LGBTQ Discrimination is Now Prohibited Nationally, but California was Ahead of the Trend

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As headlines across the country have blared, on June 15, 2020 in Bostock v. Clayton County, Georgia the U.S. Supreme Court ruled that firing an individual for being homosexual or transgender is unlawful employment discrimination on the basis of sex under Title VII of the U.S. Civil Rights Act of 1964. But this rule is nothing new in California, which has long prohibited employment and housing discrimination on the basis of an individual’s LGBTQ characteristics.

Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions.

Bostock v. Clayton County, Georgia, U.S. Supreme Court

In bold and straightforward language the U.S. Supreme Court’s Bostock decision affirmed that any consideration of sex, homosexuality or transgender status in the course of adverse employment decisions is a violation of Title VII, even if there were other factors in the decision:

An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.

California’s equivalent rule is based on its Fair Employment and Housing Act (FEHA), which prevents employers from in any manner “discriminating” against persons based on their sex, gender, gender identity, gender expression or sexual orientation (among many other protected classes). While news stories about the Bostock decision emphasized hiring and firing decisions, “discrimination” can involve much broader employment concerns that involve consideration of prohibited classifications, such as:

  • – Transferring, demoting or taking other “adverse employment actions” with respect to an employee
  • – Paying an employee less than similarly situated employees
  • – Providing fewer or worse benefits to an employee than similarly situated employees
  • – Requiring additional conditions of employment for one employee compared to similarly situated employees

The U.S. Supreme Court’s decision did not weaken California’s existing protections for gay and transgender individuals, but provides an additional source of protection for them. California employers should continue to actively prohibit and take all reasonable steps to prevent discrimination in the workplace, and keep in mind that unlawful “discrimination” can encompass many types of adverse employment actions beyond hiring and firing decisions.

To guide our business clients, Conkle, Kremer & Engel attorneys stay updated on the latest developments in employment law, including anti-discrimination and wage & hour concerns.

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Conkle Firm Attorneys and PCPC Lobby California Legislature about SB 574 and AB 495

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On April 3, 2019, Conkle, Kremer & Engel attorneys John Conkle and Raef Cogan joined the Personal Care Products Council (“PCPC”) in Sacramento, California to lobby members and staff of the California Legislature on pending legislation important to members of the personal care products industry, including Senate Bill 574 and Assembly Bill 495.

CK&E attorneys, PCPC staff and participating industry representatives visited legislative offices to advocate for positions favored by personal care products industry members. Over the course of more than 15 meetings with legislators and their aides, the group focused its advocacy on two pending bills that, if enacted, would have significant consequences for the U.S. cosmetics industry as a whole. Conkle, Kremer & Engel has previously written about Senate Bill No. 574 (“SB 574”) introduced by Senator Connie Leyva and Assembly Bill No. 495 (“AB 495”) introduced by Assembly Members Al Muratsuchi and Buffy Wicks. These are important bills that if enacted would have significant consequences for the U.S. cosmetics industry as a whole.

SB 574, also known as the “Toxic Fragrance Chemicals Right to Know Act of 2019,” would require cosmetic manufacturers to disclose fragrance of flavor ingredients that appear on any one of 27 “designated lists.” CK&E attorneys explained during the meetings that a viable version of this bill may be presented in the future, but that as written SB 574 threatens cosmetic companies’ confidential business information, results in duplicative regulation and relies on faulty, unscientific “lists” to determine what information manufacturers must disclose.

AB 495, is entitled the “Toxic Free Cosmetics Act,” and would dramatically increase the number of cosmetics listed as “adulterated,” without justification. CK&E attorneys explained that under AB 495 as proposed, any cosmetic that contained even trace amounts of identified ingredients would be labeled “adulterated” and would be banned outright. Some ingredients sound scary, like lead, but are in fact naturally occurring and cannot be completely eliminated from cosmetic (or many other) products. Others are preservatives that have been deemed completely safe for use in cosmetics by the FDA and other regulatory bodies.

Both SB 574 and AB 495 are coming up for committee vote soon. Conkle, Kremer & Engel will stay apprised of the results and will provide updates on this legislation that is important to the cosmetics industry.

PCPC California Lobby Day also featured presentations from Allen Hirsch, Chief Director of the California Office of Environmental Health Hazard Assessment (“OEHHA”), Karl Palmer from the Department of Toxic Substances Control (“DTSC”), Joseph Calavita from the Air Resources Board, and Senator Bill Quirk, Chair of the Environmental Safety and Toxic Materials Committee. The regulators spoke about important upcoming actions by their agencies. Senator Quick focused on the importance of protecting our environment from toxins, primarily greenhouse gasses. Each of these presenters stressed a need for more information sharing between the industry and the respective regulatory and legislative bodies.

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