settlement against Penske Trucking company on behalf of 13 newspaper delivery drivers the company refused to hire due to real or perceived disabilities; • In 2012, a $6,011,190 California Family Rights Act (CFRA) class action settlement in Dept. Fair Empl. & Hous. v. Verizon (Seales) (Super. Ct. L.A. County, No. BC444066). • In 2013, five-year settlement for injunction relief on sexual harassment training with the City of San Diego. • In 2014, am $8.73 million nationwide settlement on testing access and permanent injunction in Dept. Fair Empl. & Hous. v. Law School Admission Council (N.D.Cal., No. CV 12-1830-EMC).

42. FEH Council Regulatory Projects Changes without Regulatory Effect • Approved by the Office of Administrative Law and published in the California Code of Regulations, title 2, section 11001 et seq. • Conform regulations of the former Fair Employment and Housing Commission (Commission) to the statutory changes made by Senate Bill 1038. • Repeals certain of the former Commission’s regulations for which there is no longer statutory authority. • Renumbers and relocates the regulations within Division 4.1 of title 2 as the regulations of the newly established Council. • Also makes non-substantive grammatical and style changes to the regulations as well as changes to Authority and Reference citations. • Conversion chart available on FEH Council’s webpage at www.dfeh.ca.gov

43. Practice Pointers • Implement an effective anti-discrimination and harassment policy. • Include an effective complaint procedure. • Keep employees fully informed of their rights. • DFEH poster. • DFEH information sheet. • www.dfeh.ca.gov • Investigate complaints immediately. • Promptly take appropriate remedial action.

44. DFEH Outreach • In-person outreach 2008-2011: 516 events. • Employment Round Tables. • Web site: www.dfeh.ca.gov. • Webinars: MCLE and HRCI provider. • New Fairtimes Newsletter , Monthly Calendars, and Listserv. • State Bar: Case Law Alert; Articles; Labor & Employment and Real Property Law Section Executive Committees; Fair Housing Public Accommodations Subsection; The Rutter Guide; Matthew Bender. • Social media: YouTube, Facebook, LinkedIn, Twitter. • New partnerships: DFEH-UC|CSU|Community College clinical programs; training future civil rights lawyers & investigators; Civil Rights Graduate Fellowship pipeline program.

45. THANK YOU Thank You www.dfeh.ca.gov contact.center@dfeh.ca.gov (800) 884-1684 TTY (800) 700-2320