Title 2. Administration
Division 4. Fair Employment and Housing Commission
Pages current through (May 31, 2013; Register 2013, No. 22)
BARCLAYS OFFICIAL CALIFORNIA CODE OF REGULATIONS
425 Market Street • Fourth Floor • San Francisco, CA 94105
800–888–3600
Reproduced with permission of Thomson Reuters for the Fair Employment
and Housing Council meeting of June 18, 2013.
ATTACHMENT B
Fair Employment and Housing CommissionTitle 2 Table of Contents
Page i
(5–31–2013)
Division 4. Fair Employment and Housing Commission
TABLE OF CONTENTS
Page Page
Chapter 1. Administration 329. . . . . . . . . . . . . . . . . . . . . . . .
Subchapter 1. Administration 329. . . . . . . . . . . . . . . . . . . . . . .
§ 7285.0. Generally.
§ 7285.1. Construction.
§ 7285.2. Definitions.
Subchapter 2. Powers and Duties of the
Commission
329. . . . . . . . . . . . . . . . . . . . . . . . .
§ 7285.3. Staff.
§ 7285.4. Rules, Regulations and Guidelines.
§ 7285.5. Hearings and Precedential
Opinions.
§ 7285.6. Investigative Authority.
§ 7285.7. Other Powers and Duties.
Chapter 2. Discrimination in Employment 330. . . . . . . .
Subchapter 1. General Matters 330. . . . . . . . . . . . . . . . . . . . .
§ 7286.0. Fair Employment and Housing
Commission—Conflict of Interest
Code.
Appendix A 330. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appendix B 330. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
§ 7286.1. Department of Fair Employment
and Housing—Conflict of Interest
Code.
Appendix A 330. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appendix B 331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
§ 7286.3. Statement of Policy and Purpose.
§ 7286.4. Authority.
§ 7286.5. Definitions.
§ 7286.6. Principles of Employment
Discrimination.
§ 7286.7. Affirmative Defenses to
Employment Discrimination.
§ 7286.8. Affirmative Action Programs.
§ 7286.9. Remedies.
§ 7287.0. Recordkeeping.
Subchapter 2. Particular Employment
Practices
334. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
§ 7287.1. Statement of Purpose.
§ 7287.2. Definitions.
§ 7287.3. Pre–Employment Practices.
§ 7287.4. Employee Selection.
§ 7287.5. Compensation. (Reserved.)
§ 7287.6. Terms, Conditions and Privileges of
Employment.
§ 7287.7. Aiding and Abetting.
§ 7287.8. Retaliation.
§ 7287.9. Association.
§ 7288.0. Sexual Harassment Training and
Education.
§ 7288.1. Labor Organizations. (Reserved.)
§ 7288.2. Apprenticeship Programs.
(Reserved.)
§ 7288.3. Employment Agencies. (Reserved.)
Subchapter 3. Race and Color
Discrimination
(Reserved)
338.1. . . . . . . . . . . . . . . . . . . . . . . . .
Subchapter 4. National Origin and
Ancestry Discrimination
338.1. . . . . . . . . . .
§ 7289.4. Defenses.
§ 7289.5. Specific Employment Practices.
Subchapter 5. Ancestry Discrimination
(Reserved)
338.1. . . . . . . . . . . . . . . . . . . . . . . . .
Subchapter 6. Sex Discrimination 338.1. . . . . . . . . . . . . . . .
§ 7290.6. General Prohibition Against
Discrimination on the Basis of Sex.
§ 7290.7. Definitions.
§ 7290.8. Defenses.
§ 7290.9. Pre–Employment Practices.
§ 7291.0. Employee Selection.
§ 7291.1. Terms, Conditions, and Privileges of
Employment.
Subchapter 6A. Sex Discrimination:
Pregnancy, Childbirth or
Related Medical
Conditions
339. . . . . . . . . . . . . . . . . . . . . . . . . . .
§ 7291.2. Definitions.
§ 7291.3. Prohibition Against Harassment.
§ 7291.4. No Eligibility Requirements.
§ 7291.5. Responsibilities of Covered Entities
Other than Employers.
§ 7291.6. Responsibilities of Employers.
§ 7291.7. Reasonable Accommodation.
§ 7291.8. Transfer.
§ 7291.9. Pregnancy Disability Leave.
§ 7291.10. Right to Reinstatement from
Pregnancy Disability Leave.
§ 7291.11. Terms of Pregnancy Disability
Leave.
§ 7291.12. Relationship Between Pregnancy
Leave and FMLA Leave.
§ 7291.13. Relationship Between CFRA and
Pregnancy Leaves.
§ 7291.14. Relationship Between Pregnancy
Disability Leave and Leave of
Absence as Reasonable
Accommodation for Physical or
Mental Disability — Separate and
Distinct Rights.
§ 7291.15. Remedies.
§ 7291.16. Employer Notice to Employees of
Rights and Obligations for
Reasonable Accommodation, To
Transfer and To Take Pregnancy
Disability Leave.
§ 7291.17. Employee Requests for Reasonable
Accommodation, Transfer or
Pregnancy Disability Leave:
Advance Notice; Medical
Certification; Employer Response.
§ 7291.18. Employer Notices.
Subchapter 7. Marital Status
Discrimination
348. . . . . . . . . . . . . . . . . . . . . . .
§ 7292.0. General Prohibition Against
Discrimination on the Basis of
Marital Status.
§ 7292.1. Definitions.
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(5–31–2013)
§ 7292.2. Establishing Marital Status
Discrimination.
§ 7292.3. Defenses.
§ 7292.4. Pre–Employment Practices.
§ 7292.5. Employee Selection.
§ 7292.6. Terms, Conditions and Privileges of
Employment.
Subchapter 8. Religious Creed
Discrimination
348.1. . . . . . . . . . . . . . . . . . . . .
§ 7293.0. General Prohibition Against
Religious Creed Discrimination.
§ 7293.1. Establishing Religious Creed
Discrimination.
§ 7293.2. Defenses.
§ 7293.3. Reasonable Accommodation.
§ 7293.4. Pre–Employment Practices.
Subchapter 9. Disability
Discrimination
348.2. . . . . . . . . . . . . . . . . . . . .
§ 7293.5. General Prohibitions Against
Discrimination on the Basis of
Disability.
§ 7293.6. Definitions.
§ 7293.7. Establishing Disability
Discrimination.
§ 7293.8. Defenses.
§ 7293.9. Reasonable Accommodation.
§ 7294.0. Interactive Process.
§ 7294.1. Pre–Employment Practices.
§ 7294.2. Medical and Psychological
Examinations and Inquiries.
§ 7294.3. Employee Selection.
§ 7294.4. Terms, Conditions and Privileges of
Employment.
Subchapter 11. Age Discrimination 348.2(h). . . . . . . . . . . . . .
§ 7295.0. General Prohibition Against
Discrimination on the Basis of Age
over the Age of Forty.
§ 7295.1. Definitions.
§ 7295.2. Establishing Age Discrimination.
§ 7295.3. Defenses.
§ 7295.4. Pre–Employment Practices.
§ 7295.5. Pre–Employment Inquiries,
Interviews and Applications.
§ 7295.6. Physical or Medical Examination of
Applicants and Employees.
§ 7295.7. Employee Selection.
§ 7295.8. Promotions.
§ 7295.9. Terms, Conditions and Privileges of
Employment. (Reserved.)
§ 7296.0. Retirement Practices.
§ 7296.1. Procedures for Continuing in
Employment Past the Normal
Retirement Date.
§ 7296.2. Termination and Disciplinary
Actions.
§ 7296.3. Termination and Disciplinary
Action. [Repealed]
§ 7296.4. Application of Federal Law.
[Repealed]
Subchapter 12. Family Care and Medical
Leave
348.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
§ 7297.0. Definitions.
§ 7297.1. Right to CFRA Leave: Denial of
Leave; Reasonable Request;
Permissible Limitation.
§ 7297.2. Right to Reinstatement: Guarantee
of Reinstatement; Refusal to
Reinstate; Permissible Defenses.
§ 7297.3. Computation of Time Periods:
Twelve Workweeks; Minimum
Duration.
§ 7297.4. Requests for CFRA Leave: Advance
Notice; Certification; Employer
Response.
§ 7297.5. Terms of CFRA Leave.
§ 7297.6. Relationship Between CFRA Leave
and Pregnancy Disability Leave.
§ 7297.7. Retaliation.
§ 7297.8. Remedies.
§ 7297.9. Notice of Right to Request CFRA
Leave.
§ 7297.10. Relationship with FMLA
Regulations.
§ 7297.11. Certification Form.
Chapter 3. Discrimination In Housing
(Reserved)
348.13. . . . . . . . . . . . . . . . . . . . . . . . .
Chapter 4. Procedures of the Commission 348.13. . . . . .
§ 7400. Statement of Purpose.
§ 7401. Delegation of Powers.
§ 7402. Definitions.
§ 7403. Department to Maintain Current
Addresses and Telephone Numbers
of Complainants and Respondents.
§ 7403.5. Interpretive Guidelines. [Repealed]
§ 7404. Public Hearing Records.
§ 7405. Representation in Matters Before
the Commission.
§ 7406. Filing of Papers with the
Commission.
§ 7407. Service of Parties and
Complainants.
§ 7408. Accusations.
§ 7409. Amended Accusations.
§ 7410. Election to Transfer Proceedings to
Court in Lieu of Administrative
Adjudication.
§ 7411. Statement to Respondent.
§ 7412. Notice of Defense.
§ 7413. Subpoenas.
§ 7414. Setting of Hearing.
§ 7415. Withdrawal of Accusation.
§ 7416. Notification of Settlement or
Withdrawal of Accusation.
§ 7417. Discovery.
§ 7418. Interpreters and Accommodation.
§ 7419. Pre–Hearing Motions.
§ 7420. Ex Parte Communications.
§ 7421. Consolidation and Severance.
§ 7422. Pre–Hearing Statements.
§ 7423. Pre–Hearing Conferences.
§ 7424. Settlement Conferences.
§ 7425. Intervention.
§ 7426. Amicus Briefs.
§ 7427. Depositions of Unavailable
Witnesses.
§ 7428. Evidence by Affidavit.
§ 7429. Hearings.
§ 7430. Default Hearings.
§ 7431. Official Notice.
§ 7432. Post–Hearing Matters.
§ 7433. Proposed Decisions.
§ 7434. Commission Decisions.
§ 7435. Precedential Decisions.
§ 7436. Reconsideration.
§ 7437. Judicial Review.
§ 7438. Appendices.
Appendix A 356.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appendix B 356.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appendix C 356.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
§ 7439. Filing of Notice of Defense.
[Renumbered]
Fair Employment and Housing Commission
Title 2
Table of Contents
Page Page
Page iii
(5–31–2013)
§ 7440. Purpose of Motions Before Hearing.
[Repealed]
§ 7441. Form of Motions Before Hearing.
[Repealed]
§ 7442. Procedures for Motions Before
Hearing. [Repealed]
§ 7443. Decisions and Appeal. [Repealed]
§ 7444. Permissible Motions Before
Hearing. [Repealed]
§ 7445. Amended or Supplemental
Accusations. [Repealed]
§ 7446. Withdrawal of Accusation Prior to
Hearing or Intervention by a
Complainant. [Repealed]
§ 7447. Discovery. [Repealed]
§ 7448. Intervention and Amicus Briefs.
[Repealed]
§ 7450. Hearings. [Repealed]
§ 7451. Time and Place of Hearing.
[Repealed]
§ 7452. Continuances. [Repealed]
§ 7453. Depositions of Unavailable
Witnesses and Evidence by
Affidavit. [Repealed]
§ 7454. Depositions of Unavailable
Witnesses and Evidence by
Affidavit. [Renumbered]
§ 7455. Subpoenas. [Repealed]
§ 7456. Pre–Hearing Statement. [Repealed]
§ 7457. Conduct of Hearings. [Repealed]
§ 7458. Withdrawal of Accusation After
Intervention by a Complainant or
After Commencement of Hearing.
[Repealed]
§ 7459. Motions During Hearing.
[Repealed]
§ 7459.1. Motions for Nonsuit, Dismissal or
Judgment. [Repealed]
§ 7459.2. Evidence Rules. [Repealed]
§ 7459.3. Default Hearings. [Repealed]
§ 7459.4. Default Hearings. [Renumbered]
Article 6. Post–Hearing Matters
[Repealed]
356.6. . . . . . . . . . . . . . . . . . . . .
Subchapter 3. Investigative Hearing
(Reserved)
356.6. . . . . . . . . . . . . . . . . . . . . . . . .
Subchapter 4. Advisory Agencies and
Councils (Reserved)
356.6. . . . . . . . . . . . . . .
Chapter 5. Contractor Nondiscrimination and
Compliance
356.6. . . . . . . . . . . . . . . . . . . . . . . . .
Subchapter 1. General Matters 356.6. . . . . . . . . . . . . . . . . . .
§ 8101. Office of Compliance Programs.
§ 8102. Definitions.
§ 8102.5. Nondiscrimination Agreement.
§ 8103. Requirement of Nondiscrimination
Program.
§ 8104. Nondiscrimination Program.
§ 8106. Prima Facie Compliance.
§ 8107. Nondiscrimination Clause.
§ 8108. Subcontracts.
§ 8109. Enforcement of Clause.
§ 8112. Contract Awarding Agency,
Unresponsive Bids.
§ 8113. Statement of Compliance.
§ 8114. Subcontracting Prohibited with
Ineligible Entities.
§ 8115. Exemptions.
§ 8116. Advertisements for New
Employees.
§ 8117. Recruitment.
§ 8117.5. Notice of Contract.
§ 8118. Contract Forms.
§ 8119. Access to Records and Employment
Site.
§ 8120. Complaints of Discrimination or
Noncompliance.
Subchapter 2. Regulations Applicable to
Construction Contracts
359. . . . . . . . . . . . . . .
§ 8200. Scope.
§ 8201. Notice of Requirements.
§ 8202. Application to Permanent and
Temporary Workforce.
§ 8202.5. Transfers Prohibited.
§ 8203. Standard California
Nondiscrimination Construction
Contract Specifications. (Gov. Code,
Section 12990.)
§ 8204. Reporting Requirement.
§ 8205. Effect on Other Regulations.
Subchapter 3. Regulations Applicable to
Service and Supply
Contracts
361. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 1. Small Contracts 361. . . . . . . . . . . . . . . . . .
§ 8300. Scope.
§ 8301. Definition of Small Contract.
§ 8302. Post Award Filing.
§ 8303. Post Award Compliance.
§ 8304. Verification.
Article 2. Regulated Contracts 362. . . . . . . . . . . . . .
§ 8310. Regulated Contracts, Dollar Value.
§ 8311. Post Award Informational Filing.
§ 8312. Designating EEO/Affirmative
Action Officer.
Subchapter 4. OCP Review Procedures 362. . . . . . . . . . . . .
§ 8400. Scope.
§ 8401. OCP Review Procedures.
§ 8402. Compliance Investigations.
§ 8403. Letters of Commitment.
Subchapter 5. OCP Enforcement
Proceedings
362. . . . . . . . . . . . . . . . . . . . . . . . .
§ 8500. Scope.
§ 8501. Show Cause Notice.
§ 8502. Conciliation Agreements.
§ 8503. Hearing.
§ 8504. Potential Remedies.
Fair Employment and Housing CommissionTitle 2
§ 7285.6
Page 85
Division 4. Fair Employment and Housing
Commission
Chapter 1. Administration
Subchapter 1. Administration
§ 7285.0. Generally.
The authority for the rules and regulations set forth in this chapter is
briefly described at the beginning of each chapter below and in some
cases is set out with more particularity at the beginning of a constituent
subchapter within a chapter. Special definitions or rules of construction
which only apply to a particular chapter or subchapter are set forth at the
beginning of the chapter or subchapter to which they pertain.
N
OTE: Authority cited: Section 1418(a), Labor Code; Section 35730.5(a), Health
and Safety Code; and Section 12935(a), Government Code. Reference: Part 4.5 of
Division 2, Labor Code; and Part 2.8 of Division 3 of Title 2, Government Code.
HISTORY
1. New Division 4, Chapter 1 (Subchapters 1 and 2, Sections 7285.0–7285.7, not
consecutive) and Chapter 2 (Subchapters 1–9, Sections 7286.3–7294.2, not
consecutive) filed 4–1–80; effective thirtieth day thereafter (Register 80, No.
14). For prior history, see Registers 76, No. 44 and 61, No. 26.
§ 7285.1. Construction.
(a) These rules and regulations are to be construed liberally so as to fur-
ther the policy and purposes of the statutes which they interpret and im-
plement.
(b) Except as required by the Supremacy Clause of the United States
Constitution, federal laws and their interpretations regarding discrimina-
tion in employment and housing are not determinative of the construction
of these rules and regulations and the California statutes which they inter-
pret and implement but, in the spirit of comity, shall be considered to the
extent practical and appropriate.
(c) Unless the context dictates otherwise, terms used herein which are
in the singular include the plural and which are in the plural include the
singular.
(d) If any rule or regulation, or portion thereof, in this chapter is ad-
judged by a court of competent jurisdiction to be invalid, or if any such
rule or regulation, or portion thereof, loses its force and effect by legisla-
tive action, that judgment or action does not affect the remainder of the
rules and regulations.
(e) Pursuant to the Governor’s Reorganization Plan No. 1 (1980), the
Fair Employment Practice Act is to be renamed the Fair Employment and
Housing Act and renumbered in Part 2.8 of Division 3 of Title 2 of the
Government Code. Authorities and references cited herein to the Labor
Code are parenthetically cited to sections of the Government Code which
will become applicable when legislation is enacted.
N
OTE: Authority cited: Section 1418(a), Labor Code; and Section 12935(a), Gov-
ernment Code. Reference: Part 4.5 of Division 2, Labor Code; and Part 2.8 of Divi-
sion 3 of Title 2 of the Government Code.
§ 7285.2. Definitions.
Unless a different meaning clearly applies from the context, the mean-
ing of the words and phrases as defined in this section shall apply
throughout this chapter:
(a) “Commission or FEHC” means the State Fair Employment and
Housing Commission created by section 1414 of the Labor Code and
Section 12903 of the Government Code pursuant to the Governor’s Reor-
ganization Plan No. 1 (1980).
(b) “Department or DFEH” means the Department of Fair Employ-
ment and Housing created by section 1413.1 of the Labor Code and Sec-
tions 12901 and 12925 of the Government Code pursuant to the Gover-
nor’s Reorganization Plan No. 1 (1980).
(c) “Person” includes one or more individuals, partnerships, associ-
ations or corporations, legal representatives, trustees, trustees in bank-
ruptcy, or receivers.
(d) “Complainant” means the person who files a timely, verified com-
plaint with the DFEH alleging aggrievement by an unlawful practice.
(e) “Respondent” means the person who is alleged to have committed
an unlawful practice in a complaint filed with the DFEH, or against
whom an accusation has been issued.
(f) “Act” means the California Fair Employment and Housing Act
created by section 1410 seq. of the Labor Code, sections 35700 et seq.
of the Health and Safety Code and Government Code section 12900.
N
OTE: Authority cited: Section 1418 (a), Labor Code; and Section 12935(a), Gov-
ernment Code. Reference: Sections 1413, 1413.1 and 1414, Labor Code; and Sec-
tions 12903 and 12925, Government Code.
Subchapter 2. Powers and Duties of the
Commission
§ 7285.3. Staff.
(a) Responsible to the Fair Employment and Housing Commission
there shall be an Executive and Legal Affairs Secretary and such legal,
professional, administrative and support staff as are necessary to carry
out the day–to–day responsibilities of the Commission.
N
OTE: Authority cited: Section 1418(a), Labor Code; Section 35730.5(a), Health
and Safety Code; and Section 12935(a), Government Code. Reference: Section
1418(b), (c), (d), (e), and (f), Labor Code; and Section 12935(b), (c), (d), (e), and
(f), Government Code.
HISTORY
1. Amendment filed 5–16–85; effective thirtieth day thereafter (Register 85, No.
20).
§ 7285.4. Rules, Regulations and Guidelines.
(a) The Commission shall adopt, promulgate, amend and rescind suit-
able rules, regulations and guidelines as are necessary to interpret, imple-
ment and apply laws within its jurisdiction and as are necessary to carry
out all of its other functions and duties.
(b) All rules and regulations shall be adopted pursuant to Chapter 4.5
(commencing with Section 11371) of Part 1 of Division 3 of Title 2 of the
Government Code.
N
OTE: Authority cited: Section 1418(a), Labor Code; Section 35730.5(a), Health
and Safety Code; and Section 12935(a), Government Code. Reference: Part 4.5 of
Division 2, Labor Code; and Part 2.8 of Division 3 of Title 2, Government Code.
§ 7285.5. Hearings and Precedential Opinions.
(a) The Commission shall hold hearings and issue findings and orders
on accusations of unlawful practices within the Commission’s jurisdic-
tion filed by the Department, including charges of discrimination in em-
ployment, housing, public accommodation, contract compliance, and li-
censing and testing.
(b) All hearings after accusation shall be conducted pursuant to Chap-
ter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title
2 of the Government Code (known as the California Administrative Pro-
cedure Act) and pursuant to Title 2, Division 4, Chapter 4 of the Califor-
nia Administrative Code (“Procedures of the Commission”).
(c) The Commission shall establish and publish a system of preceden-
tial opinions to assist in interpreting the laws under its jurisdiction.
(d) The Commission shall establish a system and procedure for De-
claratory Rulings regarding any rule or statute enforceable by the Com-
mission, and shall make such rulings available to the public.
N
OTE: Authority cited: Section 1418(a), Labor Code; Section 35730.5(a), Health
and Safety Code; and Section 12935(a), Government Code. Reference: Section
1418(b), (f) and (h), Labor Code; Section 35730.5(b), (f), and (h), Health and Safe-
ty Code; and Sections 12935(b), (f) and (h), 12967 and 12981, Government Code.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Amendment of subsection (b) filed 12–17–82; effective thirtieth day thereafter
(Register 82, No. 52).
§ 7285.6. Investigative Authority.
Where necessary to carry out its duties relating to any matter under in-
vestigation or in question before the Commission, the Commission may
hold hearings, subpoena witnesses, compel witnesses’ attendance, order
production of any books and papers relating to an investigation, adminis-
ter oaths, and examine any person under oath at times and places set by
the Commission, and make other related written and oral inquiries.
N
OTE: Authority cited: Section 1418(a), Labor Code; Section 35730(a), Health
and Safety Code; and Section 12935(a), Government Code. Reference: Section
1418(f) and 1424, Labor Code; Sections 35730.5(f) and 35732, Health and Safety
Code; and Sections 12935(f), 12967 and 12981, Government Code.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7285.7
Page 86
§ 7285.7. Other Powers and Duties.
The functions, powers and duties of the Commission shall also in-
clude, but are not limited to, the authority to:
(a) Make inquiries into general discrimination problems and issue in-
formal and formal findings, including published reports;
(b) Establish such advisory agencies and councils as will assist in fos-
tering goodwill, cooperation and conciliation among groups and ele-
ments of the population of the state through studies, conciliation, hear-
ings, and recommendations to the Commission;
(c) Develop standards and policy for application and implementation
by the Department of Fair Employment and Housing; and
(d) Advise and concur with the Secretary of Health and Welfare in es-
tablishing standards and guidelines determining unlawful practices of
state contractors under Section 11135, et seq.
N
OTE: Authority cited: Section 1418(a), Labor Code; and Section 12935(a), Gov-
ernment Code. Reference: Sections 1418, 1420.4 and 1431, Labor Code; and Sec-
tions 12935, 12946 and 12990, Government Code.
Chapter 2. Discrimination in Employment
Subchapter 1. General Matters
§ 7286.0. Fair Employment and Housing
Commission—Conflict of Interest Code.
The Political Reform Act, Government Code Sections 81000, et seq.,
requires state and local government agencies to adopt and promulgate
Conflict of Interest Codes. The Fair Political Practices Commission has
adopted a regulation, 2 Cal. Code of Regs. section 18730, which contains
the terms of a standard Conflict of Interest Code, which can be incorpo-
rated by reference, and which may be amended by the Fair Political Prac-
tices Commission to conform to amendments in the Political Reform Act
after public notice and hearings. Therefore, the terms of 2 Cal. Code of
Regs. section 18730 and any amendments to it duly adopted by the Fair
Political Practices Commission are hereby incorporated by reference
and, along with the attached appendix in which officials and employees
are designated and disclosure categories are set forth, constitute the Con-
flict of Interest Code of the Fair Employment and Housing Commission.
Designated employees shall file statements of economic interests with
their agency. Upon receipt of the statements of the Commission mem-
bers, the agency shall make and retain a copy and forward the original of
these statements to the Fair Political Practices Commission. The state-
ments for all other designated positions shall be retained with the agency
and made available for public inspection and reproduction upon request.
(Gov. Code section 81008).
Appendix A
Designated Positions Disclosure Category
Commission Members 1
Executive and Legal Affairs Secretary 1
Administrative Law Judge 1
FEH Counsel 1
Staff Services Manager 2
Consultants
1
1
—————
1
With respect to Consultants, the Chairperson may determine in writing that a
particular consultant is hired to perform a range of duties that are limited in scope
and thus is not required to comply with the disclosure requirements described in
these categories. Such determination shall include a description of the consultant’s
duties and, based upon that description, a statement of the extent of disclosure re-
quirements. The Chairperson’s determination is a public record and shall be re-
tained for public inspection at offices of the Fair Employment and Housing Com-
mission. Nothing herein excuses any such consultant from any other provision of
this Conflict of Interest Code.
Appendix B
General Provisions
When a designated employee is required to disclose investments and
sources of income, he or she need only disclose investments in business
entities and sources of income which do business in the jurisdiction, plan
to do business in the jurisdiction or have done business in the jurisdiction
within the past two years. In addition to other activities, a business entity
is doing business within the jurisdiction if it owns real property within the
jurisdiction. When a designated employee is required to disclose inter-
ests in real property, he/she need only disclose real property which is lo-
cated in whole or in part within or not more than two miles outside the
boundaries of the jurisdiction or within two miles of any land owned or
used by the Fair Employment & Housing Commission.
Designated employees shall disclose their financial interests pursuant
to the appropriate disclosure category as indicated in appendix A.
Disclosure Categories
Category 1
Designated officials and employees assigned to this disclosure catego-
ry must report all investments and business positions in business entities,
sources of income and interests in real property.
Category 2
Designated officials and employees assigned to this disclosure catego-
ry must report investments and business positions in business entities and
sources of income of the type which within the past two years have con-
tracted to provide services, supplies, materials or equipment to the De-
partment.
N
OTE: Authority and reference cited: Section 81000 et seq., Government Code.
HISTORY
1. New section filed 6–6–83; effective thirtieth day thereafter. Approved by Fair
Political Practices Commission 4–18–83. (Register 83, No. 24).
2. Change without regulatory effect amending section and appendix filed 6–4–91
pursuant to section 100, title 1, California Code of Regulations; operative
7–4–91. Approved by Fair Political Practices Commission 5–1–91 (Register 91,
No. 35).
3. Editorial correction restoring inadvertently omitted Authority and Reference
cites (Register 95, No. 6).
4. Amendment of Appendix A filed 6–28–95; operative 7–28–95. Submitted to
OAL for printing only pursuant to Government Code section 11346.2. Ap-
proved by Fair Political Practices Commission 5–11–95 (Register 95, No. 26).
5. Amendment of Appendix A filed 8–29–2001; operative 9–28–2001. Approved
by Fair Political Practices Commission 7–16–2001 (Register 2001, No. 35).
6. Amendment of Appendix A filed 7–6–2005; operative 8–5–2005. Approved by
Fair Political Practices Commission 4–25–2005 (Register 2005, No. 27).
§ 7286.1. Department of Fair Employment and
Housing—Conflict of Interest Code.
The Political Reform Act, (Gov. Code § 81000 et seq.) requires state
and local government agencies to adopt and promulgate conflict of inter-
est codes. The Fair Political Practices Commission has adopted a regula-
tion (Cal. Code Regs., tit. 2, § 18730) which contains the terms of a stan-
dard conflict of interest code, which can be incorporated by reference in
an agency’s code. After public notice and hearing, the standard code may
be amended by the Fair Political Practices Commission to conform to
amendments in the Political Reform Act. Therefore, the terms of Califor-
nia Code of Regulations, title, 2. section 18730 and any amendments to
it duly adopted by the Fair Political Practices Commission, are hereby in-
corporated by reference. This regulation, and the attached Appendices
designating positions and establishing disclosure requirements, shall
constitute the conflict of interest code of the Department of Fair Employ-
ment and Housing.
Individuals holding designated positions shall file their statements
with the Department of Fair Employment and Housing, which will make
the statements available for public inspection and reproduction. (Gov.
Code, § 81008). Upon receipt of the statement of the Director, the De-
partment of Fair Employment and Housing will make and retain a copy
and forward the original of the statements to the Fair Political Practices
Commission.
Appendix A
Designated Positions Disclosure Category
Accountant and Accounting Officer, all levels 2
Administrator, FEH, all levels 1
Associate Information Systems Analyst (Specialist) 3
Associate Programmer Analyst (Specialist) 3
Business Service Assistant (Specialist), all types 2
CEA, all levels 1
Chief Deputy Director, DFEH 1
Consultant *
Data Processing Manager, all levels 3
Deputy Director 1
Director 1
FEH Consultant, all ranges 1
Legal Counsel, all levels and types 1
Legal Analyst 1
Legal Assistant 1
Senior Legal Analyst 1
Senior Programmer Analyst (Specialist) 3
Fair Employment and Housing CommissionTitle 2
§ 7286.5
Page 87
Designated Positions Disclosure Category
Staff Information Systems Analyst (Supervisor) 3
Staff Programmer Analyst (Specialist) 3
Staff Services Analyst 2
Staff Services Manager, all levels and types 2
______
* Consultants shall be included in the list of designated positions and
shall disclose pursuant to the Disclosure Requirements in this conflict of
interest code subject to the following limitation:
The Director may determine in writing that a particular consultant, al-
though holding a “designated position,” is hired to perform a range of du-
ties that is limited in scope and thus is not required to fully comply with
the disclosure requirements described in this section. Such written deter-
mination shall include a description of the consultant’s duties and, based
upon that description, a statement of the extent of disclosure require-
ments. The Director’s determination is a public record and shall be re-
tained for public inspection in the same manner and location as this con-
flict of interest code.
Appendix B
Disclosure Requirements
Disclosure Category 1
Individuals holding positions assigned to Disclosure Category 1 must
report interests in real property located within the State of California; in-
vestment and business positions in business entities, and income, includ-
ing loans, gifts, and travel payments, from all sources.
