Leading Employment Attorneys in Irvine, California
As one of the prominent law firms in California handling discrimination, wrongful termination, and retaliation, Stephen Danz and Associates is proud to celebrate four decades of unrelenting service for employees throughout California. Our attorneys cover cities in Northern California and Southern California as the State’s courts are as specialized and diverse as the State’s landscape. In Irvine, California, our legal counselors are highly specialized and handle complex employment lawsuits where private individuals trust us to bring forth their cases in local, state and federal courts.
Fair Employment and Housing Act (FEHA) and Title VII of the Civil Rights Act of 1964
The Fair Employment and Housing Act (FEHA) includes an express prohibition against sexual harassment (unlike Title VII). Under FEHA, it is an unlawful employment practice to harass an employee, job applicant, or independent contractor because of “sex,” which is defined as including sexual harassment. In fact, the sexually harassing conduct does not need to be motivated by sexual desire to be unlawful.
Harassment because of “sex” also includes gender harassment and harassment based on pregnancy, childbirth, or related medical conditions, such as breast-feeding. The Legislature has declared that the purpose of the state’s law prohibiting sexual harassment is “to provide all Californians with an equal opportunity to succeed in the workplace and should be applied accordingly by the courts.”
Prohibition Against Sex Discrimination
FEHA also makes it an unlawful employment practice to discriminate against an applicant or employee on the basis of sex, gender, gender identity, gender expression, or sexual orientation. The distinction between “discrimination on the basis of sex” and “sexual harassment” is based on the concept of delegable authority.
The protection against sex discrimination covers transgender and other gender-nonconforming persons. FEHA defines “sex” to include a person’s gender, which itself includes “gender identity and gender expression.” Gender expression is a person’s gender-related appearance and behavior, whether or not these are stereotypically associated with the person’s assigned sex at birth.
Employer’s Duty to Prevent Harassment – Must Take All Reasonable Steps to Prevent Harassment
An employer may be separately liable for failing “to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Before an employer can be found liable on this theory, however, the plaintiff must first show actionable harassment. If it is the case that harassment has already occurred, the duty to maintain a harassment-free work environment requires the employer to take remedial action not only to change the harasser’s behavior, but to deter potential harassers from unlawful conduct.
àDuty to Post Information About Harassment: To help ensure a workplace free of harassment, an employer must post in a prominent and accessible location in the workplace the Department of Fair Employment and Housing’s poster entitled “California Law Prohibits Workplace Discrimination and Harassment”;
Post in a prominent and accessible location in the workplace the Department of Fair Employment and Housing’s poster entitled “Transgender Rights in the Workplace”; and
Distribute to employees the Department’s information sheet on sexual harassment or its equivalent.
Duty to Train Supervisory and Nonsupervisory Employees
Employers with 50 or more employees must provide at least 2 hours of sexual harassment training to all supervisory employees in California within 6 months of a supervisory employee’s assumption of a position. Effective January 1, 2020: This duty to provide training will apply to employers having 5 or more employees and covered employers will also be required to provide at least 1 hour of sexual harassment training to all nonsupervisory staff within 6 months of a nonsupervisory employee’s assumption of a position. After January 1, 2020, covered employers must provide required sexual harassment training at least once every 2 years. In addition, beginning January 1, 2020, employers must also provide training to seasonal and temporary employees, or any employee who is hired to work for less than 6 months, within 30 calendar days after the hire date or within 100 hours work, whichever occurs first.
Sexual harassment training must include “information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment” as well as information about the prevention of “abusive conduct.” It must also include training about harassment based on gender identity, gender expression, and sexual orientation, with practical examples and by trainers or educators with knowledge and expertise in these areas. An employer may also provider bystander intervention training “that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors.”
A claim that a particular supervisor did not receive the required training does not result in automatic employer liability for harassment of a particular employee or applicant, nor does compliance with the training requirement prevent an employer from incurring liability for harassment.
WHO IS PROTECTED FROM SEXUAL HARASSMENT?
The prohibition against sexual harassment in FEHA protects both male and female employees, applicants, independent contractors, and unpaid interns and volunteers. The prohibition applies to all cases of sexual harassment, including “same gender” harassment or “other gender” harassment, e.g., harassment of a male employee by a female supervisor.
FEHA also protects covered individuals from harassment because of their “gender identity” or “gender expression.” Gender expression is a person’s gender-related appearance and behavior, whether or not these are stereotypically associated with the person’s assigned sex at birth. Transgender people are thus protected from harassment.
WHO MAY BE LIABLE FOR SEXUAL HARASSMENT?
Under FEHA, liability for sexual harassment extends to the following:
(2) Labor organizations;
(3) Employment agencies;
(4) Apprenticeship training program, or any training program, leading to employment; and
(5) Any other person.