©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 185 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). 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 Lab. Code §§ 98.6(e), 1102.5(h), 6310(c). 41 Lab. Code §§ 230.8, 233. 42 Gov’t Code § 12940(l), (m). 43 Gov’t Code §§ 12926, 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).
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