Disclosure Category 2
Individuals holding designated positions in Disclosure Category 2
must report investments and business positions in business entities, and
income, including gifts, loans, and travel payments, from sources, of the
type to provide services, supplies, materials, or equipment to the Depart-
ment. Such services include, but are not limited to, legal recording/re-
porting services.
Disclosure Category 3
Individuals holding designated positions in Disclosure Category 3
must report investments and business positions in business entities, and
income, including gifts, loans, and travel payments, from sources, of the
type to provide information technology or telecommunication services,
goods, or supplies, including, but not limited to, software, hardware, or
data retrieval and security services.
N
OTE: Authority and reference cited: Section 81000 et seq., Government Code.
(Section filed 6–6–83, operative 7–6–83; approved by Fair Political Practices
Commission 4–18–83; Register 83, No. 24).
HISTORY
1. Amendment of Appendices A and B filed 10–3–86, operative 11–3–86 making
the following changes:
Appendix A, Disclosure Category 1: deleted “Assistant to the Director,” “All Le-
gal Classes,” “Staff Services Manager I, Contract Compliance” and “Consul-
tants”; added “Chief Deputy Director,” “Deputy Director, Administrative Ser-
vices,” “Deputy Director, Legal Services,” “Manager Public Information and
Legislation,” “Staff Services Managers I, II, III” and “Special Consultants”; sub-
stituted “Enforcement” for “Field Operations”;
Appendix A, Disclosure Category 2: deleted “Staff Services Manager III,” “Staff
Services Manager I, all others” and “Staff Programmer Analyst”; added “FEH
Counsel I, II, III”;
Appendix A, Disclosure Category 4: deleted “Research Analyst” and “Housing
Program Specialist”; added “Compliance Services: All Professional Classifica-
tions”;
Appendix A, Footnote 1: Added “Special” after “With respect to”;
Appendix B, General Provisions: deleted “within the past two years” after “in the
jurisdiction”;
Appendix B, Disclosure Category 1: added “: (1)” after “must report” and “; and
(2) his or her status as a director, officer, partner, trustee, employee or holder of a
position of management in any business entity of the type which has contracted
with DFEH to provide services, supplies, materials, machinery or equipment” af-
ter “real property”;
Appendix B, Disclosure Category 2: deleted “within the past two years” after “of
the type which”; added “: (1)” after “must report” and “; and (2) his or her status
as a director, officer, partner, trustee, employee or holder of a position of manage-
ment in any business entity of the type which has contracted with DFEH to provide
services, supplies, materials, machinery or equipment” after “to the Department”;
Appendix B, Disclosure Category 3: deleted “within the past two years” after “of
the type which”; added “: (1)” after “must report” and “; and (2) his or her status
as a director, officer, partner, trustee, employee or holder of a position of manage-
ment in any business entity of the type which has contracted with DFEH to provide
services, supplies, materials, machinery or equipment” after “the employees’ field
office”;
Appendix B, Disclosure Category 4: added “: (1)” after “must report” and “; and
(2) his or her status as a director, officer, partner, trustee, employee or holder of a
position of management in any business entity of the type which has contracted
with DFEH to provide services, supplies, materials, machinery or equipment” af-
ter “has been assigned”;
Approved by Fair Political Practices Commission 8–12–86;
(Register 86, No. 40).
2. Change without regulatory effect amending Appendix A filed 1–3–92 pursuant
to section 100, title 1, California Code of Regulations; operative 2–3–92. Ap-
proved by Fair Political Practices Commission 8–12–86. (Register 92, No. 11).
3. Editorial correction restoring inadvertently omitted Authority and Reference
cites (Register 95, No. 6).
4. Amendment of section and repealer and new Appendices A and B filed
5–9–2000; operative 6–8–2000. Approved by Fair Political Practices Commis-
sion 3–16–2000 (Register 2000, No. 19).
5. Amendment of Appendices A and B filed 10–23–2003; operative 11–22–2003.
Approved by Fair Political Practices Commission 6–23–2003 (Register 2003,
No. 43).
6. Amendment of section and Appendix A and repealer and new Appendix B filed
11–16–2010; operative 12–16–2010. Approved by Fair Political Practices
Commission 9–3–2010 (Register 2010, No. 47).
§ 7286.3. Statement of Policy and Purpose.
The public policy of the State of California is to protect and safeguard
the civil rights of all individuals to seek, have access to, obtain, and hold
employment without discrimination because of race, religious creed, col-
or, national origin, ancestry, physical disability, mental disability, medi-
cal condition, marital status, or sex, and age for individuals over forty
years of age. Employment practices should treat all individuals equally,
evaluating each on the basis of individual skills, knowledge and abilities
and not on the basis of characteristics generally attributed to a group enu-
merated in the Act. The objectives of the California Fair Employment
and Housing Act and these regulations are to promote equal employment
opportunity and to assist all persons in understanding their rights, duties
and obligations, so as to facilitate achievement of voluntary compliance
with the law.
N
OTE: Authority cited: Section 12935(a) and 12980, Government Code. Refer-
ence: Part 4.5 of Division 2, Labor Code; Part 5 of Division 24, Health and Safety
Code. (Part 2.8 of Division 3 of Title 2, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Change without regulatory effect amending section and N
OTE filed 7–17–95
pursuant to section 100, title 1, California Code of Regulations (Register 95, No.
29).
§ 7286.4. Authority.
The FEHC issues these regulations under the authority vested in the
Commission by the Fair Employment and Housing Act, specifically La-
bor Code Section 1418(a) Government Code Section 12935(a).
N
OTE: Authority cited: Section 1418(a), Labor Code; Section 35730(a), Health
and Safety Code. (Section 12935(a), Government Code.) Reference: Part 4.5 of
Division 2, Labor Code, Part 5 of Division 24, Health and Safety Code. (Part 2.8
of Division 3 of Title 2, Government Code.)
§ 7286.5. Definitions.
As used in this chapter, the following definitions shall apply unless the
context otherwise requires:
(a) “Employer.” Any person or individual engaged in any business or
enterprise regularly employing five or more individuals, including indi-
viduals performing any service under any appointment, contract of hire
or apprenticeship, express or implied, oral or written.
(1) “Regularly employing” means employing five or more individuals
for each working day in any twenty consecutive calendar weeks in the
current calendar year or preceding calendar year.
(2) For purposes of “counting” the (five or more) employees, the indi-
viduals employed need not be employees as defined below; nor must any
of them be full–time employees.
(3) Any person or individual acting as an agent of an employer, direct-
ly or indirectly, is also an employer.
(4) “Employer” includes the State of California, any political or civil
subdivision thereof, counties, cities, city and county, local agencies, or
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7286.6
Page 88
special districts, irrespective of whether that entity employs five or more
individuals.
(5) A religious association or religious corporation not organized for
private profit is not an employer under the meaning of this Act; any non–
profit religious organization exempt from federal and state income tax as
a non–profit religious organization is presumed not to be an employer un-
der this Act. Notwithstanding such status, any portion of such tax exempt
religious association or religious corporation subject to state or federal
income taxes as an unrelated business and regularly employing five or
more individuals is an employer.
(6) “Employer” includes any non–profit corporation or non–profit as-
sociation other than that defined in subsection (5).
(b) “Employee.” Any individual under the direction and control of an
employer under any appointment or contract of hire or apprenticeship,
express or implied, oral or written.
(1) Employee does not include an independent contractor as defined
in Labor Code Section 3353.
(2) Employee does not include any individual employed by his or her
parents, by his or her spouse, or by his or her child.
(3) Employee does not include any individual employed under special
license in a non–profit sheltered workshop or rehabilitation facility.
(4) An employment agency is not an employee of the person or indi-
vidual for whom it procures employees.
(5) An individual compensated by a temporary service agency for
work to be performed for an employer contracting with the temporary
service agency may be considered an employee of that employer for such
terms, conditions and privileges of employment under the control of that
employer. Such an individual is an employee of the temporary service
agency with regard to such terms, conditions and privileges of employ-
ment under the control of the temporary service agency.
(c) “Employment Agency.” Any person undertaking for compensa-
tion to procure job applicants, employees or opportunities to work.
(d) “Labor Organization.” Any organization which exists and is con-
stituted for the purpose, in whole or in part, of collective bargaining or
of dealing with employers regarding grievances, terms or conditions of
employment, or of providing other mutual aid or protection.
(e) “Employer or Other Covered Entity.” Any employer, employment
agency, labor organization or apprenticeship training program as defined
herein and subject to the provisions of the Act.
(f) “Employment Benefit.” Except as otherwise provided in the Act,
any benefit of employment covered by the Act, including hiring, employ-
ment, promotion, selection for training programs leading to employment
or promotions, freedom from disbarment or discharge from employment
or a training program, compensation, provision of a discrimination–free
workplace, and any other favorable term, condition or privilege of em-
ployment.
(1) For a labor organization, “employment benefit” includes all rights
and privileges of membership, including freedom from exclusion, expul-
sion or restriction of membership, second class or segregated member-
ship, discrimination in the election of officers or selection of staff, or any
other action against a member or any employee or person employed by
an employer.
(2) “Employment benefit” also includes the selection or training of any
person in any apprenticeship training program or any other training pro-
gram leading to employment or promotion.
(3) “Provision of a discrimination–free workplace” is a provision of
a workplace free of harassment, as defined in Section 7287.6(b).
(g) “Employment Practice.” Any act, omission, policy or decision of
an employer or other covered entity affecting any of an individual’s em-
ployment benefits or consideration for an employment benefit.
(h) “Applicant.” Any individual who files a written application or,
where an employer or other covered entity does not provide an applica-
tion form, any individual who otherwise indicates a specific desire to an
employer or other covered entity to be considered for employment. Ex-
cept for recordkeeping purposes, “Applicant” is also an individual who
can prove that he or she has been deterred from applying for a job by an
employer’s or other covered entity’s alleged discriminatory practice.
“Applicant” does not include an individual who without coercion or in-
timidation willingly withdraws his or her application prior to being inter-
viewed, tested or hired.
(i) “Apprenticeship Training Program.” Any apprenticeship program,
including local or state joint apprenticeship committees, subject to the
provision of Chapter 4 of Division 3 of the California Labor Code, Sec-
tions 3070, et seq.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1413, 1420, 1420.1, 1420.15, Labor Code. (Sec-
tions 12925, 12940, 12941, 12942, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7286.6. Principles of Employment Discrimination.
(a) Unlawful Practices and Individual Relief. In allegations of employ-
ment discrimination, a finding that a respondent has engaged in an un-
lawful employment practice is not dependent upon a showing of individ-
ual back pay or other compensable liability. Upon a finding that a
respondent has engaged in an unlawful employment practice and on or-
der of appropriate relief, a severable and separate showing may be made
that the complainant, complainants or class of complainants is entitled to
individual or personal relief including, but not limited to, hiring, rein-
statement or upgrading, back pay, restoration to membership in a respon-
dent labor organization, or other relief in furtherance of the purpose of
the Act.
(b) Liability of Employers. In view of the common law theory of re-
spondeat superior and its codification in California Civil Code Section
2338, an employer or other covered entity shall be liable for the discrimi-
natory actions of its supervisors, managers or agents committed within
the scope of their employment or relationship with the covered entity or,
as defined in Section 7287.6(b), for the discriminatory actions of its em-
ployees where it is demonstrated that, as a result of any such discrimina-
tory action, the applicant or employee has suffered a loss of or has been
denied an employment benefit.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, 1421.1, La-
bor Code. (Sections 12920, 12921, 12940, 12941, 12942, 12961, Government
Code.)
Fair Employment and Housing CommissionTitle 2
§ 7287.0
Page 89
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7286.7. Affirmative Defenses to Employment
Discrimination.
If employment discrimination is established, this employment dis-
crimination is nonetheless lawful where a proper, relevant affirmative
defense is proved and less discriminatory alternatives are not shown to
be available. Except where otherwise specifically noted, one or more of
the following affirmative defenses may be appropriate in a given situa-
tion to justify the employment practice in question. The following de-
fenses are generally referred to in the text of these regulations as “Permis-
sible Defenses:”
(a) Bona Fide Occupational Qualification (BFOQ). Where an employ-
er or other covered entity has a practice which on its face excludes an en-
tire group of individuals on a basis enumerated in the Act (e.g., all women
or all individuals with lower back defects), the employer or other covered
entity must prove that the practice is justified because all or substantially
all of the excluded individuals are unable to safely and efficiently per-
form the job in question and because the essence of the business opera-
tion would otherwise be undermined.
(b) Business Necessity. Where an employer or other covered entity has
a facially neutral practice which has an adverse impact (i.e., is discrimi-
natory in effect), the employer or other covered entity must prove that
there exists an overriding legitimate business purpose such that the prac-
tice is necessary to the safe and efficient operation of the business and that
the challenged practice effectively fulfills the business purpose it is sup-
posed to serve. The practice may still be impermissible where it is shown
that there exists an alternative practice which would accomplish the busi-
ness purpose equally well with a lesser discriminatory impact.
(c) Job–Relatedness. See Section 7287.4(e) for the defense of job–re-
latedness which is permissible in employee selection cases.
(d) Security Regulations. Notwithstanding a showing of discrimina-
tion, an employment practice which conforms to applicable security reg-
ulations established by the United States or the State of California is law-
ful.
(e) Non–Discrimination Plans or Affirmative Action Plans. Notwith-
standing a showing of discrimination, such an employment practice is
lawful which conforms to:
(1) A bona fide voluntary affirmative action plan as discussed below
in section 7286.8;
(2) A non–discrimination plan pursuant to Labor Code Section 1431
(Government Code Section 12990); or
(3) An order of a state or federal court or administrative agency of
proper jurisdiction.
(f) Otherwise Required by Law. Notwithstanding a showing of dis-
crimination, such an employment practice is lawful where required by
state or federal law or where pursuant to an order of a state or federal court
of proper jurisdiction.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, 1421.1,
1431, Labor Code. (Sections 12920, 12921, 12940, 12941, 12942, 12961, 12990,
Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Editorial correction of Reference cite (Register 95, No. 6).
§ 7286.8. Affirmative Action Programs.
Voluntary action by employers and other covered entities is an effec-
tive means for eliminating employment discrimination. The Commission
hereby adopts the Affirmative Action Guidelines of the federal Equal Em-
ployment Opportunity Commission. [(29 CFR Section 1608 (1979).)]
N
OTE: Authority cited: Section 1418(a), Labor Code; and Section 12935(a), Gov-
ernment Code. Reference: Sections 1411, 1412, 1418, 1420, 1420.1 and 1420.15,
Labor Code; and Sections 12920, 12921, 12935, 12940, 12941 and 12942, Gov-
ernment Code.
§ 7286.9. Remedies.
Upon proof of unlawful practices under the Act, the Commission has
broad statutory authority to fashion remedies which are consistent with
the purposes of the Act, including, but not limited to, those described be-
low.
(a) Retroactive Relief. Where it has been proved that an individual has
been unlawfully denied an employment benefit, the most common reme-
dy shall be to “make whole” the individual through relief which may in-
clude, but is not limited to, any or all of the following:
(1) Back Pay. Back pay remedies shall be available to both individual
and class complainants.
(A) Mitigation and Other Defenses. Mitigating circumstances, includ-
ing interim earnings, may be considered in determining the amount of
back pay. However, unemployment compensation or other collateral
benefits recompensable to the State shall not normally be utilized in con-
sidering mitigation of back pay.
(B) Fringe Benefits. Where appropriate, fringe benefits shall normally
be included in calculations of back pay. Where such benefits are no long-
er available or appropriate, then equivalent monetary values may be
awarded.
(2) Injunctive and Other Equitable Relief. The Act makes available in-
junctive relief including, but not limited to, cease and desist orders, hir-
ing, reinstatement or upgrading of employees, or restoration of member-
ship in labor organizations.
(A) Seniority. Where appropriate, “constructive seniority” or other
temporal measures of service may be awarded so as to place the individu-
al adversely affected into the position or status he or she would have en-
joyed but for the unlawful practice.
(B) Goals and Timetables. Where appropriate, relief may include the
setting of goals and timetables for correcting past discriminatory actions.
Alternative mandatory injunctive remedies may also be ordered where
the past practices of an employer or other covered entity would justify
more stringent remedies.
(b) Prospective Relief. In certain circumstances, appropriate relief re-
quires continuing remedies to correct past unlawful practices. Such relief
may include, but is not limited to:
(1) “Rightful Place” and “Front Pay.” Where previously closed posi-
tions or lines of progression are made available, an employee shall be re-
stored to his or her “rightful place” and shall not be penalized for lacking
prior status or position in that line. In such situations, “front pay” may be
awarded to offset losses to an employee until such time as the employee
takes his or her “rightful place,” or until such time as an offer of the appro-
priate position is made to the employee.
(2) “Red Circling.” Where an employee transfers to a previously
closed line of progression which starts at a lower rate of compensation,
the employee shall not be penalized and may be awarded the higher rate
of compensation until such time as the rates of compensation are equal.
N
OTE: Authority cited: Section 1418(a), Labor Code; and Section 12935(a), Gov-
ernment Code. Reference: Sections 1411, 1412 and 1426, Labor Code; and Sec-
tions 12920, 12921 and 12970, Government Code.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Repealer of subsection (c) filed 5–16–85; effective thirtieth day thereafter (Reg-
ister 85, No. 20).
§ 7287.0. Recordkeeping.
Employers and other covered entities are required to maintain certain
relevant records of personnel actions. Each employer or other covered
entity subject to this section shall retain at all times at each reporting unit,
or at company or divisional headquarters, a copy of the most recent CEIR
or appropriate substitute and applicant identification records for each
such unit and shall make them available upon request to any officer,
agent, or employee of the Commission or Department.
(a) California Employer Information Report. All employers regularly
employing one hundred or more employees, apprenticeship programs
with five or more apprentices and at least one sponsoring employer with
25 or more employees and at least one sponsoring union which operates
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7287.1
Page 90
a hiring hall or has 25 or more members, and labor organizations with 100
or more members shall prepare an annual personnel report called the
“California Employer Information Report” (CEIR) in conformity with
guidelines on reporting issued by the Department.
(1) Substituting Federal Reports. An employer or other covered entity
may utilize an appropriate federal report in lieu of the CEIR. Appropriate
federal reports include the Equal Employment Opportunity Commis-
sion’s EEO–1, EEO–2, EEO–3, EEO–4, EEO–5, and EEO–6 reports and
appropriate reports filed with the Office of Federal Contract Compliance
Programs.
(2) Sample Forms and Guidelines. Appropriate copies of sample
forms and applicable guidelines shall be available to any employer or
other covered entity from the Sacramento administrative office of the
Department of Fair Employment and Housing.
(3) Special Reporting. If an employer or other covered entity is en-
gaged in activities for which the standard reporting criteria are not appro-
priate, special reporting procedures may be required. In such case, the
employer or other covered entity should so advise the Department and
submit a specific proposal for an alternative reporting system prior to the
date on which the report should be prepared. If it is claimed that the prepa-
ration of the report would create undue hardship, an employer may apply
to the Department for an exemption from the requirements of this section.
(4) Remedy for Failure to Prepare or Make Reports Available. Upon
application by the FEHC or DFEH for judicial relief, any employer fail-
ing or refusing to prepare or to make available reports as required under
this section may be compelled to do so by a Superior Court of California.
(5) Penalties for False Statements. The willful making of false state-
ments on a CEIR or other required record is a violation of California La-
bor Code Section 1430.3 (Government Code Section 12976), and is pun-
ishable by fine or imprisonment as set forth therein.
(b) Applicant Identification Records. Unless otherwise prohibited by
law and for recordkeeping purposes only, every employer or other cov-
ered entity shall maintain data regarding the race, sex, and national origin
of each applicant and for the job for which he or she applied. If such data
is to be provided on an identification form, this form shall be separate or
detachable from the application form itself. Employment decisions shall
not be based on whether an applicant has provided this information, nor
shall the applicant identification information be used for discriminatory
purposes, except pursuant to a bona fide affirmative action or non–discri-
mination plan.
(1) For recordkeeping purposes only, “applicant” means any individu-
al who files a formal application or, where an employer or other covered
entity does not provide application forms, any individual who otherwise
indicates to the employer or other covered entity a specific desire to be
considered for employment. An individual who simply appears to make
an informal inquiry or who files an unsolicited resume upon which no
employment action is taken is not an applicant.
(2) An employer or other covered entity shall either retain the original
documents used to identify applicants, or keep statistical summaries of
the collected information.
(3) Applicant records shall be preserved for the time period set forth
in Section 7286.9(c) (1) and (2).
(c) Preservation of Records. Any personnel or other employment re-
cords made or kept by any employer or other covered entity dealing with
any employment practice and affecting any employment benefit of any
applicant or employee (including all applications, personnel, member-
ship or employment referral records or files) shall be preserved by the
employer or other covered entity for a period of two years from the date
of the making of the record or the date of the personnel action involved,
whichever occurs later. However, the State Personnel Board shall main-
tain such records and files for a period of one year.
(1) California Employment Information Report. Every employer sub-
ject to subsection (a) above shall preserve for a period of two years from
the date of preparation of the CEIR such records as were necessary for
completion of the CEIR.
(2) Applicant Identification Records. Every employer subject to sub-
section (b) above shall preserve applicant identification information for
a period of two years from the date it was received.
(3) Separate Records on Sex, Race, and National Origin. Records as
to the sex, race, or national origin of any individual accepted for employ-
ment shall be kept separately from the employee’s main personnel file or
other records available to those responsible for personnel decisions. For
example, such records could be kept as part of an automatic data process-
ing system in the payroll department.
(4) After Filing of Complaint. Upon notice of or knowledge that a
complaint has been filed against it under the Act, any respondent, includ-
ing the State Personnel Board, shall maintain and preserve any and all
relevant records and files until such complaint is fully and finally dis-
posed of and all appeals from related proceedings have concluded.
(A) For purposes of this subsection, “related proceedings” shall in-
clude any action brought in Superior Court pursuant to Section 1422.2
of the Labor Code (Section 12965 of the Government Code).
(B) The term “records and files relevant to the complaint” shall in-
clude, but is not limited to, personnel or employment records relating to
the complaining party and to all other employees holding similar posi-
tions to that held or sought by the complainant at the facility or other rele-
vant subdivision where the discriminatory practice allegedly occurred.
The term also includes applications, forms or test papers completed by
the complainant and by all other candidates for the same position at that
facility or other relevant subdivision where the employment practice oc-
curred. All relevant records made or kept pursuant to subsections (a) and
(b) above shall also be preserved.
(C) The term “fully and finally disposed of and all appeals from related
proceedings have concluded” refers to the expiration of the statutory pe-
riod within which a complainant or respondent may bring an action in Su-
perior Court, or an agreement has been reached by the parties whereby
no further judicial review is available to any of the parties, or a final order
has been entered by the Commission or a body of judicial review for
which the time for filing a notice of appeal has expired.
(d) Posting of Act. Every employer or other covered entity shall post
in a conspicuous place or places on its premises a notice to be prepared
and distributed by the Department which sets forth excerpts of the Act
and such relevant information which the Department deems necessary to
explain the Act. Such employers employing significant numbers, no less
than 10% of their work force, of non–English–speaking persons (e.g.,
Chinese or Spanish speaking) at any facility or establishment must also
post in the appropriate foreign language at each such facility or establish-
ment. Such notices may be obtained from the Department.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1420, 1420.4, Labor Code. (Sections 12940,
12946, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
Subchapter 2. Particular Employment
Practices
§ 7287.1. Statement of Purpose.
Certain employment practices have the effect, either directly or indi-
rectly, of discriminating against individuals on a basis enumerated in the
Act. Such practices are discussed in this subchapter and the provisions
are applicable to all discriminatory actions as more specifically discussed
in the following subchapters.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, Labor Code.
(Sections 12920, 12921, 12940, 12941, 12942, Government Code.)
Fair Employment and Housing CommissionTitle 2
§ 7287.4
Page 91
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7287.2. Definitions.
(a) “Recruitment.” The practice of any employer or other covered enti-
ty that has the purpose or effect of informing any individual about an em-
ployment opportunity, or assisting an individual to apply for employ-
ment, an activity leading to employment, membership in a labor
organization, acceptance in an apprenticeship training program, or refer-
ral by an employment agency.
(b) “Date of Determination to Hire.” The time at which an employer
or other covered entity has made an offer of employment to the individu-
al.
(c) “Pre–employment Inquiry.” Any oral or written request made by
an employer or other covered entity for information concerning the quali-
fications of an applicant for employment or for entry into an activity lead-
ing to employment.
(d) “Application.” Except for recordkeeping purposes, any writing or
other device used by an employer or other covered entity to make a pre–
employment inquiry or submitted to an employer or other covered entity
for the purpose of seeking consideration for employment.
(e) “Placement.” Any status, category, rank, level, location, depart-
ment, division, program, duty or group of duties, or any other similar
classification or position for which an employee can be selected or to
which an employee can be assigned by any employment practice. Em-
ployment practices that can determine placement in this way include, but
are not limited to: hiring, discharge, promotion, transfer, callback, or oth-
er change of classification or position; inclusion in membership in any
group or organization; any referral assignment to any place, unit, divi-
sion, status or type of work.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, Labor Code.
(Sections 12920, 12921, 12940, 12942, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7287.3. Pre–Employment Practices.
(a) Recruitment.
(1) Duty Not to Discriminate. Any employer or other covered entity
engaged in recruitment activity shall recruit in a non–discriminatory
manner. However, nothing in these regulations shall preclude affirma-
tive efforts to utilize recruitment practices to attract minorities, individu-
als of one sex or the other, individuals with disabilities, individuals over
40 years of age, and any other individual covered by the Act.
(2) Prohibited Recruitment Practices. An employer or other covered
entity shall not, unless pursuant to a permissible defense, engage in any
recruitment activity which:
(A) Restricts, excludes, or classifies individuals on a basis enumerated
in the Act;
(B) Expresses a preference for individuals on a basis enumerated in the
Act; or
(C) Communicates or uses advertising methods to communicate the
availability of employment benefits in a manner intended to discriminate
on a basis enumerated in the Act.
(b) Pre–Employment Inquiries.
(1) Limited Permissible Inquiries. An employer or other covered enti-
ty may make any pre–employment inquiries which do not discriminate
on a basis enumerated in the Act. Inquiries which directly or indirectly
identify an individual on a basis enumerated in the Act are unlawful un-
less pursuant to a permissible defense. Except as provided in the Ameri-
cans with Disabilities Act of 1990 (Public Law 101–336) (42 U.S.C.A.
§12101 et seq.) and the regulations adopted pursuant thereto, nothing in
Government Code section 12940, subdivision (d), or in this subdivision,
shall prohibit any employer from making, in connection with prospective
employment, an inquiry as to, or a request for information regarding, the
physical fitness, medical condition, physical condition, or medical histo-
ry of applicants if that inquiry or request for information is directly re-
lated and pertinent to the position the applicant is applying for or directly
related to a determination of whether the applicant would endanger his
or her health or safety or the health or safety of others.
(2) Applicant Flow and Other Statistical Recordkeeping. Notwith-
standing any prohibition in these regulations on pre–employment inqui-
ries, it is not unlawful for an employer or other covered entity to collect
applicant–flow and other recordkeeping data for statistical purposes as
provided in Section 7287.0(b) of these regulations or in other provisions
of state and federal law.
(c) Applications.
(1) Application Forms. When employers or other covered entities pro-
vide, accept, and consider application forms in the normal course of busi-
ness, in so doing they shall not discriminate on a basis enumerated in the
Act.
(2) Photographs. Photographs shall not be required as part of an appli-
cation unless pursuant to a permissible defense.
(3) Separation or Coding. Application forms shall not be separated or
coded or otherwise treated so as to identify individuals on a basis enumer-
ated in the Act unless pursuant to a permissible defense or for record-
keeping or statistical purposes.
(d) Interviews. Personal interviews shall be free of discrimination.
Notwithstanding any internal safeguards taken to secure a discrimina-
tion–free atmosphere in interviews, the entire interview process is sub-
ject to review for adverse impact on individuals on a basis enumerated
in the Act.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12921, 12940, 12941 and 12942, Government Code.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Change without regulatory effect amending subsections (a)(1), (b)(1) and N
OTE
filed 7–17–95 pursuant to section 100, title 1, California Code of Regulations
(Register 95, No. 29).
3. Editorial correction of subsection (a)(1) (Register 95, No. 38).
§ 7287.4. Employee Selection.
(a) Selection and Testing. Any policy or practice of an employer or
other covered entity which has an adverse impact on employment oppor-
tunities of individuals on a basis enumerated in the Act is unlawful unless
the policy or practice is job–related, as defined in Section 7287.4(e). The
Commission herein adopts the Uniform Guidelines on Employee Selec-
tion Procedures promulgated by various federal agencies, including the
EEOC and Department of Labor. [29 CFR 1607 (1978)].
(b) Placement. Placements that are less desirable in terms of location,
hours or other working conditions are unlawful where such assignments
segregate, or otherwise discriminate against individuals on a basis enu-
merated in the Act, unless otherwise pursuant to a permissible defense to
employment discrimination. An assignment labeled or otherwise
deemed to be “protective” of a category of persons on a basis enumerated
in the Act is unlawful unless pursuant to a permissible defense. (See also
Section 7291.2(d)(2) regarding permissible transfers on account of preg-
nancy by employees not covered under Title VII of the federal Civil
Rights Act of 1964.)
(c) Promotion and Transfer. An employer or other covered entity shall
not restrict information on promotion and transfer opportunities to cer-
tain employees or classes of employees when the restriction has the effect
of discriminating on a basis enumerated in the Act.
(1) Requests for Transfer or Promotion. An employer or other covered
entity who considers bids or other requests for promotion or transfer shall
do so in a manner that does not discriminate against individuals on a basis
enumerated in the Act, unless pursuant to a permissible defense.
(2) Training. Where training which may make an employee eligible
for promotion and/or transfer is made available, it shall be made available
in a manner which does not discriminate against individuals on a basis
enumerated in the Act.
(3) No–Transfer Policies. Where an employment practice has oper-
ated in the past to segregate employees on a basis enumerated in the Act,
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7287.5
Page 92
a no–transfer policy or other practice that has the effect of maintaining
a continued segregated pattern is unlawful.
(d) Specific Practices.
(1) Criminal Records. Except as otherwise provided by law (e.g., 12
U.S.C. 1829; Labor Code Section 432.7), it is unlawful for an employer
or other covered entity to inquire or seek information regarding any
applicant concerning:
(A) Any arrest or detention which did not result in conviction;
(B) Any conviction for which the record has been judicially ordered
sealed, expunged, or statutorily eradicated (e.g., juvenile offense records
sealed pursuant to Welfare and Institutions Code Section 389 and Penal
Code Sections 851.7 or 1203.45); any misdemeanor conviction for
which probation has been successfully completed or otherwise dis-
charged and the case has been judicially dismissed pursuant to Penal
Code Section 1203.4; or
(C) Any arrest for which a pretrial diversion program has been suc-
cessfully completed pursuant to Penal Code Sections 1000.5 and 1001.5.
