Harassment Prevention Training Expansion – Transgender Rights – SB 396

Author: Trina Clayton

With the federal government’s seemingly monthly attempts to chip away at the rights of transgender individuals – we wanted to start off 2018 with some positive news for the transgender community in California.  State law will soon expand mandatory harassment training to include training on transgender rights.

Current law requires California employers with 50 or more employees to provide supervisors with two hour of sexual harassment prevention training within six months of their assumption of a supervisory position, and every two years, as specified.  With the passage of Senate Bill 396, this training will now be required to include training on harassment based on gender identity, gender expression and sexual orientation.  SB 396 also requires employers to display a poster regarding transgender rights in a prominent and accessible location in the workplace – the Department of Fair Employment and Housing will develop this poster.

Other 2018 law relating to transgender rights will be discussed in greater detail in a subsequent blog.  Analysis of 2017 laws expanding the rights for transgender individuals can be found here. For specific legal advice regarding transgender regulations or any other employment issue, please contact Ad Astra for guidance.

California Fair Pay Act Expansion – AB 46

Author: Trina Clayton

As an important reminder, in 2016, California enacted the Fair Pay Act, which revised and expanded previous state law relating to gender pay inequality – the Fair Pay Act was expanded in 2017 to address racial/ethnic wage disparity.

The current law prohibits a private employer from paying any of its employees wage rates that are less than the rates paid to employees of another gender, race or ethnicity, for substantially similar work.  If such a wage differential exists, an employer must be able to show that specific and reasonably applied factors account for the entire differential. These factors include:

  • Seniority systems
  • Merit systems
  • Systems that measure quality or quantity of production; or,
  • A “bona fide factor” other than sex, race, or ethnicity such as education, training, or experience.

In addition, the Fair Pay Act states that prior salary cannot, by itself, justify a disparity in compensation.  Unlike FEHA, the California Fair Pay Act does not require an employee show that the employer had any discriminatory intent.

Beginning January 1st, 2018, AB 46 will expand the Fair Pay Act to also cover public employers.  Public employers will not, however, be subject to the Labor Code provision applicable to private employers that makes willful violation of the Fair Pay Act a misdemeanor.   For specific legal advice regarding the California Fair Pay Act or any other employment issue, please contact Ad Astra for guidance.

Salary Inquiry Ban – AB 168

Author: Trina Clayton

Women – Have you ever felt that you were being paid less money than the men sitting right next to you, doing pretty much the same work?   Were there times where you actually knew this to be the case?  You are not alone!

Several studies reflect the unfortunate reality that women have historically been paid less than their male counterparts for performing substantially similar work.  AB 168 was enacted to try and fix this persistent gender pay disparity.  The rationale for AB 168 being that pay inequities are perpetuated when current pay is based on past employer decisions that could have been discriminatory.

Everyone is familiar with the situation – you are applying for a new job.  Maybe you are applying online, maybe you are talking to a recruiter or the director of Human Resources.  Inevitably, the question is asked – “How much were you making at your last job?”  The reason for asking this question might be benign, but, unfortunately, it has been shown to have a notable discriminatory effect.  If a female applicant had been discriminated against at her prior place of employment (by receiving less pay than her male counterparts), the new employer might feel justified in offering her a lower salary at the new job since, “that is what she was making before.”

AB 168 makes it unlawful for California employers, including state and local governments, to ask applicants about their prior salary, compensation, and benefits.  Additionally, the employer cannot, either directly or indirectly (for instance, by asking a former employer), seek this type of information about the applicant.  The employer may consider prior salary information the applicant voluntarily and without prompting discloses, in setting pay.   However, as noted in our earlier blog post, prior salary cannot, by itself, justify gender compensation disparity.  For specific legal advice regarding gender equality regulations or any other employment issue, please contact Ad Astra for guidance.

LGBT Rights for Long-Term Care Facility Residents

Author: Trina Clayton

Along with SB 396 , another new law expanding transgender rights in California is SB 219 – the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Resident’s Bill of Rights – will go into effect on January 1, 2018.  The catalyst for this bill comes from the unique needs of California’s senior LGBT population.  Studies have indicated that many older LGBT adults do not have children and report a higher-than average incidence of poor physical health, which includes living with HIV or AIDS.  As a result, many LGBT seniors have a heightened need for care when compared to seniors in California generally, but often lack the family support networks available to non-LGBT seniors and will likely rely more heavily on long-term care facilities.

SB 219 makes it unlawful for a facility or its staff to take certain actions because of a person’s actual, or perceived sexual orientation, gender identity, gender expression, or HIV status, including:

  • Denying admission to a long-term care facility,
  • Transferring or refusing to transfer a resident within a facility or to another facility;
  • Evicting or discharging a resident;
  • Willfully and repeatedly failing to use a resident’s preferred name or pronoun;
  • Prohibiting residents from wearing clothing that is allowed for any other resident; and
  • Restricting the right to associate with other residents.

For specific legal advice regarding gender identity/expression regulations or any other employment issue, please contact Ad Astra for guidance.