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Sexual Orientation and Gender Discrimination Under California Law

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Title: Sexual Orientation and Gender Discrimination Under California Law


1
Sexual Orientation and Gender
Discrimination Under California Law
  • Phoebe P. Liu
  • Senior Staff Counsel
  • State of California
  • Department of Fair Employment Housing
  • www.dfeh.ca.gov

2
Overview
  1. Introduction to the DFEH.
  2. Statutory protections and recent case law.
  3. Elements of a claim of discrimination.
  4. Quizzes.

3
DFEH Mission
  • The Department of Fair Employment and Housing
    (DFEH) is Californias civil rights agency.
  • Mission The Department of Fair Employment and
    Housings mission is to protect Californians from
    employment, housing public accommodation
    discrimination and hate violence.
  • The DFEH receives, investigates, conciliates,
    mediates, and prosecutes complaints alleging
    discrimination in employment and housing
    throughout the State of California.

4
Jurisdiction
  • Fair Employment and Housing Act (Gov. Code,
    12900 et seq.).
  • Unruh Civil Rights Act (Civ. Code, 51 et seq.).
  • Disabled Persons Act (Civ. Code, 54 et seq.).
  • Ralph Civil Rights Act (Civ. Code, 51.7).

5
(No Transcript)
6
Definitions Under the FEHA
  • Sexual orientation means heterosexuality,
    homosexuality, and bisexuality. (Gov. Code,
    12926, subd. (r).)
  • Sex includes a person's gender. Gender
    includes a person's gender identity and gender
    expression. Gender expression means a person's
    gender-related appearance and behavior whether or
    not stereotypically associated with the person's
    assigned sex at birth. (Gov. Code, 12926, subd.
    (q).)
  • The protected classes includes a perception that
    the person has any of these characteristics, or
    that the person is associated with a person who
    has, or is perceived to have, any of those
    characteristics. (Gov. Code, 12926, subd.
    (n).).

7
Employment Discrimination under the FEHA
  • The opportunity to seek, obtain, and hold
    employment without discrimination because of a
    persons gender, gender identity, gender
    expression or sexual orientation is a civil
    right. (Gov. Code, 12921, subd. (a).)
  • An employer may not refuse to hire or employ the
    person or to refuse to select the person 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 or to fail to take all
    reasonable steps necessary to prevent
    discrimination and harassment from occurring.
    (Gov. Code, 12940, subds. (a)-(k).)

8
Issues in Employment
  • An employer must allow an employee to appear or
    dress consistently with the employees gender
    identity or gender expression. (Gov. Code,
    12949.)
  • Use of the bathroom by transgender employees.
  • Insurance coverage
  • Best practices

9
Housing Discrimination under the FEHA
  • The opportunity to seek, obtain, and hold housing
    without discrimination because of gender, gender
    identity, gender expression, sexual orientation
    is a civil right. (Gov. Code, 12921, subd.
    (b).)
  • The owner of any housing accommodation may not
    discriminate against, harass, retaliate against
    any person because of gender, gender identity,
    gender expression, sexual orientation or because
    that person is perceived to have any of those
    characteristics or is associated with a person
    who has or is perceived to have any of those
    characteristics. (Gov. Code, 12955, subds.
    (a)-(p).)

10
Public Accommodations Discrimination under the
Unruh Civil Rights Act
  • All persons within the jurisdiction of this state
    are free and equal, and no matter what their
    sexual orientation are entitled to the full and
    equal accommodations, advantages, facilities,
    privileges, or services in all business
    establishments of every kind whatsoever. (Civ.
    Code, 51, subd. (b).)
  • "Sex" includes a person's gender. "Gender"
    includes a person's gender identity and gender
    expression. "Gender expression" means a person's
    gender-related appearance and behavior whether or
    not stereotypically associated with the person's
    assigned sex at birth. (Civ. Code, 51, subd.
    (e)(5).)
  • No business establishment shall discriminate
    against a person on account of any protected
    characteristic or because the person is
    perceived to have one or more of those
    characteristics, or because the person is
    associated with a person who has, or is perceived
    to have, any of those characteristics. (Civ.
    Code, 51.5, subd. (a).)

11
Issues in Public Accommodations
  • Dress codes. (Dept. Fair Empl. Hous. v.
    Marions Place (Feb. 1, 2006) FEHC Dec. No. 06-01
    2006 WL 1130912 (Cal.F.E.H.C.).)
  • Services. (North Coast Womens Care Medical
    Group, Inc. v. San Diego County Sup. Ct. (2008)
    44 Cal. 4th 1145.)

12
Hate Violence under the Ralph Civil Rights Act
  • All persons within the jurisdiction of this state
    have the right to be free from any violence, or
    intimidation by threat of violence, committed
    against their persons or property on account of
    any characteristic listed or defined in
    subdivision (b) or (e) of Section 51, or because
    another person perceives them to have one or more
    of those characteristics. The identification in
    this subdivision of particular bases of
    discrimination is illustrative rather than
    restrictive. (Civ. Code, 51.7, subd. (a).)

13
Elements of Sexual Orientation or Gender
Discrimination
  • Defendant was a covered entity
  • Plaintiff was a covered entity in a covered
    relationship to defendant
  • Defendants took unlawful action against the
    plaintiff
  • Plaintiff's protected status was a motivating
    reason for the unlawful action
  • Plaintiff was harmed and
  • The unlawful action was a substantial factor in
    causing plaintiffs harm.

14
Quiz No. 1
  • Female employee worked as a bartender. One night
    after she closed the bar, employer reacted with
    disdain when he saw employee holding hands with
    her female partner. When employee went to work
    the next day, employer had changed all the locks
    and hired a new bartender.
  • Question
  • Is employer liable for discriminating against
    employee because of her sexual orientation?

15
Quiz No. 2
  • Applicant and his male partner applied to rent an
    apartment. When the landlord learned that they
    were a couple, she declined to rent the apartment
    to them, because her religious beliefs prohibited
    her from renting to unmarried couples and
    homosexuals.
  • Question
  • Is landlord liable for sexual orientation
    discrimination?
  • Smith v. Fair Employment Housing Com. (1996) 12
    Cal.4th 1143

16
Questions?
17
THANK YOU
  • www.dfeh.ca.govcontact.center_at_dfeh.ca.gov(800)
    884-1684Videophone (916) 226-5285
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