Monday, October 13, 2014

New Laws to Create Heightened Areas of Employment Discrimination in California in 2015 - National Origin & Medical Condition, as Heard on Armstrong & Getty Radio

Just before we ushered in California’s cool autumn days of October, when we all wear Uggs, drink hot apple cider and eat pumpkin spiced everything (it was well over 90 degrees in much of the state last week), the one-party-rule legislature and governor signed 931 new bills into law. To his credit, as the moderate in Californitopia, Governor Brown did veto 142 bills (13.6%). That’s the highest veto-rate he has employed in his most recent four-year stint as Governor. His predecessor, Governor Schwarzenegger, generally vetoed 25% to 30% of the bills hitting his desk.

Two of the new laws taking effect on January 1, 2015 warrant extra consideration for employers, if for no other reason, than they are easy to overlook and may not be thought of as traditional workplace issues.

National Origin - “AB 60” Driver’s Licenses for Illegals

This is from the California DMV website:
Assembly Bill (AB) 60 (Chapter 524: Statutes of 2013) requires [DMV] to issue an original driver license to an applicant who is unable to submit satisfactory proof of legal presence in the United States. Driver license applicants under AB 60 must meet all other qualifications for licensure and must provide satisfactory proof of identity and California residency.

AB 60 also requires the [DMV] to develop regulations and consult with interested parties in an effort to assist the department in identifying documents that will be acceptable for the purposes of providing documentation to establish identity and residency.
Hence, one need not be lawfully present to be sanctioned as a state-licensed driver in California. That is a new law effective on January 1. And over the last year, the Department of Homeland Security and California DMV (two stellar models of bureaucratic excellence) have been quarreling as to how these driver’s licenses will be denoted so that the federal government can keep tabs on the millions of illegals California will be sanctioning. They settled on the following designation. In the upper right hand corner of an illegal’s license, it will say, “Federal rules apply.” Sounds innocuous enough, right? Not innocuous enough for Californitopia.

In response, California added a new measure to make sure employers in our state (the few who remain) don’t start using those driver’s licenses as a new tool for national origin discrimination. Specifically, we’ve expanded the definition of national origin discrimination in California's Fair Employment and Housing Act (FEHA) to prohibit employer discrimination on the basis of possessing a driver's license with those three magical words affixed. An employer now violates FEHA by requiring a person to present a driver's license, unless possessing a driver's license:
  • is required by law or
  • is required by the employer and the employer's requirement is otherwise permitted by law. 
AB 1660; amends Government Code section 12926 and Vehicle Code sections 1653.5, 12800.7 and 12801.9.

Employers must be extremely careful with this. In order to request a driver’s license now, you will need a solid, straight-forward, business reason. You had better be able to show that the position in question absolutely requires a license. Otherwise, employers are just opening themselves up to a fresh new claim of discrimination. This is akin to when a candidate in a job interview starts spewing out voluntary information about his or her disability, family status, sexual orientation, or religious practices.  
Medical Condition / Disability - Words to Remove from the Workplace

In the latest edition of words we seek to eradicate from our legislative and regulatory history, California has added a plethora new words to the list of things we won’t tolerate. I can’t help but think that within a generation we’ll be dumping a few hundred thousand more dollars to change these words once we decide they, too, are stigmatizing, unfriendly or otherwise horrific.

As the Senate Judiciary Committee puts it:
Over the past several years, the Legislature has updated California's Codes by removing offensive or stigmatizing language referring to mental health disorders. AB 1640 … changed references to "idiot," "imbecility," and "lunatics" in various code sections to refer instead to persons who are mentally incapacitated. AB 2370 ... removed all references to "mental retardation" or "mentally retarded person" and replaced them with "intellectual disability" or "a person with an intellectual disability."

This bill would similarly remove references to "insane," "mentally disordered," and "mentally defective" persons and replace those terms with "mental health disorder," "intellectual disability," "developmental disability," or "persons who lack legal capacity to make decisions.”...
For those scoring at home, disfavored words indicating negative stigma include:
  • idiot 
  • imbecile 
  • lunatic 
  • mental retardation 
  • mentally retarded person
  • mental retard, or
  • retard.
All of the above words must be replaced with “persons who are mentally incapacitated” or “person with an intellectual disability”. May I simply suggest the acronyms PWAMI or PWAID. They both roll of the tongue quite nicely, “pee-wamee” and “pee-wade”.

  • insane 
  • feeble-minded 
  • mentally disordered and 
  • mentally defective 
should now be replaced by “persons with a mental health disorder” (or PWMHD if I may suggest another acronym) or “persons who lack legal capacity to make decisions” (PWLLCMD). Is it just me or is the difference between the no-longer-allowed “mentally disordered” and the allowed, “person with a mental health disorder” an awfully thin distinction with virtually no difference? One could even look at that substitution and conclude that you are simply adding four words onto the two operative words (mental and disorder). Why use two words when you can use six, right? I can visualize my seventh grade English teacher sternly lecturing me over her horn-rimmed glasses as I type this.

So we spend a few dollars and update our codes and rules to ensure that we don’t offend anyone. It is a noble goal. Nobody other than a psychopath, narcissist or sociopath wants to hurt anyone’s feelings purposefully. (Note, I can still say those words. I did double check.) So how does this impact employers?

Think of this as the first step in a statewide governmental pronouncement of the words that indicate discriminatory intent. As an employer, it would be a very good idea to make sure that none of your policies, procedures or official employer documents make use of the above banned words. Most likely, you will have a clean bill of health there as there would not be much reason for any of you (outside of long-standing establishments in the healthcare or mental health industries) to use those terms.

The next practical step would be to add to your sexual harassment and/or discrimination training that the above-listed words are not to be used in the workplace as they are stigmatizing words that can be indicative of discriminatory intent. Must you do this? No. But it would be a simple, practical, common-sense, risk-management move as it will not be long before we start to see new cases with plaintiffs claiming institutional discrimination based on mental health status due to the allowance of an environment where stigmatizing terms were freely used.

I was on the Armstrong and Getty Radio Program this morning to discuss these two new laws: