Recent Developments at the California Department of Fair Employment and Housing

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

The California Department of Fair Employment and Housing (“DFEH”) is the state agency charged with enforcing California’s laws against harassment, discrimination, and retaliation in employment, housing, and business establishments throughout the state. It proclaims on its website that it is “the institutional centerpiece of California’s broad anti-discrimination and hate crimes policy.” According to the DFEH, it is the largest state civil rights agency in the country.

Taking its charge seriously, the DFEH has been busy recently implementing new regulations, creating on-line training, and issuing guidance and FAQs in connection with the various laws it enforces.  Below is a summary of some of its most recent activity related to the workplace.

  1. Fair Chance Act: Criminal History and Employment FAQs. In September, 2020, the DFEH issued its FAQs regarding the California Fair Chance Act (CA Government Code section 12952) which is the “ban the box” law that went into effect on January 1, 2018.  The FAQs are written so as to respond to questions that would be posed by an applicant for employment who may have a criminal conviction record, and explains the process an employer must follow under the law before denying employment on the basis of a criminal conviction.  While written for applicants, the FAQs provide helpful information for employers.
  2. On-Line Sexual Harassment Prevention Training. On August 4, 2020, the DFEH announced that it has finally launched the free on-line anti-harassment training for both supervisors and non-supervisory employees pursuant to the mandates of CA Government Code section 12950.1.  California law requires all employers of 5 or more employees to provide 1 hour of sexual harassment and abusive conduct prevention training to non-supervisory employees, and 2 hours of sexual harassment and abusive conduct prevention training to supervisors and managers once every two years. The law requires the training to include practical examples of harassment based on gender identity, gender expression, and sexual orientation.
  3. FAQs Re: Employment and COVID-19. In July, 2020, the DFEH issued its FAQs to provide guidance to employers and employees about how to keep the workplace safe during the COVID-19 pandemic while at the same time upholding civil rights laws.  It reiterates that civil rights laws are still in place during the pandemic, but explains how employers may make various inquiries and/or conduct certain health screenings of employees in order to protect the workplace from the spread of the virus.
  4. LGBTQ Fact Sheet. In June, 2020, the DFEH issued its Fact Sheet concerning LGBTQ rights in employment, as well as in housing and business establishments.  The Fact Sheet explains that it is unlawful for employers, landlords, businesses of all kinds, health care providers and insurers, homeless shelters, state funded programs and services, and others to discriminate against anyone or treat them unequally because of their sexual orientation, gender identity, gender expression, or sex.
  5. Hearing on Hate Violence. Finally, on September 21, 2020, the DFEH’s Fair Employment and Housing Council held a virtual public hearing about hate violence in California.  The purpose was to discuss certain interventions to reduce violence motivated by bias against someone’s race, national origin, religion, sexual orientation, gender identity, sex, or other personal characteristic.  While the DFEH already has resources to address hate violence, it is likely that further information and resources will be forthcoming given the DFEH’s deeper dive into the subject.

More information on the above recent DFEH resources, as well as others, can be obtained from the DFEH website at: https://www.dfeh.ca.gov/

The Labor and Employment attorneys at Weintraub Tobin have years of experience counseling and defending employers in all areas of employment law, including the civil rights laws enforced by the DFEH.  If we can be of assistance to you in your compliance with the law, and/or defense of a claim, feel free to reach out to us.  Stay health and safe.