©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 189 92 Castro-Ramirez v. Dependable Highway Express, Inc., 2 Cal. App. 5th 1028, 1038 (2016). The Court of Appeal modified its decision to withdraw the holding, while continuing to suggest that FEHA may reasonably be interpreted to require accommodation based on an employee’s association with a physically disabled person. 93 See, e.g., Larimer v. IBM Corp., 370 F.3d 698, 700 (7th Cir. 2004). 94 2 Cal. Code Regs. § 11065(p). 95 Id. §§ 11065, 11069. 96 Id. §§ 11065, 11069. 97 Id. § 11068(b). 98 42 U.S.C. § 1981a(3) (in ADA cases where a discriminatory practice involves the provision of a reasonable accommodation, compensatory and punitive damages “may not be awarded under this section where the covered entity demonstrates good faith efforts, in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business”). 99 Wallace v. Cnty. of Stanislaus, 245 Cal. App. 4th 109, 128 (2016). 100 Arnold v. Dignity Health, 53 Cal. App. 5th 412 (2020). 101 Gov’t Code § 12941. 102 See Gov’t Code § 12941. The statute, effective 2000, overruled Marks v. Loral Corp., 57 Cal. App. 4th 30 (1997), a decision holding that a reduction in force based on salary considerations would not be discriminatory even if it disproportionately affected older workers. 103 Smith v. City of Jackson, 544 U.S. 228, 241 (2005). 104 AB 1687, 2016 bill adding Civ. Code § 1798.83.5(a). 105 IMDb.com, Inc. v. Becerra, 2017 WL 772346, at *1 (N.D. Cal. Feb. 22, 2017) (“It’s difficult to imagine how AB 1687 could not violate the First Amendment.”). 106 29 C.F.R. § 1604.11 (1980). 107 See generally LINDEMANN &KADUE,WORKPLACE HARASSMENT LAW (2012). 108 See 26 U.S.C. § 162(q). 109 “Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” 9 U.S.C. § 402. 110 Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 354 (2000); Reno v. Baird, 18 Cal. 4th 640, 647 (1998). 111 Gov’t Code § 12940(j)(4)(A). 112 Gov’t Code § 12940(j)(1). 113 Id. (unlawful to harass “an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract”). By a 2016 amendment, any individual employed under “a special license pursuant to Section 1191 or 1191.5 of the Labor Code in a nonprofit sheltered workshop, day program, or rehabilitation facility” may sue for harassment or discrimination under FEHA. Gov’t Code § 12926.05. 114 Gov’t Code § 12940(j)(3). 115 See Gov’t Code § 12940(j)(1); State Dep’t of Health Servs. v. Superior Court, 31 Cal. 4th 1026, 1044 (2003) (employer with harassing supervisor cannot assert Ellerth/Faragher defense, but can escape liability for damages plaintiff could have avoided by reporting the harassment more promptly if (1) employer took reasonable steps to prevent and correct workplace harassment, (2) plaintiff unreasonably failed to use preventive and corrective measures employer provided, and (3) reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered). 116 See § 6.5.5; Gov’t Code § 12926(t). 117 Gov’t Code § 12940(i). 118 Miller v. Dep’t of Corrections, 36 Cal. 4th 446, 466 (2005). 119 Gov’t Code § 12940(j)(1), (k). See Turman v. Turning Point of California, Inc., 191 Cal. App. 4th 53, 59-60 (2010) (employer must take immediate, appropriate corrective action in response to harassment complaints, even when harassment is “inherently part of the job”). 120 Gov’t Code § 12950(b). For discussion of the California-imposed duty to prevent and correct harassment, see § 6.5.3. 121 2 Cal. Code Regs. § 11023(b), (c). 122 Gov’t Code § 12950.1. 123 2 Cal. Code Regs. §§ 11019(b), 11034(f)(1). 124 146 Cal. App. 4th 63 (2006), rev. granted, 57 Cal. Rptr. 3d 541 (Cal. April 18, 2007). 125 Id. at 75. 126 47 Cal. 4th 686, 706 (2009). 127 18 Cal. 4th 640, 646-47 (1998).
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