In California, small business employers who regularly employ five (5) or more employees are bound by the State’s anti-discrimination law, the Fair Employment and Housing Act [FEHA]. An employer with five or more employees cannot discriminate against its employees on the basis of “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation of any person.” It is an unlawful employment practice, under FEHA, for an employer with 5 or more employees to “refuse to hire, employ, refuse to select for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”
It is also an unlawful employment practice for small business employers to retaliate against any employee who has opposed discrimination or harassment or has participated in the filing of an administrative complaint, or has testified or assisted in any proceeding under FEHA. FEHA also requires small business employers to engage in the good faith interactive process with disabled employees so that they can determine the best way to accommodate the employee’s disabilities and medical conditions. This interactive process requires the employer to engage in a good faith negotiation with the employee to create and provide a disabled employee with reasonable accommodations to facilitate their continued employment.
FEHA’s Harassment Provisions Apply to Those Employers with Only One Employee
Employers who have only one employee must provide a harassment free work environment. Harassment that occurs because of any one of the above-enumerated bases is prohibited by FEHA. On August 12, 2013, Governor Brown signed into law, SB 292, which broadened the definition of harassment because of sex—it need not be motivated by sexual desire. “Harassment” because of sex is now includes: “sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.”
Employers Must Have Strict Policies, Practices and Procedures in Place to Prevent, Investigate and Correct Any Discrimination, Harassment, and Retaliation.
All employers covered by FEHA must have strictly enforceable policies, practices and procedures in place to prevent, investigate, and correct any discrimination, harassment, and retaliation in the workplace. These requirements involve a thorough understanding of the complex legal issues that can create potential problems for all employers, but that can be corrected through creative solutions crafted with the assistance of competent legal counsel who seek to create healthy and safe work environments. Employers need to be proactive and have progressive employment policies, practices, and procedures in place to insure that they are not faced with any harassment, discrimination, and retaliation claims.
see also U.S. Supreme Court Workplace Harassment Cases
Employers should have skilled employment attorneys evaluate their work environments, practices, policies and procedures to insure that they comply with the law.