(2) Height Standards. Height standards which discriminate on a basis
enumerated in the Act shall not be used by an employer or other covered
entity to deny an individual an employment benefit unless pursuant to a
permissible defense.
(3) Weight Standards. Weight standards which discriminate on a basis
enumerated in the Act shall not be used by an employer or other covered
entity to deny an individual an employment benefit unless pursuant to a
permissible defense.
(e) Permissible Selection Devices. A testing device or other means of
selection which is facially neutral, but which has an adverse impact (as
described in the Uniform Guidelines on Employee Selection Procedures
(29 CFR 1607 (1978)) upon persons on a basis enumerated in the Act, is
permissible only upon a showing that the selection practice is sufficiently
related to an essential function of the job in question to warrant its use.
(See Section 7287.4(a).)
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12921, 12940 and 12941, Government Code.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Editorial correction of subsection (e) filed 4–23–82; designated effective
6–1–82 (Register 82. No. 17).
§ 7287.5. Compensation. (Reserved.)
§ 7287.6. Terms, Conditions and Privileges of
Employment.
(a) Fringe Benefits. (Reserved.)
(b) Harassment.
(1) Harassment includes but is not limited to:
(A) Verbal harassment, e.g., epithets, derogatory comments or slurs on
a basis enumerated in the Act;
(B) Physical harassment, e.g., assault, impeding or blocking move-
ment, or any physical interference with normal work or movement, when
directed at an individual on a basis enumerated in the Act;
(C) Visual forms of harassment, e.g., derogatory posters, cartoons, or
drawings on a basis enumerated in the Act; or
(D) Sexual favors, e.g., unwanted sexual advances which condition an
employment benefit upon an exchange of sexual favors. [See also Sec-
tion 7291.1 (f) (l).]
(E) In applying this subsection, the rights of free speech and associ-
ation shall be accommodated consistently with the intent of this subsec-
tion.
(2) Harassment of an applicant or employee by an employer or other
covered entity, its agents or supervisors is unlawful.
(3) Harassment of an applicant or employee by an employee other than
those listed in subsection (b)(2) above is unlawful if the employer or oth-
er covered entity, its agents or supervisors knows of such conduct and
fails to take immediate and appropriate corrective action. Proof of such
knowledge may be direct or circumstantial. If the employer or other cov-
ered entity, its agents or supervisors did not know but should have known
of the harassment, knowledge shall be imputed unless the employer or
other covered entity can establish that it took reasonable steps to prevent
harassment from occurring. Such steps may include affirmatively raising
the subject of harassment, expressing strong disapproval, developing ap-
propriate sanctions, informing employees of their right to raise and how
to raise the issue of harassment under California law, and developing
methods to sensitize all concerned.
(4) An employee who has been harassed on the job by a co–employee
should inform the employer or other covered entity of the aggrievement;
however, an employee’s failure to give such notice is not an affirmative
defense.
(c) Physical Appearance, Grooming, and Dress Standards. It is lawful
for an employer or other covered entity to impose upon an employee
physical appearance, grooming, or dress standards. However, if such a
standard discriminates on a basis enumerated in the Act and if it also sig-
nificantly burdens the individual in his or her employment, it is unlawful.
(d) Reasonable Discipline. Nothing in these regulations may be con-
strued as limiting an employer’s or other covered entity’s right to take
reasonable disciplinary measures which do not discriminate on a basis
enumerated in the Act.
(e) Seniority. (Reserved.)
N
OTE: Authority: Section 1418(a), Labor Code. (Section 12935(a), Government
Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, Labor Code. (Sec-
tions 12920, 12921, 12940, 12941, 12942, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7287.7. Aiding and Abetting.
(a) Prohibited Practices.
(1) It is unlawful to assist any person or individual in doing any act
known to constitute unlawful employment discrimination.
(2) It is unlawful to solicit or encourage any person or individual to
violate the Act, whether or not the Act is in fact violated.
(3) It is unlawful to coerce any person or individual to commit unlaw-
ful employment discrimination with offers of cash, other consideration,
or an employment benefit, or to impose or threaten to impose any penalty,
including denial of an employment benefit.
(4) It is unlawful to conceal or destroy evidence relevant to investiga-
tions initiated by the Commission or the Department or their staffs.
(5) It is unlawful to advertise for employment on a basis prohibited in
the Act.
(b) Permissible Practices.
(1) It shall not be unlawful, without more, to have been present during
the commission of acts amounting to unlawful discrimination or to fail
to prevent or report such acts unless it is the normal business duty of the
person or individual to prevent or report such acts.
(2) It shall not be unlawful to maintain good faith lawful defenses or
privileges to charges of discrimination.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, Labor Code.
(Sections 12920, 12921, 12940, 12941, 12942, Government Code.)
§ 7287.8. Retaliation.
(a) Retaliation Generally. It is unlawful for an employer or other cov-
ered entity to demote, suspend, reduce, fail to hire or consider for hire,
fail to give equal consideration in making employment decisions, fail to
treat impartially in the context of any recommendations for subsequent
employment which the employer or other covered entity may make, ad-
versely affect working conditions or otherwise deny any employment
benefit to an individual because that individual has opposed practices
prohibited by the Act or has filed a complaint, testified, assisted or partic-
ipated in any manner in an investigation, proceeding, or hearing con-
ducted by the Commission or Department or their staffs.
(1) Opposition to practices prohibited by the Act includes, but is not
limited to:
(A) Seeking the advice of the Department or Commission, whether or
not a complaint is filed, and if a complaint is filed, whether or not the
complaint is ultimately sustained;
Fair Employment and Housing CommissionTitle 2
§ 7288.0
Page 93
(B) Assisting or advising any person in seeking the advice of the De-
partment or Commission, whether or not a complaint is filed, and if a
complaint is filed, whether or not the complaint is ultimately sustained;
(C) Opposing employment practices which an individual reasonably
believes to exist and believes to be a violation of the Act;
(D) Participating in an activity which is perceived by the employer or
other covered entity as opposition to discrimination, whether or not so in-
tended by the individual expressing the opposition; or
(E) Contacting, communicating with or participating in the proceed-
ing of a local human rights or civil rights agency regarding employment
discrimination on a basis enumerated in the Act.
(2) Assistance with or participation in the proceedings of the Commis-
sion or Department includes, but is not limited to:
(A) Contacting, communicating with or participating in the proceed-
ings of the Department or Commission due to a good faith belief that the
Act has been violated; or
(B) Involvement as a potential witness which an employer or other
covered entity perceives as participation in an activity of the Department
or the Commission.
(b) Exception for Reasonable Discipline. Nothing in these regulations
shall be construed to prevent an employer or other covered entity from
enforcing reasonable disciplinary policies and practices, nor from dem-
onstrating that the actions of an applicant or employee were either disrup-
tive or otherwise detrimental to legitimate business interests so as to justi-
fy the denial of an employment benefit.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, Labor Code.
(Sections 12920, 12921, 12940, 12941, 12942, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7287.9. Association.
(a) It is unlawful for an employer or other covered entity to deny em-
ployment benefits to, harass, or intimidate any applicant or employee be-
cause the employer or other covered entity disapproves generally of the
applicant’s or employee’s association with individuals because they are
in a category enumerated in the Act.
(b) It shall be unlawful for an employer or other covered entity to deny
equal consideration to any applicant or employee on the basis that he or
she sympathizes with, encourages or participates in groups organized for
the protection or assertion of rights protected under the Act.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, Labor Code.
(Sections 12920, 12921, 12940, 12941, 12942, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7288.0. Sexual Harassment Training and Education.
(a) Definitions. For purposes of this section:
(1) “Contractor” is a person performing services pursuant to a contract
to an employer, meeting the criteria specified by Government Code sec-
tion 12940, subdivision (j)(5), for each working day in 20 consecutive
weeks in the current calendar year or preceding calendar year.
(2) “Effective interactive training” includes any of the following:
(A) “Classroom” training is in–person, trainer–instruction, whose
content is created by a trainer and provided to a supervisor by a trainer,
in a setting removed from the supervisor’s daily duties.
(B) “E–learning” training is individualized, interactive, computer–
based training created by a trainer and an instructional designer. An e–
learning training shall provide a link or directions on how to contact a
trainer who shall be available to answer questions and to provide guid-
ance and assistance about the training within a reasonable period of time
after the supervisor asks the question, but no more than two business days
after the question is asked.
(C) “Webinar” training is an internet–based seminar whose content is
created and taught by a trainer and transmitted over the internet or intra-
net in real time. An employer utilizing a webinar for its supervisors must
document and demonstrate that each supervisor who was not physically
present in the same room as the trainer nonetheless attended the entire
training and actively participated with the training’s interactive content,
discussion questions, hypothetical scenarios, quizzes or tests, and activi-
ties. The webinar must provide the supervisors an opportunity to ask
questions, to have them answered and otherwise to seek guidance and as-
sistance.
(D) Other “effective interactive training” and education includes the
use of audio, video or computer technology in conjunction with class-
room, webinar and/or e–learning training.
(E) For any of the above training methods, the instruction shall include
questions that assess learning, skill–building activities that assess the su-
pervisor’s application and understanding of content learned, and numer-
ous hypothetical scenarios about harassment, each with one or more dis-
cussion questions so that supervisors remain engaged in the training.
(3) “Employee” includes full time, part time, and temporary workers.
(4) “Employer” means any of the following:
(A) any person engaged in any business or enterprise in California,
who employs 50 or more employees to perform services for a wage or
salary or contractors or any person acting as an agent of an employer, di-
rectly or indirectly.
(B) the state of California, counties, and any other political or civil sub-
division of the state and cities, regardless of the number of employees.
For the purposes of this section, governmental and quasi–governmental
entities such as boards, commissions, local agencies and special districts
are considered “political subdivisions of the state.”
(5) “Having 50 or more employees” means employing or engaging
fifty or more employees or contractors for each working day in any
twenty consecutive weeks in the current calendar year or preceding cal-
endar year. There is no requirement that the 50 employees or contractors
work at the same location or all work or reside in California.
(6) “Instructional Designer” under this section is an individual with
expertise in current instructional best practices, and who develops the
training content based upon material provided by a trainer.
(7) “New” supervisory employees are employees promoted or hired
to a supervisory position after July 1, 2005.
(8) “Supervisory employees” or “supervisors” under this section are
supervisors located in California, defined under Government Code sec-
tion 12926, subdivision (r). Attending training does not create an infer-
ence that an employee is a supervisor or that a contractor is an employee
or a supervisor.
(9) “Trainers” or “Trainers or educators” qualified to provide training
under this section are individuals who, through a combination of training
and experience have the ability to train supervisors about the following:
1) what are unlawful harassment, discrimination and retaliation under
both California and federal law; 2) what steps to take when harassing be-
havior occurs in the workplace; 3) how to report harassment complaints;
4) how to respond to a harassment complaint; 5) the employer’s obliga-
tion to conduct a workplace investigation of a harassment complaint; 6)
what constitutes retaliation and how to prevent it; 7) essential compo-
nents of an anti–harassment policy; and 8) the effect of harassment on ha-
rassed employees, co–workers, harassers and employers.
(A) A trainer shall be one or more of the following:
1. “Attorneys” admitted for two or more years to the bar of any state
in the United States and whose practice includes employment law under
the Fair Employment and Housing Act and/or Title VII of the federal Civ-
il Rights Act of 1964, or
2. “Human resource professionals” or “harassment prevention consul-
tants” working as employees or independent contractors with a minimum
of two or more years of practical experience in one or more of the follow-
ing: a. designing or conducting discrimination, retaliation and sexual ha-
rassment prevention training; b. responding to sexual harassment com-
plaints or other discrimination complaints; c. conducting investigations
of sexual harassment complaints; or d. advising employers or employees
regarding discrimination, retaliation and sexual harassment prevention,
or
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7288.0
Page 94
3. “Professors or instructors” in law schools, colleges or universities
who have a post–graduate degree or California teaching credential and
either 20 instruction hours or two or more years of experience in a law
school, college or university teaching about employment law under the
Fair Employment and Housing Act and/or Title VII of the federal Civil
Rights Act of 1964.
(B) Individuals who do not meet the qualifications of a trainer as an
attorney, human resource professional, harassment prevention consul-
tant, professor or instructor because they lack the requisite years of expe-
rience may team teach with a trainer in classroom or webinar trainings
provided that the trainer supervises these individuals and the trainer is
available throughout the training to answer questions from training atten-
dees.
(10) “Training,” as used in this section, is effective interactive training
as defined at section 7288.0, subdivision (a)(2).
(11) “Two hours” of training is two hours of classroom training or two
hours of webinar training or, in the case of an e–learning training, a pro-
gram that takes the supervisor no less than two hours to complete.
(b) Training.
(1) Frequency of Training. An employer shall provide two hours of
training, in the content specified in section 7288.0, subdivision (c), once
every two years, and may use either of the following methods or a com-
bination of the two methods to track compliance.
(A) “Individual” Tracking. An employer may track its training re-
quirement for each supervisory employee, measured two years from the
date of completion of the last training of the individual supervisor.
(B) “Training year” tracking. An employer may designate a “training
year” in which it trains some or all of its supervisory employees and
thereafter must again retrain these supervisors by the end of the next
“training year,” two years later. Thus, supervisors trained in training year
2005 shall be retrained in 2007. For newly hired or promoted supervisors
who receive training within six months of assuming their supervisory
positions and that training falls in a different training year, the employer
may include them in the next group training year, even if that occurs
sooner than two years. An employer shall not extend the training year for
the new supervisors beyond the initial two year training year. Thus, with
this method, assume that an employer trained all of its supervisors in
2005 and sets 2007 as the next training year. If a new supervisor is trained
in 2006 and the employer wants to include the new supervisor in its train-
ing year, the new supervisor would need to be trained in 2007 with the
employer’s other supervisors.
(2) Documentation of Training. An employer shall keep documenta-
tion of the training it has provided its employees under this section to
track compliance, including the name of the supervisory employee
trained, the date of training, the type of training, and the name of the train-
ing provider and shall retain the records for a minimum of two years.
(3) Training at New Businesses. Businesses created after January 1,
2006, must provide training to supervisors within six months of their es-
tablishment and thereafter biennially. Businesses that expand to 50 em-
ployees and/or contractors and thus become eligible under these regula-
tions, must provide training to supervisors within six months of their
eligibility and thereafter biennially.
(4) Training for New Supervisors. New supervisors shall be trained
within six months of assuming their supervisory position and thereafter
shall be trained once every two years, measured either from the individu-
al or training year tracking method.
(5) Duplicate Training. A supervisor who has received training in
compliance with this section within the prior two years either from a cur-
rent, a prior, an alternate or a joint employer need only be given, be re-
quired to read and to acknowledge receipt of, the employer’s anti–
harassment policy within six months of assuming the supervisor’s new
supervisory position or within six months of the employer’s eligibility.
That supervisor shall otherwise be put on a two year tracking schedule
based on the supervisor’s last training. The burden of establishing that the
prior training was legally compliant with this section shall be on the cur-
rent employer.
(6) Duration of Training. The training required by this section does not
need to be completed in two consecutive hours. For classroom training
or webinars, the minimum duration of a training segment shall be no less
than half an hour. E–learning courses may include bookmarking features
which allow a supervisor to pause their individual training so long as the
actual e–learning program is two hours.
(c) Content.
The learning objectives of the training mandated by California Gov-
ernment Code section 12950.1 shall be: 1) to assist California employers
in changing or modifying workplace behaviors that create or contribute
to “sexual harassment” as that term is defined in California and federal
law; and 2) to develop, foster and encourage a set of values in supervisory
employees who complete mandated training that will assist them in pre-
venting and effectively responding to incidents of sexual harassment.
Towards that end, the training mandated by California Government
Code section 12950.1, shall include but is not limited to:
(1) A definition of unlawful sexual harassment under the Fair Employ-
ment and Housing Act and Title VII of the federal Civil Rights Act of
1964. In addition to a definition of sexual harassment, an employer may
provide a definition of and train about other forms of harassment covered
by the FEHA, as specified at Government Code section 12940, subdivi-
sion (j), and discuss how harassment of an employee can cover more than
one basis.
(2) FEHA and Title VII statutory provisions and case law principles
concerning the prohibition against and the prevention of unlawful sexual
harassment, discrimination and retaliation in employment.
(3) The types of conduct that constitutes sexual harassment.
(4) Remedies available for sexual harassment.
(5) Strategies to prevent sexual harassment in the workplace.
(6) “Practical examples,” such as factual scenarios taken from case
law, news and media accounts, hypotheticals based on workplace situa-
tions and other sources which illustrate sexual harassment, discrimina-
tion and retaliation using training modalities such as role plays, case stud-
ies and group discussions.
(7) The limited confidentiality of the complaint process.
(8) Resources for victims of unlawful sexual harassment, such as to
whom they should report any alleged sexual harassment.
(9) The employer’s obligation to conduct an effective workplace in-
vestigation of a harassment complaint.
(10) Training on what to do if the supervisor is personally accused of
harassment.
(11) The essential elements of an anti–harassment policy and how to
utilize it if a harassment complaint is filed. Either the employer’s policy
or a sample policy shall be provided to the supervisors. Regardless of
whether the employer’s policy is used as part of the training, the employ-
er shall give each supervisor a copy of its anti–harassment policy and re-
quire each supervisor to read and to acknowledge receipt of that policy.
(d) Remedies.
As part of an order in an adjudicatory proceeding pursuant to Califor-
nia Code of Regulations, Title 2, section 7429, the Commission may is-
sue an order finding an employer failed to comply with Government
Code section 12950.1 and order such compliance within 60 days of the
effective date of the Commission’s order.
(e) Compliance with section 12950.1 prior to effective date of Com-
mission regulations.
An employer who has made a substantial, good faith effort to comply
with section 12950.1 by completing training of its supervisors prior to the
effective date of these regulations shall be deemed to be in compliance
with section 12950.1 regarding training as though it had been done under
these regulations.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12926(r), 12940(j)(5), 12950 and 12950.1, Government Code.
Fair Employment and Housing CommissionTitle 2
§ 7290.9
Page 95
HISTORY
1. Renumbering of reserved section 7288.0 to reserved section 7288.1 and new
section 7288.0 filed 7–18–2007; operative 8–17–2007 (Register 2007, No. 29).
§ 7288.1. Labor Organizations. (Reserved.)
H
ISTORY
1. Renumbering of reserved section 7288.1 to reserved section 7288.2 and renum-
bering of reserved section 7288.0 to reserved section 7288.1 filed 7–18–2007;
operative 8–17–2007 (Register 2007, No. 29).
§ 7288.2. Apprenticeship Programs. (Reserved.)
H
ISTORY
1. Renumbering of reserved section 7288.2 to reserved section 7288.3 and renum-
bering of reserved section 7288.1 to reserved section 7288.2 filed 7–18–2007;
operative 8–17–2007 (Register 2007, No. 29).
§ 7288.3. Employment Agencies. (Reserved.)
H
ISTORY
1. Renumbering of reserved section 7288.2 to reserved section 7288.3 filed
7–18–2007; operative 8–17–2007 (Register 2007, No. 29).
Subchapter 3. Race and Color
Discrimination
(Reserved)
Subchapter 4. National Origin and
Ancestry Discrimination
§
7289.4. Defenses.
These regulations incorporate the defenses set forth in Section 7286.7.
NOTE: Authority cited: Section 12935(a), Government Code. Reference: Section
12940, Government Code.
HISTORY
1. New Subchapter 4 (Sections 7289.4 and 7289.5) filed 12–17–82; effective thir-
tieth day thereafter (Register 82, No. 52).
§ 7289.5. Specific Employment Practices.
(a)–(c) (Reserved)
(d) An employer may have a rule requiring that employees speak only
in English at certain times if the employer can show that the rule is justi-
fied by business necessity (See Section 7286.7(b)), and if the employer
has effectively notified its employees of the circumstances and time
when speaking only in English is required and of the consequences of
violating the rule.
(e) (Reserved)
(f) Citizenship requirements. Citizenship requirements which have the
purpose or effect of discriminating against applicants or employees on
the basis of national origin or ancestry are unlawful unless pursuant to a
permissible defense.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Section
12940, Government Code.
Subchapter 5. Ancestry Discrimination
(Reserved)
Subchapter 6. Sex Discrimination
§ 7290.6. General Prohibition Against Discrimination on
the Basis of Sex.
(a) Statutory Source. These regulations are adopted by the Fair Em-
ployment and Housing Commission pursuant to Sections 1420, 1420.2
and 1420.35 of the Labor Code. (Sections 12940, 12943, and 12945 of
the Government Code.)
(b) Statement of Purpose. The purpose of the law against discrimina-
tion in employment because of sex is to eliminate the means by which
individuals of the female sex have historically been relegated to inferior
jobs and to guarantee that in the future both sexes will enjoy equal em-
ployment benefits.
(c) Incorporation of General Regulations. These regulations pertain-
ing to discrimination on the basis of sex incorporate each of the provi-
sions of Subchapters 1 and 2 of Chapter 2, unless a provision is specifical-
ly excluded or modified.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, 1420.2, 1420.35, Labor Code.
(Sections 12920, 12921, 12940, 12945, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7290.7. Definitions.
(a) “Sex.” An applicant’s or employee’s gender; however, nothing
herein shall limit protections due an individual on account of pregnancy,
childbirth, or related medical conditions.
(b) “Sex Stereotype.” An assumption about an individual’s ability or
inability to perform certain kinds of work based on a myth or generaliza-
tion about the individual’s gender.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, 1420.2, 1420.35, Labor Code.
(Sections 12920, 12921, 12940, 12943, 12945, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7290.8. Defenses.
Once employment discrimination on the basis of sex has been estab-
lished, an employer or other covered entity may prove one or more appro-
priate affirmative defenses as generally set forth in Section 7286.7, in-
cluding, but not limited to, the defense of Bona Fide Occupational
Qualification (BFOQ).
(a) Among situations which will not justify the application of the
BFOQ defense are the following:
(1) A correlation between individuals of one sex and physical agility
or strength;
(2) A correlation between individuals of one sex and height;
(3) Customer preference for employees of one sex;
(4) The necessity for providing separate facilities for one sex or
(5) The fact that members of one sex have traditionally been hired to
perform the particular type of job.
(b) Personal privacy considerations may justify a BFOQ only where:
(1) The job requires an employee to observe other individuals in a state
of nudity or to conduct body searches, and
(2) It would be offensive to prevailing social standards to have an indi-
vidual of the opposite sex present, and
(3) It is detrimental to the mental or physical welfare of individuals be-
ing observed or searched to have an individual of the opposite sex pres-
ent.
(c) Employers or other covered entities shall assign job duties and
make other reasonable accommodation so as to minimize the number of
jobs for which sex is a BFOQ.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, 1420.2, 1420.35, Labor Code.
(Sections 12920, 12921, 12940, 12943, 12945, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7290.9. Pre–Employment Practices.
(a) Recruitment and Advertising.
(1) Employers or other covered entities engaged in recruiting activity
(see Section 7287.2(a)) shall recruit individuals of both sexes for all jobs
unless pursuant to a permissible defense.
(2) It is unlawful for any publication or other media to separate listings
of job openings into “male” and “female” classifications.
(b) Pre–Employment Inquiries and Applications.
(1) For all employers or other covered entities who provide, accept and
consider applications, it shall be unlawful to refuse to provide, accept and
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7291.0
Page 96
consider applications from individuals of one sex unless pursuant to a
permissible defense.
(2) It is unlawful for an employer or other covered entity to ask the sex
of the applicant on an application form or pre–employment questionnaire
unless pursuant to a permissible defense or for recordkeeping purposes.
After an individual is hired, the employer or other covered entity may re-
cord the employee’s sex for non–discriminatory personnel purposes.
(3) It is unlawful for an employer or other covered entity to ask ques-
tions regarding childbearing, pregnancy, birth control, or familial re-
sponsibilities unless they are related to specific and relevant working
conditions of the job in question.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, 1420., 1420.35, Labor Code.
(Sections 12920, 12921, 12940, 12943, 12945, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7291.0. Employee Selection.
(a) Tests of Physical Agility or Strength. Tests of physical agility or
strength shall not be used unless the test is administered pursuant to a per-
missible defense. No applicant or employee shall be refused the opportu-
nity to demonstrate that he or she has the requisite strength or agility to
perform the job in question.
(b) Height and Weight Standards.
(1) Use of height or weight standards which discriminate against one
sex or the other is unlawful unless pursuant to a permissible defense.
(2) Use of separate height and/or separate weight standards for males
and females is unlawful unless pursuant to a permissible defense.
(c) Hiring Applicants of Childbearing Age. It is unlawful to refuse to
hire a female applicant because she is of childbearing age.
(d) Prior Work Experience. If an employer or other covered entity con-
siders prior work experience in the selection or assignment of an em-
ployee, the employer or other covered entity shall also consider prior un-
paid or volunteer work experience.
(e) Sex Stereotypes. Use of any criterion which is based exclusively
or in part on a sex stereotype is unlawful unless pursuant to a permissible
defense.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12921, 12940, 12943 and 12945, Government Code.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Amendment filed 3–11–82; effective thirtieth day thereafter (Register 82, No.
11).
§ 7291.1. Terms, Conditions, and Privileges of
Employment.
(a) Compensation.
(1) Except as otherwise required or permitted by regulation, an em-
ployer or other covered entity shall not base the amount of compensation
paid to an employee, in whole or in part, on the employee’s sex.
(2) Equal Compensation for Comparable Work. (Reserved.)
(b) Fringe Benefits.
(1) It is unlawful for an employer to condition the availability of fringe
benefits upon an employee’s sex.
(2) Insofar as an employment practice discriminates against one sex,
an employer or other covered entity shall not condition the availability
of fringe benefits upon whether an employee is a “head of household,”
“principal wage earner,” “secondary wage earner,” or of other similar
status.
(3) Except where otherwise required by state law, an employer or other
covered entity shall not require unequal employee contributions by simi-
larly situated male and female employees to fringe benefit plans, nor
shall different amounts of basic benefits be established under fringe
benefit plans for similarly situated male and female employees.
(4) It shall be unlawful for an employer or other covered entity to have
a pension or retirement plan which establishes different optional or com-
pulsory retirement ages based on the sex of the employee.
(c) Lines of Progression.
(1) It is unlawful for an employer or other covered entity to classify a
job as “male” or “female” or to maintain separate lines of progression or
separate seniority lists based on sex unless it is justified by a permissible
defense. For example, a line of progression or seniority system is unlaw-
ful which:
(A) Prohibits a female from applying for a job labelled “male” or for
a job in a “male” line of progression, and vice versa; or
(B) Prohibits a male scheduled for layoff from displacing a less senior
female on a “female” seniority list, and vice versa.
(2) An employer or other covered entity shall provide equal opportuni-
ties to all employees for upward mobility, promotion, and entrance into
all jobs for which they are qualified. However, nothing herein shall pre-
vent an employer or other covered entity from implementing mobility
programs to accelerate the promotability of underrepresented groups.
(d) Dangers to Health, Safety, or Reproductive Functions.
(1) If working conditions pose a greater danger to the health, safety,
or reproductive functions of applicants or employees of one sex than to
individuals of the other sex working under the same conditions, the em-
ployer or other covered entity shall make reasonable accommodation to:
(A) Upon the request of an employee of the more endangered sex,
transfer the employee to a less hazardous or strenuous position for the du-
ration of the greater danger, unless it can be demonstrated that the transfer
would impose an undue hardship on the employer; or
(B) Alter the working conditions so as to eliminate the greater danger,
unless it can be demonstrated that the modification would impose an un-
due hardship on the employer. Alteration of working conditions includes,
[The next page is 339.]
Fair Employment and Housing CommissionTitle 2
§ 7291.2
Page 97
but is not limited to, acquisition or modification of equipment or devices
and extension of training or education.
(2) An employer or other covered entity may require an applicant or
employee to provide a physician’s certification that he or she is endan-
gered by the working conditions.
(3) The existence of a greater risk for employees of one sex than the
other shall not justify a BFOQ defense.
(4) An employer may not discriminate against members of one sex be-
cause of the prospective application of this subsection.
(5) With regard to protections due on account of pregnancy, childbirth,
or related medical conditions, see Section 7291.2.
(6) Nothing in this subsection shall be construed to limit the rights or
obligations set forth in Labor Code Section 6300 et seq.
(e) Working Conditions.
(1) Where rest periods are provided, equal rest periods must be pro-
vided to employees of both sexes.
(2) Equal access to comparable and adequate toilet facilities shall be
provided to employees of both sexes. This requirement shall not be used
to justify any discriminatory employment decision.
(3) Support services and facilities, such as clerical assistance and of-
fice space, shall be provided to employees without regard to the em-
ployee’s sex.
(4) Job duties shall not be assigned according to sex stereotypes.
(5) It is unlawful for an employer or other covered entity to refuse to
hire, employ or promote, or to transfer, discharge, dismiss, reduce, sus-
pend, or demote an individual of one sex and not the other on the grounds
that the individual is not sterilized or refuses to undergo sterilization.
(6) It shall be lawful for an employer or labor organization to provide
or make financial provision for childcare services of a custodial nature
for its employees or members who are responsible for the care of their
minor children.
(f) Interpersonal Conduct and Appearance.
(1) Sexual Harassment. Sexual harassment is unlawful as defined in
Section 7287.6(b), and includes verbal, physical, and visual harassment,
as well as unwanted sexual advances.
(2) Physical Appearance, Grooming, and Dress Standards. It is lawful
for an employer or other covered entity to impose upon an applicant or
employee physical appearance, grooming or dress standards. However,
if such a standard discriminates on the basis of sex and if it also signifi-
cantly burdens the individual in his or her employment, it is unlawful.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920,
12921, 12940, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
Subchapter 6A. Sex Discrimination:
Pregnancy, Childbirth or Related Medical
Conditions
§ 7291.2. Definitions.
The following definitions apply only to this subchapter:
(a) “Affected by pregnancy” means that because of pregnancy, child-
birth, or a related medical condition, or “a condition related to pregnancy,
childbirth, or a related medical condition,” as set forth in Government
Code section 12945, it is medically advisable for an employee to transfer
or otherwise to be reasonably accommodated by her employer.
(b) “Because of pregnancy” means due to an employee’s actual preg-
nancy, childbirth or a related medical condition.
(c) “CFRA” means the Moore–Brown–Roberti Family Rights Act of
1993. (California Family Rights Act, Gov. Code §§ 12945.1 and
12945.2.) “CFRA leave” means family care or medical leave as those
leaves are defined at section 7297.0.
