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California Employers Duty to Prevent Harassment and Discrimination

California employers with 5 or more employees (full time, part time or seasonal) have a duty to prevent harassment and discrimination.  It is not often that regulations are clearly written which do not require “translation” to be understood.  See highlighted areas for key compliance requirements.  The employer policy must include all 10 compliance requirements – which means there must be a written document, usually in the form of an employee handbook.

2 California Code of Regulations § 11023

  • 11023. Harassment and Discrimination Prevention and Correction.

(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).

Disability Discrimination: When Can an Employer Terminate a Disabled Employee?

Wallace v. County of Stanislaus

Court of Appeal, 5th Appellate District, F068068 (February 25, 2016)

Consider a hypothetical with the following facts: [1] (1) an employer is advised by a physician than an employee’s physical condition renders him or her unable to perform essential job duties even with reasonable accommodation, (2) the physician’s evaluation is, in fact, correct, and (3) the employer removes the employee from the position because of the physical condition.  Under Government Code §12940(a)(1), the employer has clearly not engaged in impermissible discrimination.

What did Stanislaus County do wrong?

Facts: Wallace was hired by Stanislaus County as a deputy sheriff.  He injured his knee and filed a workers’ compensation claim.  Wallace had surgery and then returned to work on light duty.  Wallace was thereafter on a paid leave of absence for four months.  He returned on another light duty assignment.  Wallace went out on another leave of absence because of the knee injury, when his paid leave ran out.

Thereafter, Wallace received additional work restrictions and was offered an assignment of bailiff at his pre-injury rate of pay.  There were no performance issues.  Performance evaluations were above average.

Wallace underwent an agreed medical exam which resulted in a report listing various “preclusions” relating to lifting, pushing, pulling, climbing, squatting, kneeling, crouching, crawling, pivoting, and walking.  Wallace was removed from his job because of a lack of modified or alternative work available.  Wallace stated he could perform the job function of a bailiff (and other positions).

The County placed Wallace on an unpaid leave of absence as an “accommodation.”  The unpaid leave of absence lasted over a year.  Wallace filed a disability discrimination complaint.  About two years after the unpaid leave of absence, and after the County received a fitness for duty exam report, the County returned Wallace to full duty as a patrol officer.  Wallace sued for damages for lost compensation, emotional distress and attorney’s fees.

Legal issue:

The appellate court reversed the trial court based upon an erroneous jury instruction.  Of relevance for understanding California discrimination claims is that California law does not require an employee with an actual or perceived disability to prove that the employer’s adverse employment action was motivated by animosity or ill will against the employee.  Instead, California’s statutory scheme protects employees from an employer’s erroneous or mistaken beliefs about the employee’s physical condition.  In short, the Legislature decided that the financial consequences of an employer’s mistaken belief that an employee is unable to safely perform a jo’s essential functions should be borne by the employer, not the employee, even if the employer’s mistake was reasonable and made in good faith.[2]

The definition of “physical disability” includes “being regarded or treated by the employer … as having, or having had, any physical condition that makes achievement of a major life activity difficult.”[3]

The Court held that a properly instructed jury would have found that Wallace’s disability was a substantial motivating reason for the County’s decision to remove him from his job as a bailiff.  The County’s mistaken belief that Wallace was unable to perform his job safely is not a defense to the claim of disability discrimination.


Not infrequently, employers find themselves in this situation.  It is somewhat ironic that the Wallace decision consists of 32-pages plus a 3-page concurring opinion in reversing a trial court about how an employer should handle a disability claim of this nature.   Moreover, the Fair Employment & Housing Act (“FEHA”) applies to employers with five or more employees.  Not everyone has a human resources department and, even when they do (i.e., County of Stanislaus) the recommendation and action taken is not always accurate.

[1] Quoting from Justice Poochigian’s concurring opinion in the Wallace decision.

[2] Wallace at page 2.

[3] Government Code §12926(m)(4).

Selected New Employment Laws – 2016

Posters and Notice Requirement

Two new required posters: injuries caused by work and whistleblower protection; new minimum wage posters

Exempt and Non-Exempt

Exempt employees: $41,600/annual; $3,466,67/monthly minimum salary

Physicians and surgeons: $76.24/hour

Computer professions: $41.85/hour; $87,185.14/annual; $7,265.43/monthly

Verifying Eligibility to Work

New USCIS I-9 Form effective November 2015

It is a violation of California law to use E-Verify in a time or manner that is not required by federal law to check the employment authorization status of an existing employee or applicant who has not been offered employment.  Exception: if required by federal law or to receive federal funds. $10,000 civil penalty for each violation.

Joint Employers

Companies and staffing agencies/labor contractors are both liable for wage and hour violations, workers’ compensation, retaliation claims.  Some exclusions based upon size of business entities and type of labor performed.

Employing Minors

A child worker’s immigration status is not relevant to the issue of whether the employer violated the law or what remedies are available to the worker.

Non-Competition Agreements

“No-hire” provisions in a separation or severance agreement may violate Business & Professions Code §16600 (9th Circuit Court of Appeals).

Wage and Hour Law

Individuals can be held personally liable for a company’s failure to comply with certain wage and hour laws (“other person acting on behalf of the employer”), including

  • Wage Order violations for minimum wages, days and hours of work
  • Timely payment of wages
  • Pay stub/itemized wage statements
  • Meal and rest break requirements
  • Overtime
  • Reimbursement of expenses

“Other person acting on behalf of an employer” means owner, director, officer or managing agent.

