California state legislation has been at the forefront by passing several bills that prevent sexual harassment in the workplace as well as within the state legislature. The package of bills was signed by the Governor of California, Edmund G. Brown on September 30th, 2018. These bills were put in place in support of women, children, working families in California. Many of these bills addressed sexual harassment and discrimination in the workplace and provide sexual training requirement to address professional liability, settlement agreement and enforcement, and strengthen whistleblower protections by including new protection for state legislature workers.

Key Areas Covered By The New Bills

Frequently Asked Questions

Here, we explore the commonly asked questions that might help you:

i) What constitutes harassment at work place?

Harassment at workplace includes any discrimination against age, sex, pregnancy, religion, marital status among other factors.

United Employees Law Group

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Interview questions are usually meant to establish how suitable the person being interviewed is for the available position. These questions also seek to establish whether the applicant has the mentality that will suit the job. However, some questions asked during an interview can be very personal. But in California there is a limit to the breadth of topics and questions that can be discussed during an interview, as some can considered illegal. These illegal interview questions generally violate the rights of the interviewee and usually seek to discriminate people based on different aspects of their life. This can therefore take the interview in a different direction and may not end up properly checking whether the applicant is a suitable applicant.

What interview topics/questions are considered illegal?

In California, there are guidelines for how to conduct a proper interview followed by a set of questions which can be deemed illegal by the law. Questions about the following areas of a potential candidate’s life that are illegal to inquire about include:

1. The sexual orientation of the person being interviewed.
2. Questions that seek to establish the religious beliefs of the applicant.
3. Questions regarding the applicant’s race or country of origin.
4. Asking the age of the applicant.

What do I do when an illegal topic arises?

It is always important to have done proper research before going for an interview to determine the illegal interview topics and questions that may arise. When one is aware of the illegal topics and questions it becomes easier to notice them while being interviewed. It is also the obligation of the employers to know the questions that they cannot ask the people they interview.

If during an interview an illegal topic or question is asked, it is important for the applicant recognize this and to notify the interviewer. According to California law, the interviewee is advised to refuse to answer the question, and report that the topic is illegal to cover. One should do it in a firm but polite manner without showing anger. The interviewee can also proceed to answer the question and then notify the interviewer that it is illegal if they wish to do so. This allows the interview to precede despite the inclusion of the illegal questions.

The California laws also give applicants the opportunity to file claims through contacting the local Equal Employment Opportunity Office. This particular office will look at the claim and take the necessary action against the interviewer to protect the person seeking employment. Therefore, when interviewing in California, it is always paramount to know the illegal interview topics or questions that can violate the civil rights of the person applying for a job.

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The California legislature has passed new laws governing discrimination and retaliation following a number of labor and employment bills signed into law by Governor Jerry Brown in 2017. A lot of these bills relate to working hours, wages, benefits, employee safety, and other relevant employee protections.

Among these new laws (some of which took effect on 1 January 2018) include discrimination and retaliation laws that seek to protect employees against employer retaliation in circumstances where employees make decisions that may impact negatively on the employer.

By implementing a more comprehensive system for dealing with employment discrimination, California legislatures hope to highlight and dissuade instances of badgering, exclusion, manhandling, and other acts of retaliation.

Can The Labor Commissioner’s Office Investigate Cases of Retaliation or Discrimination?

According to existing California laws, employers may be investigated for retaliation or discrimination even without a complaint. Under the old law, the Labor Commissioner was empowered to investigate cases of retaliation or discrimination only when an employee filed an official complaint. However, under the new dispensation, employers may face legal action from the DLSE and the Labor Commissioner if suspected of the same.

How Can a Person Benefit From Filing a Retaliation Lawsuit?

If a complainant wins a case, the most immediate benefit would be a recouping of financial expenses. If for instance a worker who earned $45,000 a year was fired under now proven false circumstances, they would be able to recover the amount of money they would have earned had they not been fired in the first place.