(d) A “condition related to pregnancy, childbirth, or a related medical
condition,” as set forth in Government Code section 12945, means a
physical or mental condition intrinsic to pregnancy or childbirth that in-
cludes, but is not limited to, lactation. Generally lactation without medi-
cal complications is not a disabling “related medical condition” requiring
pregnancy disability leave, although it may require transfer to a less
strenuous or hazardous position or other reasonable accommodation.
(e) A “covered entity” is any person (as defined in Government Code
section 12925), labor organization, apprenticeship training program,
training program leading to employment, employment agency, govern-
ing board of a school district, licensing board or other entity to which the
provisions of Government Code sections 12940, 12943, 12944 or 12945
apply.
(f) A woman is “disabled by pregnancy” if, in the opinion of her health
care provider, she is unable because of pregnancy to perform any one or
more of the essential functions of her job or to perform any of these func-
tions without undue risk to herself, to her pregnancy’s successful
completion, or to other persons. An employee also may be considered to
be “disabled by pregnancy” if, in the opinion of her health care provider,
she is suffering from severe “morning sickness” or needs to take time off
for: prenatal or postnatal care; bed rest; gestational diabetes;
pregnancy–induced hypertension; preeclampsia; post–partum depres-
sion; childbirth; loss or end of pregnancy; or recovery from childbirth,
loss or end of pregnancy. The preceding list of conditions is intended to
be non–exclusive and illustrative only.
(g) An “eligible female employee” is an employee who qualifies for
coverage under her employer’s group health plan. An employee’s preg-
nancy, childbirth or related medical conditions are not lawful bases to
make an employee ineligible for coverage.
(h) “Employer,” as used in these regulations, except for section
7291.3, is any employer with five or more full or part time employees,
who is an employer within the meaning of Government Code section
12926, and section 7286.5, subdivision (a), of these regulations. “Em-
ployer” includes the state of California, counties, and any other political
or civil subdivision of the state and cities, regardless of the number of em-
ployees.
(i) “Employment in the same position” means employment in, or rein-
statement to, the position that the employee held prior to reasonable ac-
commodation, transfer, or disability leave because of pregnancy.
(j) “Employment in a comparable position” means employment in a
position that is virtually identical to the employee’s position held prior
to reasonable accommodation, transfer, or disability leave in terms of
pay, benefits, and working conditions, including privileges, perquisites,
and status. The position must involve the same or substantially similar
duties and responsibilities, which must entail substantially equivalent
skill, effort, responsibility, and authority. It must be performed at the
same or geographically proximate worksite from the employee’s prior
position and ordinarily has the same shift or the same or an equivalent
work schedule.
(k) “FMLA” means the federal Family and Medical Leave Act of
1993, 29 U.S.C. § 2601, et seq., and its implementing regulations, 29
Code of Federal Regulations, part 825. “FMLA leave” means family care
or medical leave taken pursuant to FMLA. (29 C.F.R. § 825.)
(l) “Four months” means the number of days the employee would nor-
mally work within four calendar months (one–third of a year equaling 17
1/3 weeks), if the leave is taken continuously, following the date the preg-
nancy disability leave commences. If an employee’s schedule varies
from month to month, a monthly average of the hours worked over the
four months prior to the beginning of the leave shall be used for calculat-
ing the employee’s normal work month.
(m) “Group Health Plan” means medical coverage provided by the
employer for its employees, as defined, as of the effective date of these
regulations, in the Internal Revenue Code of 1986 at Section 5000(b)(1).
(n) “Health Care Provider” means:
(1) A medical or osteopathic doctor, physician, or surgeon, licensed
in California, or in another state or country, who directly treats or super-
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7291.3
Page 98
vises the treatment of the applicant’s or employee’s pregnancy, child-
birth or a related medical condition, or “a condition related to pregnancy,
childbirth, or a related medical condition,” as set forth in Government
Code section 12945, or
(2) A marriage and family therapist or acupuncturist, licensed in
California or in another state or country, or any other persons who meet
the definition of “others capable of providing health care services” under
FMLA and its implementing regulations, including nurse practitioners,
nurse midwives, licensed midwives, clinical psychologists, clinical so-
cial workers, chiropractors, physician assistants, who directly treats or
supervises the treatment of the applicant’s or employee’s pregnancy,
childbirth or a related medical condition, or “a condition related to preg-
nancy, childbirth, or a related medical condition,” as set forth in Govern-
ment Code section 12945, or
(3) A health care provider from whom an employer or a group health
plan’s benefits manager will accept medical certification of the existence
of a health condition to substantiate a claim for benefits.
(o) “Intermittent leave” means leave taken in separate periods of time
because of pregnancy, rather than for one continuous period of time. Ex-
amples of intermittent leave include leave taken on an occasional basis
for medical appointments, or leave taken several days at a time over a pe-
riod of several months for purposes related to pregnancy, childbirth or a
related medical condition.
(p) “Medical certification” means a written communication, as speci-
fied in section 7291.17, subdivisions (b)(6) and (b)(7), from the em-
ployee’s health care provider to the employer stating that the employee
is disabled because of pregnancy or that it is medically advisable for the
employee to be transferred to a less strenuous or hazardous position or
duties or otherwise to be reasonably accommodated.
(q) “Perceived pregnancy” is being regarded or treated by an employer
or other covered entity as being pregnant or having a related medical
condition.
(r) “Pregnancy disability leave” is any leave, whether paid or unpaid,
taken by an employee for any period(s) up to a total of four months during
which she is disabled by pregnancy.
(s) “Reasonable accommodation” of an employee affected by preg-
nancy is any change in the work environment or in the way a job is cus-
tomarily done that is effective in enabling an employee to perform the es-
sential functions of a job. Reasonable accommodation may include, but
is not limited to an employer:
(1) modifying work practices or policies;
(2) modifying work duties;
(3) modifying work schedules to permit earlier or later hours, or to per-
mit more frequent breaks (e.g., to use the restroom);
(4) providing furniture (e.g., stools or chairs) or acquiring or modify-
ing equipment or devices; or
(5) providing a reasonable amount of break time and use of a room or
other location in close proximity to the employee’s work area to express
breast milk in private as set forth in Labor Code section 1030, et seq.
(t) “Reduced work schedule” means permitting an employee to work
less than the usual number of hours per work week, or hours per work
day.
(u) A “related medical condition” is any medically recognized physi-
cal or mental condition related to pregnancy, childbirth or recovery from
pregnancy or childbirth. This term includes, but is not limited to,
lactation–related medical conditions such as mastitis; gestational dia-
betes; pregnancy–induced hypertension; preeclampsia; post–partum de-
pression; loss or end of pregnancy; or recovery from loss or end of
pregnancy.
(v) “Transfer” means reassigning temporarily an employee affected
by pregnancy to a less strenuous or hazardous position or to less strenu-
ous or hazardous duties.
N
OTE: Authority cited: Sections 12935(a) and 12945, Government Code. Refer-
ence: Sections 12926, 12940, 12943, 12944, 12945, 12945.1 and 12945.2, Gov-
ernment Code; Family and Medical Leave Act, (FMLA) 29 U.S.C. §2601, et seq.
and FMLA regulations, 29 C.F.R. § 825; Title VII of the federal Civil Rights Act
of 1964, 42 U.S.C. §2000e; and J.E. Robinson v. Fair Employment & Housing
Com. (1992) 2 Cal. 4th 226.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Repealer and new section filed 3–20–87; effective thirtieth day thereafter (Reg-
ister 87, No. 12).
3. New subchapter 6A, repealer and new section filed 7–13–95; operative 8–12–95
(Register 95, No. 28).
4. Amendment of section and N
OTE filed 11–30–2012; operative 12–30–2012
(Register 2012, No. 48).
§ 7291.3. Prohibition Against Harassment.
As set forth in Government Code sections 12926 and 12940, it is an
unlawful employment practice for any employer with one or more em-
ployees or other covered entities to harass an employee or applicant be-
cause of pregnancy or perceived pregnancy.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12926, 12940 and 12945, Government Code.
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Repealer and new section and amendment of N
OTE filed 11–30–2012; operative
12–30–2012 (Register 2012, No. 48).
§ 7291.4. No Eligibility Requirements.
There is no eligibility requirement, such as minimum hours worked or
length of service, before an employee affected or disabled by pregnancy
is eligible for reasonable accommodation, transfer, or disability leave.
N
OTE: Authority cited: Sections 12935(a) and 12945, Government Code. Refer-
ence: Section 12945.
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Renumbering of former section 7291.4 to section 7291.5 and new section
7291.4 filed 11–30–2012; operative 12–30–2012 (Register 2012, No. 48).
§ 7291.5. Responsibilities of Covered Entities Other than
Employers.
Unless a permissible defense applies, discrimination because of preg-
nancy or perceived pregnancy by any covered entity other than employ-
ers constitutes discrimination because of sex under Government Code
sections 12926, 12940, 12943 and 12944.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12926, 12940, 12943, 12944 and 12945, Government Code.
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Renumbering of former section 7291.5 to section 7291.6 and renumbering of
former section 7291.4 to section 7291.5, including amendment of section and
N
OTE, filed 11–30–2012; operative 12–30–2012 (Register 2012, No. 48).
§ 7291.6. Responsibilities of Employers.
(a) Employer Obligations
(1) Except as excused by a permissible defense, it is unlawful for any
employer to:
(A) refuse to hire or employ an applicant because of pregnancy or per-
ceived pregnancy;
(B) refuse to select an applicant or employee for a training program
leading to employment or promotion because of pregnancy or perceived
pregnancy;
(C) refuse to promote an employee because of pregnancy or perceived
pregnancy;
(D) bar or to discharge an applicant or employee from employment or
from a training program leading to employment or promotion because of
pregnancy or perceived pregnancy;
(E) discriminate against an applicant or employee in terms, conditions
or privileges of employment because of pregnancy or perceived pregnan-
cy;
(F) harass an applicant or employee because of pregnancy or per-
ceived pregnancy, as set forth in section 7291.3;
(G) transfer an employee affected by pregnancy over her objections to
another position, except as provided in section 7291.8, subdivision (c),
below. Nothing in this section prevents an employer from transferring an
Fair Employment and Housing CommissionTitle 2
§ 7291.8
Page 99
employee for the employer’s legitimate operational needs unrelated to
the employee’s pregnancy or perceived pregnancy;
(H) require an employee to take a leave of absence because of pregnan-
cy or perceived pregnancy when the employee has not requested leave;
(I) retaliate, discharge, or otherwise discriminate against an applicant
or employee because she has opposed employment practices forbidden
under the FEHA or because she has filed a complaint, testified, or as-
sisted in any proceeding under the FEHA; or
(J) otherwise discriminate against an applicant or employee because
of pregnancy or perceived pregnancy by any practice that is prohibited
on the basis of sex.
(2) Except as excused by a permissible defense, it is unlawful for any
employer to:
(A) refuse to provide employee benefits for pregnancy as set forth at
section 7291.11 below, if the employer provides such benefits for other
temporary disabilities;
(B) refuse to maintain and to pay for coverage under a group health
plan for an eligible employee who takes pregnancy disability leave, as set
forth at section 7291.11, below, under the same terms and conditions that
would have been provided if the employee had not taken leave;
(C) refuse to provide reasonable accommodation for an employee or
applicant affected by pregnancy as set forth at section 7291.7, below;
(D) refuse to transfer an employee affected by pregnancy as set forth
at section 7291.8, below;
(E) refuse to grant an employee disabled by pregnancy a pregnancy
disability leave, as set forth at section 7291.9, below; or
(F) deny, interfere with, or restrain an employee’s rights to reasonable
accommodation, to transfer or to take pregnancy disability leave under
Government Code section 12945, including retaliating against the em-
ployee because she has exercised her right to reasonable accommoda-
tion, to transfer or to take pregnancy disability leave.
(b) Permissible defenses, as defined at section 7286.7, include a bona
fide occupational qualification, business necessity or where the practice
is otherwise required by law.
N
OTE: Authority cited: Sections 12935(a) and 12945, Government Code. Refer-
ence: Sections 12926, 12940 and 12945, Government Code; Pregnancy Discrimi-
nation Act of 1978 (P.L. 95–555, 42 U.S.C. §2000e, §701(k)), an amendment to
Title VII of the federal Civil Rights Act of 1964 (42 U.S.C. §2000e et seq.); Cal.
Federal Sav. and Loan Ass’n v. Guerra 479 U.S. 272 [107 S.Ct. 683, 93 L.Ed.2d
613].
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Renumbering of former section 7291.6 to section 7291.8 and renumbering of
former section 7291.5 to section 7291.6, including amendment of section and
N
OTE, filed 11–30–2012; operative 12–30–2012 (Register 2012, No. 48).
§ 7291.7. Reasonable Accommodation.
(a) It is unlawful for an employer to deny a request for reasonable ac-
commodation made by an employee affected by pregnancy if:
(1) The employee’s request is based on the advice of her health care
provider that reasonable accommodation is medically advisable; and
(2) The requested accommodation is reasonable.
(A) Whether an accommodation is reasonable is a factual determina-
tion to be made on a case–by–case basis, taking into consideration such
factors, including but not limited to, the employee’s medical needs, the
duration of the needed accommodation, the employer’s legally permissi-
ble past and current practices, and other such factors, under the totality
of the circumstances.
(B) The employee and employer shall engage in a good faith interac-
tive process to identify and implement the employee’s request for reason-
able accommodation as set forth in section 7291.17, subdivision (a), be-
low.
(b) When a reasonable accommodation, such as a change of work du-
ties or job restructuring, is granted, it shall not affect the employee’s inde-
pendent right to take up to four months for pregnancy disability leave. If
the requested reasonable accommodation, however, involves a reduction
in hours worked such as a reduced work schedule, or intermittent leave,
the employer may consider this as a form of pregnancy disability leave
and deduct the hours from the employee’s four month leave entitlement.
(c) An employer may, but need not, require a medical certification sub-
stantiating the employee’s need for reasonable accommodation, as set
forth in sections 7291.16, subdivisions (a) and (b), and 7291.17, subdivi-
sion (b).
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12926 and 12945, Government Code.
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Renumbering of former section 7291.7 to section 7291.9 and new section
7291.7 filed 11–30–2012; operative 12–30–2012 (Register 2012, No. 48).
§ 7291.8. Transfer.
(a) Transfer — All Employers
(1) It is unlawful for an employer who has a policy, practice, or collec-
tive bargaining agreement requiring or authorizing the transfer of tempo-
rarily disabled employees to less strenuous or hazardous positions or du-
ties for the duration of the disability, including disabilities or conditions
resulting from on–the–job injuries, to fail to apply the policy, practice or
collective bargaining agreement to transfer an employee who is disabled
by pregnancy and who so requests.
(2) It is unlawful for an employer to deny the request of an employee
affected by pregnancy to transfer provided that:
(A) The employee’s request is based on the advice of her health care
provider that a transfer is medically advisable; and
(B) Such transfer can be reasonably accommodated by the employer.
To provide a transfer, an employer need not create additional employ-
ment that the employer would not otherwise have created, discharge
another employee, violate the terms of a collective bargaining agree-
ment, transfer another employee with more seniority, or promote or
transfer any employee who is not qualified to perform the new job. An
employer may accommodate a pregnant employee’s transfer request by
transferring another employee, but there is no obligation to do so.
(C) An employer may, but need not, require a medical certification
substantiating the employee’s need for transfer, as set forth in sections
7291.16, subdivisions (a) and (b), and 7291.17, subdivision (b).
(b) Burden of Proof
The burden shall be on the employer to prove, by a preponderance of
the evidence, that such transfer cannot be reasonably accommodated for
one or more of the enumerated reasons listed in section 7291.8, subdivi-
sion (a)(2).
(c) Transfer to Accommodate Intermittent Leave or a Reduced Work
Schedule
If an employee’s health care provider provides medical certification
that an employee has a medical need to take intermittent leave or leave
on a reduced work schedule because of pregnancy, the employer may re-
quire the employee to transfer temporarily to an available alternative
position that meets the needs of the employee. The employee must meet
the qualifications of the alternative position. The alternative position
must have the equivalent rate of pay and benefits, and must better accom-
modate the employee’s leave requirements than her regular job, but does
not have to have equivalent duties.
(d) Right to Reinstatement After Transfer
When the employee’s health care provider certifies that there is no fur-
ther medical advisability for the transfer, intermittent leave, or leave on
a reduced work schedule, the employer must reinstate the employee to
her same or comparable position in accordance with the requirements of
section 7291.10.
N
OTE: Authority cited: Section 12935(a) and 12945, Government Code. Refer-
ence: Section 12945, Government Code; FMLA, 29 U.S.C. §2601, et seq. and
FMLA regulations, 29 C.F.R. §825.
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Repealer of former section 7291.8 and renumbering of former section 7291.6
to section 7291.8, including amendment of section and N
OTE, filed
11–30–2012; operative 12–30–2012 (Register 2012, No. 48).
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7291.9
Page 100
§ 7291.9. Pregnancy Disability Leave.
The following provisions apply to leave taken for disability because
of pregnancy.
(a) Four–Month Leave Requirement for all Employers
All employers must provide a leave of up to four months, as needed,
for the period(s) of time an employee is actually disabled because of
pregnancy even if an employer has a policy or practice that provides less
than four months of leave for other similarly situated temporarily dis-
abled employees.
(1) A “four month leave” means time off for the number of days or
hours the employee would normally work within four calendar months
(one–third of a yearor 17 1/3 weeks). For a full time employee who works
40 hours per week, “four months” means 693 hours of leave entitlement,
based on 40 hours per week times 17 1/3 weeks.
(2) For employees who work more or less than 40 hours per week, or
who work on variable work schedules, the number of working days that
constitutes “four months” is calculated on a pro rata or proportional basis.
(A) For example, for an employee who works 20 hours per week, “four
months” means 346.5 hours of leave entitlement. For an employee who
normally works 48 hours per week, “four months” means 832 hours of
leave entitlement.
(B) Leave on an intermittent leave or a reduced work schedule.
An employer may account for increments of intermittent leave using
an increment no greater than the shortest period of time that the employer
uses to account for use of other forms of leave, provided it is not greater
than one hour. For example, if an employer accounts for sick leave in
30–minute increments and vacation time in one–hour increments, the
employer must account for pregnancy disability leave in increments of
30 minutes or less. If an employer accounts for other forms of leave in
two–hour increments, the employer must account for pregnancy disabil-
ity leave in increments no greater than one hour.
(C) If a holiday falls within a week taken as pregnancy disability leave,
the week is nevertheless counted as a week of pregnancy disability leave.
If, however, the employer’s business activity has temporarily ceased for
some reason and employees generally are not expected to report for work
for one or more weeks, (e.g., a school closing for two weeks for the
Christmas/New Year holiday or summer vacation or an employer closing
the plant for retooling), the days the employer’s activities have ceased do
not count against the employee’s pregnancy disability leave entitlement.
(3) Although all pregnant employees are eligible for up to four months
of leave, if that leave is taken in one period of time, taking intermittent
or reduced work schedule throughout an employee’s pregnancy will dif-
ferentially affect the number of hours remaining that an employee is en-
titled to take pregnancy disability leave leading up to and after childbirth,
depending on the employee’s regular work schedule.
(A) For example, a full–time employee, who normally works a
40–hour work week is entitled to 693 working hours of leave. If that em-
ployee takes 180 hours of intermittent leave throughout her pregnancy,
she would still be entitled to take 513 hours, or approximately three
months leading up to and after her childbirth.
(B) In contrast, a part–time employee who normally works 20 hours
per week, would be entitled to 346.5 hours of leave. If that employee
takes intermittent leave of 180 hours throughout her pregnancy, she
would be entitled to only 166.5 more hours of leave, approximately two
months of leave, leading up to and after her childbirth.
(4) Minimum Duration
Leave may be taken intermittently or on a reduced work schedule
when an employee is disabled because of pregnancy, as determined by
the health care provider of the employee. An employer may account for
increments of intermittent leave using the shortest period of time that the
employer’s payroll system uses to account for other forms of leave, pro-
vided it is not greater than one hour, as set forth in section 7291.9, subdi-
vision (a)(2)(B).
(5) Employees are eligible for up to four months of leave per pregnan-
cy, not per year.
(b) Employers With More Generous Leave Policies
If an employer has a more generous leave policy for similarly situated
employees with other temporary disabilities than is required for pregnan-
cy purposes under these regulations, the employer must provide the more
generous leave to employees temporarily disabled by pregnancy. If the
employer’s more generous leave policy exceeds four months, the em-
ployer’s return policy after taking the leave would govern, not the return
rights specified in these regulations.
(c) Denial of Leave is an Unlawful Employment Practice
It is an unlawful employment practice for an employer to refuse to
grant pregnancy disability leave to an employee disabled by pregnancy
(1) who has provided the employer with reasonable advance notice of
the medical need for the leave, and
(2) whose health care provider has advised that the employee is dis-
abled by pregnancy. The employer may require medical certification of
the medical advisability of the leave, as set forth in sections 7291.16, sub-
divisions (a) and (b), and 7291.17, subdivision (b).
N
OTE: Authority cited: Sections 12935(a) and 12945, Government Code. Refer-
ence: Sections 12940 and 12945, Government Code; FMLA, 29 U.S.C. § 2601,
et seq. and FMLA regulations, 29 C.F.R. § 825; Cal. Federal Sav. and Loan Ass’n
v. Guerra (1987) 479 U.S. 272 [107 S.Ct. 683, 93 L.Ed.2d 613].
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Renumbering of former section 7291.9 to section 7291.10 and renumbering of
former section 7291.7 to section 7291.9, including amendment of section and
N
OTE, filed 11–30–2012; operative 12–30–2012 (Register 2012, No. 48).
§ 7291.10. Right to Reinstatement from Pregnancy
Disability Leave.
The following rules apply to reinstatement from any leave or transfer
taken for disability because of pregnancy.
(a) Guarantee of Reinstatement
An employee who exercises her right to take pregnancy disability
leave is guaranteed a right to return to the same position, or, if the em-
ployer is excused by section 7291.10, subdivision (c)(1), to a comparable
position, and the employer shall provide the guarantee in writing upon
request of the employee. It is an unlawful employment practice for any
employer, after granting a requested pregnancy disability leave or trans-
fer, to refuse to honor its guarantee of reinstatement unless the refusal is
justified by the defenses below in subdivisions (c)(1) and (c)(2). If the
employee takes intermittent leave or a reduced work schedule, only one
written guarantee of reinstatement is required.
(b) Refusal to Reinstate
(1) Definite Date of Reinstatement
Where a definite date of reinstatement has been agreed upon at the be-
ginning of the leave or transfer, a refusal to reinstate is established if the
Department or employee proves, by a preponderance of the evidence,
that the leave or transfer was granted by the employer and that the em-
ployer failed to reinstate the employee to the same position or, where ap-
plicable to a comparable position, by the date agreed upon, as specified
below in subdivisions (c)(1) and (c)(2).
(2) Change in Date of Reinstatement
If the reinstatement date differs from the employer’s and the em-
ployee’s original agreement or if no agreement was made, the employer
shall reinstate the employee within two business days, or, when two busi-
ness days is not feasible, reinstatement shall be made as soon as it is pos-
sible for the employer to expedite the employee’s return, after the em-
ployee notifies the employer of her readiness to return to the same, or,
where applicable, a comparable position, as specified below in subdivi-
sions (c)(1) and (c)(2).
(c) Permissible Defenses — Employment Would Have Ceased
(1) Right to Reinstatement to the Same Position
An employee has no greater right to reinstatement to the same position
or to other benefits and conditions of employment than those rights she
would have had if she had been continuously at work during the pregnan-
cy disability leave or transfer period. This is true even if the employer has
given the employee a written guarantee of reinstatement.
A refusal to reinstate the employee to her same position or duties is jus-
tified if the employer proves, by a preponderance of the evidence, that the
Fair Employment and Housing CommissionTitle 2
§ 7291.11
Page 101
employee would not otherwise have been employed in her same position
at the time reinstatement is requested for legitimate business reasons un-
related to the employee taking pregnancy disability leave or transfer
(such as a layoff pursuant to a plant closure).
(2) Right to Reinstatement to a Comparable Position
An employee has no greater right to reinstatement to a comparable
position or to other benefits and conditions of employment than an em-
ployee who has been continuously employed in another position that is
being eliminated. If the employer is excused from reinstating the em-
ployee to her same position, or with the same duties, a refusal to reinstate
the employee to a comparable position is justified if the employer proves,
by a preponderance of the evidence, either of the following:
(A) The employer would not have offered a comparable position to the
employee if she would have been continuously at work during the preg-
nancy disability leave or transfer period.
(B) There is no comparable position available.
1. A position is “available” if there is a position open on the em-
ployee’s scheduled date of reinstatement or within 60 calendar days for
which the employee is qualified, or to which the employee is entitled by
company policy, contract, or collective bargaining agreement.
2. An employer has an affirmative duty to provide notice of available
positions to the employee by means reasonably calculated to inform the
employee of comparable positions during the requirement period. Exam-
ples include notification in person, by letter, telephone or email, or by
links to postings on the company’s website if there is a section for job
openings.
3. If a comparable position is not available on the employee’s sched-
uled date of reinstatement, but the employee is later reinstated under the
60 calendar day period set forth in section 7291.10, subdivision
(c)(2)(B)1., above, the period between the employee’s scheduled date of
reinstatement and the date of her actual reinstatement shall not be
counted for purposes of any employee pay or benefit.
(3) If an employee is laid off during pregnancy disability leave or
transfer for legitimate business reasons unrelated to her leave or transfer,
the employer’s responsibility to continue the pregnancy disability leave
or transfer, maintain benefits, and reinstate the employee ceases at the
time the employee is laid off, provided the employer has no continuing
obligations under a collective bargaining agreement, or otherwise.
(d) Right to Reinstatement to Job if Additional Leave Taken Follow-
ing End of Pregnancy Disability Leave; Equal Treatment
If an employee disabled by pregnancy remains on some form of leave
following the end of her pregnancy disability leave (e.g., employer’s dis-
ability leave plan, etc.), an employer shall grant the employee reinstate-
ment rights that are the same as any other similarly situated employee
who has taken a similar length disability leave under the employer’s
policy, practice or collective bargaining agreement. For example, if the
employer has a policy that grants reinstatement to other employees who
are temporarily disabled for up to six months, the employer must also
grant reinstatement to an employee disabled by pregnancy for six
months. An employer and employee also may agree to a later date of rein-
statement.
(e) Right to Reinstatement to Job if CFRA Leave is Taken Following
Pregnancy Disability Leave
At the expiration of pregnancy disability leave, if an employee takes
a CFRA leave for reason of the birth of her child, the employee’s right
to reinstatement to her job is governed by CFRA and not section 7291.10,
subdivisions (c)(1) and (c)(2), above. Under CFRA, an employer may re-
instate an employee either to her same or a comparable position.
N
OTE: Authority cited: Sections 12935(a) and 12945, Government Code. Refer-
ence: Sections 12940 and 12945, Government Code; FMLA, 29 .U.S.C. § 2601,
et seq. and FMLA regulations, 29 C.F.R. § 825; Cal. Federal Sav. and Loan Ass’n
v. Guerra (1987) 479 U.S. 272 [107 S.Ct. 683, 93 L.Ed.2d 613].
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Renumbering of former section 7291.10 to new section 7291.17 and renumber-
ing of former section 7291.9 to section 7291.10, including amendment of sec-
tion and NOTE, filed 11–30–2012; operative 12–30–2012 (Register 2012, No.
48).
§ 7291.11. Terms of Pregnancy Disability Leave.
(a) Paid Leave
An employer is not required to pay an employee during pregnancy dis-
ability leave unless the employer pays for other temporary disability
leaves for similarly situated employees. An employee may be entitled to
receive state disability insurance for a period of disability because of
pregnancy and may contact the California Employment Development
Department for more information.
(b) Accrued Time Off
(1) Sick Leave
An employer may require an employee to use, or an employee may
elect to use, any accrued sick leave during the otherwise unpaid portion
of her pregnancy disability leave.
(2) Vacation Time and Other Accrued Time Off
An employee may elect, at her option, to use any vacation time or other
accrued personal time off (including undifferentiated paid time off
(PTO)) for which the employee is eligible.
(c) Continuation of Group Health Coverage
(1) An employer shall maintain and pay for coverage for an eligible
female employee who takes pregnancy disability leave for the duration
of the leave, not to exceed four months over the course of a 12–month
period, beginning on the date the pregnancy disability leave begins, at the
same level and under the same conditions that coverage would have been
provided if the employee had continued in employment continuously for
the duration of the leave.
(A) An employer may maintain and pay for coverage for a group
health plan for longer than four months.
(B) If the employer is a state agency, the collective bargaining agree-
ment shall govern the continued receipt by an eligible female employee
of health care coverage under the employer’s group health plan.
(2) The time that an employer maintains and pays for group health cov-
erage during pregnancy disability leave shall not be used to meet an em-
ployer’s obligation to pay for 12 weeks of group health coverage during
leave taken under CFRA. This shall be true even where an employer des-
ignates pregnancy disability leave as family and medical leave under
FMLA. The entitlements to employer–paid group health coverage during
pregnancy disability leave and during CFRA are two separate and dis-
tinct entitlements.
(3) An employer may recover from the employee the premium paid
while the employee was on pregnancy disability leave if both of the fol-
lowing conditions occur:
(A) The employee fails to return at the end of her pregnancy disability
leave.
(B) The employee’s failure to return from leave is for a reason other
than one of the following:
1. Taking CFRA leave, unless the employee chooses not to return to
work following the CFRA leave.
2. The continuation, recurrence or onset of a health condition that en-
titles the employee to pregnancy disability leave, unless the employee
chooses not to return to work following the leave.
3. Non–pregnancy related medical conditions requiring further leave,
unless the employee chooses not to return to work following the leave.
4. Any other circumstance beyond the control of the employee, includ-
ing, but not limited to, circumstances where the employer is responsible
for the employee’s failure to return (e.g., the employer does not return the
employee to her same position or reinstate the employee to a comparable
position), or circumstances where the employee must care for herself or
a family member (e.g., the employee gives birth to a child with a serious
health condition).
(d) Other Benefits and Seniority Accrual
During her pregnancy disability leave, the employee shall accrue se-
niority and participate in employee benefit plans, including, but not lim-
ited to, life, short–term and long–term disability or accident insurance,
pension and retirement plans, stock options and supplemental unemploy-
ment benefit plans to the same extent and under the same conditions as
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7291.12
Page 102
would apply to any other unpaid disability leave granted by the employer
for any reason other than a pregnancy disability.
(1) If the employer’s policy allows seniority to accrue when em-
ployees are on paid leave, such as paid sick or vacation leave, and/or un-
paid leave, then seniority will accrue during any part of a paid and/or un-
paid pregnancy disability leave.
