186 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com employer who proves it would have reached the same decision even absent that motivating factor can avoid further relief in the form of reinstatement, back pay, front pay, and noneconomic damages). The Harris result, while pro-plaintiff, did improve on the standard jury instruction, CACI 2500, which would have made employers liable for adverse employment actions whenever a protected status or activity “was a motivating reason/factor,” where a “motivating factor” as “something that moves the will and induces action even though other matters may have contributed to the taking of the action”). The Court of Appeal has held, rather harshly, that an employer had waived the Harris defense (not yet announced) when it had failed to plead it in an answer. Alamo v. Practice Mgmt. Info. Corp., 219 Cal. App. 4th 466, 470 (2013) (defendant “not entitled to an instruction on the mixed-motive or same-decision defense because it failed to plead that defense or any other affirmative defense alleging that it had a legitimate, nondiscriminatory or nonretaliatory reason for its discharge decision in its answer”). On the brighter side, the Court of Appeal has extended the Harris reasoning to a claim for tortious discharge in violation of public policy, where the public policy asserted is the FEHA. Davis v. Farmers Ins. Exch., 245 Cal. App. 4th 1302, 1322-23 (2016) (affirming trial decision to give Harris jury instruction). 20 Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) (under the federal ADEA, plaintiff alleging that adverse action was “because of” his age must “establish that age was the ‘but-for’ cause of the employer’s adverse action”). Title VII has a different standard, because its own “because of” language was amended by the 1991 Civil Rights Act. See 42 U.S.C. § 2000e-5(g)(1)(B)(ii). The California Supreme Court in Harris crafted, via creative judicial interpretation, a result that closely resembles the legislative compromise that Congress crafted in the 1991 Title VII amendments. 21 Gov’t Code § 12926(o) (“Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or veteran or military status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.”). 22 Lab. Code §§ 1101, 1102 (under section 1101, employers must not make regulations or policies “[f]orbidding or preventing employees from engaging or participating in politics,” becoming a political candidate, or “[c]ontrolling or directing ... the political activities or affiliations of employees”; under section 1102, employers must not “coerce or influence” employees “to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity”). 23 Gov’t Code § 12940(a) (employers shall not “refuse to hire or employ” a person, or prevent them from participating in a “training program leading to employment,” based on the person’s “marital status”). 24 Gov’t Code § 12940(a) (employers shall not “refuse to hire or employ” a person, or prevent them from participating in a “training program leading to employment,” based on the persons “sexual orientation”); Gov’t Code § 12926(s) (“ ‘Sexual orientation’ means heterosexuality, homosexuality, and bisexuality.”). 25 2 Cal. Code Regs. § 11030(d) (defining “sex stereotype” as “an assumption about a person’s appearance or behavior, gender roles, gender expression, or gender identity, or about an individual’s ability or inability to perform certain kinds of work based on a myth, social expectation, or generalization about the individual’s sex”). 26 Gov’t Code §§ 12920, 12921, 12926(r)(2), 12930(i), 12931, 12940(a)-(d), 12944(a), (c), 12949, 12955, 12955.8, 12956.1(b)(1) & 12956.2; see also 2 Cal. Code Regs. § 11030 (a), (b), (e). 27 Gov’t Code §12926(r)(1)(A) & (B); see also Gov’t Code §12940(j)(4)(C). FEHA defines “sex” to include “[p]regnancy or medical conditions related to pregnancy” and “[c]hildbirth or medical conditions related to childbirth”). 28 Gov’t Code § 12926(r)(1)(C) (protected status of “sex” includes “[b]reastfeeding or medical conditions related to breastfeeding”). 29 Gov’t Code §§ 12926(q); see also id. §§ 12940(a), (l). The statute defines all these terms broadly: “[r]eligious creed,” “religion,” “religious observance,” “religious belief,” and “creed” include “all aspects of religious belief, observance, and practice, including religious dress and grooming practices”; “[r]eligious dress practice” includes “the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual observing a religious creed”; and “[r]eligious grooming practice” includes “all forms of head, facial, and body hair that are part of an individual observing a religious creed.” 30 Gov’t Code §§ 12926(i)(2)(A), (B) (“genetic characteristics” can be either genes or chromosomes or inherited characteristics, if they are not presently associated with a symptom of disease or disorder but are known to cause or be statistically associated with the risk of causing a disease or disorder in an individual or that individual’s offspring). But employers can discriminate on the basis of a medical conduction if the employee, “because of the … medical condition, is unable to perform the employee’s essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations.” Id. § 12940(a)(2). 31 Gov’t Code §§ 11135, 12920, 12921, 12926(g), 12930(i), 12931, 12940(a)-(d), 12944(a) & (c), 12955, 12955.8, 12956.1(b)(1) & 12993. California defines “genetic information” to mean, as to any individual, information about “(A) the individual’s genetic tests; (B) The genetic tests of family members of the individual; (C) The manifestation of a disease or disorder in family members of the individual.” Gov’t Code § 12926(g)(1). This definition includes “any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.” Id. § 12926(g)(2). “Genetic information” does not, however, include information about an individual’s sex or age. Id. § 12926(g)(3). 32 Gov’t Code § 12940(a) (employers shall not “refuse to hire or employ” persons, or prevent them from participating in a “training program leading to employment,” based on their “veteran or military status”); see also Military & Veterans Code § 394 (employers must not discriminate against—nor prejudice or injure—”a member of the military or naval forces of the state or of the United States”). 33 Health & Safety Code § 120980(f) (“the results of an HIV test ... shall not be used in any instance for the determination of ... suitability for employment”). 34 See Assembly Bill (AB) 60. 35 Lab. Code § 230.5 qualifying crimes include: vehicular manslaughter while intoxicated, felony child abuse likely to produce great bodily harm or a death, assault resulting in the death of a child under eight years of age, felony domestic violence, felony physical abuse of an elder or dependent adult, felony stalking, solicitation for murder, a “serious felony,” hit-and-run causing death or injury, felony driving under the influence causing injury, and sexual assault). 36 Lab. Code § 1102.5 (employers must not implement rules, policies, or regulations that prevent employees from disclosing violations of state or federal law, and must not retaliate against employees for making such disclosures).
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