Labor Commission can conduct hearings and award civil penalties against the company and individuals.  Labor Commission can levy on personal assets.

Employers are prohibited from retaliating against an employee because the employee’s family member engaged in, or is perceived to have engaged in, protected conduct.

The Labor Commissioner to now investigate and enforce local overtime and minimum wage laws, such as the local minimum wage ordinances enacted by many cities.

Minimum Wage

$10/hour – California$15/hour – overtime (time and one-half)$20/hour – overtime (double time) $10.15/hour – federal construction and service contracts. 
California Federal

Cities or towns having local minimum wage                                                  Counties with a living

or living wage ordinance                                                                    wage ordinance





Long Beach

Los Angeles

Mt. View




Port Hueneme Richmond


San Diego

San Fernando

San Francisco

San Jose


San Leandro

Santa Barbara

Santa Cruz

Santa Monica






West Hollywood



            Los AngelesMarinSan Francisco

Santa Clara

Santa Cruz




On-Call Resident Employees

Applicability is to employees under Wage Order 4.  Compensation is appropriate for all on-call hours spent at the assigned worksite under the employer’s control where employer exercised significant control over employee’s activities during the on-call time.  Employees must live on-site, respond promptly, not free to leave at-will, but only when relief available.  No children, no pets, no alcohol, no visits with adult friends or family without permission. California Supreme Court decision.

Wage Garnishments

Employer can deduct $1.50 from employee’s earnings for each payment made in accordance with any garnishment order.  The amount of wages exempt from garnishment is higher under California law than the federal standard.

Training Related Expenses

Requirement to reimburse training costs if employee terminated employment within 5 years of date of hire held to be invalid.  California Appellate Court decision.

Security Screenings

Time a worker spends in security screenings is not compensable under FLSA.  U.S. Supreme Court decision.

Paid Sick Leave

The Healthy Workplaces, healthy Families Act creates an employer mandate to provide paid sick leave (PSL) effective July 1, 2015.

  • Employees cannot start using accrued sick days until the 90th day of employment.
  • Employers can limit the amount of PSL an employee can use to three days or 24 hours per year.
  • Statutory accrual method: one hour of sick pay for every 30 hours worked; any accrued but unused sick time must carry over to the following year of employment but can be capped at 48 hours or 6 days.
  • PSL must be provided upon an employee’s oral or written request. If the need for PSL is foreseeable, an employee must provide “reasonable” advance notice.  If not, the employee must provide notice “as soon as practicable.”
  • An employer can set a “reasonable minimum increment” of time that must be taken not to exceed two hours.
  • Under California’s “kin care” law, employers must allow employees to use one-half of their annual sick leave entitlement to care for a family member.

See California Department of Industrial Relations Website for additional information including “Frequently Asked Questions” and responses.

School and Child Care Activities Leave

Employers with 25 or more employees working at the same location must permit employees to take time off to participate in certain school or child care activities up to 40 hours annually.

Safety (OSHA)

Heat illness prevention requirements are applicable to agriculture, construction, landscaping, oil and gas extraction and transportation, deliveries of agricultural products, construction materials or other heavy materials.

Gender Wage Equality – Fair Pay Act

Effective January 1, 2016.  Employers are prohibited from paying any of their employees less than employees of the opposite sex for “substantially similar work.” The burden is on employers to justify pay differentials from an acceptable list of factors that must be applied reasonably.  The relied upon factors must account for the entire wage differential.  No discriminatory intent is required.  “Substantially similar work” means a composite of skill, effort and responsibility that is performed under similar working conditions.  It does not have to be the exact same job title or function.

Employers cannot prohibit employees from disclosing their own wages, discussing wages of others, asking about another employee’s wages, aiding or encouraging other employees to exercise their rights under the Fair Pay Act.  There is no obligation, however, of an employee to disclose wages when asked.  Employers must keep wage, job classification and other terms and conditions records for 3 years.

Fair Pay Act includes all forms of compensation (salary, bonuses, commissions, and related perks).

Requests for Reasonable Accommodation

The mere act of requesting a reasonable accommodation for a disability or religious reasons is a protected activity and an employer cannot discriminate or retaliate against a person for requesting the accommodation, regardless of whether the request was granted.

Wage Statement Violations

Wage statements must include nine items of information, including the beginning and end date of the period for which the employee is being paid and the employer’s name and address.  Employers who don’t include all of these items on their wage statement get a break: An employee can’t file an action under the Private Attorneys General Act for these omissions without first notifying the employer and giving the employer a chance to fix the problem by issuing new (and compliant) wage statements for the 3-year period before the notice.

Requirements for Paying Piece-Rate Workers

Employees must be separately compensated for rest and recovery breaks and other “nonproductive” time. (Wage statements have to reflect this time, too.)  But employers can satisfy this requirement by paying minimum wage for all hours worked, in addition to any piece rate. This will particularly affect agricultural and transportation companies, which have historically compensated employees based on piece-rate and activity-based formulas.

National Labor Relations Board (NLRB)

Sections 7 and 8(a) (1) protect the rights of employees to engage in “protected concerted activity” (i.e., 2 or more employees taking action relating to terms and conditions of employment for their mutual aid or protection).  Applies to union and non-union employees

  • Single employee acts on authority of other employees in bringing group complaints to the employer’s attention or attempts to induce group action.
  • Employees can act together to improve wages and other conditions of employment.
  • NLRB invalidated employee confidentiality agreements in workplace investigation.

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