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Fair Employment and Sexual Harassment

In January of 1999, Attorney General Lockyer withdrew amicus brief support previously given by his predecessor in Codger v. Board of Regents of the State of Tennessee (on petition for writ of certiorari), a case in which amici states had argued that the Eleventh Amendment bars Age Discrimination in Employment Act (ADEA) cases brought against a state.

On September 15, 1999, the Office of the Attorney General filed an amicus brief in Armendariz v. Foundation Health Psychare Services, a case in which the California Supreme Court will determine whether employment agreements that require the mandatory arbitration of employment discrimination claims that may be brought under the California Fair Employment and Housing Act (FEHA) are enforceable. In his brief, the Attorney General urges the state high court to hold that such agreements are unenforceable and are contrary to public policy. The Attorney General argues that upholding such agreements will prevent employees from pursuing their court and administrative remedies under the FEHA, thus undermining public enforcement of this important anti-discrimination statute. In August 2000, the California Supreme Court ruled that, while such agreements do not violate public policy, they must meet certain strict requirements to be enforceable.

On July 2, 1999, the Office of the Attorney General filed an amicus brief in the California Supreme Court in support of the plaintiff in Carrisales v. Department of Corrections. In that case, the Court of Appeal held that a non-supervisory coworker who sexually harasses another coworker cannot be held personally liable for such harassment under the Fair Employment and Housing Act (FEHA). The California Supreme Court has granted the petition for review that was filed by the plaintiffs. The brief argued that the Court of Appeal was wrong and that the FEHA does impose personal liability on a coworker who harasses another coworker even though the harasser is not a supervisory employee. Unfortunately, on December 9, 1999, the Court issued an opinion holding otherwise. Legislation to overturn this decision was subsequently enacted.

On September 19, 2000, the Attorney General filed an amicus brief in Circuit City v. Adams in the United States Supreme Court. In that case, the Ninth Circuit had held that the Federal Arbitration Act does not apply to contracts of employment and, therefore, a state employment discrimination claim could not be subjected to arbitration under that act. The brief urged the Court to uphold the Ninth Circuit's decision. The states of Arizona, Arkansas, Colorado, Connecticut, Idaho, Illinois, Iowa, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nevada, New Jersey, New York, North Dakota, Pennsylvania, Vermont, Washington, and West Virginia joined in this brief. On March 21, 2001, the United States Supreme Court issued a 5-4 opinion holding that the Federal Arbitration Act applies to contracts of employment.

In May 2001, the California Office of the Attorney General joined in an amicus brief authored by the Attorney General of Missouri and filed in the United States Supreme Court in Equal Opportunity Employment Commission v. Waffle House, Inc. The issue in this case is whether the agreement of a victim of employment discrimination to arbitrate his or her claim of discrimination bars the Equal Employment Opportunity Commission (EEOC) from bringing an enforcement action seeking victim-specific monetary remedies such as back pay and damages against the relevant employer. On January 15, 2002, the Court held that private agreements to arbitrate employment discrimination claims do not bar the EEOC from seeking such victim-specific remedies.

On March 21, 2002, the Office of the Attorney General filed an amicus brief in Colmenares v. Braemar Country Club in the California Supreme Court. In this case, the Court will determine whether recent legislative amendments, effective January 1, 2001, defining the term "physical disability," are to be applied prospectively or were merely declaratory of existing law in the Fair Employment and Housing Act ("FEHA") (Gov. Code, § 12900 et seq.). Specifically, the Prudence Poppink Act (Stats. 2000, ch. 1049, § 5), which amended the FEHA, defines "physical disability" to limit a major life activity but does not require the "substantial limitation" standard imposed by the federal Americans With Disabilities Act ("ADA") (42 U.S.C., §12101 et seq.). The Attorney General's brief supports plaintiff's position that the Poppink Act amendments merely codified the existing definition of the term "physical disability" under the FEHA.

On April 9, 2002, the Office of the Attorney General filed an amicus brief in the California Court of Appeal in Salazar v. Diversified Paratransit. In his brief the Attorney General supported the plaintiff's position that, under certain circumstances, an employer may be held liable under the FEHA for harassment of an employee by a client or customer. The Court of Appeal, in a 2-1 decision, held that harassment by customers and clients is not covered by the FEHA. The California Supreme Court has agreed to hear this case. On July 7, 2003, the Office of the Attorney General filed a brief with the California Supreme Court again advancing the legal position that employers are liable under the FEHA for harassment of their employees by clients or customers. Subsequently, the Legislature enacted legislation, supported the Office of the Attorney General, which clarified that the FEHA does cover harassment by customers and clients. The Supreme Court then remanded the case to the Court of Appeal to consider the effect of the passage of this legislation. On March 30, 2004, the Court of Appeal agreed with the Attorney General that the legislation made it clear that harassment by customers and clients was covered even prior to the enactment of the legislation.

On September 29, 2004, the Office of the Attorney General secured a published decision from California Court of Appeal in Gemini Aluminum Corp. v. Fair Employment and Housing Commission that upholds the administrative decision and order of the California Fair Employment Housing Commission in a case where an employer refused to provide a religious accommodation to a Jehovah's witness who sought leave from his employment to attend a religious convention sponsored by his church. He was fired by his employer after he attended the convention following the denial of his request for a leave of absence. The trial court ruled in favor of the employer, but the Office of the Attorney General secured a reversal of that decision from the appellate court. The Court of Appeal agreed with the Commission that the employer violated the Fair Employment and Housing Act when it refused to grant the employee leave to attend the convention.

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