Sexual Orientation and Gender Discrimination Under California Law Phoebe P. Liu Senior Staff Counsel State of California Department of Fair Employment & Housing

Overview 1.Introduction to the DFEH. 2.Statutory protections and recent case law. 3.Elements of a claim of discrimination. 4.Quizzes. 2

DFEH Mission 3  The Department of Fair Employment and Housing (DFEH) is California’s civil rights agency.  Mission: The Department of Fair Employment and Housing’s mission is to protect Californians from employment, housing & public accommodation discrimination and hate violence.  The DFEH receives, investigates, conciliates, mediates, and prosecutes complaints alleging discrimination in employment and housing throughout the State of California.

Jurisdiction Fair Employment and Housing Act (Gov. Code, § et seq.). Unruh Civil Rights Act (Civ. Code, § 51 et seq.). Disabled Persons Act (Civ. Code, § 54 et seq.). Ralph Civil Rights Act (Civ. Code, § 51.7). 4

5

Definitions Under the FEHA  “Sexual orientation” means heterosexuality, homosexuality, and bisexuality. (Gov. Code, § 12926, subd. (r).)  “Sex” includes a person's gender. “Gender” includes a person's gender identity and gender expression. “Gender expression” means a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth. (Gov. Code, § 12926, subd. (q).)  The protected classes includes “a perception that the person has any of these characteristics, or that the person is associated with a person who has, or is perceived to have, any of those characteristics.” (Gov. Code, § 12926, subd. (n).). 6

Employment Discrimination under the FEHA  The opportunity to seek, obtain, and hold employment without discrimination because of a person’s gender, gender identity, gender expression or sexual orientation is a civil right. (Gov. Code, § 12921, subd. (a).)  An employer may not “refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment” or to “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subds. (a)-(k).) 7

Issues in Employment An employer must allow an employee to appear or dress consistently with the employee’s gender identity or gender expression. (Gov. Code, § ) Use of the bathroom by transgender employees. Insurance coverage Best practices 8

Housing Discrimination under the FEHA  The opportunity to seek, obtain, and hold housing without discrimination because of gender, gender identity, gender expression, sexual orientation is a civil right. (Gov. Code, § 12921, subd. (b).)  The owner of any housing accommodation may not discriminate against, harass, retaliate against any person because of gender, gender identity, gender expression, sexual orientation or because that person is perceived to have any of those characteristics or is associated with a person who has or is perceived to have any of those characteristics. (Gov. Code, § 12955, subds. (a)-(p).) 9

Public Accommodations Discrimination under the Unruh Civil Rights Act  All persons within the jurisdiction of this state are free and equal, and no matter what their sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civ. Code, §51, subd. (b).)  "Sex" includes a person's gender. "Gender" includes a person's gender identity and gender expression. "Gender expression" means a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth. (Civ. Code, §51, subd. (e)(5).)  No business establishment shall discriminate against a person on account of any protected characteristic or because the person is perceived to have one or more of those characteristics, or because the person is associated with a person who has, or is perceived to have, any of those characteristics. (Civ. Code, § 51.5, subd. (a).) 10

Issues in Public Accommodations Dress codes. (Dept. Fair Empl. & Hous. v. Marion’s Place (Feb. 1, 2006) FEHC Dec. No [2006 WL (Cal.F.E.H.C.)].) Services. (North Coast Women’s Care Medical Group, Inc. v. San Diego County Sup. Ct. (2008) 44 Cal. 4 th 1145.) 11

Hate Violence under the Ralph Civil Rights Act All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive. (Civ. Code, § 51.7, subd. (a).) 12

Elements of Sexual Orientation or Gender Discrimination 1.Defendant was a covered entity; 2.Plaintiff was a covered entity in a covered relationship to defendant; 3.Defendant’s took unlawful action against the plaintiff; 4.Plaintiff's protected status was a motivating reason for the unlawful action; 5.Plaintiff was harmed; and 6.The unlawful action was a substantial factor in causing plaintiff’s harm. 13

Quiz No. 1 Female employee worked as a bartender. One night after she closed the bar, employer reacted with disdain when he saw employee holding hands with her female partner. When employee went to work the next day, employer had changed all the locks and hired a new bartender. Question:  Is employer liable for discriminating against employee because of her sexual orientation? 14

Quiz No. 2 Applicant and his male partner applied to rent an apartment. When the landlord learned that they were a couple, she declined to rent the apartment to them, because her religious beliefs prohibited her from renting to unmarried couples and homosexuals. Question: Is landlord liable for sexual orientation discrimination? Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th

Questions? 16

THANK YOU (800) Videophone (916)