As discussed in last month's Employment Law Bulletin, AB1001 and AB1670, which significantly expand the scope of California's Fair Employment and Housing Act (FEHA), become law on January 1, 2000. Together, AB1001 and AB1670 expand FEHA to include remedies for sexual orientation discrimination, genetic characteristic discrimination, discrimination based on a “perceived” characteristic which is protected by law, and “association” discrimination. The bills also extend FEHA's anti-harassment provisions to include independent contractors, add a requirement for employers to grant requests for reasonable accommodation to pregnant employees, add a fairly broad definition of “supervisor,” and make expert witness fees a recoverable cost following litigation. A few of these changes were discussed in detail in last month's Employment Law Bulletin, and a few more are discussed below.

In a dramatic change, AB1670 extends FEHA's anti-harassment provisions to independent contractors. If your company harasses an independent contractor based on the contractor's race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex or sexual orientation, your company could be liable for unlawful harassment.

AB1670 extends Court decisions regarding personal liability of supervisors for all types of harassment, whether against employees or independent contractors. California courts have held that supervisors may be held liable for harassment in violation of FEHA, and that employers are strictly liable for the supervisor's behavior. Reno v. Baird (1998) 18 Cal.4th 640; Matthews v. Superior Court (1995) 34 Cal.App.4th 598; Kelly-Zurian v. Wohl Shoe Company (1994) 22 Cal.App.4th 397. AB1670 broadly defines “supervisor” to include any individual with authority “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees,” and any individual with responsibility to “direct” employees “or to adjust their grievances, or effectively to recommend that action.”

AB1670 also expands FEHA's job-bias provisions to preclude discrimination and harassment against employees based on their associations with persons in protected groups. For example, an employee cannot be demoted due to the race, religion, etc. of the employee's spouse, friend, etc.

Another change which will be effective January 1, 2000, is that employers will be required to grant requests for reasonable accommodation made by an employee, on the advice of her health-care provider, for pregnancy, childbirth or related medical conditions.

Employers are strongly advised to update their employee manuals to make it clear that the company prohibits harassment and discrimination based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex or sexual orientation, and that the prohibition against harassment applies to independent contractors, as well as company employees. Employers are further advised to provide training consistent with these changes in FEHA.

Eskridge Law, Attorneys at Law, may be contacted by phone (310/792-7021), by fax (310/792-7022) or by e-mail (geskridge@ealaw.net or rwolf@ealaw.net). Please visit our web site at http://www.ealaw.net or http://www.employmentattorneys.net.

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