Emotional distress is also addressed as it involves the psychological torture of having to endure unlawful retaliation by the employer. Employees who experience these situations have been known to suffer mental and physical distress (including actual medical conditions) brought on by the trauma of retaliation. In order to prove these harms, the complainant is expected to portray them.

One of the motivating factors for litigants is the recouping of lawyer’s expenses. Any settling of unlawful termination or another form of retaliation typically involves compensation for attorney fees. Complainants are expected to demonstrate that the employer acted with malice, persecution, or misrepresentation, and that their actions have brought suffering that warrants corrective damages.
Trial or Court?

The vast majority of employers prefer to settle before the case goes to trial. They also agree to keep the terms agreed upon during the settlement, and this motivates aggrieved persons to pursue legal action for perceived retaliation.

Given the Labor Commissioner’s reputation for pursuing legal action against employers in all industries, these new laws are expected to minimize cases of workplace retaliation throughout California.

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Nonetheless, employer drug testing in industries regarded as safety-sensitive such as aviation, transportation, and several others are provided for by the Federal law. This article analyses California drug testing laws with a keen focus on what they entail.

Major Drug Tests Done in California

The types of drug tests done are:

• Urine drug test which is the most common
• Saliva drug test which can be administered anywhere
• Hair drug test which uses hair from any part of the body
• Blood drug test with is administered with a urine test

Drug Testing for Prospective Employees

Based on California court cases, drug testing may be one of the terms and conditions of employment for a prospective employee. Employers are allowed to subject each and every applicant for drug testing with respect to certain job positions. In doing so, employers must not be discriminatory in any way. Discrimination involves situations to do with disability and race.

Drug Testing for California Employees

There are two issues that come into play when California courts try to establish the legality of a drug test. One issue assessed is the reason why it was necessary for an employer to conduct a drug test.

The second issue is the right of privacy of an employee. Employees tend to offer a strong argument: that an employer can use their existing work history to gauge their productivity hence no need for a drug test.

If an employer is strongly convinced that an employee is on drugs, a drug test can be conducted without worrying about litigation. However, the employer’s suspicion must be supported by verifiable facts.

All the same, random testing sparks a lot of controversies. However, California courts express that random testing is allowed especially for jobs that are safety-sensitive.

Drug Testing with Respect to the Transportation Industry

There exist strict drug testing regulations imposed by federal and state laws on commercial transportation operators and employers. If individual operators and employers fail to adhere to these laws, they expose themselves to consequences in form of penalties.

Disability Discrimination and Drug Abuse

The ADA (Federal Americans with Disabilities Act), as well as FEHA (California Fair Employment and Housing act), do not accord any form of protection to people presently using drugs. Instead, these two laws protect those who previously abused drugs but have successfully undergone rehabilitation and no longer abuse drugs.

The California Proposition 215

Commonly referred as the Compassionate Use Act, it stresses out the following:

• Individuals can acquire and use medical marijuana
• Physicians should not be subjected to prosecution
• Patients using medical marijuana are protected from criminal prosecution

As much as the above is allowed, the supreme court in California argues that employers can deny employment opportunities to prospective employees if they positively test for marijuana as much as the drug has been legally authorized for a disability.

In winding up, California law allows employers to conduct drug tests on employees. But this is only justifiable in very few and well-defined scenarios. For instance, for safety and security-related jobs, employers irrespective of whether they are in the public or private sector are allowed to conduct random drug testing. As an employer, ensure you conform to the stipulated drug testing laws before asking your prospective or existing employees to undergo a drug test.

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Employees are essential to any organization or company, but without fair pay, no one would stick around very long. If you have employees in your business or company, you should ensure that you pay them well, especially the ones that you want to stick around.

In addition, you should ensure that they have good working conditions. Good remuneration is one of the motivating factors that can make employees perform better in the workplace.