(2) The employee returning from pregnancy disability leave shall re-
turn with no less seniority than the employee had when the leave com-
menced.
(e) Employee Status
The employee shall retain employee status during the period of the
pregnancy disability leave. The leave shall not constitute a break in ser-
vice for purposes of longevity and/or seniority under any collective bar-
gaining agreement or under any employee benefit plan. Benefits must be
resumed upon the employee’s reinstatement in the same manner and at
the same levels as provided when the leave began, without any new quali-
fication period, physical exam, or other qualifying provisions.
N
OTE: Authority cited: Sections 12935(a) and 12945, Government Code. Refer-
ence: Sections 12926, 12940 and 12945, Government Code; FMLA, 29 U.S.C.
§ 2601, et seq. and FMLA regulations, 29 C.F.R. § 825; Pregnancy Discrimination
Act of 1978 (P.L. 95–555, 42 U.S.C. § 2000e, § 701(k)), an amendment to Title
VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.).
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Amendment of section and N
OTE filed 11–30–2012; operative 12–30–2012
(Register 2012, No. 48).
§ 7291.12. Relationship Between Pregnancy Leave and
FMLA Leave.
(a) A Pregnancy Leave May Also Be a FMLA Leave
If the employer is a covered employer and the employee is eligible for
leave under the federal Family Care and Medical Leave Act (FMLA), the
employer may be able to count the employee’s pregnancy disability leave
under this subchapter, up to a maximum of 12 weeks, against her FMLA
leave entitlement.
(b) FMLA Coverage
For more information on rights and obligations under FMLA, consult
the FMLA regulations regarding family care and medical leave (29
C.F.R. § 825).
N
OTE: Authority cited: Sections 12935(a) and 12945, Government Code. Refer-
ence: Section 12945, Government Code; FMLA, 29 U.S.C. § 2601, et seq.; and
FMLA regulations, 29 C.F.R. § 825.
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Amendment of section and N
OTE filed 11–30–2012; operative 12–30–2012
(Register 2012, No. 48).
§ 7291.13. Relationship Between CFRA and Pregnancy
Leaves.
(a) Separate and Distinct Entitlements
The right to take a pregnancy disability leave under Government Code
section 12945 and these regulations is separate and distinct from the right
to take leave under the California Family Rights Act (CFRA), Govern-
ment Code sections 12945.1 and 12945.2.
(b) “Serious Health Condition” — Pregnancy
An employee’s own disability due to pregnancy, childbirth or related
medical conditions is not a “serious health condition” under CFRA.
(c) CFRA Leave after Pregnancy Disability Leave
At the end of the employee’s period(s) of pregnancy disability, or at
the end of four months of pregnancy disability leave, whichever occurs
first, a CFRA–eligible employee may request to take CFRA leave of up
to 12 workweeks for reason of the birth of her child, if the child has been
born by this date.
(1) There is no requirement that either the employee or child have a
serious health condition in order for the employee to take CFRA leave for
the birth of her child. There is also no requirement that the employee no
longer be disabled by her pregnancy before taking CFRA leave for the
birth of her child.
(2) Where an employee has utilized four months of pregnancy disabil-
ity leave prior to the birth of her child, and her health care provider deter-
mines that a continuation of the leave is medically necessary, an employ-
er may, as a reasonable accommodation, allow the employee to utilize
CFRA leave prior to the birth of her child. No employer shall, however,
be required to provide more CFRA leave than the amount to which the
employee is otherwise entitled under CFRA.
(d) Maximum Entitlement
The maximum statutory leave entitlement for California employees,
provided they qualify for CFRA leave, for both pregnancy disability
leave and CFRA leave for reason of the birth of the child and/or the em-
ployee’s own serious health condition is the working days in 29 1/3
workweeks. This assumes that the employee is disabled by pregnancy for
four months (the working days in 17 1/3 weeks) and then requests, and
is eligible for, a 12–week CFRA leave for reason of the birth of her child.
N
OTE: Authority cited: Sections 12935(a) and 12945, Government Code. Refer-
ence: Sections 12945, 12945.1 and 12945.2, Government Code.
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Amendment of section and N
OTE filed 11–30–2012; operative 12–30–2012
(Register 2012, No. 48).
§ 7291.14. Relationship Between Pregnancy Disability
Leave and Leave of Absence as Reasonable
Accommodation for Physical or Mental
Disability — Separate and Distinct Rights.
The right to take pregnancy disability leave under Government Code
section 12945 and these regulations is separate and distinct from the right
to take a leave of absence as a form of reasonable accommodation under
Government Code section 12940. At the end or depletion of an em-
ployee’s pregnancy disability leave, an employee who has a physical or
mental disability (which may or may not be due to pregnancy, childbirth,
or related medical conditions) may be entitled to reasonable accommoda-
tion under Government Code section 12940. Entitlement to leave under
section 12940 must be determined on a case–by case basis, using the
standards provided in the disability discrimination provisions (subchapt-
er 9) of these regulations, and is not diminished by the employee’s exer-
cise of her right to pregnancy disability leave.
N
OTE: Authority cited: Sections 12935(a) and 12945, Government Code. Refer-
ence: Sections 12926 and 12940, Government Code.
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Repealer and new section filed 11–30–2012; operative 12–30–2012 (Register
2012, No. 48).
§ 7291.15. Remedies.
Upon determining that an employer has violated Government Code
sections 12940, 12943, or 12945, the Commission may order any remedy
available under Government Code section 12970, and section 7286.9 of
the regulations. The remedy, however, for a violation of section 7291.16,
subdivision (c)(2), (failure to provide notice) shall be an order that the
employer provide such notice.
NOTE: Authority cited: Sections 12935(a) and 12945, Government Code. Refer-
ence: Section 12970, Government Code.
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Amendment of section and NOTE filed 11–30–2012; operative 12–30–2012
(Register 2012, No. 48).
§ 7291.16. Employer Notice to Employees of Rights and
Obligations for Reasonable Accommodation,
To Transfer and To Take Pregnancy Disability
Leave.
(a) Employers to Provide Reasonable Advance Notice Advising Em-
ployees Affected by Pregnancy of Their FEHA Rights and Obligations
An employer shall give its employees reasonable advance notice of
employees’ FEHA rights and obligations regarding pregnancy, child-
birth or related medical conditions as set forth below at section 7291.16,
subdivisions (e) and (f), and as contained in “Notice A” and “Notice B”
as set forth below at section 7291.18, subdivisions (a) and (b), or their
equivalents.
Fair Employment and Housing CommissionTitle 2
§ 7291.17
Page 103
(b) Content of Employer’s Reasonable Advance Notice
An employer shall provide its employees with information about:
(1) an employee’s right to request reasonable accommodation, trans-
fer, or pregnancy disability leave;
(2) employees’ notice obligations, as set forth in section 7291.17, to
provide adequate advance notice to the employer of the need for reason-
able accommodation, transfer or pregnancy disability leave; and
(3) the employer’s requirement, if any, for the employee to provide
medical certification to establish the medical advisability for reasonable
accommodation, transfer, or pregnancy disability leave, as set forth in
section 7291.17, subdivision (b).
(c) Consequences of Employer Notice Requirement
(1) If the employer follows the requirements in section 7291.16, subdi-
vision (d), below, such compliance shall constitute “reasonable advance
notice” to the employee of her notice obligations.
(2) Failure of the employer to provide reasonable advance notice shall
preclude the employer from taking any adverse action against the em-
ployee, including denying reasonable accommodation, transfer or preg-
nancy disability leave, for failing to furnish the employer with adequate
advance notice of a need for reasonable accommodation, transfer, or-
pregnancy disability leave.
(d) Distribution of Notices
(1) Employers shall post and keep posted the appropriate notice in a
conspicuous place or places where employees congregate. Electronic
posting is sufficient to meet this posting requirement as long as it other-
wise meets the requirements of this section.
(2) An employer is also required to give an employee a copy of the ap-
propriate notice as soon as practicable after the employee tells the em-
ployer of her pregnancy or sooner if the employee inquires about reason-
able accommodation, transfer, or pregnancy disability leaves.
(3) If the employer publishes an employee handbook that describes
other kinds of reasonable accommodation, transfers or temporary dis-
ability leaves available to its employees, that employer is encouraged to
include a description of reasonable accommodation, transfer, and preg-
nancy disability leave in the next edition of its handbook that it publishes
following adoption of these regulations. In the alternative, the employer
may distribute to its employees a copy of its Notice at least annually (dis-
tribution may be by electronic mail).
(4) Non–English Speaking Workforce
Any FEHA–covered employer whose work force at any facility or es-
tablishment comprised of ten percent or more persons whose primary
language is not English shall translate the notice into the language or lan-
guages spoken by this group or these groups of employees. In addition,
any FEHA–covered employer shall make a reasonable effort to give ei-
ther verbal or written notice in the appropriate language to any employee
who the employer knows is not proficient in English, and for whom writ-
ten notice previously has not been given in her primary language, of her
rights to pregnancy disability leave, reasonable accommodation, and
transfer, once the employer knows the employee is pregnant.
(e) “Notice A”
“Notice A” or its equivalent is for employers with less than 50 em-
ployees and who are therefore not subject to CFRA or FMLA. An em-
ployer may provide a leave policy that is more generous than that re-
quired by FEHA if that more generous policy is provided to all similarly
situated disabled employees. An employer may develop its own notice
or it may choose to use the text provided in section 7291.18, subdivision
(a), below, unless it does not accurately reflect its own policy.
(f) “Notice B”
“Notice B” or its equivalent is for employers with 50 or more em-
ployees who are subject to CFRA or FMLA. “Notice B” combines notice
of both an employee’s rights regarding pregnancy and CFRA leave rights
and satisfies the notice obligations of both this subchapter and section
7297.9 of the regulations. An employer may develop its own notice or it
may choose to use the text provided in section 7291.18, subdivision (b),
below, unless it does not accurately reflect its own policy.
N
OTE: Authority cited: Sections 12935(a) and 12945, Government Code. Refer-
ence: Section 12940, Government Code; FMLA, 29 U.S.C. § 2601, et seq. and
FMLA regulations, 29 C.F.R. § 825.
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Amendment of section heading, section and N
OTE filed 11–30–2012; operative
12–30–2012 (Register 2012, No. 48).
§ 7291.17. Employee Requests for Reasonable
Accommodation, Transfer or Pregnancy
Disability Leave: Advance Notice; Medical
Certification; Employer Response.
The following rules apply to any request for reasonable accommoda-
tion, transfer, or disability leave because of pregnancy.
(a) Adequate Advance Notice
(1) Verbal or Written Notice
An employee shall provide timely oral or written notice sufficient to
make the employer aware that the employee needs reasonable accom-
modation, transfer, or pregnancy disability leave, and, where practicable,
the anticipated timing and duration of the reasonable accommodation,
transfer or pregnancy disability leave.
(2) 30 Days Advance Notice
An employee must provide the employer at least 30 days advance no-
tice before the start of reasonable accommodation, transfer, or pregnancy
disability leave if the need for the reasonable accommodation, transfer,
or leave is foreseeable. The employee shall consult with the employer
and make a reasonable effort to schedule any planned appointment or
medical treatment to minimize disruption to the employer’s operations,
subject to the health care provider’s approval.
(3) When 30 Days Is Not Practicable
If 30 days advance notice is not practicable, because it is not known
when reasonable accommodation, transfer, or leave will be required to
begin, or because of a change in circumstances, a medical emergency, or
other good cause, notice must be given as soon as practicable.
(4) Prohibition Against Denial of Reasonable Accommodation,
Transfer, or Leave in Emergency or Unforeseeable Circumstances
An employer shall not deny reasonable accommodation, transfer, or
pregnancy disability leave, the need for which is an emergency or is
otherwise unforeseeable, on the basis that the employee did not provide
adequate advance notice of the need for the reasonable accommodation,
transfer, or leave.
(5) Employer Response to Reasonable Accommodation, Transfer, or
Pregnancy Disability Leave Request
The employer shall respond to the reasonable accommodation, trans-
fer, or pregnancy disability leave request as soon as practicable, and, in
any event no later than ten calendar days after receiving the request. The
employer shall attempt to respond to the leave request before the date the
leave is due to begin. Once given, approval shall be deemed retroactive
to the date of the first day of the leave.
(6) Consequences for Employee Who Fails to Give Employer Ade-
quate Advance Notice of Need for Reasonable Accommodation or
Transfer
If an employee fails to give timely advance notice when the need for
reasonable accommodation or transfer is foreseeable, the employer may
delay the reasonable accommodation or transfer until 30 days after the
date the employee provides notice to the employer of the need for the rea-
sonable accommodation or transfer. However, under no circumstances
may the employer delay the granting of an employee’s reasonable ac-
commodation or transfer if to do so would endanger the employee’s
health, her pregnancy, or the health of her co–workers.
(7) Direct notice to the employer from the employee rather than from
a third party regarding the employee’s need for reasonable accommoda-
tion, transfer, or pregnancy disability leave is preferred, but not required.
The content of any notice must meet the requirements of this section and
the employer may require medical certification.
(b) Medical Certification
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7291.17
Page 104
As a condition of granting reasonable accommodation, transfer, or
pregnancy disability leave, the employer may require written medical
certification. The employer must notify the employee of the need to pro-
vide medical certification; the deadline for providing certification; what
constitutes sufficient medical certification; and the consequences for
failing to provide medical certification.
(1) An employer must notify the employee of the medical certification
requirement each time a certification is required and provide the em-
ployee with any employer–required medical certification form for the
employee’s health care provider to complete. An employer may use the
form provided at section 7291.17, subdivision (e), or may develop its
own form. Notice to the employee of the need for medical certification
may be oral if the employee is already out on pregnancy disability leave
because the need for the leave was unforeseeable. The employer shall
thereafter mail or send via electronic mail or by facsimile a copy of the
medical certification form to the employee or to her health care provider,
whomever the employee designates.
(2) When the leave is foreseeable and at least 30 days notice has been
provided, the employee shall provide the medical certification before the
leave begins. When this is not practicable, the employee shall provide the
requested certification to the employer within the time frame requested
by the employer (which must be at least 15 calendar days after the em-
ployer’s request), unless it is not practicable under the particular circum-
stances to do so despite the employee’s diligent, good faith efforts.
(3) When the employer requires medical certification, the employer
shall request that an employee furnish medical certification from a health
care provider at the time the employee gives notice of the need for reason-
able accommodation, transfer or leave or within two business days there-
after, or, in the case of unforeseen leave, within two business days after
the leave commences. The employer may request certification at some
later date if the employer later has reason to question the appropriateness
of the reasonable accommodation, transfer, or leave or its duration.
(4) At the time the employer requests medical certification, the em-
ployer shall also advise the employee of the anticipated consequences of
an employee’s failure to provide adequate medical certification. The em-
ployer shall also advise the employee whenever the employer finds a
medical certification inadequate or incomplete, and provide the em-
ployee a reasonable opportunity to cure any deficiency.
(5) If the employer’s sick or medical leave plan imposes medical certi-
fication requirements that are less stringent than the medical certification
requirements of these regulations, and the employee or employer elects
to substitute sick, vacation, personal or family leave for unpaid pregnan-
cy disability leave, only the employer’s less stringent leave certification
requirements may be imposed.
(6) The medical certification indicating the medical advisability of
reasonable accommodation or a transfer is sufficient if it contains:
(A) A description of the requested reasonable accommodation or
transfer;
(B) A statement describing the medical advisability of the reasonable
accommodation or transfer because of pregnancy; and
(C) The date on which the need for reasonable accommodation or
transfer became or will become medically advisable and the estimated
duration of the reasonable accommodation or transfer.
(7) The medical certification indicating disability necessitating a leave
is sufficient if it contains:
(A) A statement that the employee needs to take pregnancy disability
leave because she is disabled by pregnancy, childbirth or a related medi-
cal condition;
(B) The date on which the employee became disabled because of preg-
nancy and the estimated duration of the leave.
(8) If the certification satisfies the requirements of section 7291.17,
subdivision (b), the employer must accept it as sufficient. The employer
may not ask the employee to provide additional information beyond that
allowed by these regulations. Upon expiration of the time period that the
health care provider originally estimated the employee would need rea-
sonable accommodation, transfer, or leave, the employer may require the
employee to obtain recertification if additional time is requested.
(9) The employer is responsible for complying with all applicable law
regarding the confidentiality of any medical information received.
(c) Failure to Provide Medical Certification
(1) In the case of a foreseeable need for reasonable accommodation,
transfer, or pregnancy disability leave, an employer may delay granting
the reasonable accommodation, transfer or leave to an employee who
fails to provide timely certification after the employer has requested the
employee to furnish such certification (i.e., within 15 calendar days, if
practicable), until the required certification is provided.
(2) When the need for reasonable accommodation, transfer or leave is
not foreseeable, or in the case of recertification, an employee shall pro-
vide certification (or recertification) within the time frame requested by
the employer (which must be at least 15 days after the employer’s re-
quest) or as soon as reasonably possible under the circumstances. In the
case of a medical emergency, it may not be practicable for an employee
to provide the required certification within 15 calendar days. If an em-
ployee fails to provide a medical certification within a reasonable time
under the pertinent circumstances, the employer may delay the em-
ployee’s continuation of the reasonable accommodation, transfer or
pregnancy disability leave.
(d) Release to Return to Work
As a condition of an employee’s return from pregnancy disability
leave or transfer, the employer may require the employee to obtain a re-
lease to “return–to–work” from her health care provider stating that she
is able to resume her original job or duties only if the employer has a uni-
formly applied practice or policy of requiring such releases from other
similarly situated employees returning to work after a non–pregnancy re-
lated disability leave or transfer.
(e) Medical Certification Form
Employers requiring written medical certification from their em-
ployees who request reasonable accommodation, transfer or disability
leave because of pregnancy may develop their own form, utilize one pro-
vided by the employee’s health care provider or use the form provided
below.
FAIR EMPLOYMENT & HOUSING COMMISSION
CERTIFICATION OF HEALTH CARE PROVIDER FOR
PREGNANCY DISABILITY LEAVE, TRANSFER AND/OR
REASONABLE ACCOMMODATION
Employee’s Name:
Please certify that, because of this patient’s pregnancy, childbirth, or a
related medical condition (including, but not limited to, recovery from
pregnancy, childbirth, loss or end of pregnancy, or post–partum depres-
sion), this patient needs (check all appropriate category boxes):
Time off for medical appointments.
Specify when and for what duration:
A disability leave. [Because of a patient’s pregnancy, childbirth or
a related medical condition, she cannot perform one or more of the
essential functions of her job or cannot perform any of these func-
tions without undue risk to herself, to her pregnancy’s successful
completion, or to other persons.]
Beginning (Estimate):
Ending (Estimate):
Fair Employment and Housing CommissionTitle 2
§ 7291.18
Page 105
Intermittent leave. Specify medically advisable intermittent leave
schedule:
Beginning (Estimate):
Ending (Estimate):
Reduced work schedule. [Specify medically advisable reduced
work schedule.]
Beginning (Estimate):
Ending (Estimate):
Transfer to a less strenuous or hazardous position or to be assigned
to less strenuous or hazardous duties [specify what would be a
medically advisable position/duties].
Beginning (Estimate):
Ending (Estimate):
Reasonable accommodation(s). [Specify medically advisable
needed accommodation(s). These could include, but are not lim-
ited to, modifying lifting requirements, or providing more frequent
breaks, or providing a stool or chair.]
Beginning (Estimate):
Ending (Estimate):
Name, license number and medical/health care specialty [printed]
of health care provider.
Signature of health care provider:
Date:
NOTE: Authority cited: Sections 12935(a) and 12945, Government Code. Refer-
ence: Sections 12940 and 12945, Government Code; FMLA, 29 U.S.C. § 2601,
et seq., and FMLA regulations, 29 C.F.R. § 825.
HISTORY
1. Renumbering of former section 7291.10 to new section 7291.17, including
amendment of section heading, section and N
OTE, filed 11–30–2012; operative
12–30–2012 (Register 2012, No. 48).
§ 7291.18. Employer Notices.
(a) “Notice A”
YOUR RIGHTS AND OBLIGATIONS AS A PREGNANT
EMPLOYEE
If you are pregnant, have a related medical condition, or are recovering
from childbirth, PLEASE READ THIS NOTICE.
• California law protects employees against discrimination or harass-
ment because of an employee’s pregnancy, childbirth or any related
medical condition (referred to below as “because of pregnancy”).
California also law prohibits employers from denying or interfering
with an employee’s pregnancy–related employment rights.
• Your employer has an obligation to:
reasonably accommodate your medical needs related to preg-
nancy, childbirth or related conditions (such as temporarily mo-
difying your work duties, providing you with a stool or chair, or
allowing more frequent breaks);
transfer you to a less strenuous or hazardous position (where one
is available) or duties if medically needed because of your preg-
nancy; and
provide you with pregnancy disability leave (PDL) of up to four
months (the working days you normally would work in one–
third of a year or 17 1/3 weeks) and return you to your same job
when you are no longer disabled by your pregnancy or, in certain
instances, to a comparable job. Taking PDL, however, does not
protect you from non–leave related employment actions, such as
a layoff.
provide a reasonable amount of break time and use of a room or
other location in close proximity to the employee’s work area to
express breast milk in private as set forth in Labor Code section
1030, et seq.
• For pregnancy disability leave:
PDL is not for an automatic period of time, but for the period of
time that you are disabled by pregnancy. Your health care pro-
vider determines how much time you will need.
Once your employer has been informed that you need to take
PDL, your employer must guarantee in writing that you can re-
turn to work in your same position if you request a written guar-
antee. Your employer may require you to submit written medical
certification from your health care provider substantiating the
need for your leave.
PDL may include, but is not limited to, additional or more fre-
quent breaks, time for prenatal or postnatal medical appoint-
ments, doctor–ordered bed rest, severe “morning sickness,”
gestational diabetes, pregnancy–induced hypertension, pre-
eclampsia, recovery from childbirth or loss or end of pregnancy,
and/or post–partum depression.
PDL does not need to be taken all at once but can be taken on an
as–needed basis as required by your health care provider, includ-
ing intermittent leave or a reduced work schedule, all of which
counts against your four month entitlement to leave.
Your leave will be paid or unpaid depending on your employer’s
policy for other medical leaves. You may also be eligible for state
disability insurance or Paid Family Leave (PFL), administered
by the California Employment Development Department.
At your discretion, you can use any vacation or other paid time
off during your PDL.
Your employer may require or you may choose to use any avail-
able sick leave during your PDL.
Your employer is required to continue your group health cover-
age during your PDL at the level and under the conditions that
coverage would have been provided if you had continued in em-
ployment continuously for the duration of your leave.
Taking PDL may impact certain of your benefits and your se-
niority date; please contact your employer for details.
Notice Obligations as an Employee.
• Give your employer reasonable notice: To receive reasonable ac-
commodation, obtain a transfer, or take PDL, you must give your em-
ployer sufficient notice for your employer to make appropriate plans
— 30 days advance notice if the need for the reasonable accommoda-
tion, transfer or PDL is foreseeable, otherwise as soon as practicable
if the need is an emergency or unforeseeable.
• Provide a Written Medical Certification from Your Health Care Pro-
vider. Except in a medical emergency where there is no time to obtain
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7292.0
Page 106
it, your employer may require you to supply a written medical certifi-
cation from your health care provider of the medical need for your
reasonable accommodation, transfer or PDL. If the need is an emer-
gency or unforeseeable, you must provide this certification within the
time frame your employer requests, unless it is not practicable for you
to do so under the circumstances despite your diligent, good faith ef-
forts. Your employer must provide at least 15 calendar days for you
to submit the certification. See your employer for a copy of a medical
certification form to give to your health care provider to complete.
• PLEASE NOTE that if you fail to give your employer reasonable ad-
vance notice or, if your employer requires it, written medical certifi-
cation of your medical need, your employer may be justified in delay-
ing your reasonable accommodation, transfer, or PDL.
This notice is a summary of your rights and obligations under the Fair
Employment and Housing Act (FEHA). For more information about
your rights and obligations as a pregnant employee, contact your em-
ployer, look at the Department of Fair Employment and Housing’s web-
site at www.dfeh.ca.gov, or contact the Department at (800) 884–1684.
The text of the FEHA and the regulations interpreting it are available on
the Fair Employment and Housing Commission’s website at
www.fehc.ca.gov.
(b) “Notice B”
FAMILY CARE AND MEDICAL LEAVE AND PREGNANCY
DISABILITY LEAVE
Under the California Family Rights Act of 1993 (CFRA), if you have
more than 12 months of service with your employer and have worked at
least 1,250 hours in the 12–month period before the date you want to be-
gin your leave, you may have a right to an unpaid family care or medical
leave (CFRA leave). This leave may be up to 12 workweeks in a
12–month period for the birth, adoption, or foster care placement of your
child or for your own serious health condition or that of your child, parent
or spouse.
Even if you are not eligible for CFRA leave, if disabled by pregnancy,
childbirth or related medical conditions, you are entitled to take pregnan-
cy disability leave (PDL) of up to four months, or the working days in
one–third of a year or 17 1/3 weeks, depending on your period(s) of actu-
al disability. Time off needed for prenatal or postnatal care; doctor–
ordered bed rest; gestational diabetes; pregnancy–induced hypertension;
preeclampsia; childbirth; postpartum depression; loss or end of pregnan-
cy; or recovery from childbirth or loss or end of pregnancy would all be
covered by your PDL.
Your employer also has an obligation to reasonably accommodate your
medical needs (such as allowing more frequent breaks) and to transfer
you to a less strenuous or hazardous position if it is medically advisable
because of your pregnancy.
If you are CFRA–eligible, you have certain rights to take BOTH PDL and
a separate CFRA leave for reason of the birth of your child. Both leaves
guarantee reinstatement to the same or a comparable position at the end
of the leave, subject to any defense allowed under the law.
If possible, you must provide at least 30 days advance notice for foresee-
able events (such as the expected birth of a child or a planned medical
treatment for yourself or a family member). For events that are unfore-
seeable, you must to notify your employer, at least verbally, as soon as
you learn of the need for the leave.
Failure to comply with these notice rules is grounds for, and may result
in, deferral of the requested leave until you comply with this notice
policy.
Your employer may require medical certification from your health care
provider before allowing you a leave for:
• your pregnancy;
• your own serious health condition; or
• to care for your child, parent, or spouse who has a serious health
condition.
See your employer for a copy of a medical certification form to give to
your health care provider to complete.
When medically necessary, leave may be taken on an intermittent or a re-
duced work schedule.
If you are taking a leave for the birth, adoption or foster care placement
of a child, the basic minimum duration of the leave is two weeks and you
must conclude the leave within one year of the birth or placement for
adoption or foster care.
Taking a family care or pregnancy disability leave may impact certain of
your benefits and your seniority date. Contact your employer for more
information regarding your eligibility for a leave and/or the impact of the
leave on your seniority and benefits.
This notice is a summary of your rights and obligations under the Fair
Employment and Housing Act (FEHA). The FEHA prohibits employers
from denying, interfering with, or restraining your exercise of these
rights. For more information about your rights and obligations, contact
your employer, look at the Department of Fair Employment and Hous-
ing’s website at www.dfeh.ca.gov, or contact the Department at (800)
884–1684. The text of the FEHA and the regulations interpreting it are
available on the Fair Employment and Housing Commission’s website
at www.fehc.ca.gov.
N
OTE: Authority cited: Sections 12935(a) and 12945, Government Code. Refer-
ence: Sections 12940 and 12945, Government Code; FMLA, 29 U.S.C. § 2601,
et seq., and FMLA regulations, 29 C.F.R. § 825.
HISTORY
1. New section filed 11–30–2012; operative 12–30–2012 (Register 2012, No. 48).
Subchapter 7. Marital Status
Discrimination
§ 7292.0. General Prohibition Against Discrimination on
the Basis of Marital Status.
(a) Statutory Source. These regulations are adopted by the Fair Em-
ployment and Housing Commission pursuant to Section 1420 of the La-
bor Code (Section 12940 of the Government Code).
(b) Statement of Purpose. The purpose of the law prohibiting marital
status discrimination is to make it unlawful for an employer or other cov-
ered entity to deny or grant employment benefits for the reason that an
applicant or employee is either married or unmarried.
(c) Incorporation of General Regulations. These regulations pertain-
ing to discrimination on the basis of marital status incorporate each of the
provisions of Subchapters 1 and 2 of Chapter 2, unless a provision is spe-
cifically excluded or modified.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920,
12921, 12940, Government Code.)
§ 7292.1. Definitions.
(a) “Marital Status.” An individual’s state of marriage, non–marriage,
divorce or dissolution, separation, widowhood, annulment, or other mar-
ital state.
(b) “Spouse.” A partner in marriage as defined in Civil Code Section
4100.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920,
12921, 12940, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7292.2. Establishing Marital Status Discrimination.
Marital status discrimination may be established by showing that an
applicant or employee has been denied an employment benefit by reason
of:
(a) The fact that the applicant or employee is not married;
Fair Employment and Housing CommissionTitle 2
§ 7293.3
Page 107
(b) An applicant’s or employee’s “single” or “married” status, or
(c) The employment or lack of employment of an applicant’s or em-
ployee’s spouse.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920,
12921, 12940, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7292.3. Defenses.
Any defense permissible under Subchapter 1 is applicable to this sub-
chapter, in addition to any other defense provided herein.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420(a), 1420(a)(3), Labor Code.
(Sections 12920, 12921, 12940, Government Code.)
§ 7292.4. Pre–Employment Practices.
(a) Impermissible Inquiries. It is unlawful to ask an applicant to dis-
close his or her marital status as part of a pre–employment inquiry unless
pursuant to a permissible defense.
(b) Request for Names. For business reasons other than ascertaining
marital status, an applicant may be asked whether he or she has ever used
another name, e.g., to enable an employer or other covered entity to check
the applicant’s past work record.
(c) Employment of Spouse. It is lawful to ask an applicant to state
whether he or she has a spouse who is presently employed by the employ-
er, but this information may not be used as a basis for an employment de-
cision except as stated below.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920,
12921, 12940, Government Code.)
§ 7292.5. Employee Selection.
(a) Employment of Spouse. An employment decision shall not be
based on whether an individual has a spouse presently employed by the
employer except in accordance with the following criteria:
(1) For business reasons of supervision, safety, security or morale, an
employer may refuse to place one spouse under the direct supervision of
the other spouse.
(2) For business reasons of supervision, security or morale, an employ-
er may refuse to place both spouses in the same department, division or
facility if the work involves potential conflicts of interest or other hazards
greater for married couples than for other persons.
(b) Accommodation for Co–Employees Who Marry. If co–employees
marry, an employer shall make reasonable efforts to assign job duties so
as to minimize problems of supervision, safety, security, or morale.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12921 and 12940, Government Code.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Editorial correction of NOTE filed 4–23–82; designated effective 6–1–82 (Reg-
ister 82, No. 17).
