2. 1. Introduction. 2. Statutory protections and elements. 3. Potential defenses and limits to liability. 4. Recent trends and case law. 5. Best practices. 2

3.  The Department of Fair Employment and Housing (DFEH) is California’s civil rights agency.  Mission: The Department of Fair Employment and Housing’s 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 housing throughout the State of California. 3

4.  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). 4

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6. heterosexuality, homosexuality, and bisexuality  “Sexual orientation” means heterosexuality, homosexuality, and bisexuality. (Gov. Code, § 12926, subd. (r).) Gendersexperson's gender identity and gender expressionGender expression gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth  Consider broader LGBT context: “Sex” includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. “Sex” also includes, but is not limited to, a person's gender. “ Gender ” means sex, and 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).)  “[O]r is perceived to have, any of those characteristics.” (Gov. Code, § 12926, subd. (n).). 6

7. gender, gender identity, gender expression, or sexual orientation  “The opportunity to seek, obtain, and hold employment without discrimination because 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 is hereby recognized as and declared to be a civil right” (Gov. Code, § 12921, subd. (a).)  An employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person 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).) 7

8.  An employer must allow an employee to appear or dress consistently with the employee’s gender identity. (Gov. Code, § 12949.)  The FEHA prohibits or bar from excluding men wearing dresses. (Dept. Fair Empl. & Hous. v. Marion’s Place (Feb. 1, 2006) FEHC Dec. No. 06-01 [2006 WL 1130912 (Cal.F.E.H.C.)].) 8

9. gender, gender identity, gender expression, sexual orientation  “The opportunity to seek, obtain, and hold housing without discrimination because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, genetic information, or any other basis prohibited by Section 51 of the Civil Code is hereby recognized as and declared to be a civil right. (Gov. Code, § 12921, subd. (b).) gender, gender identity, gender expression, sexual orientation  Consider broader LGBT context: The owner of any housing accommodation may not discriminate against, harass, retaliate against... “any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person.” (Gov. Code, § 12955, subds. (a)-(p).)  “[O]r is perceived to have, any of those characteristics.” (Gov. Cod, § 12955, subd. (m).) 9

10. contractor with the state for public works or for goods or services is subject to the provisions of this part relating to discrimination in employment  Any employer who is, or wishes to become, a contractor with the state for public works or for goods or services is subject to the provisions of this part relating to discrimination in employment and to the nondiscrimination requirements of this section and any rules and regulations that implement it. (Gov. Code, § 12990, subd. (a).) 10

11. sexual orientation  All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or 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).) Gendersexgender identity and gender expressiongender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth  Consider broader LGBT context: "Sex" includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. "Sex" also includes, but is not limited to, a person's gender. " Gender " means sex, and 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).)  “[O]r 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

12.  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 because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or position in a labor dispute, 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).) 12

13. 1. Defendant was a covered entity; 2. Plaintiff was a covered entity in a covered relationship to defendant; 3. Defendant’s took unlawful action against the plaintiff; 4. Plaintiff's protected status was a motivating reason for the unlawful action; 5. Plaintiff was harmed; and 6. The unlawful action was a substantial factor in causing plaintiff’s harm. 13

14.  Legitimate, non-discriminatory reason. › Bona fide occupational qualification. (Gov. Code, §12940.) › Applicable security regulations established by the United States or the State of California. (Ibid; Civ. Code, § 51, subd. (c).) 14

15.  The employer is liable for sexual orientation discrimination. (Gov. Code, § 12940, subd. (a).) › Individuals working for the employer, including supervisors, are not personally liable under FEHA for that discrimination But not employees working for them. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158.) 15

16.  Female employee worked as a bartender. One night after she closed the bar, employer reacted with distain 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? Dept. Fair Empl. & Hous. v. Historic 23 Club (June 16, 2009) FEHC Dec. No. 09-02, 2009 WL 2595484 (Cal.F.E.H.C.). 16

17.  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 17

18. John is gay. Joe has been his partner for the past five years. 1. Can the neighborhood gym refuse John membership because the other members don’t want him in the locker room? 2. If the gym members think John is gay and threatened to puncture his tires if he joined the club, is this a violation of the Ralph Act? 18

19.  Implement an effective anti-discrimination and harassment policy. › Include an effective complaint procedure.  Keep employees, tenants and customers fully informed of their rights. › DFEH poster. › DFEH information sheet. › www.dfeh.ca.gov. www.dfeh.ca.gov  Investigate complaints.  Promptly take appropriate remedial action. 19

20. 20  To ask a question, click Q&A, type your question in the Q&A text box, and then click ASK.