President Bush recently signed into law the Genetic Information Nondiscrimination Act (“GINA”). The new law, when it takes effect at the end of 2009, makes it unlawful for employers to discriminate against employees based on genetic characteristics. Yet, California’s Fair Employment and Housing Act (“FEHA”) already prohibits discrimination on the basis of genetic information. In fact, the FEHA has traditionally provided broader protections against discrimination than federal law. This creates confusion for employers who do not understand the many distinctions between the federal and state statutes. While this article does not address all of those distinctions, below are some of the key differences.

Scope

California’s FEHA is the primary source of state anti-discrimination law. The FEHA protects employees on the basis of race, color, national origin, ancestry, religious creed, physical or mental disability, medical condition (including genetic characteristics), marital status, sex, sexual orientation, age (40 or over), or pregnancy, childbirth or related medical conditions.

The federal discrimination laws are found in a number of different statutory sources, including, but not limited to: Title VII of the Civil Rights Act of 1964 (race, color, religion, sex, and national origin), the Pregnancy Discrimination Act, the Age Discrimination in Employment Act (“ADEA”) (age äóñ 40 years or older), the Americans with Disabilities Act (“ADA”) (disability), 42 U.S.C. section 1981 (race and national origin), and most recently, GINA (genetic information).

These laws apply to all employers who meet the statutory size requirements in number of employees for each provision. California employers with five or more employees are covered by FEHA. In addition, all employers are covered by FEHA with respect to harassment. In comparison, Title VII and the ADA require 15 or more employees, and the ADEA requires 20 employees. Section 1981’s prohibitions against race and national origin discrimination apply to all employers regardless of size.

Administrative Procedures

With the exception of section 1981, the anti-discrimination laws above are enforced by state and federal administrative agencies: the federal Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing. An employee typically may rely on the agency’s administrative functions for resolution of the complaint, or may take the matter to court. However, an individual who wishes to file a civil suit under either a federal or California anti-discrimination statute must, for the most part, timely exhaust certain administrative remedies. (Section 1981 claims are the only claims that do not require an employee to exhaust an administrative process. An employee simply needs to file a civil suit within the four-year statute of limitations.) For the remainder of the laws, the administrative process differs between the state and federal agencies.

California’s FEHA, which is enforced by the Department of Fair Employment and Housing (“DFEH”), requires an aggrieved applicant or employee to file a complaint with the DFEH within one year of when the alleged violation occurred. Under federal law, including Title VII, ADA, ADEA and GINA (when it goes into effect), a complainant must file a charge with the Equal Employment Opportunity Commission (“EEOC”) within 180 days of the alleged violation. However, in states (such as California) where the EEOC shares administrative responsibilities with a state agency, the deadline for filing a charge is 300 days.

Under California law, a complainant will have one year from the date the right-to-sue letter is issued to file a civil suit. In contrast, an individual will have only 90 days from receipt of a right-to-sue letter from the EEOC to file a civil suit for claims under Title VII, the ADA, the ADEA, or GINA. Failure to file a charge and/or request a right-to-sue letter within the statutory period typically is a bar to the employee’s claim, except, in the case of a claim under the ADEA, which prohibits age discrimination. The ADEA merely requires an employee to wait 60 days after filing a charge with the EEOC before filing a civil suit; a determination or right to sue letter is not necessary.

In addition to the procedural differences, the federal and California laws differ in substance.

Individual Liability

Most courts have held there is no individual liability under Title VII or the ADA. However, some courts have ruled that section 1981 may provide for individual liability if racial discrimination interferes with an individual’s contractual rights.

The California Supreme Court has held that the FEHA does not provide for individual liability for discrimination and retaliation. However, by statute, the FEHA provides for individual liability for harassment claims (not failure to prevent harassment).

Disability Discrimination

Federal and California law differ considerably regarding the definition of “disability.” Under the federal ADA, a disability is defined as a physical or mental impairment that substantially limits a major life activity. The FEHA more broadly defines disability as any physical or mental impairment that merely limits a major life activity. Courts have applied the “substantial” limitation definition to bar a number of claims because the individual’s impairment did not preclude a variety of activities of daily life. The two laws also differ because “mitigating measures,” such as medication or glasses, must be taken into account under the ADA when considering if a condition counts as a disability. Under the FEHA, mitigating measures are irrelevant.

Under the FEHA, employers have an obligation to engage in an interactive process with a disabled employee to determine whether the employer can reasonably accommodate the employee’s disability. Failure to engage in the interactive process is a separate claim that an aggrieved individual can bring against an alleged discriminatory employer. Under federal law, however, failure to engage in the interactive process is merely evidence of the employer’s failure to accommodate.

Harassment

Aside from the potential for individual liability under state law, harassment claims under federal and state law differ other important ways. Under FEHA, an employer will be held strictly liable for any harassment by a supervisor. Under Title VII, the federal counterpart, there is no “strict liability” unless the harassment is coupled with a “tangible employment action.”

The employer may avoid liability under federal law if it has sufficient policies and procedures in place to prevent harassment, and the employee failed to avail him or herself of them. Under state law, the employer may assert the defense of “avoidable consequences” to reduce damages, but not to avoid liability altogether.

Jury Verdicts

In federal court, a plaintiff needs a unanimous jury to prevail. Federal juries usually involve six persons. In contrast, an employee pursuing a claim under the FEHA needs only a 9-3 jury verdict, and 12 jurors are impaneled.

Damages

There are some significant differences between California and federal law when it comes to potential damages. FEHA allows for unlimited compensatory and punitive damages. However, compensatory and punitive damages are capped for Title VII and ADA claims. The size of the cap is measured by the number of employees working for the employer at any given time.

The ADEA borrows its remedies provisions from the federal Fair Labor Standards Act. Accordingly, successful plaintiffs in ADEA can recover “liquidated damages” of twice the actual damages. But punitive and compensatory damages are not available under the ADEA.

Conclusion

As detailed above, there are a number of distinctions between California and federal anti-discrimination provisions. Employers should be aware of the different legal standards and incorporate those standards into their policies and practices.

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