However, there are circumstances where employees are normally discriminated due to their races. This leads to a race-based disparity in pay. This is detrimental. This can actually make an employee lose morale in his or her job. However, in California, Fair Pay Act came to mitigate this problem.

What is Fair Pay?

You will note that employees who perform similar work under similar working conditions should be paid equally. However, there are instances where the employees who work under the same conditions can be paid differently.

In this case, the employee should be able to manifest that the wage differential is based on either of the following; senior system, merit system and so forth. He or she should also show that he or she gets more salary not as a result of sex or race but due to factors such as education or experience.

You will note that this law requires that each factor is relied on. Each factor should account for the entire wage differential. This is one way of reducing discrimination in the workplace. As we move towards the future, employees will need to be paid for the position he or she is worth.

However, if the same employee has extra skills and competencies that can help the company or the organization, he or she can get a higher salary. The burden of paying employees falls on the employer.

The employer should check these factors so that he or she can pay the employees what they deserve. If you promote fairness in your workplace, your employees will be encouraged to work. In addition, their morale will increase. This goes a long way in improving their productivity.

What the Fair Pay Act Does

The Fair Pay Act basically calls for an overhaul of hiring practices of HR professionals who work in California. These professionals should check the credentials of the job applicants and then reward them accordingly.

This can do a long way in reducing race-based disparities in pay. Earlier on, job applicants used to negotiate for their salaries with their employers. However, times have changed. This Act has enabled most employees to get a fair pay for their services. This can be very beneficial to your company or business in California.

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The California anti-bullying laws and regulations include protection for the discrimination against:

• Nationality
• Religion
• Race/Ethnicity
• Sexual Orientation
• Gender
• Gender Identity
• Gender Expression
• Physical and Mental Disabilities
• Association with a person or group that has any of the actual or perceived characteristics stated above

Schoolyard Bullying

Due to the large amount of bullying in schools and over the internet, legislation like Seth’s Law has been passed to ensure that bullying is taken seriously and dealt with in a timely manner to ensure the safety of the victim. The seriousness of the cases in adolescents has created the need for employers to revisit the anti-bullying laws in the workplace.

Workplace Bullying

Bullying in the workplace isn’t just restricted to the list we mentioned above; it has other forms that are considered such as:

• Offensive conduct or behavior (including nonverbal gestures) which humiliate, intimidate, or threaten
• Verbal Abuse
• Work interference (or sabotage) which prevents work from getting completed

These bullying conditions can be met either by the owner/management or fellow peers. If your peers are the persons in question, it is important to bring it up with your superiors immediately so action can be taken. In the case that you are a manager and it is the owner that is bullying you, legal action is likely your only course of action.

Are You Really Being Bullied?

Common signs of workplace bullying include but are not limited to:

• Your co-worker/employer shows aggression or verbal anger toward you
• Your co-worker/employer displays non-verbal aggression toward you (example: slamming things onto your desk violently)
• Your co-worker/employer humiliates you in front of other people (whether associated with your workplace or not)
• Your employer unjustifiably punishes you emotionally, physically, or psychologically
• Your co-worker/employer acts vindictive towards you, retaliates against you, or has sought revenge
• Your co-worker/employer belittles you based on your work, ideas, opinions or personal circumstances
• Your co-worker/employer spies on you, stalks you, or pesters you
• Your co-worker/employer threatens you with termination, unwarranted punishment, or physical, emotional, or psychological abuse
• Your co-worker/employer forces or aggressively encourages you to say or do things against your will
• Your co-worker/employer speaks with you using offensive or demeaning jokes, gossip, rumors, profanity, or harassment
• Your co-worker/employer interferes with your personal belongings
• Your employer uses unfair tactics to block your progression, advancement within the organization, or growth as an employee
• Your co-worker/employer designs a devious campaign to kick you out of your job or get you fired

If any of these sound familiar, then you are being bullied. Please take note of any specific instances to help your attorney in the future proceedings when you take action. Let this reassure you, anti-bullying laws were made to keep you safe.

