Sexual Harassment under FEHA and Title VII

The Fair Employment and Housing Act (FEHA) (Govt. Code §§12900–12996) contains an express prohibition against sexual harassment. Under FEHA, it is an unlawful employment practice to harass an employee, job applicant, or independent contractor because of "sex," which is defined as including sexual harassment.  FEHA also provides that an individual harasser may be personally liable for sexual harassment under FEHA.

 

Title VII of the Civil Rights Act of 1964 (42 USC §§2000e—2000e–17) does not explicitly prohibit workplace sexual harassment. However, Title VII's prohibition against discrimination based on "sex" (42 USC §2000e–2(a)(1)) has been construed to include sexual harassment when the harassment is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.

 

Both California and federal law have traditionally viewed sexual harassment cases as taking one of two forms:

 

1) Quid pro quo harassment, which occurs when an employment benefit (such as being hired or promoted) or the absence of a job detriment (such as being demoted or terminated) is conditioned, expressly or impliedly, on the submission to unwelcome sexual conduct. This type of harassment is sometimes referred to as "tangible employment action" harassment.

 

2) Hostile environment harassment, which occurs when the plaintiff's work environment is made hostile or abusive by sexual conduct.

 

Americans with Disabilities Act (“ADA”)

(42 USC §§12101–12213)

Certain employers are prohibited by the Americans with Disabilities Act of 1990 (ADA) from discriminating against qualified individuals on the basis of disability in any aspect of the employment relationship, including specifically

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Job application procedures; Hiring; Advancement; Discharge; Compensation; Job training; and Any other terms, conditions, or privileges of employment.

 

A “qualified individual” is an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires.

 

A “disability” under the ADA is defined as any of the following: 1) A physical or mental impairment that substantially limits one or more of an individual’s major life activities. 2) A record of such an impairment. 3) Being regarded as having such an impairment.

 

An employer must make “reasonable accommodation” for individuals with known disabilities, unless it can demonstrate that doing so would be an undue hardship on its business operations. 

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In California, claims must be initially filed with the Equal Employment Opportunity Commission within three hundred days (other jurisdictions it may be as little as one hundred-eighty days). Once the EEOC issues a Right to Sue Notice, the claimant has ninety days to file a case in court.

 

The Age Discrimination in Employment Act (“ADEA”)

(29 USC §§621–634)

 ADEA prohibits employers from discriminating against employees 40 years old or older on the basis of age in hiring, promoting, pay, or termination. The ADEA does not cover people younger than 40.

 

In California, claims must be initially filed with the Equal Employment Opportunity Commission within three hundred days (other jurisdictions it may be as little as one hundred-eighty days). Once the EEOC issues a Right to Sue Notice, the claimant has ninety days to file a case in court.

 

California Wage Hour and PAGA Claims

 

Following is a list of important Labor Code sections that are referred to Wage Hour laws in California.  These rights a given to certain non-exempt employees. 

 

Overtime Laws

(Labor Code §510)

 

Labor Code §510 provides that any work done by an employee in excess of 8 hours in 1 workday must be compensated at a rate of no less than one and one-half times the employee’s regular rate of pay.

 

• works more than 8 hours in a day  (paid at time and a half)

• works more than 40 hours in a workweek (paid at time and a half)

• works more than 12 hours in a day (paid at double time), and

• works on the seventh consecutive day in a workweek (paid at time and a half for the first eight hours; paid at double time for all hours beyond that).

 

Meal Break Violations: Labor Code

Labor Code §512(a)–(b)

 

Meal periods of at least 30 minutes must ordinarily be provided within the first 5 hours of an employee’s shift. See Labor Code §512(a)–(b) (IWC may authorize 6-hour period).  An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes.  Unless the employee is relieved of all duty during a 30-minute meal period, the meal period is “on duty” and counted as time worked.  (See Brinker Restaurant Corp. v Superior Court (2012) 53 C4th 1004.)

 

• 1 meal break for first 5 hours of work

• 2 Meal breaks for more than 10 hours

 

Employers that fail to provide an employee a meal period must pay the employee 1 hour’s pay at the regular rate of pay for each day that any number of meal periods is not provided.

 

Rest Period Violations

Employees must be authorized and permitted to take 10 minutes’ rest for shifts from 3.5 to 6 hours in length; 20 minutes for shifts of more than 6 hours up to 10 hours; 30 minutes for shifts of more than 10 hours up to 14 hours; and so on.

• 1 (10 minute) break - 3.5 to 6 hours in length

• 20 minutes – 6 to 10 hours

• 30 minutes – 10 – 14 hours

 

If an employer fails to provide an employee rest breaks in accordance with an applicable wage order, it must pay the employee 1 hour of pay at the employee’s regular rate of pay for each workday that one or more rest periods are not provided.

 

Payroll Statement Violations

(Labor Code §226)

 

Employers must provide each employee with an itemized written statement (semimonthly or at the time of each payment of wages) showing the following (Labor Code §226(a)(1)–(9)):

1. Gross wages earned;

2. Total hours worked by each employee;

3. The number of piece-rate units earned and any applicable piece rate if paid on a piece-rate basis;

4. All deductions;

5. Net wages earned;

6. Inclusive dates of the period for which the employee is paid;

7. The name of the employee and the last four digits of his or her Social Security number (or employee identification number);

8. The employer’s name and address; and

9. All applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.

 

An employee suffering injury as a result of an employer’s failure to comply with these requirements may recover the greater of all actual damages or $50 for the initial pay period and $100 per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of $4000, plus costs and reasonable attorney fees. Labor Code §226(e)(1).

 

Failure to Reimburse Business Expenses

(Labor Code §2802)

 

“An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.”  Labor Code §2802 requires employers to reimburse their employees for all expenses necessarily incurred in the course and scope of their employment.  The types of expenses that should be reimbursed when necessarily incurred include air travel, hotels, motels, meals, cab fare, rental vehicles, and the costs associated with operating a personal vehicle for business purposes.