Lesson Last Updated: October 14, 2024

Lesson Highlights

There were quite a few anti-discrimination legal updates pushed through the pipeline during this legislative season! Rather than creating multiple different lessons, we’re compiling them here. 

In this lesson, we'll cover the following topics:

• SB 1137: Discrimination on the basis of the intersectionality; 
• AB 1815: Amendments to The CROWN Act; and
• SB 1340: Local enforcement of employment discrimination.

Discrimination on the Basis of Intersectionality

Governor Gavin Newsom signed SB 1137 on September 27, 2024, which amends the Fair Employment and Housing Act (“FEHA”), among other laws, and bans discrimination on the basis of the intersectionality (or in other words, a combination) of two or more protected traits. 

The declaratory section of this bill states, “Intersectionality is an analytical framework that sets forth that different forms of inequality operate together, exacerbate each other, and can result in amplified forms of prejudice and harm.” While this law was created primarily with Black women in mind, it is protective of all Californians who find themselves at the intersection of two or more protected traits. 

For reference, existing protected traits in California include race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, gender, gender identity, gender expression, sexual orientation, reproductive health decision-making and veteran or military status.

The declaratory section goes on to say, “When a person claims multiple bases for discrimination or harassment, it may be necessary to determine whether the discrimination or harassment occurred on the basis of a combination of those factors, not just based on any one protected characteristic by itself. In this regard, the Legislature affirms the decision of the Ninth Circuit Court of Appeals in Lam v. University of Hawai’i.” [1] It appears that the purpose here is to expand the ability for a finder of fact to think critically about whether or not a person may have experienced harassment in the workplace based not just on distinct protected characteristics, but also how characteristics may blend together to create greater harm to the victim.

The biggest change here for employers will be to address intersectionality in anti-harassment and harassment prevention policies and training moving forward.  

Amendments to The CROWN Act

In 2019, California passed “The CROWN Act”, which prohibits discrimination based on traits “historically associated” with race, including, but not limited to, hair texture and protective hairstyles. 

However, this September, Governor Newsom signed AB 1815, which removes the term “historically” from the definitions of race (vague, confusing, potentially a loophole) within the FEHA, which applies to employers. This updated definition of race has also been added to the Unruh Civil Rights Act, which applies to businesses. [2] 

This isn’t a huge change, practically speaking, for employers, but it means they should review their current employee handbooks or anywhere where an appearance/dress code policy may be to ensure that the definition is up-to-date. 

Local Enforcement of Employment Discrimination

Governor Newsom also signed SB 1340, which is perhaps the most impactful of these three anti-discrimination laws passed. 

Before 2025, only the Civil Rights Department (“CRD”) could enforce California’s state-level discrimination laws. However, as of January 1, 2025, this new law will allow any city, county, or locality to enforce any local law that prohibits discrimination, but only if the following four (4) requirements are all met:

• Local enforcement concerns an employment complaint filed with the CRD;
• Local enforcement occurs after the CRD issued a right-to-sue notice under the Fair Employment and Housing Act (“FEHA”);
• Local enforcement starts before the expiration of the time to file a civil action specified in the right-to-sue notice; and
• Local enforcement is pursuant to local law that is at least as protective as FEHA.

There’s a lot of technical legalese above that likely doesn’t really matter to the average employer. The takeaway here is that there are new avenues for you to get into trouble for discrimination! How to avoid this? Review your employee handbook, other workplace policies, and any previous employee complaints with an attorney to avoid pitfalls and to foster a healthy workplace. And don’t forget to train your employees routinely around harassment and discrimination prevention. 

It’s also worth noting that this new law “tolls” the statute of limitations to file a civil action under a right-to-sue issued by the CRD. If you’re not aware, a statute of limitations sets an “expiration date” for a claim, but when that statute of limitations is tolled, it basically means it’s paused. Before this law was signed, the employee had one year to sue their employer after the CRD issues a right-to-sue notice. But now, any local enforcement essentially presses pause on that one year statute of limitations, meaning resolution of any civil claim could take longer than was previously allowed. [3]

Because this law expands enforcement beyond the state level, all the way down to the local level, employers should keep their eyes out for any applicable local anti-discrimination laws that may apply to them. Overwhelmed by the thought? Reach out to an attorney and let them know where all of your employees are located, so that they can do a search to see what’s on the books locally or going into effect in the future. 

This Lesson's Sources:

[1] SB 1137

[2] AB 1815

[3] SB 1340