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California law protects individuals against discrimination in housing based on perceived or real gender identity discrimination. To successfully pursue any type of discrimination based on sexual orientation, a gathering of pertinent facts is necessary. All communication and incidents should be recorded (in a notepad, video recording can be thrown out of court) and saved along with any other evidence that proves the gender identity discrimination. Your own communication with the offending parties is key as well.

Civil Rights Laws Impact on Gender Discrimination
Previously, civil rights laws were less evolved than now. Over the years, they have improved to include enforcement to class action litigation. The movement saw the segregation of blacks and whites challenged and defeated.

Landmark court decisions have ensured that women are among the groups protected from discrimination in the workplace and in educational institutions based on their sex. Now, as different communities join the ranks of minorities fighting to have the same rights granted to all, an addendum to legislation is being introduced to include this group.

The state of California is a front runner in such legislation. Although no federal law explicitly protects transgendered individuals from workplace discrimination, California law includes them in the Fair Employment and Housing Act.

What Does FEHA Do?

The law prohibits the discrimination of transgendered people in hiring/ firing practices, distribution of compensation, and terms, conditions, and special privileges of employment. Harassment, which is any behavior that creates a hostile environment, by superiors and co-workers is also prohibited. Such behavior is illegal if it is so severe that it interferes with an individual’s ability to perform their work.

Association discrimination is also punishable under Fair Employment and Housing Act. This protects significant others, friends, family, and allies of transgendered people from workplace discrimination. Coming out as lesbian, gay or bisexual has been interpreted by the California Supreme Court as political activity, and is thus protected under California Labor law which prohibits employers from preventing or punishing an employee’s political activity. In regards to individuals who are transgendered, should they encounter discrimination following revealing their gender status or transformation, they can be defended under these sections interpreting their actions as protected political acts.

Definitions for what it is to be transgendered are varied. A generally excepted concept is a person whose gender identity differs from their biological sex. Gender and sex differences in that the latter refers to a social concept of what practices are typical of a man or woman. Sex is the biological distinction in a species between male or female. It is important to recognize that one’s gender identity, self-identification as a man, woman, or neither, is not an indication of sexual orientation.

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There different kinds of people in the workplace. You will realize that different people belong to different races, tribes, religions, cultures and so on. This is the reason why there is a lot of diversity in the workplace. However, in some workplaces, you might encounter racial discrimination in the workplace. Racism  at the workplace can be observed when the company’s behavior is altered based on the race or ethnicity. It is therefore experienced or witnessed by employees in different forms such as harassment, indirect discrimination or victimization. Most employees tend to experience racial discrimination at work at one time or another.

You can easily identify racial discrimination at work. The following are some factors that show the existence of racial discrimination at work:

1. Stereotyping.

Stereotyping is detrimental because it normally portrays controversial generalizations and can even attribute to all staff members of the company. Individuals should be keen on the language used, topics upheld by other employees and so on. It is also important that you check whether the management or your fellow employees are making derogatory remarks about specific elements of an individual’s culture and customs.

2. Hostility

You will realize that hostility can be experienced through verbal critics. For example, a black-American woman can be criticized for being aggressive and so on. If you notice such hostility, there is an element of racial discrimination at your workplace. You will realize that persons experiencing racial discrimination at work tend to have difficulties in socializing with other members of the firm.

There are different ways that can help in mitigating racial discrimination at the workplace. Some of these ways include:

1. Write an anti-discrimination policy that specifically addresses racism.

If you notice racism in your workplace, it is advisable to come up with an anti-discrimination policy that addresses the issue of racism. It should include the consequences for acts of racial discrimination and so on.

2. Consider hiring employees from all races.

This will go a long way in creating diversity. It is also advisable to inform your candidates before hiring them of your policy against racism and discrimination in any form.

