Jerome Schreibstein on FEHA and California Workers' Compensation

Jerome Schreibstein has written an expert commentary discussing the importance of FEHA to California workers' compensation attorneys. In the post-SB 899 environment, many California applicants’ attorneys are seeking sources of compensation for their injured clients in addition to that offered by the workers’ compensation system.  The California Fair Employment and Housing Act (FEHA) provides one potential source of such compensation.  This expert commentary discusses three basic issues that must be addressed by a workers’ compensation attorney involved, directly or indirectly, in the prosecution of, or defense against, a FEHA claim:

  • Does FEHA cover the type of injury alleged by the plaintiff?
  • Is the FEHA action prohibited by the exclusive remedy provisions of the Workers’ Compensation Act?
  • What possible effects might workers’ compensation proceedings and an FEHA action have on each other?

General Coverage of FEHA

FEHA proscribes employment discrimination, harassment, and retaliation based on any of various specified protected categories [see Cal. Gov. Code § 12940, Cal. Gov. Code § 12944 (discrimination by licensing board), Cal. Gov. Code § 12945].  It also requires that reasonable steps be taken to prevent discrimination and harassment [see Cal. Gov. Code § 12940(j)(1), (k)].  FEHA applies to California employers, labor organizations, apprenticeship and training programs, employment agencies, and any person who aids, abets, or coerces any act prohibited by FEHA [see Cal. Gov. Code § 12940; 2 CCR 7287.7].

The California Fair Employment and Housing Commission (FEHC) [see Cal. Gov. Code § 12935(a); 2 CCR 7285.4; 2 CCR 7286.4] promulgates regulations applicable to employment discrimination pursuant to FEHA. FEHC has also promulgated regulations that apply to its hearing procedure and the enforcement of FEHA [see Cal. Gov. Code §§ 12960-12976].

FEHA extends protection in employment settings to the following personal characteristics [Cal. Gov. Code §§ 12940(a), Cal. Gov. Code § 12945]:

  1. Race.
  2. Religious creed [see Cal. Gov. Code § 12926(o) ("religious creed" defined); 2 CCR 7293.1 (establishing "religious creed" discrimination)].
  3. Color.
  4. National origin.
  5. Ancestry.
  6. Physical disability [see Cal. Gov. Code § 12926(k) ("physical disability" defined)].
  7. Mental disability [see Cal. Gov. Code § 12926(i) ("mental disability" defined)].
  8. Medical condition [see Cal. Gov. Code § 12926(h) ("medical condition" defined)].
  9. Marital status [see 2 CCR 7292.1(a) ("marital status" defined)].
  10. Sex [see Cal. Gov. Code § 12926(p) ("sex" includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, and gender, as defined in Cal. Pen. Code § 422.56].
  11. Age [see Cal. Gov. Code § 12926(b) ("age" defined)].
  12. Sexual orientation [see Cal. Gov. Code § 12926(q) ("sexual orientation" means heterosexuality, homosexuality, and bisexuality); see also 2 CCR 7290.7 ("sex" and "sex stereotype" defined)].
  13. Pregnancy, childbirth, or related conditions [see 2 CCR 7291.2].

To read Schreibstein's additional comments and practice points on this topic, see his expert commentary article.

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