Monthly Archives: April 2016

Employer’s Required to Update Policy on Harassment and Discrimination

Effective April 1, 2016, all employers should have updated employer policy on harassment and discrimination to comply with new California requirements as set forth below.

2 California Code of Regulations

  • 11023. Harassment and Discrimination Prevention and Correction.

(Effective April 1, 2016)

(a) Employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct. (Gov. Code, § 12940(k).)

(1) A determination as to whether an employer has complied with Government Code section 12940(k) includes an individualized assessment, depending upon numerous factors sometimes unique to the particular employer including, but not limited to, its workforce size, budget, and nature of its business, as well as upon the facts of a particular case.

(2) There is no stand-alone, private cause of action under Government Code section 12940(k). In order for a private claimant to establish an actionable claim under Government Code section 12940(k), the private claimant must also plead and prevail on the underlying claim of discrimination, harassment, or retaliation.

(3) However, in an exercise of its police powers, the Department may independently seek non-monetary preventative remedies for a violation of Government Code section 12940(k) whether or not the Department prevails on an underlying claim of discrimination, harassment, or retaliation.

(b) Employers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act. In addition to distributing the Department’s DFEH-185 brochure on sexual harassment, or an alternative writing that complies with Government Code section 12950, an employer shall develop a harassment, discrimination, and retaliation prevention policy that:

(1) Is in writing;

(2) Lists all current protected categories covered under the Act;

(3) Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act;

(4) Creates a complaint process to ensure that complaints receive:

(A) An employer’s designation of confidentiality, to the extent possible;

(B) A timely response;

(C) Impartial and timely investigations by qualified personnel;

(D) Documentation and tracking for reasonable progress;

(E) Appropriate options for remedial actions and resolutions; and

(F) Timely closures.

(5) Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:

(A) Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or

(B) A complaint hotline; and/or

(C) Access to an ombudsperson; and/or

(D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.

(6) Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.

(7) Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.

(8) States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.

(9) Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.

(10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

(c) Dissemination of the policy shall include one or more of the following methods:

(1) Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;

(2) Sending the policy via e-mail with an acknowledgment return form;

(3) Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;

(4) Discussing policies upon hire and/or during a new hire orientation session; and/or

(5) Any other way that ensures employees receive and understand the policies.

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

Associational Disability Discrimination

Luis Castro-Ramirez (“Luis”) sued his former employer, Dependable Highway Express, Inc. (“DHE”) for disability discrimination, failure to prevent discrimination, and retaliation under the Fair Employment and Housing Act (“FEHA”) as well as wrongful termination in violation of public policy.

Luis’ son requires daily dialysis.  Luis is the only person in his household who knows how to operate the dialysis machine for his son.  One has to take classes to learn how to operate the machine.

Luis informed the recruiting manager who hired him at DHE of his daily obligations.  For three years, DHE was able to accommodate him by providing shifts that allowed Luis to return home to care for his son.  Luis’ son had to be connected to the dialysis machine for 10-12 hours per day.

For several years, Luis’ supervisors scheduled him so that he could be at home at night for his son’s dialysis.  A new supervisor refused to accommodate Luis’ schedule and terminated Luis for refusing to work a shift that did not permit Luis to be home in time for his son’s dialysis.

The facts are not in dispute.

The trial court granted summary judgment to DHE.  The Court of Appeal, in a 2-1, decision, reversed.

“FEHA provides a cause of action for associational disability discrimination, although it is a seldom-litigated cause of action…. The very definition of a “physical disability” embraces association with a physical disabled person.  FEHA explains that the phrase “’physical disability’… includes a perception…that the person is associated with a person who has, or is perceived to have” a physical disability [Govt. C. §12926(o)].  Accordingly, when FEHA forbids discrimination based on a disability, it also forbids discrimination based on a person’s association with another who has a disability.

The Court acknowledges that “no published California case has determined whether employers have a duty under FEHA to provide reasonable accommodation to an applicant or employee who is associated with a disabled person.  We hold that FEHA creates such a duty according to the plain language of the Act.”

The dissenting justice stated, “The majority has gone out of its way to create a cause of action that no party to this appeal contends exists.  The majority reverses the grant of summary judgment on the basis that “the plain language” of FEHA creates a duty to accommodate an employee’s disabled family member – which is simply not so.  The majority has indeed boldly gone into a new frontier, fraught with danger for California employers, a mission best left to the Legislature.”

Luis Castro-Ramirez v. Dependable Highway Express, Inc. (Court of Appeal, 2nd Appellate District, April 4, 2016).