3. Ensure that you promote employees on the basis of merit.

It is important that employees get promotions on merit basis. This will make them feel more valued.

4. Train employees on how to avoid racial discrimination.

You should conduct this training at least once a year. This will go a long way in mitigating the problem of racial discrimination in the workplace.

Those are some of the ways that can help you deal with racial discrimination at the workplace.

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It is normal that during job interviews, the employer will try to gather as much information as possible about you, but keep in mind that it is against the law for the employer to ask about or bring up certain topics. Keep an ear open for possible illegal interview questions. Sometimes this might be hard to catch, as they are usually pretty simple and common questions. FEHA (California Fair Employment and Housing Act) declared that topics are that off-limits can fall under:

• Racial / ethnic background and national origins
• Age (over 40)
• Religion
• Marital status
• Sexual orientation
• Sex / Gender
• Arrest and conviction record
• Medical conditions and physical disabilities
• Children

These interview questions can take in the form as:

• Do you have any kids?
• Do you take part in any religious holidays?
• Have you ever been arrested in the past?
• What country do you come from?
• Do you socially drink?
• Of what ethnic background is your accent?
• Are you planning on retiring in the near future?
• What is your credit score? Do you currently have any debt?
• When was the last time you used drugs?
• Are you pregnant?
• How old are you?

Though seemingly innocent questions, these questions are not legal as they can make the interviewee subject to discrimination. FEHA (applies to companies with five or more employees) prohibits employers from asking interview questions related to any of these topics, either it be during an in-person interview or in an application form. Questions about physical ability are permitted when the job being applied involves physical activities, and the employer would need to know if the applicant would be physically able to do certain tasks. This also applies to the rest of the mentioned illegal interview topics as well.  These laws were implemented to ensure that the employer would make hiring decisions based on characteristics that really mattered, such as skills, experience, and attitude.

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When it comes to gender identity discrimination in California, there is a standing legal prohibition of any discrimination against transgender or any other gender non-conforming individuals when it comes to employment and housing dating back to 2004. In 2005, the same law, which is called Gender Nondiscrimination Act, was expanded to include public accommodations. Recently, this law also included the distinction between “gender expression” and “gender identity” by making them enumerated categories that are also protected under it. Here are the most important facts about this law and what does it mean in people’s everyday lives.

Areas under the Protection of the Law

The act prohibits gender identity discrimination in practically every domain of life in California, covering public accommodation, housing, education, employment, and insurance. Because of it, a person cannot be fired from their job because of being a transgender or gender non-conforming, their landlord does not have the power to evict them for this reason, they cannot be made to use a restroom that does not match their gender identity at a hospitality industry location like a restaurant or a bar, and medical practitioners cannot deny treatment to a person because of them being transgender.

Federal Employees and the Gender Nondiscrimination Act

All federal agencies operating in California are not subjects of this law. Because they and their employees operate under the federal movement, they do not enjoy the protection of the laws that were passed on the state level. However, the precedent is that federal workers in California, as well as many other states, are under the protection from any gender identity discrimination based on Title VII and its prohibition of sex stereotyping.

The Act and Churches, Church-Run Businesses and Non-Profit Organizations

Under this law, no religious exception is valid for discrimination in the domain of public accommodations and housing. Because of this, religious-based hospitals are forbidden to discriminate based on sexual identity or transgender status. The same applies to homeless shelters run by the religious-based organization. However, the religious-based educational institutions are not under the jurisdiction of this law, so its effects are not valid in those schools, colleges, and universities.

Workplace Issues Related to the Law

All employees have a guaranteed right to appropriate and safe restroom facilities at their place of work. This includes the uses of a restroom that is in line with the identity of the employee’s gender. When it comes to uniforms, the employers have a right to implement a dress code that is gender-based. But, no employer can force an employee to use or wear any uniform that is not in line with the gender identity or impression of that person.

With these facts, anyone can have a clear understanding of their rights related to gender identity discrimination in the state of California.

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