§ 7292.6. Terms, Conditions and Privileges of
Employment.
(a) Fringe Benefits.
(1) The availability of benefits to any employee shall not be based on
the employee’s marital status. However:
(A) Bona fide fringe benefit plans or programs may provide benefits
to an employee’s spouse or dependents;
(B) Such bona fide fringe benefit plans or programs may decline to
provide benefits to any individual who is not one of the following: an em-
ployee of the employer, a spouse of an employee of the employer, or a
dependent of an employee of the employer.
(2) Insofar as an employment practice discriminates against individu-
als on the basis of marital status, fringe benefits shall not be conditioned
upon whether an employee is “head of household,” “principal wage earn-
er,” “secondary wage earner,” or other similar status.
(b) Inter–Personal Conduct.
(1) An employer or other covered entity shall not use job responsibili-
ties such as travel, entertainment, or other non–office hour duties as a jus-
tification for discriminating on the basis of marital status.
(2) It is unlawful to require a married female applicant or employee to
use her husband’s name.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920,
12921, 12940, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
Subchapter 8. Religious Creed
Discrimination
§ 7293.0. General Prohibition Against Religious Creed
Discrimination.
(a) Statutory Source. These regulations concerning religious discrimi-
nation are adopted by the Commission pursuant to Section 1420 of the
Labor Code. (Section 12940 of the Government Code.)
(b) Statement of Purpose. The freedom to worship as one believes is
a basic human right. To that end, the accommodation to religious plural-
ism is an important and necessary part of our society. Questions of reli-
gious discrimination and accommodation to the varied religious practic-
es of the people of the State of California often arise in complex and
emotionally charged situations; therefore, each case must be reviewed on
an individual basis to best balance often contradictory social needs.
(c) Incorporation of General Regulations. These regulations incorpo-
rate all of the provisions of Subchapters 1 and 2 of Chapter 2, unless spe-
cifically excluded or modified.
§ 7293.1. Establishing Religious Creed Discrimination.
“Religious creed” includes any traditionally recognized religion as
well as beliefs, observances, or practices which an individual sincerely
holds and which occupy in his or her life a place of importance parallel
to that of traditionally recognized religions. Religious creed discrimina-
tion may be established by showing:
(a) Employment benefits have been denied, in whole or in part, be-
cause of an applicant’s or employee’s religious creed or lack of religious
creed.
(b) The employer or other covered entity has failed to reasonably ac-
commodate the applicant’s or employee’s religious creed despite being
informed by the applicant or employee or otherwise having become
aware of the need for reasonable accommodation.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920,
12921, 12940, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7293.2. Defenses.
Any permissible defense set forth in Subchapter 1 shall be applicable
to this Subchapter.
N
OTE: Authority cited: Section 1418(a), Labor Code. Reference: Sections 1411,
1412, 1420, Labor Code. (Sections 12920, 12921, 12940, Government Code.)
§ 7293.3. Reasonable Accommodation.
An employer or other covered entity shall make accommodation to the
known religious creed of an applicant or employee unless the employer
or other covered entity can demonstrate that the accommodation is unrea-
sonable because it would impose an undue hardship.
(a) Reasonable accommodation may include, but is not limited to, job
restructuring, job reassignment, modification of work practices, or al-
lowing time off in an amount equal to the amount of non–regularly sched-
uled time the employee has worked in order to avoid a conflict with his
or her religious observances.
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7293.4
Page 108
(b) In determining whether a reasonable accommodation would im-
pose an undue hardship on the operations of an employer or other covered
entity, factors to be considered include, but are not limited to:
(1) The size of the relevant establishment or facility with respect to the
number of employees, the size of budget, and other such matters;
(2) The overall size of the employer or other covered entity with re-
spect to the number of employees, number and type of facilities, and size
of budget;
(3) The type of the establishment’s or facility’s operation, including
the composition and structure of the workforce or membership;
(4) The type of the employer’s or other covered entity’s operation, in-
cluding the composition and structure of the workforce or membership;
(5) The nature and cost of the accommodation involved;
(6) Reasonable notice to the employer or other covered entity of the
need for accommodation; and
(7) Any available reasonable alternative means of accommodation.
(c) Reasonable accommodation includes, but is not limited to, the fol-
lowing specific employment policies or practices:
(1) Interview and examination times. Scheduled times for interviews,
examinations, and other functions related to employment opportunities
shall reasonably accommodate religious practices.
(2) Dress Standards. Dress standards or requirements for personal ap-
pearance shall be flexible enough to take into account religious practices.
(3) Union Dues. An employer or union shall not require membership
from any employee or applicant whose religious creed prohibits such
membership. An applicant’s or employee’s religious creed shall be rea-
sonably accommodated with respect to union dues.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920,
12921, 12940, Government Code.)
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
§ 7293.4. Pre–Employment Practices.
Pre–employment inquiries regarding an applicant’s availability for
work on weekends or evenings shall not be used as a pretext for ascertain-
ing his or her religious creed, nor shall such inquiry be used to evade the
requirement of reasonable accommodation. However, inquiries as to the
availability for work on weekends or evenings are permissible where rea-
sonably related to the normal business requirements of the job in ques-
tion.
N
OTE: Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Govern-
ment Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920.
12921, 12940, Government Code.)
Subchapter 9. Disability Discrimination
§ 7293.5. General Prohibitions Against Discrimination on
the Basis of Disability.
(a) Statutory Source. These regulations are adopted by the Commis-
sion pursuant to Sections 12926, 12926.1 and 12940 of the Government
Code.
(b) Statement of Purpose. The Fair Employment and Housing Com-
mission is committed to ensuring each individual employment opportu-
nities commensurate with his or her abilities. These regulations are de-
signed to ensure discrimination–free access to employment
opportunities notwithstanding any individual’s actual or perceived dis-
ability or medical condition; to preserve a valuable pool of experienced,
skilled employees; and to strengthen our economy by keeping people
working who would otherwise require public assistance. These regula-
tions are to be broadly construed to protect applicants and employees
from discrimination due to an actual or perceived physical or mental dis-
ability or medical condition that is disabling, potentially disabling or per-
ceived to be disabling or potentially disabling. The definition of “disabil-
ity” in these regulations shall be construed broadly in favor of expansive
coverage by the maximum extent permitted by the terms of the Fair Em-
ployment and Housing Act (“FEHA”). As with the Americans with Dis-
abilities Act of 1990 (“ADA”), as amended by the ADA Amendment Act
of 2008 (Pub. L. No. 110–325), the primary focus in cases brought under
the FEHA should be whether employers and other covered entities have
provided reasonable accommodation to applicants and employees with
disabilities, whether all parties have complied with their obligations to
engage in the interactive process and whether discrimination has oc-
curred, not whether the individual meets the definition of disability,
which should not require extensive analysis.
(c) Incorporation of General Regulations. These regulations govern-
ing discrimination on the basis of disability incorporate each of the provi-
sions of Subchapters 1 and 2 of Chapter 2, unless specifically excluded
or modified.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12921, 12926, 12926.1 and 12940, Government Code.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Change without regulatory effect of subsection (a) and NOTE (Register 86, No.
45).
3. Change without regulatory effect amending subchapter 9 heading, section head-
ing, subsections (b)–(c) and N
OTE filed 7–17–95 pursuant to section 100, title
1, California Code of Regulations (Register 95, No. 29).
4. Amendment of subsections (a)–(b) and NOTE filed 12–26–2012; operative
12–30–2012 pursuant to Government Code section 11343.4 (Register 2012,
No. 52).
§ 7293.6. Definitions.
As used in this subchapter, the following definitions apply:
(a) “Assistive animal” means a trained animal, including a trained dog,
necessary as a reasonable accommodation for a person with a disability.
(1) Specific examples include, but are not limited to:
(A) “Guide” dog, as defined at Civil Code section 54.1, trained to
guide a blind or visually impaired person.
(B) “Signal” dog, as defined at Civil Code section 54.1, or other animal
trained to alert a deaf or hearing impaired person to sounds.
(C) “Service” dog, as defined at Civil Code section 54.1, or other ani-
mal individually trained to the requirements of a person with a disability.
(D) “Support” dog or other animal that provides emotional or other
support to a person with a disability, including, but not limited to, trau-
matic brain injuries or mental disabilities such as major depression.
(2) Minimum Standards for Assistive Animals include, but are not lim-
ited to, the following. Employers may require that an assistive animal in
the workplace:
(A) is free from offensive odors and displays habits appropriate to the
work environment, for example, the elimination of urine and feces;
(B) does not engage in behavior that endangers the health or safety of
the individual with a disability or others in the workplace; and
(C) is trained to provide assistance for the employee’s disability.
(b) “Business Necessity,” as used in this subchapter regarding medical
or psychological examinations, means that the need for the disability in-
quiry or medical examination is vital to the business.
(c) “CFRA” means the Moore–Brown–Roberti Family Rights Act of
1993. (California Family Rights Act, Gov. Code §§ 12945.1 and
12945.2.) As used in this subchapter, “CFRA leave” means medical
leave taken pursuant to CFRA.
(d) “Disability” shall be broadly construed to mean and include any of
the following definitions:
(1) “Mental Disability,” as defined at Government Code section
12926, includes, but is not limited to, having any mental or psychological
disorder or condition that limits a major life activity. “Mental Disability”
includes, but is not limited to, emotional or mental illness, intellectual or
cognitive disability (formerly referred to as “mental retardation”), organ-
ic brain syndrome, or specific learning disabilities, autism spectrum dis-
orders, schizophrenia, and chronic or episodic conditions such as clinical
depression, bipolar disorder, post–traumatic stress disorder, and obses-
sive compulsive disorder.
(2) “Physical Disability,” as defined at Government Code section
12926, includes, but is not limited to, having any anatomical loss, cos-
Fair Employment and Housing CommissionTitle 2
§ 7293.6
Page 109
metic disfigurement, physiological disease, disorder or condition that
does both of the following:
(A) affects one or more of the following body systems: neurological;
immunological; musculoskeletal; special sense organs; respiratory, in-
cluding speech organs; cardiovascular; reproductive; digestive; genito-
urinary; hemic and lymphatic; circulatory; skin; and endocrine; and
(B) limits a major life activity.
(C) “Disability” includes, but is not limited to, deafness, blindness,
partially or completely missing limbs, mobility impairments requiring
the use of a wheelchair, cerebral palsy, and chronic or episodic condi-
tions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes,
multiple sclerosis and heart disease.
(3) A “special education” disability is any other recognized health im-
pairment or mental or psychological disorder not described in section
7293.6, subdivisions (d)(1) or (d)(2), of this subchapter, that requires or
has required in the past special education or related services. A special
education disability may include a “specific learning disability,” mani-
fested by significant difficulties in the acquisition and use of listening,
speaking, reading, writing, reasoning or mathematical abilities. A specif-
ic learning disability can include conditions such as perceptual disabili-
ties, brain injury, minimal brain dysfunction, dyslexia and developmen-
tal aphasia. A special education disability does not include special
education or related services unrelated to a health impairment or mental
or psychological disorder, such as those for English language acquisition
by persons whose first language was not English.
(4) A “Record or History of Disability” includes previously having, or
being misclassified as having, a record or history of a mental or physical
disability or special education health impairment of which the employer
or other covered entity is aware.
(5) A “Perceived Disability” means being “Regarded as,” “Perceived
as” or “Treated as” Having a Disability. Perceived disability includes:
(A) Being regarded or treated by the employer or other entity covered
by this subchapter as having, or having had, any mental or physical
condition or adverse genetic information that makes achievement of a
major life activity difficult; or
(B) Being subjected to an action prohibited by this subchapter, includ-
ing non–selection, demotion, termination, involuntary transfer or reas-
signment, or denial of any other term, condition, or privilege of employ-
ment, based on an actual or perceived physical or mental disease,
disorder, or condition, or cosmetic disfigurement, anatomical loss, ad-
verse genetic information or special education disability, or its symptom,
such as taking medication, whether or not the perceived condition limits,
or is perceived to limit, a major life activity.
(6) A “Perceived Potential Disability” includes being regarded, per-
ceived, or treated by the employer or other covered entity as having, or
having had, a physical or mental disease, disorder, condition or cosmetic
disfigurement, anatomical loss, adverse genetic information or special
education disability that has no present disabling effect, but may become
a mental or physical disability or special education disability.
(7) “Medical condition” is a term specifically defined at Government
Code section 12926, to mean either:
(A) any cancer–related physical or mental health impairment from a
diagnosis, record or history of cancer; or
(B) a “genetic characteristic,” as defined at Government Code section
12926. “Genetic characteristics” means:
1) Any scientifically or medically identifiable gene or chromosome,
or combination or alteration of a gene or chromosome, or any inherited
characteristic that may derive from a person or the person’s family mem-
ber,
2) that is known to be a cause of a disease or disorder in a person or
the person’s offspring, or that is associated with a statistically increased
risk of development of a disease or disorder, though presently not
associated with any disease or disorder symptoms.
(8) A “Disability” is also any definition of “disability” used in the fed-
eral Americans with Disabilities Act of 1990 (“ADA”), and as amended
by the ADA Amendments Act of 2008 (Pub. L. No. 110–325) and the
regulations adopted pursuant thereto, that would result in broader protec-
tion of the civil rights of individuals with a mental or physical disability
or medical condition than provided by the FEHA. If so, the broader ADA
protections or coverage shall be deemed incorporated by reference into,
and shall prevail over conflicting provisions of, the Fair Employment and
Housing Act’s definition of disability.
(9) “Disability” does not include:
(A) excluded conditions listed in the Government Code section 12926
definitions of mental and physical disability. These conditions are com-
pulsive gambling, kleptomania, pyromania, or psychoactive substance
use disorders resulting from the current unlawful use of controlled sub-
stances or other drugs, and “sexual behavior disorders,” as defined at sec-
tion 7293.6, subdivision (q), of this subchapter; or
(B) conditions that are mild, which do not limit a major life activity,
as determined on a case–by–case basis. These excluded conditions have
little or no residual effects, such as the common cold; seasonal or com-
mon influenza; minor cuts, sprains, muscle aches, soreness, bruises, or
abrasions; non–migraine headaches, and minor and nonchronic gastroin-
testinal disorders.
(e) “Essential job functions” means the fundamental job duties of the
employment position the applicant or employee with a disability holds
or desires.
(1) A job function may be considered essential for any of several rea-
sons, including, but not limited to, the following:
(A) The function may be essential because the reason the position ex-
ists is to perform that function.
(B) The function may be essential because of the limited number of
employees available among whom the performance of that job function
can be distributed.
(C) The function may be highly specialized, so that the incumbent in
the position is hired for his or her expertise or ability to perform the par-
ticular function.
(2) Evidence of whether a particular function is essential includes, but
is not limited to, the following:
(A) The employer’s or other covered entity’s judgment as to which
functions are essential.
(B) Accurate, current written job descriptions.
(C) The amount of time spent on the job performing the function.
(D) The legitimate business consequences of not requiring the incum-
bent to perform the function.
(E) Job descriptions or job functions contained in a collective bargain-
ing agreement.
(F) The work experience of past incumbents in the job.
(G) The current work experience of incumbents in similar jobs.
(H) Reference to the importance of the performance of the job function
in prior performance reviews.
(3) “Essential functions” do not include the marginal functions of the
position. “Marginal functions” of an employment position are those that,
if not performed, would not eliminate the need for the job or that could
be readily performed by another employee or that could be performed in
an alternative way.
(f) “Family member,” for purposes of discrimination on the basis of
a genetic characteristic or genetic information, includes the individual’s
relations from the first to fourth degree. This would include children, sib-
lings, half–siblings, parents, grandparents, aunts, uncles, nieces, neph-
ews, great aunts and uncles, first cousins, children of first cousins, great
grandparents, and great–great grandparents.
(g) “FMLA” means the federal Family and Medical Leave Act of
1993, 29 U.S.C. § 2601 et seq., and its implementing regulations, 29
C.F.R. § 825 et seq. For purposes of this section only, “FMLA leave”
means medical leave taken pursuant to FMLA.
(h) “Genetic information,” as defined at Government Code section
12926, means genetic information derived from an individual’s or the in-
dividual’s family members’ genetic tests, receipt of genetic services, par-
ticipation in genetic services clinical research or the manifestation of a
disease or disorder in an individual’s family members.
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7293.6
Page 110
(i) “Health care provider” means either:
(1) a medical or osteopathic doctor, physician, or surgeon, licensed in
California or in another state or country, who directly treats or supervises
the treatment of the applicant or employee; or
(2) a marriage and family therapist or acupuncturist, licensed in
California or in another state or country, or any other persons who meet
the definition of “others capable of providing health care services” under
FMLA and its implementing regulations, including podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, nurse practitioners,
nurse midwives, clinical social workers, physician assistants; or
(3) a health care provider from whom an employer, other covered enti-
ty, or a group health plan’s benefits manager will accept medical certifi-
cation of the existence of a health condition to substantiate a claim for
benefits.
(j) “Interactive process,” as set forth more fully at California Code of
Regulations, title 2, section 7294.0, means timely, good faith commu-
nication between the employer or other covered entity and the applicant
or employee or, when necessary because of the disability or other circum-
stances, his or her representative to explore whether or not the applicant
or employee needs reasonable accommodation for the applicant’s or em-
ployee’s disability to perform the essential functions of the job, and, if so,
how the person can be reasonably accommodated.
(k) “Job–Related,” as used in sections 7294.1, 7294.2 and 7294.3,
means tailored to assess the employee’s ability to carry out the essential
functions of the job or to determine whether the employee poses a danger
to the employee or others due to disability.
(l) “Major Life Activities” shall be construed broadly and include
physical, mental, and social activities, especially those life activities that
affect employability or otherwise present a barrier to employment or ad-
vancement.
(1) Major life activities include, but are not limited to, caring for one-
self, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, sitting, reaching, lifting, bending, speaking, breathing, learn-
ing, reading, concentrating, thinking, communicating, interacting with
others, and working.
(2) Major life activities include the operation of major bodily func-
tions, including functions of the immune system, special sense organs
and skin, normal cell growth, digestive, genitourinary, bowel, bladder,
neurological, brain, respiratory, circulatory, cardiovascular, endocrine,
hemic, lymphatic, musculoskeletal, and reproductive functions. Major
bodily functions include the operation of an individual organ within a
body system.
(3) An impairment “limits” a major life activity if it makes the achieve-
ment of the major life activity difficult.
(A) Whether achievement of the major life activity is “difficult” is an
individualized assessment which may consider what most people in the
general population can perform with little or no difficulty, what members
of the individual’s peer group can perform with little or no difficulty, and/
or what the individual would be able to perform with little or no difficulty
in the absence of disability.
(B) Whether an impairment limits a major life activity will usually not
require scientific, medical, or statistical analysis. Nothing in this para-
graph is intended, however, to prohibit the presentation of scientific,
medical, or statistical evidence, where appropriate.
(C) “Limits” shall be determined without regard to mitigating mea-
sures or reasonable accommodations, unless the mitigating measure it-
self limits a major life activity.
(D) Working is a major life activity, regardless of whether the actual
or perceived working limitation affects a particular employment or class
or broad range of employments.
(E) An impairment that is episodic or in remission is a disability if it
would limit a major life activity when active.
(m) A “medical or psychological examination” is a procedure or test
performed by a health care provider that seeks or obtains information
about an individual’s physical or mental disabilities or health.
(n) “Mitigating measure” is a treatment, therapy, or device which
eliminates or reduces the limitation(s) of a disability. Mitigating mea-
sures include, but are not limited to:
(1) Medications; medical supplies, equipment, or appliances; low–
vision devices (defined as devices that magnify, enhance, or otherwise
augment a visual image, but not including ordinary eyeglasses or contact
lenses); prosthetics, including limbs and devices; hearing aids, cochlear
implants, or other implantable hearing devices; mobility devices; oxygen
therapy equipment and supplies; and assistive animals, such as guide
dogs.
(2) Use of assistive technology or devices, such as wheelchairs,
braces, and canes.
(3) “Auxiliary aids and services,” which include:
(A) qualified interpreters or other effective methods of making aurally
delivered materials available to individuals with hearing disabilities such
as text pagers, captioned telephone, video relay TTY and video remote
interpreting;
(B) qualified readers, taped texts, or other effective methods of making
visually delivered materials available to individuals with visual disabili-
ties such as video magnification, text–to–speech and voice recognition
software, and related scanning and OCR technologies;
(C) acquisition or modification of equipment or devices; and
(D) other similar services and actions.
(4) Learned behavioral or adaptive neurological modifications.
(5) Surgical interventions, except for those that permanently eliminate
a disability.
(6) Psychotherapy, behavioral therapy, or physical therapy.
(7) Reasonable accommodations.
(o) “Qualified Individual”, for purposes of disability discrimination
under California Code of Regulations, title 2, section 7293.7, is an appli-
cant or employee who has the requisite skill, experience, education, and
other job–related requirements of the employment position such individ-
ual holds or desires, and who, with or without reasonable accommoda-
tion, can perform the essential functions of such position.
(p) “Reasonable accommodation” is:
(1) modifications or adjustments that are:
(A) effective in enabling an applicant with a disability to have an equal
opportunity to be considered for a desired job, or
(B) effective in enabling an employee to perform the essential func-
tions of the job the employee holds or desires, or
(C) effective in enabling an employee with a disability to enjoy equiv-
alent benefits and privileges of employment as are enjoyed by similarly
situated employees without disabilities.
(2) Examples of Reasonable Accommodation. Reasonable accom-
modation may include, but are not limited to, such measures as:
(A) Making existing facilities used by applicants and employees readi-
ly accessible to and usable by individuals with disabilities. This may in-
clude, but is not limited to, providing accessible break rooms, restrooms,
training rooms, or reserved parking places; acquiring or modifying furni-
ture, equipment or devices; or making other similar adjustments in the
work environment;
(B) Allowing applicants or employees to bring assistive animals to the
work site;
(C) Transferring an employee to a more accessible worksite;
(D) Providing assistive aids and services such as qualified readers or
interpreters to an applicant or employee;
(E) Job Restructuring. This may include, but is not limited to, realloca-
tion or redistribution of non–essential job functions in a job with multiple
responsibilities;
(F) Providing a part–time or modified work schedule;
(G) Permitting an alteration of when and/or how an essential function
is performed;
(H) Providing an adjustment or modification of examinations, training
materials or policies;
(I) Modifying an employer policy;
Fair Employment and Housing CommissionTitle 2
§ 7293.8
Page 111
(J) Modifying supervisory methods (e.g., dividing complex tasks into
smaller parts);
(K) Providing additional training;
(L) Permitting an employee to work from home;
(M) Providing a paid or unpaid leave for treatment and recovery, con-
sistent with section 7293.9, subdivision (c);
(N) Providing a reassignment to a vacant position, consistent with sec-
tion 7293.9, subdivision (d); and
(O) other similar accommodations.
(q) “Sexual behavior disorders,” as used in this subchapter, refers to
pedophilia, exhibitionism, and voyeurism.
(r) “Undue hardship” means, with respect to the provision of an ac-
commodation, an action requiring significant difficulty or expense in-
curred by an employer or other covered entity, when considered under
the totality of the circumstances in light of the following factors:
(1) the nature and net cost of the accommodation needed under this
subchapter, taking into consideration the availability of tax credits and
deductions, and/or outside funding;
(2) the overall financial resources of the facilities involved in the pro-
vision of the reasonable accommodations, the number of persons
employed at the facility, and the effect on expenses and resources or the
impact otherwise of these accommodations upon the operation of the fa-
cility, including the impact on the ability of other employees to perform
their duties and the impact on the facility’s ability to conduct business;
(3) the overall financial resources of the employer or other covered en-
tity, the overall size of the business of a covered entity with respect to the
number of its employees, and the number, type, and location of its facili-
ties;
(4) the type of operation or operations, including the composition,
structure, and functions of the workforce of the employer or other cov-
ered entity; and
(5) the geographic separateness, administrative, or fiscal relationship
of the facility or facilities.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12921, 12926, 12926.1, 12940, 12945.1 and 12945.2, Government Code;
Americans with Disabilities Act of 1990 (42 U.S.C. §12101, et seq.), as amended
by the ADA Amendments Act of 2008 (Pub. L. No. 110–325) and its implement-
ing regulations at 29 C.F.R. § 1630 et seq.; Family and Medical Leave Act of 1993
(29 U.S.C. § 2601 et seq.) and its implementing regulations at 29 C.F.R. § 825 et
seq.; and Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.)
and its implementing regulations at 34 C.F.R. § 300.8 et seq.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Change without regulatory effect repealing former subsection (f) which defined
the term “health impairment which requires special education or related ser-
vices” by including citations to definitions of “physically handicapped” con-
tained in Education Code Sections 1850, 56700, 56701, 78701 and 78702 be-
cause the cross referenced definitions in the Education Code have been
repealed, relettering of former subsections (g)–(k) to subsections (f)–(j) and
correction of NOTE (Register 86, No. 45).
3. Amendment of subsections (a) and repealer of subsection (j) filed 4–22–88; op-
erative 4–22–88 pursuant to Government Code Section 11346.2(d) (Register
88, No. 18).
4. Change without regulatory effect amending section and Note filed 7–17–95 pur-
suant to section 100, title 1, California Code of Regulations (Register 95, No.
29).
5. Editorial correction of subsection (g) (Register 95, No. 34).
6. Repealer and new section and amendment of N
OTE filed 12–26–2012; operative
12–30–2012 pursuant to Government Code section 11343.4 (Register 2012,
No. 52).
§ 7293.7. Establishing Disability Discrimination.
(a) An applicant or employee has the burden of proof to establish that
the applicant or employee is a qualified individual capable of performing
the essential functions of the job with or without reasonable accommoda-
tion.
(b) Disability discrimination is established if a preponderance of the
evidence demonstrates a causal connection between a qualified individu-
al’s disability and denial of an employment benefit to that individual by
the employer or other covered entity. The evidence need not demonstrate
that the qualified individual’s disability was the sole or even the domi-
nant cause of the employment benefit denial. Discrimination is estab-
lished if the qualified individual’s disability was one of the factors that
influenced the employer or other covered entity and the denial of the em-
ployment benefit is not justified by a permissible defense, as detailed be-
low at section 7293.8 of this subchapter.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12921, 12926, 12926.1 and 12940, Government Code; Green v. State of
California (2007) 42 Cal.4th 254, 260; Mixon v. Fair Empl. & Hous. Com. (1987)
192 Cal.App.3d 1306, 1319.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Change without regulatory effect of NOTE (Register 86, No. 45).
3. Amendment filed 4–22–88; operative 4–22–88 pursuant to Government Code
Section 11346.2(d) (Register 88, No. 18).
4. Change without regulatory effect amending section heading and section filed
7–17–95 pursuant to section 100, title 1, California Code of Regulations (Regis-
ter 95, No. 29).
5. Amendment of section and N
OTE filed 12–26–2012; operative 12–30–2012 pur-
suant to Government Code section 11343.4 (Register 2012, No. 52).
§ 7293.8. Defenses.
(a) In addition to any other defense provided in these disability regula-
tions, any defense permissible under Subchapter 1, at California Code of
Regulations, title 2, section 7286.7, shall be applicable to this subchapter.
(b) Health or Safety of an Individual With a Disability. It is a permissi-
ble defense for an employer or other covered entity to demonstrate that,
after engaging in the interactive process, there is no reasonable accom-
modation that would allow the applicant or employee to perform the es-
sential functions of the position in question in a manner that would not
endanger his or her health or safety because the job imposes an imminent
and substantial degree of risk to the applicant or employee.
(c) Health and Safety of Others. It is a permissible defense for an em-
ployer or other covered entity to demonstrate that, after engaging in the
interactive process, there is no reasonable accommodation that would al-
low the applicant or employee to perform the essential functions of the
position in question in a manner that would not endanger the health or
safety of others because the job imposes an imminent and substantial de-
gree of risk to others.
(d) Future Risk. However, it is no defense to assert that an individual
with a disability has a condition or a disease with a future risk, so long
as the condition or disease does not presently interfere with his or her
ability to perform the job in a manner that will not endanger the individual
with a disability or others.
(e) Factors to be considered when determining the merits of the de-
fenses enumerated in Section 7293.8, subdivisions (b)–(d) include, but
are not limited to:
(1) the duration of the risk;
(2) the nature and severity of the potential harm;
(3) the likelihood that potential harm will occur;
(4) the imminence of the potential harm; and
(5) consideration of relevant information about an employee’s past
work history.
The analysis of these factors should be based on a reasonable medical
judgment that relies on the most current medical knowledge and/or on the
best available objective evidence.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12921, 12926, 12926.1 and 12940, Government Code.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80. No. 25).
2. Change without regulatory effect of NOTE (Register 86, No. 45).
3. Amendment of subsections (b)–(f) filed 4–22–88; operative 4–22–88 pursuant
to Government Code Section 11346.2(d) (Register 88, No. 18).
4. Change without regulatory effect amending subsections (b)–(e) and (f)(1), new
subsections (g)–(g)(2)(G), and amendment of N
OTE filed 7–17–95 pursuant to
section 100, title 1, California Code of Regulations (Register 95, No. 29).
5. Amendment of section and N
OTE filed 12–26–2012; operative 12–30–2012 pur-
suant to Government Code section 11343.4 (Register 2012, No. 52).
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7293.9
Page 112
§ 7293.9. Reasonable Accommodation.
(a) Affirmative Duty. An employer or other covered entity has an affir-
mative duty to make reasonable accommodation for the disability of any
individual applicant or employee if the employer or other covered entity
knows of the disability, unless the employer or other covered entity can
demonstrate, after engaging in the interactive process, that the accommo-
dation would impose an undue hardship.
(b) No elimination of essential job function required. Where a quality
or quantity standard is an essential job function, an employer or other
covered entity is not required to lower such a standard as an accommoda-
tion, but may need to accommodate an employee with a disability to en-
able him or her to meet its standards for quality and quantity.
(c) Paid or unpaid leaves of absence. When the employee cannot pres-
ently perform the essential functions of the job, or otherwise needs time
away from the job for treatment and recovery, holding a job open for an
employee on a leave of absence or extending a leave provided by the
CFRA, the FMLA, other leave laws, or an employer’s leave plan may be
a reasonable accommodation provided that the leave is likely to be effec-
tive in allowing the employee to return to work at the end of the leave,
with or without further reasonable accommodation, and does not create
an undue hardship for the employer. When an employee can work with
a reasonable accommodation other than a leave of absence, an employer
may not require that the employee take a leave of absence. An employer,
however, is not required to provide an indefinite leave of absence as a rea-
sonable accommodation.
(d) Reassignment to a vacant position.
