Who Cares!  I’m a Small Business… Anti-Discrimination Laws Don’t Apply…Do They?

By |2018-10-27T04:09:56+00:00December 21st, 2017|

As a small business owner and an employer in California, you have legal responsibilities under the State (CFRA) and Federal (FEHA) employment anti-discrimination laws. Both Federal and California laws prohibit discrimination in the workplace based on an employee’s “protected characteristics”.


Protected Classes, Protected Characteristics?

Under California’s broad, pro-employee laws (perhaps the best in the US), “protected characteristics” mean: “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation”. Without going into detail it’s fair to say, pretty much everyone is protected, and it is not ok to discriminate on any grounds.

Who is covered I hear you ask?

People who work full-time, part-time, seasonally or on a temporary basis; Individuals assigned to your business under a work program (for example, placements for welfare recipients); Volunteers and in the case of anti-harassment only, contractors. Anti-harassment and discrimination policies also cover job applicants as well as employees. See details below to identify where you fit and what applies to you:

If you have at least one employee: You are covered by the law that requires employers to provide equal pay for equal work to male and female employees.

If you have at least five employees (California): You are covered by the laws that prohibit discrimination based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability and genetic information (including family medical history), AIDS/HIV status, sexual orientation, marital status. You are also covered by the law that requires employers to provide equal pay for equal work.

If you have 15 to 19 employees (Federal): You are covered by the laws that prohibit discrimination based on racecolorreligionsex (including pregnancy, sexual orientation, or gender identity), national origindisability and genetic information(including family medical history). You are also covered by the law that requires employers to provide equal pay for equal work.

If you have 20 or more employees: You are covered by the laws that prohibit discrimination based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability and genetic information (including family medical history). You are also covered by the law that requires employers to provide equal pay for equal work.

Over 50 employees, Beginning Jan. 1, 2018, in California, you must provide two hours of interactive harassment training to supervisors every two years.  The training must address harassment based on gender identity, gender expression, and sexual orientation. The training must include specific examples of such harassment. This portion of the training must be presented by trainers with knowledge and expertise on those topics.

SB 396 also requires employers to display a poster regarding transgender rights prepared by the California Department of Fair Employment and Housing. Download the poster at www.dfeh.ca.gov/resources/posters-and-brochures-and-fact-sheets.

Other things to consider:

But We Did All We Could!

California does not recognize “affirmative defense” like Federal law, so saying ‘we did everything we could’ is not enough. You must act on any whisper or noise about harassment in the workplace. Always investigate.

So, What If Employees Don’t Speak English – This is America!

An employer with a multilingual workforce should take additional steps to make sure that policies are clearly communicated and effective to employees. FEHA requires employers to translate their harassment, discrimination and retaliation policy into any language that is spoken by at least 10% of the workforce.

What Do You Mean We Retaliated?!

Don’t Retaliate. You cannot retaliate against (punish) an applicant, employee or former employee for reporting discrimination, participating in a discrimination investigation or lawsuit or opposing discrimination (for example, threatening to file a charge or complaint of discrimination).

Tell Them How to Sue Me?

Inform Employees About the Laws. You must display a poster at your business that describes the federal employment discrimination laws.

Discrimination laws, especially in California, offer powerful and effective protection for employees. However, discrimination laws are changing constantly, sometimes day-by-day, and can be difficult to navigate. If you think you have a discrimination case, do not wait. Strict time limits may apply.

Peoplescape Consulting Group provides ongoing and comprehensive educational opportunities for small business owners, HR beginners and experienced HR professionals alike. For more information please visit our website at www.peoplescapesearch.com/dev_pcg

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