©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 187 37 Lab. Code § 6310 (employers must not discriminate because of reporting or complying with investigations of health and safety violations). 38 Lab. Code § 98.6(a) (providing remedies for employees discriminated against for claiming or reporting a violation under the jurisdiction of the Labor Commissioner). 39 Lab. Code § 132a (providing remedies for employees discriminated against for claiming or reporting a workers’ compensation violation or workplace injury). For a more thorough discussion, see § 17.8. 40 AB 1509, 2016 bill amending Lab. Code §§ 98.6, 1102.5, 6310. 41 SB 579, 2016 bill amending Lab. Code §§ 230.8, 233. 42 AB 987, 2016 bill amending Gov’t Code §§ 12940(l), (m). 43 AB 488, 2016 bill amending Gov’t Code §§ 12926 and adding § 12926.05. 44 SB 188, 2019 bill amending Gov’t Code § 12926 and adding subdivisions (w) and (x) (defining “race” to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles” and defining “protective hairstyles to include “such hairstyles as braids, locks, and twists”). 45 2 Cal. Code Regs. § 11065(i). 46 42 U.S.C. §§ 12102(1) & (2) (defining “disability” and “major life activities”). 47 See ADA Amendments Act of 2008, available at https://www.govinfo.gov/content/pkg/PLAW-110publ325/pdf/PLAW-110publ325.pdf (visited Mar. 12, 2022). 48 42 U.S.C. § 12102(4)(E). 49 2 Cal. Code Regs. § 11065(d). California’s broadened definition of “disability” came about through enactment of Assembly Bill 2222, effective 2001. The California Supreme Court, however, has opined that California always defined disability broadly, without regard to whether a limitation on a major life activity imposed a “substantial” limitation. 50 Gov’t Code § 12926.1(c); 2 Cal. Code Regs. § 11065(d) (adding autism spectrum, blindness, deafness, cerebral palsy, obsessive compulsive disorder, organic brain syndrome, post-traumatic stress disorder, and schizophrenia). 51 Gov’t Code § 12926(i) (mental condition), (m) (physical condition). 52 42 U.S.C. § 12102(4)(E). 53 2 Cal. Code Regs. § 11065(l). 54 2 Cal. Code Regs. § 11065(l). 55 Cassista v. Cmty. Foods, Inc., 5 Cal. 4th 1050, 1052 (1993) (“weight may qualify as a protected “handicap” or “disability” within the meaning of FEHA if medical evidence demonstrates that it results from a physiological condition affecting one or more of the basic bodily systems and limits a major life activity”) (superseded by SB 559 § 10 on other grounds). 56 Cornell v. Berkeley Tennis Club, 18 Cal. App. 5th 908 (2017) (reversing a summary judgment for an employer that, in challenging the plaintiff’s assertion that her obesity qualified as a disability, failed to present scientific or expert evidence that the obesity lacked a physiological cause). 57 Gov’t Code § 12926(o). 58 Rope v. Auto-Chlor Sys. of Washington, Inc., 220 Cal. App. 4th 635, 642 (2013) (superseded by statute on another ground); see also Castro-Ramirez v. Dependable Highway Express, Inc., 2 Cal. App. 5th 1028, 1037 (2016) (employee’s association with physically disabled person is itself considered a disability under FEHA). 59 See Gov’t Code § 12940(d), (e). 60 2 Cal. Code Regs. § 11069. 61 Gov’t Code § 12940(e)(2). 62 Gov’t Code § 12940(e)(3). 63 The job offer should not be contingent on anything other than the medical examination. See Leonel v. Am. Airlines, Inc., 400 F.3d 702 (9th Cir. 2005) (unlawful under ADA and FEHA to require medical exam where job offer was also contingent on passing a background check). 64 Gov’t Code § 12940(e). 65 42 U.S.C. § 12112(d)(3) (employer “may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination if ... all entering employees are subjected to such an examination”); Gov’t Code § 12940(e)(3) (“employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that ... all entering employees in the same job classification are subject to the same examination or inquiry”). 66 Gov’t Code § 12940(e)(3). 67 42 U.S.C. § 12112(b)(6) (employers must not “us[e] qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity”); Gov’t Code § 12940(e)(3) (employers and employment agencies must not “require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties [unless] the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry”).
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