(1) As a reasonable accommodation, an employer or other covered en-
tity shall ascertain through the interactive process suitable alternate, va-
cant positions and offer an employee such positions, for which the em-
ployee is qualified, under the following circumstances:
(A) if the employee can no longer perform the essential functions of
his or her own position even with accommodation; or
(B) if accommodation of the essential functions of an employee’s own
position creates an undue hardship; or
(C) if both the employer and the employee agree that a reassignment
is preferable to being provided an accommodation in the present posi-
tion; or
(D) if an employee requests reassignment to gain access to medical
treatment for his or her disabling condition(s) not easily accessible at the
current location.
(2) No comparable positions. If there are no funded, vacant compara-
ble positions for which the individual is qualified with or without reason-
able accommodation, an employer or other covered entity may reassign
an individual to a lower graded or lower paid position.
(3) Reassignment to a temporary position. Although reassignment to
a temporary position is not considered a reasonable accommodation un-
der these regulations, an employer or other covered entity may offer, and
an employee may choose to accept or reject a temporary assignment dur-
ing the interactive process.
(4) The employer or other covered entity is not required to create a new
position to accommodate an employee with a disability to a greater extent
than an employer would offer a new position to any employee, regardless
of disability.
(5) The employee with a disability is entitled to preferential consider-
ation of reassignment to a vacant position over other applicants and exist-
ing employees. However, ordinarily, an employer or other covered entity
is not required to accommodate an employee by ignoring its bona fide se-
niority system, absent a showing that special circumstances warrant a
finding that the requested “accommodation” is “reasonable” on the par-
ticular facts, such as where the employer or other covered entity reserves
the right to modify its seniority system or the established employer or
other covered entity practice is to allow variations to its seniority system.
(e) Any and all reasonable accommodations. An employer or other
covered entity is required to consider any and all reasonable accommoda-
tions of which it is aware or which are brought to its attention by the appli-
cant or employee, except ones that create an undue hardship. The em-
ployer or other covered entity shall consider the preference of the
applicant or employee to be accommodated, but has the right to select and
implement an accommodation that is effective for both the employee and
the employer or other covered entity.
(f) An employer shall not require a qualified individual with a disabil-
ity to accept an accommodation and shall not retaliate against an em-
ployee for refusing an accommodation. However, the employer or other
covered entity may inform the individual that refusing an accommoda-
tion may render the individual unable to perform the essential functions
of the current position.
(g) Reasonable Accommodation for the Residual Effects of a Disabil-
ity. An individual with a record of a disability may be entitled, absent un-
due hardship, to a reasonable accommodation if needed and related to the
residual effects of the disability. For example, an employee may need a
leave or a schedule change to permit him or her to attend follow–up or
“monitoring” appointments with a health care provider.
(h) Accessibility Standards. To comply with section 7293.6, subdivi-
sion (p)(2)(A), of this subchapter, the design, construction or alteration
of premises shall be in conformance with the standards set forth by the
Division of the State Architect in the State Building Code, Title 24, pur-
suant to Chapter 7, Division 5 of Title 1 of the Government Code (com-
mencing with Government Code Section 4450), and Part 5.5 of Division
13 of the Health and Safety Code (commencing with Health and Safety
Code Section 19955).
(i) An employer or other covered entity shall assess individually an
employee’s ability to perform the essential functions of the employee’s
job either with or without reasonable accommodation. In the absence of
an individualized assessment, an employer or other covered entity shall
not impose a “100 percent healed” or “fully healed” policy before the em-
ployee can return to work after an illness or injury.
(j) It is a permissible defense to a claim alleging a failure to provide
reasonable accommodation for an employer or other covered entity to
prove that providing accommodation to an applicant or employee with
a disability would have created an undue hardship.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12921, 12926, 12926.1 and 12940, Government Code.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Editorial correction of NOTE filed 4–23–82; designated effective 6–1–82 (Reg-
ister 82, No. 17).
3. Amendment filed 4–22–88; operative 4–22–88 pursuant to Government Code
Section 11346.2(d) (Register 88, No. 18).
4. Change without regulatory effect amending section and N
OTE filed 7–17–95
pursuant to section 100, title 1, California Code of Regulations (Register 95, No.
29).
5. Editorial correction of subsection (a)(2) (Register 95, No. 38).
6. Amendment of section and N
OTE filed 12–26–2012; operative 12–30–2012 pur-
suant to Government Code section 11343.4 (Register 2012, No. 52).
§ 7294.0. Interactive Process.
(a) Interactive Process. When needed to identify or implement an ef-
fective, reasonable accommodation for an employee or applicant with a
disability, the FEHA requires a timely, good faith, interactive process be-
tween an employer or other covered entity and an applicant, employee,
or the individual’s representative, with a known physical or mental dis-
ability or medical condition. Both the employer or other covered entity
and the applicant, employee or the individual’s representative shall ex-
change essential information identified below without delay or obstruc-
tion of the process.
(b) Notice. An employer or other covered entity shall initiate an inter-
active process when:
(1) an applicant or employee with a known physical or mental disabil-
ity or medical condition requests reasonable accommodations, or
(2) the employer or other covered entity otherwise becomes aware of
the need for an accommodation through a third party or by observation,
or
(3) the employer or other covered entity becomes aware of the possible
need for an accommodation because the employee with a disability has
Fair Employment and Housing CommissionTitle 2
§ 7294.0
Page 113
exhausted leave under the California Workers’ Compensation Act, for
the employee’s own serious health condition under the CFRA and/or the
FMLA, or other federal, state, employer or other covered entity leave
provisions and yet the employee or the employee’s health care provider
indicates that further accommodation is still necessary for recuperative
leave or other accommodation for the employee to perform the essential
functions of the job. An employer’s or other covered entity’s offer to en-
gage in the interactive process in response to a request for such leave does
not violate California Code of Regulations, title 2, section 7297.4, subdi-
vision (b)(1) & (b)(2)(A)(1), prohibiting inquiry into the medical in-
formation underlying the need for medical leave other than certification
that it is a “serious medical condition.”
(c) Obligations of Employer or Other Covered Entity. An employer or
other covered entity shall engage in a timely, good faith, interactive pro-
cess as follows:
(1) The employer or other covered entity shall either grant the appli-
cant’s or employee’s requested accommodation, or reject it after due con-
sideration, and initiate discussion with the applicant or employee regard-
ing alternative accommodations.
(2) When the disability or need for reasonable accommodation is not
obvious, and the applicant or employee has not already provided the em-
ployer or other covered entity with reasonable medical documentation
confirming the existence of the disability and the need for reasonable ac-
commodation, the employer or other covered entity may require the ap-
plicant or employee to provide such reasonable medical documentation.
(3) When the employer or other covered entity has received reasonable
medical documentation, it shall not ask the applicant or employee about
the underlying medical cause of the disability, but may require medical
information, as set forth in section 7294.2 below, and second opinions
from other health care providers.
(4) If information provided by the applicant or employee needs clarifi-
cation, then the employer or other covered entity shall identify the issues
that need clarification, specify what further information is needed, and
allow the applicant or employee a reasonable time to produce the supple-
mental information.
(5) When needed to assess a requested accommodation or to advance
the interactive process, the employer or other covered entity shall analyze
the particular job involved and the essential functions of the job.
(6) When needed to assess a requested accommodation or to advance
the interactive process, the employer or other covered entity may consult
experts.
(7) In consultation with the applicant or employee to be accommo-
dated, the employer or other covered entity shall identify potential ac-
commodations and assess the effectiveness each would have in enabling
the applicant to have an equal opportunity to participate in the application
process and to be considered for the job; or for the employee to perform
the essential function of the position held or desired or to enjoy equiva-
lent benefits and privileges of employment compared to non–disabled
employees.
(8) The employer or other covered entity shall consider the preference
of the applicant or employee to be accommodated, but has the right to im-
plement an accommodation that is effective in allowing the applicant or
employee perform the essential functions of the job.
(9) If reassignment to an alternate position is considered as an accom-
modation, the employer or other covered entity may ask the employee to
provide information about his or her educational qualifications and work
experience that may help the employer find a suitable alternative position
for the employee, and shall comply with section 7293.9, subdivision (d).
(d) Obligations of Applicant or Employee. The applicant or employee
shall cooperate in good faith with the employer or other covered entity,
including providing reasonable medical documentation where the dis-
ability or the need for accommodation is not obvious and is requested by
the employer or other covered entity, as follows:
(1) Reasonable medical documentation confirms the existence of the
disability and the need for reasonable accommodation. Where necessary
to advance the interactive process, reasonable medical documentation
may include a description of physical or mental limitations that affect a
major life activity that must be met to accommodate the employee. Dis-
closure of the nature of the disability is not required.
(2) If reassignment to an alternate position is considered as an accom-
modation, the employee shall provide the employer or other covered enti-
ty information about his or her educational qualifications and work expe-
rience that may help the employer or other covered entity find a suitable
alternative position for which the employee is qualified and for which the
employee can perform the essential functions.
(3) An employee’s mental or physical inability to engage in the inter-
active process shall not constitute a breach in either the employee’s or the
employer’s obligation to engage in a good faith interactive process.
(4) Direct communications between the employer or other covered en-
tity and the applicant or employee rather than through third parties are
preferred, but are not required.
(5) Required medical information. Where the existence of a disability
and/or the need for reasonable accommodation is not obvious, an em-
ployer or other covered entity may require an applicant or employee to
obtain and provide reasonable medical documentation from a health care
provider that sets forth the following information:
(A) The name and credentials of the health care provider which esta-
blishes that the individual falls within the definition of “health care pro-
vider” under section 7293.6, subdivision (i), of these regulations.
(B) That the employee or applicant has a physical or mental condition
that limits a major life activity or a medical condition, and a description
of why the employee or applicant needs a reasonable accommodation to
have an equal opportunity: to participate in the application process and
to be considered for the job, or to perform the employee’s job duties, or
to enjoy equal benefits and privileges of employment compared to non–
disabled employees. The employer or other covered entity shall not ask
for unrelated documentation, including in most circumstances, an appli-
cant’s or employee’s complete medical records, because those records
may contain information unrelated to the need for accommodation.
(C) If an applicant or employee provides insufficient documentation
in response to the employer’s or other covered entity’s initial request, the
employer or other covered entity shall explain why the documentation is
insufficient and allow the applicant or employee an opportunity to pro-
vide supplemental information in a timely manner from the employee’s
health care provider. Thereafter, if there is still insufficient documenta-
tion, the employer may require an employee to go to an appropriate
health care provider of the employer’s or other covered entity’s choice.
1) Documentation is insufficient if it does not specify the existence of
a FEHA disability and explain the need for reasonable accommodation.
Where relevant, such an explanation should include a description of the
applicant’s or employee’s functional limitation(s) to perform the essen-
tial job functions.
2) Documentation also might be insufficient where the health care pro-
vider does not have the expertise to confirm the applicant’s or em-
ployee’s disability or need for reasonable accommodation, or other ob-
jective factors indicate that the information provided is not credible or is
fraudulent.
(6) If an applicant or employee provides insufficient documentation,
as described above, an employer or other covered entity still must pro-
vide reasonable accommodation but only to the extent the reasonable ac-
commodation is supported by the medical documentation provided to
date. If the medical documentation provided to date does not support any
reasonable accommodation, no reasonable accommodation need be re-
quired. If supplemental medical documentation supports a further or
additional reasonable accommodation, then such further or additional
reasonable accommodation shall be provided.
(7) Any medical examination conducted by the employer’s and other
covered entity’s health care provider must be job–related and consistent
with business necessity. This means that the examination must be limited
to determining the functional limitation(s) that require(s) reasonable ac-
commodation.
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7294.1
Page 114
(8) If an employer or other covered entity requires an employee to go
to a health care provider of the employer’s or other covered entity’s
choice, the employer or other covered entity shall pay all costs and allow
the employee time off for the visit(s). An employee may use sick leave
for the time off.
(9) If an employee requests, as a reasonable accommodation, leave on
an intermittent or reduced–schedule basis for planned medical treatment
of the employee’s disability, reasonable medical documentation includes
information that is sufficient to establish the medical necessity for such
intermittent or reduced–schedule leave and an estimate of the dates and
duration of such treatments and any periods of recovery.
(10) If an employee requests leave on an intermittent or reduced–
schedule basis for the employee’s disability that may result in unforesee-
able episodes of incapacity, such as the onset of migraines or epileptic
seizures, reasonable medical documentation includes information that is
sufficient to establish the medical necessity for such intermittent or re-
duced–schedule leave and an estimate of the frequency and duration of
the episodes of incapacity.
(e) If an employee requests permission to bring an assistive animal into
the workplace as a reasonable accommodation, prior to allowing the ani-
mal to be in the workplace, the employer may require that the employee
supply:
(1) a letter from the employee’s health care provider stating that the
employee has a disability and explaining why the employee requires the
presence of the assistive animal in the workplace (e.g., why the animal
is necessary as an accommodation to allow the employee to perform the
essential functions of the job); and
(2) confirmation that the animal meets the standards set forth in section
7293.6, subdivision (a)(2). Such confirmation may include information
provided by the individual with a disability. The employer may challenge
that the animal meets that standards set forth in section 7293.6, subdivi-
sion (a)(2) within the first two weeks the assistive animal is in the work
place based on objective evidence of offensive or disruptive behavior.
An employer may require an annual recertification from the employee of
the continued need for the animal.
(f) For reasonable accommodations extending beyond one year, em-
ployers may ask for medical documents substantiating the need for con-
tinued reasonable accommodations on a yearly basis.
(g) Maintenance and Confidentiality of Medical Files. Medical in-
formation and/or records obtained during the interactive process shall be
maintained on separate forms, and in medical files separate from the em-
ployee’s personnel file, and shall be kept confidential, except that:
(1) supervisors and managers may be informed of restriction(s) on the
work or duties of employees with disabilities and necessary reasonable
accommodations; and
(2) first aid and safety personnel may be informed, where appropriate,
that the condition may require emergency treatment; and
(3) government officials investigating compliance with this subchapt-
er shall be provided relevant information on request.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12921, 12926, 12926.1 and 12940, Government Code.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Change without regulatory effect of NOTE (Register 86, No. 45).
3. Amendment of subsection (a)(1) filed 4–22–88; operative 4–22–88 pursuant to
Government Code Section 11346.2(d) (Register 88, No. 18).
4. Change without regulatory effect amending subsections (a)(1)–(2), (b)(1)–(2),
(b)(3), (c), (d)(3)(A) and N
OTE filed 7–17–95 pursuant to section 100, title 1,
California Code of Regulations (Register 95, No. 29).
5. Editorial correction of subsections (b)(1) and (b)(3) (Register 95, No. 38).
6. Renumbering of former section 7294.0 to section 7294.1 and new section
7294.0 filed 12–26–2012; operative 12–30–2012 pursuant to Government
Code section 11343.4 (Register 2012, No. 52).
§ 7294.1. Pre–Employment Practices.
(a) Recruitment and Advertising.
(1) Employers and other covered entities engaged in recruiting activi-
ties shall consider applicants with or without disabilities or perceived dis-
abilities on an equal basis for all jobs, unless pursuant to a permissible
defense.
(2) It is unlawful to advertise or publicize an employment benefit in
any way that discourages or is designed to discourage applicants with dis-
abilities from applying to a greater extent than individuals without dis-
abilities.
(b) Applications and disability–related inquiries.
(1) An employer or other covered entity must consider and accept
applications from applicants with or without disabilities equally.
(2) Prohibited Inquiries. It is unlawful to ask general questions on dis-
ability or questions likely to elicit information about a disability in an
application form or pre–employment questionnaire or at any time before
a job offer is made. Examples of prohibited inquiries are:
(A) “Do you have any particular disabilities?”
(B) “Have you ever been treated for any of the following diseases or
conditions?”
(C) “Are you now receiving or have you ever received workers’ com-
pensation?”
(D) “What prescription medications are you taking?”
(E) “Have you ever had a job–related injury or medical condition?”
(F) Have you ever left a job because of any physical or mental limita-
tions?
(G) “Have you ever been hospitalized?”
(H) “Have you ever taken medical leave?”
(3) Permissible Job–Related Inquiry. Except as provided in the ADA,
as amended by the ADA Amendments Act of 2008 (Pub. L. No.
110–325) and the regulations adopted pursuant thereto, nothing in Gov-
ernment Code Section 12940, subdivision (d), or in this subdivision, shall
prohibit any employer or other covered entity, in connection with pro-
spective employment, from inquiring whether the applicant can perform
the essential functions of the job. When an applicant requests reasonable
accommodation, or when an applicant has an obvious disability, and the
employer or other covered entity has a reasonable belief that the applicant
needs a reasonable accommodation, an employer or other covered entity
may make limited inquiries regarding such reasonable accommodation.
(c) Interviews. An employer or other covered entity shall make reason-
able accommodation to the needs of applicants with disabilities in inter-
viewing situations, e.g., providing interpreters for the hearing–impaired,
or scheduling the interview in a room accessible to wheelchairs.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12921, 12926, 12926.1 and 12940, Government Code.
HISTORY
1. Repealer and new section filed 6–20–80 as an emergency; effective upon filing.
Certificate of Compliance included (Register 80, No. 25).
2. Change without regulatory effect of NOTE (Register 86, No. 45).
3. Amendment of subsection (a)(1) filed 4–22–88; operative 4–22–88 pursuant to
Government Code Section 11346.2(d) (Register 88, No. 18).
4. Change without regulatory effect amending subsections (a)(1)–(2), (b)(1)–(2),
(b)(3), (c), (d)(3)(A) and N
OTE filed 7–17–95 pursuant to section 100, title 1,
California Code of Regulations (Register 95, No. 29).
5. Editorial correction of subsections (b)(1) and (b)(3) (Register 95, No. 38).
6. Renumbering of former section 7294.1 to new section 7294.3 and renumbering
of former section 7294.0 to section 7294.1, including amendment of section and
N
OTE, filed 12–26–2012; operative 12–30–2012 pursuant to Government Code
section 11343.4 (Register 2012, No. 52).
§ 7294.2. Medical and Psychological Examinations and
Inquiries.
(a) Pre–offer. It is unlawful for an employer or other covered entity to
conduct a medical or psychological examination or inquiries of an appli-
cant before an offer of employment is extended to that applicant. A medi-
cal or psychological examination includes a procedure or test that seeks
information about an individual’s physical or mental conditions or health
but does not include testing for current illegal drug use.
Fair Employment and Housing CommissionTitle 2
§ 7294.3
Page 115
(b) Post–Offer. An employer or other covered entity may condition a
bona fide offer of employment on the results of a medical or psychologi-
cal examination or inquiries conducted prior to the employee’s entrance
on duty in order to determine fitness for the job in question. For a job offer
to be bona fide, an employer must have either completed all non–medical
components of its application process or be able to demonstrate that it
could not reasonably have done so before issuing the offer, provided that:
(1) All entering employees in similar positions are subjected to such
an examination.
(2) Where the results of such medical or psychological examination
would result in disqualification, an applicant or employee may submit in-
dependent medical opinions for consideration before a final determina-
tion on disqualification is made.
(3) The results are to be maintained on separate forms and shall be ac-
corded confidentiality as medical records.
(c) Withdrawal of Offer. An employer or other covered entity may
withdraw an offer of employment based on the results of a medical or
psychological examination or inquiries only if it is determined that the
applicant is unable to perform the essential duties of the job with or with-
out reasonable accommodation, or that the applicant with or without rea-
sonable accommodation would endanger the health or safety of the appli-
cant or of others.
(d) Medical and Psychological Examinations and Disability–Related
Inquiries During Employment.
(1) An employer or other covered entity may make disability–related
inquiries, including fitness for duty exams, and require medical examina-
tions of employees that are both job–related and consistent with business
necessity.
(2) Drug or Alcohol Testing. An employer or other covered entity may
maintain and enforce rules prohibiting employees from being under the
influence of alcohol or drugs in the workplace and may conduct alcohol
or drug testing for this purpose if they have a reasonable belief that an em-
ployee may be under the influence of alcohol or drugs at work.
(A) Current Drug Use. An applicant or employee who currently en-
gages in the use of illegal drugs or uses medical marijuana is not protected
as a qualified individual under the FEHA when the employer acts on the
basis of such use, and questions about current illegal drug use are not dis-
ability–related inquiries.
(B) Past Addiction. Questions about past addiction to illegal drugs or
questions about whether an employee ever has participated in a rehabi-
litation program are disability–related because past drug addiction gen-
erally is a disability. Individuals who were addicted to drugs, but are not
currently using illegal drugs are protected under the FEHA from discrim-
ination because of their disability.
(3) Other Acceptable Disability–Related Inquiries and Medical Ex-
aminations of Employees
(A) Employee Assistance Program. An Employee Assistance Pro-
gram (EAP) counselor may ask an employee seeking help for personal
problems about any physical or mental condition(s) the employee may
have if the counselor: (1) does not act for or on behalf of the employer;
(2) is obligated to shield any information the employee reveals from deci-
sion makers; (3) has no power to affect employment decisions; and (4)
discloses these provisions to the employee.
(B) Compliance with another Federal or State Law or Regulation. An
employer may make disability–related inquiries and require employees
to submit to medical examinations that are mandated or necessitated by
other federal and/or state laws or regulations, such as medical examina-
tions required at least once every two years under federal safety regula-
tions for interstate bus and truck drivers (49 C.F.R. § 391.41), or medical
requirements for airline pilots (14 C.F.R. § 61.23).
(C) Voluntary Wellness Program. As part of a voluntary wellness pro-
gram, employers may conduct voluntary medical examinations and acti-
vities, including taking voluntary medical histories, without having to
show that they are job–related and consistent with business necessity, as
long as any medical records acquired as part of the wellness program are
kept confidential and separate from personnel records. These programs
often include blood pressure screening, cholesterol testing, glaucoma
testing, and cancer detection screening. Employees may be asked
disability–related questions and may be given medical examinations pur-
suant to such voluntary wellness programs. A wellness program is “vol-
untary” as long as an employer neither requires participation nor penal-
izes employees who do not participate.
(4) Maintenance of Medical Files. Employers shall keep information
obtained regarding the medical or psychological condition or history of
the employee confidential, as set forth at section 7294.0, subdivision (g).
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12921, 12926, 12926.1 and 12940, Government Code.
HISTORY
1. Change without regulatory effect of NOTE (Register 86, No. 45).
2. Change without regulatory effect amending subsection (a) and N
OTE filed
7–17–95 pursuant to section 100, title 1, California Code of Regulations (Regis-
ter 95, No. 29).
3. Renumbering of former section 7294.2 to section 7294.4 and new section
7294.2 filed 12–26–2012; operative 12–30–2012 pursuant to Government
Code section 11343.4 (Register 2012, No. 52).
§ 7294.3. Employee Selection.
(a) Prospective Need for Reasonable Accommodation. An employer
or other covered entity shall not deny an employment benefit because of
the prospective need to make reasonable accommodation to an applicant
or employee with a disability.
(b) Qualification standards, tests, and other selection criteria.
(1) In general. It is unlawful for an employer or a covered entity to use
qualification standards, employment tests or other selection criteria that
screen out or tend to screen out an applicant or employee with a disability
or a class of individuals with disabilities, on the basis of disability, unless
the standards, tests, or other selection criteria, as used by the covered enti-
ty, are shown to be job–related for the position in question and are consis-
tent with business necessity. Statistical comparisons between persons
with disabilities and persons who are not disabled are not required to
show that an individual with a disability or a class of individuals with dis-
abilities is screened out by selection criteria.
(2) Qualification Standards and Tests Related to Uncorrected Vision
or Uncorrected Hearing. An employer or other covered entity shall not
use qualification standards, employment tests, or other selection criteria
based on an applicant’s or employee’s uncorrected vision or uncorrected
hearing unless the standards, tests, or other selection criteria, as used by
the employer or other covered entity, are shown to be job–related for the
position in question and are consistent with business necessity.
(3) An employer or other covered entity shall not make use of any test-
ing criterion that discriminates against applicants or employees with dis-
abilities, unless:
(A) the test score or other selection criterion used is shown to be job–
related for the position in question; and
(B) an alternative job–related test or criterion that does not discrimi-
nate against applicants or employees with disabilities is unavailable or
would impose an undue hardship on the employer.
(4) Tests of physical agility or strength shall not be used as a basis for
selection or retention of employment unless the physical agility or
strength measured by such test is job–related.
(5) An employer or other covered entity shall select and administer
tests concerning employment so as to ensure that, when administered to
any applicant or employee, including an applicant or employee with a
disability, the test results accurately reflect the applicant’s or employee’s
job skills, aptitude, or whatever other criteria the test purports to measure
rather than reflecting the applicant’s or employee’s disability, except
when those skills affected by disability are the criteria that the tests pur-
port to measure. To accomplish this end, reasonable accommodation
shall be made in testing conditions. For example:
(A) The test site must be accessible to applicants and employees with
a disability.
(B) For applicants and employees who are blind or visually impaired,
an employer or other covered entity may translate written tests into
Braille or provide or allow enlarged print, real time captioning, digital
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7294.4
Page 116
format, the use of a human reader or a screen reader, the use of other com-
puter technology, or oral presentation of the test.
(C) For applicants or employees who are quadriplegic or have spinal
cord injuries, an employer or other covered entity may provide or allow
someone to write for the applicant or employee, or provide or allow voice
recognition software or other computer technology, or allow oral re-
sponses to written test questions.
(D) For applicants and employees who are hearing impaired, an em-
ployer or other covered entity may provide or allow the services of an in-
terpreter.
(E) For applicants and employees whose disabilities interfere with
their ability to read, process information, communicate, an employer or
other covered entity may allow additional time to complete the examina-
tion.
(F) Alternate tests or individualized assessments may be necessary
where test modification is inappropriate. Competent expert advice may
be sought before attempting such modification since the validity of the
test may be affected.
(G) Where reasonable accommodation is appropriate, an employer or
other covered entity may permit the use of readers, interpreters, or similar
supportive persons or instruments.
(c) No testing for genetic information. It is unlawful for an employer
or other covered entity to conduct a medical examination to test for the
presence of a genetic characteristic, or to acquire genetic information,
unless such testing or acquisition is authorized by federal law under the
Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C.
§ 2000ff–1(b).
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12921, 12926, 12926.1 and 12940, Government Code; GINA, 42 U.S.C.
§2000ff–1(b).
HISTORY
1. Renumbering of former section 7294.1 to new section 7294.3, including amend-
ment of section and N
OTE, filed 12–26–2012; operative 12–30–2012 pursuant
to Government Code section 11343.4 (Register 2012, No. 52).
§ 7294.4. Terms, Conditions and Privileges of
Employment.
(a) Fringe Benefits. It shall be unlawful to condition any employment
decision regarding an applicant or employee with a disability upon the
waiver of any fringe benefit.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12921, 12926, 12926.1 and 12940, Government Code.
HISTORY
1. Renumbering of former section 7294.2 to new section 7294.4, including amend-
ment of N
OTE, filed 12–26–2012; operative 12–30–2012 pursuant to Govern-
ment Code section 11343.4 (Register 2012, No. 52).
Subchapter 11. Age Discrimination
§ 7295.0. General Prohibition Against Discrimination on
the Basis of Age over the Age of Forty.
(a) Statement of Purpose. The purpose of the law prohibiting age dis-
crimination in employment is to guarantee all protected individuals 40 or
over employment opportunities commensurate with their abilities. These
regulations are promulgated to assure that employment opportunities for
those protected persons over the age of forty are based upon their abilities
and are not conditioned upon age–based stereotypes and unsupported
generalizations about their qualifications or job performance. In addi-
tion, these regulations are promulgated to clarify when the use of manda-
tory retirement programs which are based upon age over the age of forty
is unlawful.
(b) Incorporation of General Regulations. These regulations pertain-
ing to discrimination on the basis of age incorporate each of the provi-
sions of Subchapters 1 and 2 of Chapter 2, unless a provision is specifical-
ly excluded or modified.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12940, 12941 and 12942, Government Code.
HISTORY
1. Editorial renumbering of Article 11 (Sections 295.0–296.4) of Chapter 3, Title
8 to Subchapter 11 (Sections 7295.0–7296.4) of Division 4, Title 2 (Register 81,
No. 3).
2. Amendment filed 5–12–83; effective thirtieth day thereafter (Register 83, No.
20).
§ 7295.1. Definitions.
As used in this article the following definitions of terms apply, unless
the context in which they are used indicates otherwise:
(a) “Employer” refers to all employers, public and private, as defined
in Government Code Section 12926, except employers mandatorily or
voluntarily subject to Government Code Sections 20983.5, 20983.6,
21258.1, 31671.03 or 45346, or subject to Education Code Section
23922.
(b) “Public employer” refers to public agencies as defined in Govern-
ment Code Sections 31204 and 20009.
(c) “Private employer” refers to all employers not defined in subsec-
tion (b) above.
(d) “Retirement or Pension Program” refers to any plan, program or
policy of an employer which is in writing and has been communicated
to eligible or affected employees, which is intended to provide an em-
ployee with income upon retirement (this may include pension plans,
profit–sharing plans, money–purchase plans, tax–sheltered annuities,
employer sponsored Individual Retirement Accounts, employee stock
ownership plans, matching thrift plans, or stock bonus plans or other
forms of defined benefit or defined contribution plans).
(e) “Collective Bargaining Agreement” refers to any collective bar-
gaining agreement between an employer and a labor organization which
is in writing.
(f) “Normal Retirement Date or NRD” refers to one of the following
dates:
(1) for employees participating in a private employee pension plan
regulated under the federal Employee Retirement Income Security Act
of 1974, the NRD refers to the time a plan participant reaches normal re-
tirement age under the plan or refers to the later of either the time a plan
participant reaches 65 or the tenth anniversary of the time a plan partici-
pant commenced participation in the plan;
(2) for employees not described under (1) whose employers have a
written retirement policy or whose employers are parties to a collective
bargaining agreement which specifies retirement practices, the NRD re-
fers to the normal retirement time or age specified in such a policy or
agreement; or
(3) for employees not described under either (1) or (2) the NRD refers
to the last calendar day of the month in which an employee reaches his
or her seventieth, 70th, birthday.
(g) (Reserved.)
(h) “Basis of Age” or “Ground of Age” refers to age over forty.
(i) “Over Forty” refers to the chronological age of an individual who
has reached his or her fortieth birthday.
(j) “Age Based Stereotype” refers to generalized opinions about mat-
ters including the qualifications, job performance, health, work habits,
and productivity of individuals over forty.
(k) “Employment Benefit” refers to employment benefit as defined in
Section 7286.5(f). It also includes a workplace free of harassment as de-
fined in Section 7286.7(b) of Subchapter 2.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12926, 12940, 12941(a) and 12942, Government Code.
HISTORY
1. Amendment filed 5–12–83; effective thirtieth day thereafter (Register 83, No.
20).
