AUGUST 2001

I.
LEGISLATIVE UPDATE

Below is a description of two bills being considered by the California Legislature:

• AB 1025 (Frommer): AB 1025 requires employers to provide a reasonable amount of break time to employees desiring to express breast milk. The bill provides that employees must be given a reasonable amount of break time, which would be required to run concurrently, if possible, with any break time already provided. The bill provides that if it is not possible for the break time to run concurrently with other break time provided, the break time for expressing milk shall be unpaid. Employers would also be required to make a room or similar location (other than a toilet stall) available in close proximity to the employees' work area. However, an employee is not required to use the employer-provided facility if the employee chooses to express milk in another location where the employee normally works. The bill would exempt an employer from these requirements if the employer's operations would be seriously disrupted by providing the break time. The bill has passed the Senate Committee on Labor and Industrial Relations and has been re-referred to the Committee on Appropriations.

• AB 1649 (Goldberg): AB 1649 would expand the prohibition on sexual harassment and discrimination by including the term "gender," as a protected classification. AB 1649 contains language, however, that would allow employers to require employees to adhere to reasonable workplace appearance, grooming, and dress standards. AB 1649 is consistent with a recent Ninth Circuit decision protecting sexual harassment based on gender stereotypes, described more fully below. AB 1649 has been referred to the Senate Committee on Appropriations.

II.
JUDICIAL UPDATE

California Disability Rules Declared Retroactive

Late last month, a California court of appeal declared the California Fair Employment and Housing Act amendment which provides extremely broad grounds for disability discrimination in California may be applied retroactively. In general, retroactivity does not apply to amendments that completely change the law, but rather only to those that simply clarify it. The ruling in Wittkopf v. County of Los Angeles (2001) 2001 WL 828258 throws the issue into flux because it directly conflicts with a previous court of appeal decision in Colmenares v. Braemar Country Club, Inc. (2001) 89 Cal.App.4th 778. The split of authority may eventually compel the California Supreme Court to determine the issue.

At issue in both cases is Government Code section 12926.1, which amended state law to make clear that FEHA offers vastly broader discrimination protections than the federal Americans with Disabilities Act. The amendments, which went into effect on January 1, 2001, expand the definition of disability under state law to include physical and mental impairments that merely "limit" a major life activity (as opposed to the ADA which requires a "substantial limitation"). Furthermore, the amendments do not permit employers to consider mitigating factors, such as medication, corrective lenses, and prosthetic devices, which may allow an employee to continue working. The FEHA amendments also provide employees expanded rights to be accommodated for a particular job, rather than being offered a range of alternatives. Of great consequence is the fact that retroactivity may effect thousands of suits already in the courts, exposing employers to a plethora of claims that previously would have been disposed of on summary judgment.

The Ninth Circuit Prohibits Harassment Based on Gender Stereotypes

Companies may be liable for sexual harassment when workers are subjected to slurs based on gender stereotypes. In Nichols v. Azteca Restaurant Enterprises, Inc. (2001) 2001 WL 792488, the Ninth Circuit held that slurs based on stereotypes of how men and women should act amount to sex discrimination. Under consideration by the court was a campaign of insults, name calling, and vulgarities directed at Antonio Sanchez during his nearly four years working for Azteca. Male co-workers and a supervisor repeatedly referred to Sanchez as "she" and "her," mocked Sanchez for walking and carrying his serving tray "like a woman," and called him other derogatory names.

Sanchez filed a lawsuit alleging he was subjected to hostile environment and sexual harassment because he is effeminate and did not meet his supervisor and co-workers' views of a male stereotype. A lower court ruled for Azteca, concluding that Sanchez' workplace had not been hostile, and that the harassment did not take place because of Sanchez' sex. On appeal, the Ninth Circuit disagreed, holding the verbal abuse was based upon the perception Sanchez is effeminate and therefore occurred because of his sex.

In order to protect against liability, employers should consider adding information about gender stereotyping to sexual harassment training. This is especially important in California where discrimination on the basis of actual or perceived sexual orientation is prohibited. Managers should also be reminded that employment decisions should never be based on gender stereotypes and, as always, KLINEDINST strongly urges employers to immediately and thoroughly investigate any allegation of sexual harassment and follow-up with appropriate remedies where warranted.

If you would like to discuss these or any other employment law matters, please do not hesitate to contact any member of Klinedinst's Employment Law Department.