§ 7295.2. Establishing Age Discrimination.
(a) Employers. Discrimination on the basis of age may be established
by showing that a job applicant’s or employee’s age over forty was con-
sidered in the denial of an employment benefit.
(b) Employment Agencies, Labor Organizations, and Apprenticeship
Training Programs in Which the State Participates. Discrimination on the
basis of age may be established against employment agencies, labor or-
Fair Employment and Housing CommissionTitle 2
§ 7295.6
Page 117
ganizations, and apprenticeship training programs in which the state par-
ticipates upon a showing that they have engaged in recruitment, screen-
ing, advertising, training, job referral, placement or similar activities
which discriminate against an individual or individuals over forty.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12920, 12926(c), (d) and (e), and 12941(a), Government Code.
HISTORY
1. Amendment filed 5–12–83; effective thirtieth day thereafter (Register 83, No.
20).
§ 7295.3. Defenses.
(a) Defenses. Generally. In addition to any other defense provided
herein, once an inference of employment discrimination on the basis of
age has been established, an employer or other covered entity may prove
one or more appropriate defenses as generally set forth in Section 7286.7
of Subchapter 2.
(b) Specific Defenses, Exemptions, Permissible Practices. An em-
ployment practice which discriminates on the basis of age is permissible,
exempted, or has a valid defense:
(1) If the practice is otherwise mandated or permitted, by federal or
state law which preempts, supersedes, or otherwise takes precedence
over the Act;
(2) If the practice, at the time it occurred, was deemed lawful by the
terms of one or more sections of this subchapter;
(3) If the practice is declared by one or more sections of this subchapter
to be permissible or lawful.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12941 and 12942, Government Code.
HISTORY
1. Amendment filed 5–12–83; effective thirtieth day thereafter (Register 83, No.
20).
§ 7295.4. Pre–Employment Practices.
(a) Recruitment and Advertising.
(1) Recruitment. The provisions of Section 7287.3 (a) are applicable
and are incorporated by reference herein.
Generally, during recruitment it is unlawful for employers to refuse to
consider applicants because they are over forty years of age. However,
it is lawful for an employer to participate in established recruitment pro-
grams with high schools, colleges, universities and trade schools. It is
also lawful for employers to utilize temporary hiring programs directed
at youth, even though such programs traditionally provide disproportion-
ately few applicants who are over forty. However, exclusive screening
and hiring of applicants provided through the above recruitment or tem-
porary programs will constitute discrimination on the basis of age if the
programs are used to evade the Act’s prohibition against age discrimina-
tion.
(2) Advertising. It is unlawful for an employer to either express a pref-
erence for individuals under forty or to express a limitation against indi-
viduals over forty when advertising employment opportunities by any
means such as the media, employment agencies, and job announcements.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12941 and 12942, Government Code.
HISTORY
1. Amendment filed 5–12–83; effective thirtieth day thereafter (Register 83, No.
20).
§ 7295.5. Pre–Employment Inquiries, Interviews and
Applications.
(a) Pre–Employment Inquiries. Pre–employment inquiries which
would result in the direct or indirect identification of persons on the basis
of age are unlawful. This provision applies to oral and written inquiries
and interviews. (See Section 7287.3(b), which is applicable and incorpo-
rated by reference herein.)
Pre–employment inquiries which result in the identification of persons
on the basis of age shall not be unlawful when made for purposes of appli-
cable reporting requirements or to maintain applicant flow data provided
that the inquiries are made in a manner consistent with Section 7287.0
(and particularly subsection (b) of Subchapter 2.
(b) Applications. It is discrimination on the basis of age for an employ-
er or other covered entity to reject or refuse to seriously and fairly consid-
er the application form, preemployment questionnaire, oral application
or the oral or written inquiry of an individual because such individual is
over forty. (See Section 7287.3(c), which is applicable and incorporated
by reference herein.)
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Section
12941, Government Code.
HISTORY
1. Amendment filed 5–12–83; effective thirtieth day thereafter (Register 83, No.
20).
§ 7295.6. Physical or Medical Examination of Applicants
and Employees.
(a) It is not a violation of this subchapter for an employer to require an
applicant who is over forty to undergo physical or medical examinations
to determine whether or not the applicant meets the job–related physical
or medical standards for the position sought so long as such examinations
are uniformly and equally required of all applicants for the position, re-
gardless of their age.
(b) It is not a violation of this subchapter for an employer to require an
employee who is over forty to undergo a physical or medical examination
at reasonable times and intervals and at the expense of the employer to
determine whether or not the employee continues to meet the job–related
physical or medical standards for the position held so long as such exami-
nations are uniformly and equally required of all similarly situated em-
ployees in the particular job class regardless of their age.
(c) It is discrimination based on age to require an applicant or em-
ployee over forty to meet physical or medical examination standards
which are higher then those standards applied to applicants or employees
who are below the age of forty and are seeking or holding the same job.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Section
12941(a), Government Code.
[The next page is 348.3.]
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ NIL
Page 118
Fair Employment and Housing CommissionTitle 2
§ 7296.2
Page 119
HISTORY
1. Amendment filed 5–12–83; effective thirtieth day thereafter (Register 83, No.
20).
§ 7295.7. Employee Selection.
(a) Selection. So long as age is not a factor, this subchapter does not
preclude an employer from selecting an individual who is in fact better
qualified than other applicants, and it does not preclude an employer
from hiring an individual on the basis of experience and training superior
to other applicants.
(b) Selection Based Upon Seniority or Prior Service. So long as age is
not a factor, it is not a violation of this subchapter for an employer, during
the process of selection, to give a candidate who has a record of seniority
or time in prior service with that employer preference over a candidate
who has no such record or who has less seniority or time in prior service
with that employer. However, where candidates for hire have the same
record of seniority or time in prior service, it is discrimination based on
age, in selecting from among them, to refuse to select a candidate because
he or she is over forty.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Section
12941, Government Code.
HISTORY
1. Amendment filed 5–12–83; effective thirtieth day thereafter (Register 83, No.
20).
§ 7295.8. Promotions.
(a) In selecting a candidate for promotion, it is not, itself, a violation
of this subchapter, for an employer to limit the group of eligible candi-
dates to members of the employer’s existing workforce or to give a pref-
erence in selection to an incumbent employee over a candidate who is not
an incumbent employee. However, in evaluating or selecting candidates
for promotion from among its existing workforce, it is discrimination on
the basis of age for an employer to evaluate unequally or to fail to select
a candidate who is over forty because of the age of the candidate.
(b) In selecting a candidate for promotion, it is not, itself, a violation
of this subchapter for an employer to promote a candidate under the age
of forty in preference to a candidate over forty on the basis of the superior
experience and training of the younger candidate, or on the basis of other
legitimate reasons, so long as age is not a factor.
(c) It is discrimination on the basis of age for an employer to deny an
employee the opportunity to gain the experience and training necessary
to achieve promotion, because such employee is over forty.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Section
12942(a), Government Code.
HISTORY
1. Amendment filed 5–12–83; effective thirtieth day thereafter (Register 83, No.
20).
§ 7295.9. Terms, Conditions and Privileges of
Employment. (Reserved.)
N
OTE: Authority cited: Section 1418(a), Labor Code; Section 12935(a), Govern-
ment Code. Reference: Sections 1420.1 and 1420.15, Labor Code; Sections 12941
and 12942, Government Code.
HISTORY
1. Repealer of former Section 7295.9 and new section heading filed 5–12–83; ef-
fective thirtieth day thereafter (Register 83, No. 20).
§ 7296.0. Retirement Practices.
(a) Mandatory Retirement—Generally. Generally, it is discrimination
on the basis of age for a private employer to discharge or force the retire-
ment of an employee because such employee has reached a certain chro-
nological age over forty.
(b) Retirement Plans Generally. Generally, any provision in a private
employer’s retirement plan, pension plan, collective bargaining agree-
ment or similar plan or agreement which requires mandatory retirement
of an employee over forty years of age is unlawful.
(c) Mandatory Retirement Permitted. Mandatory retirement of the fol-
lowing employees is not unlawful:
(1) Prior to July 1, 1982, any employee who has attained 65 years of
age, and thereafter 70 years of age, and is serving under a contract of un-
limited tenure, or similar arrangement providing for unlimited tenure at
an institution of higher education as defined by Section 1201(a) of the
Federal Higher Education Act of 1965;
(2) Any employee who has attained 65 years of age and who for the
two year period immediately prior to retirement, was employed in a bona
fide executive or high policymaking position, providing that at the time
of mandatory retirement, the employee is entitled to receive an immedi-
ate non–forfeitable annual retirement benefit from the current employer
which equals a minimum of $27,000.00, and is either derived from one
or a combination of plans such as profitsharing, pension, savings, or def-
erred compensation plans.
(3) Any employee who has attained 70 years of age and is a physician
employed by a professional medical corporation, the articles or bylaws
of which provide for compulsory retirement.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12941 and 12942, Government Code.
HISTORY
1. Amendment filed 5–12–83; effective thirtieth day thereafter (Register 83, No.
20).
§ 7296.1. Procedures for Continuing in Employment Past
the Normal Retirement Date.
Where a private employer has a private pension or retirement program,
the following procedures apply:
(a) Advisory Notice by the Employer. Private employers must advise
their employees who are nearing their normal retirement date that if they
intend to continue in employment beyond their NRD, they must file a
written notice of this intention. The employer’s Advisory Notice should
be in writing, and should be provided to the employee no later than ninety
(90) days prior to the NRD and no earlier than one hundred and eighty
(180) days prior to the NRD. The Advisory Notice to the employee must
clearly indicate when his or her Continuation Notice, as described in sub-
section (b), must be submitted.
(b) Continuation Notice by the Employee. An employee of a private
employer who wishes to continue working beyond his or her NRD must
provide a written notification of this intention to the employer not more
than forty–five (45) days after the employee receives an Advisory Notice
from the employer as described in subsection (a).
(c) Notice by Employee Following the Normal Retirement Date. An
employee continuing in employment past the normal retirement date has
an obligation to provide his or her private employer with written notice
in advance of the date on which he or she intends to retire from employ-
ment. Such notice of retirement should be provided at a reasonable time,
no later than sixty (60) days prior to the employee’s anticipated date of
retirement.
(d) Notice by Private Employer Following the Normal Retirement
Date. Where an employee continues in employment beyond his or her
NRD, a private employer does not violate this article by periodically
sending a written notice to such employee seeking to determine if the em-
ployee intends to continue in employment. However, the initial notice of
this kind should not be sent to the employee until at least two years fol-
lowing his or her normal retirement date has elapsed. Subsequent thereto,
the notice should not be sent more frequently than on an annual basis.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Section
12942, Government Code.
HISTORY
1. Amendment filed 5–12–83; effective thirtieth day thereafter (Register 83, No.
20).
§ 7296.2. Termination and Disciplinary Actions.
(a) It is not a violation of this subchapter for an employer to terminate,
discharge, dismiss, demote or otherwise discipline an employee over for-
ty who fails to perform the normal functions of his or her position or who
fails to conform to the bona fide requirements of his or her position, so
long as the performance standards and job requirements do not discrimi-
nate against employees over forty.
(b) Where an employee is continuing in employment beyond his or her
normal retirement date, it is not a violation of this subchapter for an em-
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7296.3
Page 120
ployer to terminate, force the retirement of, or otherwise discipline such
an employee if the employee’s job performance no longer satisfies the
employer’s performance standards. Any such performance standards for
quality of work must not be arbitrary and must not be based upon the age
of the employee.
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12941 and 12942, Government Code.
HISTORY
1. Amendment filed 5–12–83; effective thirtieth day thereafter (Register 83, No.
20).
§ 7296.3. Termination and Disciplinary Action. [Repealed]
N
OTE: Authority cited: Section 1418(a), Labor Code; Section 12935(a), Govern-
ment Code. Reference: Sections 1420.1 and 1420.15, Labor Code; Sections 12941
and 12942, Government Code.
HISTORY
1. Repealer filed 5–12–83; effective thirtieth day thereafter (Register 83, No. 20).
§ 7296.4. Application of Federal Law. [Repealed]
N
OTE: Authority cited: Section 1418(a), Labor Code; Section 12935(a), Govern-
ment Code. Reference: Sections 1420.1 and 1420.15, Labor Code; Sections 12941
and 12942, Government Code.
HISTORY
1. Repealer filed 5–12–83; effective thirtieth day thereafter (Register 83, No. 20).
Subchapter 12. Family Care and Medical
Leave
§ 7297.0. Definitions.
The following definitions apply only to this subchapter. The defini-
tions in the federal regulations issued January 6, 1995 (29 CFR Part 825),
interpreting the Family and Medical Leave Act of 1993 (FMLA) (29
U.S.C. §§2601 et seq.) shall also apply to this subchapter, to the extent
that they are not inconsistent with the following definitions:
(a) “Certification” means a written communication from the health
care provider of the child, parent, spouse, or employee with a serious
health condition to the employer of the employee requesting a family care
leave to care for the employee’s child, parent or spouse or a medical leave
for the employee’s own serious health condition.
(1) For family care leave for the employee’s child, parent, or spouse,
this certification need not identify the serious health condition involved,
but shall contain:
(A) the date, if known, on which the serious health condition com-
menced,
(B) the probable duration of the condition,
(C) an estimate of the amount of time which the health care provider
believes the employee needs to care for the child, parent or spouse, and
(D) a statement that the serious health condition warrants the participa-
tion of the employee to provide care during a period of treatment or su-
pervision of the child, parent or spouse.
1) “Warrants the participation of the employee” includes, but is not
limited to, providing psychological comfort, and arranging “third party”
care for the child, parent or spouse, as well as directly providing, or par-
ticipating in, the medical care.
(2) For medical leave for the employee’s own serious health condition,
this certification need not, but may, at the employee’s option, identify the
serious health condition involved. It shall contain:
(A) The date, if known, on which the serious health condition com-
menced,
(B) The probable duration of the condition, and
(C) A statement that, due to the serious health condition, the employee
is unable to work at all or is unable to perform any one or more of the es-
sential functions of his or her position.
(b) “CFRA” means the Moore–Brown–Roberti California Family
Rights Act of 1993. (California Family Rights Act, Gov. Code
§§12945.1 and 12945.2.) “CFRA leave” means family care or medical
leave taken pursuant to CFRA.
(c) “Child” means a biological, adopted, or foster son or daughter, a
stepson or stepdaughter, a legal ward, or a child of an employee who
stands in loco parentis to that child, who is either under 18 years of age
or an adult dependent child. An adult dependent child is an individual
who is 18 years of age or older and who is incapable of self–care because
of a mental or physical disability within the meaning of Government
Code section 12926, subdivisions (i) and (k).
(1) “In loco parentis” means in the place of a parent; instead of a par-
ent; charged with a parent’s rights, duties, and responsibilities. It does not
require a biological or legal relationship.
(d) “Covered employer” means any person or individual engaged in
any business or enterprise in California who directly employs 50 or more
persons within any State of the United States, the District of Columbia
or any Territory or possession of the United States to perform services for
a wage or salary. It also includes the state of California, counties, and any
other political or civil subdivision of the state and cities, regardless of the
number of employees. There is no requirement that the 50 employees
work at the same location or work full time.
(1) “Directly employs” means that the employer maintains an aggre-
gate of at least fifty part or full time employees on its payroll(s) for each
working day during each of 20 or more calendar workweeks in the cur-
rent or preceding calendar year. The workweeks do not have to be con-
secutive. The phrase “current or preceding calendar year” refers to the
calendar year in which the employee requests the leave or the calendar
year preceding this request.
(2) “Perform services for a wage or salary” excludes independent con-
tractors as defined in Labor Code section 3353 but includes persons who
are compensated in whole or in part by commission.
(e) “Eligible employee” means a full or part time employee working
in California with more than 12 months (52 weeks) of service with the
employer at any time, and who has actually worked (within the meaning
of the Fair Labor Standards Act, 29 CFR Part 785) for the employer at
least 1,250 hours during the 12–month period immediately prior to the
date the CFRA leave or FMLA leave is to commence.
(1) Once the employee meets these two eligibility criteria and takes a
leave for a qualifying event, the employee does not have to requalify, in
terms of the numbers of hours worked, in order to take additional leave
for the same qualifying event during the employee’s 12–month leave pe-
riod.
(2) For an employee who takes a pregnancy disability leave which is
also a FMLA leave, and who then wants to take CFRA leave for reason
of the birth of her child immediately after her pregnancy disability leave,
the 12–month period during which she must have worked 1,250 hours is
that period immediately preceding her first day of FMLA leave based on
her pregnancy, not the first day of the subsequent CFRA leave for reason
of the birth of her child.
(3) In order to be eligible, the employee must also work for an employ-
er who maintains on the payroll, as of the date the employee gives notice
of the need for leave, at least 50 part or full time employees within 75
miles, measured in surface miles, using surface transportation, of the
worksite where the employee requesting the leave is employed.
(A) Once the employee meets this eligibility criterion and takes a leave
for a qualifying event, the employer may not cut short the leave or deny
any subsequent leave taken for the same qualifying event during the em-
ployee’s 12–month leave period, even if the number of employees within
the relevant 75–mile radius falls below 50. In such cases, however, the
employee would not be eligible for any subsequent leave requested for
a different qualifying event.
(f) “Employment in the same position” means employment in, or rein-
statement to, the original position which the employee held prior to tak-
ing a CFRA leave.
(g) “Employment in a comparable position” means employment in a
position which is virtually identical to the employee’s original position
in terms of pay, benefits, and working conditions, including privileges,
perquisites and status. It must involve the same or substantially similar
Fair Employment and Housing CommissionTitle 2
§ 7297.2
Page 121
duties and responsibilities, which must entail substantially equivalent
skill, effort, responsibility, and authority. It must be performed at the
same or geographically proximate worksite from where the employee
was previously employed. It ordinarily means the same shift or the same
or an equivalent work schedule. It has the same meaning as the term
“equivalent position” in FMLA and its implementing regulations.
(h) “Family care leave” means either:
(1) Leave of up to a total of 12 workweeks in a 12–month period for
reason of the birth of a child of the employee, the placement of a child
with an employee in connection with the adoption or foster care of the
child by the employee, and a guarantee of employment, made at the time
the leave is granted, in the same or a comparable position upon termina-
tion of the leave; or
(2) Leave of up to a total of 12 workweeks in a 12–month period to care
for a child, parent or spouse of the employee who has a serious health
condition, and a guarantee of employment, made at the time the leave is
granted, in the same or a comparable position upon termination of the
leave.
(i) “FMLA” means the federal Family and Medical Leave Act of 1993,
29 U.S.C. §§2601 et seq., and its implementing regulations, 29 CFR Part
825, issued January 6, 1995. “FMLA leave” means family care or medi-
cal leave taken pursuant to FMLA.
(j) “Health care provider” means either:
(1) an individual holding either a physician’s and surgeon’s certificate
issued pursuant to Article 4 (commencing with Section 2080) of Chapter
5 of Division 2 of the Business and Professions Code or an osteopathic
physician’s and surgeon’s certificate issued pursuant to Article 4.5 (com-
mencing with Section 2099.5) of Chapter 5 of Division 2 of the Business
and Professions Code, or any other individual duly licensed as a physi-
cian, surgeon, or osteopathic physician or surgeon in another state or ju-
risdiction, including another country, who directly treats or supervises
the treatment of the serious health condition, or
(2) any other person who meets the definition of others “capable of
providing health care services,” as set forth in FMLA and its implement-
ing regulations.
(k) “Medical leave” means leave of up to a total of 12 workweeks in
a 12–month period because of an employee’s own serious health condi-
tion that makes the employee unable to work at all or unable to perform
any one or more of the essential functions of the position of that em-
ployee. The term “essential functions” is defined in Government Code
section 12926, subdivision (f). “Medical leave” does not include leave
taken for an employee’s pregnancy disability, as defined in (m) below,
except as specified below in section 7297.6, subdivision (c)(1).
(l) “Parent” means a biological, foster, or adoptive parent, a steppar-
ent, a legal guardian, or other person who stood in loco parentis to the em-
ployee when the employee was a child. A biological or legal relationship
is not necessary for a person to have stood in loco parentis to the em-
ployee as a child. Parent does not include a parent–in–law.
(m) “Pregnancy disability leave” means a leave taken for disability on
account of pregnancy, childbirth, or related medical conditions, pursuant
to Government Code section 12945, subdivision (b)(2), and defined in
section 7291.2, subdivision (o) of the regulations.
(n) “Reinstatement” means “restoration” within the meaning of
FMLA and its implementing regulations.
(o) “Serious health condition” means an illness, injury (including on–
the–job injuries), impairment, or physical or mental condition of the em-
ployee or a child, parent or spouse of the employee which involves either:
(1) inpatient care (i.e., an overnight stay) in a hospital, hospice, or resi-
dential health care facility, or
(2) continuing treatment or continuing supervision by a health care
provider, as detailed in FMLA and its implementing regulations.
(p) “Spouse” means a partner in marriage as defined in Family Code
section 300.
(q) “Twelve workweeks” means the equivalent of twelve of the em-
ployee’s normally scheduled workweeks. (See also section 7297.3, sub-
division (d).)
N
OTE: Authority cited: Sections 12935, subd. (a) and 12945.2, Government
Code. Reference: Section 12945.2, Government Code; and J.E. Robinson v.
FEHC (1992) 2 Cal.4th 226 [5 Cal.Rptr.2d 782]; Family and Medical Leave Act
of 1993, 29 U.S.C. §§2601 et seq; Code of Federal Regulations, tit. 29, part 825,
issued January 6, 1995; Fair Labor Standards Act, 29 U.S.C. section 201 et seq;
and 29 CFR part 785.
HISTORY
1. New subchapter 12 and section filed 2–9–93; operative 3–11–93 (Register 93,
No. 7).
2. Amendment of subchapter 12 heading, section and N
OTE filed 7–13–95; opera-
tive 8–12–95 (Register 95, No. 28).
3. Editorial correction of subsection (e) (Register 95, No. 44).
§ 7297.1. Right to CFRA Leave: Denial of Leave;
Reasonable Request; Permissible Limitation.
(a) It is an unlawful employment practice for a covered employer to
refuse to grant, upon reasonable request, a CFRA leave to an eligible em-
ployee, unless such refusal is justified by the permissible limitation spe-
cified below in subdivision (c).
(b) Denial of leave.
(1) Burden of proof.
Denial of a request for CFRA leave is established if the Department
or the employee shows, by a preponderance of the evidence, that the em-
ployer was a covered employer, the employee making the request was an
eligible employee, the request was for a CFRA qualifying purpose, the
request was reasonable, and the employer denied the request for CFRA
leave.
(2) Reasonable request.
A request to take a CFRA leave is reasonable if it complies with any
applicable notice requirements, as specified in section 7297.4, and if it
is accompanied, where required, by a certification, as that term is defined
in section 7297.0, subdivision (a).
(c) Limitation on Entitlement.
If both parents are eligible for CFRA leave but are employed by the
same employer, that employer may limit leave for the birth, adoption or
foster care placement of their child to 12 workweeks in a 12–month peri-
od between the two parents. The employer may not limit their entitlement
to CFRA leave for any other qualifying purpose. If the parents are unmar-
ried, they may have different family care leave rights under FMLA.
N
OTE: Authority cited: Sections 12935, subd. (a) and 12945.2, Government
Code. Reference: Section 12945.2, Government Code; Family and Medical Leave
Act of 1993, 29 U.S.C. §§2601 et seq; and Code of Federal Regulations, tit. 29, part
825.
HISTORY
1. New section filed 2–9–93; operative 3–11–93 (Register 93, No. 7).
2. Amendment of section heading, section and N
OTE filed 7–13–95; operative
8–12–95 (Register 95, No. 28).
§ 7297.2. Right to Reinstatement: Guarantee of
Reinstatement; Refusal to Reinstate;
Permissible Defenses.
(a) Guarantee of Reinstatement.
Upon granting the CFRA leave, the employer shall guarantee to rein-
state the employee to the same or a comparable position, subject to the
defenses permitted by section 7297.2, subdivisions (c)(1) and (c)(2), and
shall provide the guarantee in writing upon request of the employee. It
is an unlawful employment practice for an employer, after granting a re-
quested CFRA leave, to refuse to honor its guarantee of reinstatement to
the same or a comparable position at the end of the leave, unless the refus-
al is justified by the defenses stated in § 7297.2, subdivisions (c)(1) and
(c)(2).
(b) Refusal to reinstate.
(1) Definite Date of Reinstatement.
Where a definite date of reinstatement has been agreed upon at the be-
ginning of the leave, a refusal to reinstate is established if the Department
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7297.3
Page 122
or employee proves, by a preponderance of the evidence, that the leave
was granted by the employer and that the employer failed to reinstate the
employee to the same or a comparable position by the date agreed upon.
(2) Change in Date of Reinstatement.
If the reinstatement date differs from the employer’s and employee’s
original agreement, a refusal to reinstate is established if the Department
or employee proves, by a preponderance of the evidence, that the em-
ployer failed to reinstate the employee to the same or a comparable posi-
tion within two business days, where feasible, after the employee notifies
the employer of his or her readiness to return, as required by the FMLA
regulations.
(c) Permissible defenses.
(1) Employment Would Have Ceased
An employee has no greater right to reinstatement or to other benefits
and conditions of employment than if the employee had been continuous-
ly employed during the CFRA leave period. An employer has the burden
of proving, by a preponderance of the evidence, that an employee would
not otherwise have been employed at the time reinstatement is requested
in order to deny reinstatement.
(A) If an employee is laid off during the course of taking CFRA leave
and employment is terminated, the employer’s responsibility to continue
CFRA leave, maintain group health plan benefits and reinstate the em-
ployee ceases at the time the employee is laid off, provided the employer
has no continuing obligations under a collective bargaining agreement or
otherwise.
(2) “Key Employee.”
A refusal to reinstate a “key employee” to his or her same position or
to a comparable position is justified if the employer shows, by a prepon-
derance of the evidence, that all of the following conditions exist:
(A) The employee requesting the CFRA leave is a salaried employee,
and
(B) The employee requesting the leave is among the highest paid ten
percent of the employer’s employees who are employed within 75 miles
of the worksite at which that employee is employed at the time of the
leave request, and
(C) The refusal to reinstate the employee is necessary because the em-
ployee’s reinstatement will cause substantial and grievous economic in-
jury to the operations of the employer, and
(D) The employer notifies the employee of the intent to refuse rein-
statement at the time the employer determines that the refusal is neces-
sary under (C) above, and
(E) In any case in which the leave has already commenced, the em-
ployer shall give the employee a reasonable opportunity to return to work
following the notice prescribed in (D) above.
N
OTE: Authority cited: Sections 12935, subd. (a) and 12945.2, Government Code.
Reference: Section 12945.2, Government Code; Family and Medical Leave Act
of 1993, 29 U.S.C. §§2601 et seq; and Code of Federal Regulations, tit. 29, part
825.
HISTORY
1. New section filed 2–9–93; operative 3–11–93 (Register 93, No. 7).
2. Amendment of section heading, section and N
OTE filed 7–13–95; operative
8–12–95 (Register 95, No. 28).
3. Editorial correction of subsection (a) (Register 95, No. 44).
§ 7297.3. Computation of Time Periods: Twelve
Workweeks; Minimum Duration.
(a) CFRA leave does not need to be taken in one continuous period of
time. It cannot exceed more than 12 workweeks total for any purpose in
a 12–month period.
(b) If the leave is common to both CFRA and FMLA, this 12–month
period will run concurrently with the 12–month period under FMLA. An
employer may choose any of the methods allowed in the FMLA regula-
tions, issued January 6, 1995, 29 CFR Part 825, section 825.200, subdivi-
sion (b), for determining the “12–month period” in which the 12 weeks
of leave entitlement occurs. The employer must, however, apply the cho-
sen method consistently and uniformly to all employees.
(c) “Twelve workweeks” as that term is defined in section 7297.0, sub-
division (q), means the equivalent of twelve of the employee’s normally
scheduled workweeks. For eligible employees who work more or less
than five days a week, or who work on alternative work schedules, the
number of working days which constitutes “twelve weeks” is calculated
on a pro rata or proportional basis.
(1) For example, for a full time employee who works five eight–hour
days per week, “twelve workweeks” means 60 working and/or paid
eight–hour days of leave entitlement. For an employee who works half
time, “twelve workweeks” may mean 30 eight–hour days or 60 four–
hour days, or twelve workweeks of whatever is the employee’s normal
half–time work schedule. For an employee who normally works six
eight–hour days, “twelve workweeks” means 72 working and/or paid
eight–hour days of leave entitlement.
(2) If an employee takes leave on an intermittent or reduced work
schedule, only the amount of leave actually taken may be counted toward
the twelve weeks of leave to which the employee is entitled. For example,
if an employee needs physical therapy which requires an absence from
work of two hours a week, only those two hours can be charged against
the employee’s CFRA leave entitlement.
(3) If a holiday falls within a week taken as CFRA leave, the week is
nevertheless counted as a week of CFRA leave. If, however, the employ-
er’s business activity has temporarily ceased for some reason and em-
ployees generally are not expected to report for work for one or more
weeks, (e.g., a school closing for two weeks for the Christmas/New Year
holiday or summer vacation or an employer closing the plant for retool-
ing), the days the employer’s activities have ceased do not count against
the employee’s CFRA entitlement.
(d) Minimum duration for CFRA leaves taken for the birth, adoption,
or foster care placement of a child. CFRA leave taken for reason of the
birth, adoption, or foster care placement of a child of the employee does
not have to be taken in one continuous period of time. Any leave(s) taken
shall be concluded within one year of the birth or placement of the child
with the employee in connection with the adoption or foster care of the
child by the employee. The basic minimum duration of the leave shall be
two weeks. However, an employer shall grant a request for a CFRA leave
of less than two weeks’ duration on any two occasions.
(e) Minimum duration for CFRA leaves taken for the serious health
condition of a parent, child, or spouse or for the serious health condition
of the employee. Where CFRA leave is taken for a serious health condi-
tion of the employee’s child, parent or spouse or of the employee, leave
may be taken intermittently or on a reduced work schedule when medi-
cally necessary, as determined by the health care provider of the person
with the serious health condition. An employer may limit leave incre-
ments to the shortest period of time that the employer’s payroll system
uses to account for absences or use of leave.
(1) If an employee needs intermittent leave or leave on a reduced work
schedule that is foreseeable based on planned medical treatment for the
employee or a family member, the employer may require the employee
to transfer temporarily to an available alternative position. This alterna-
tive position must have the equivalent rate of pay and benefits, the em-
ployee must be qualified for the position, and it must better accommodate
recurring periods of leave than the employee’s regular job. It does not
have to have equivalent duties. Transfer to an alternative position may
include altering an existing job to accommodate better the employee’s
need for intermittent leave or a reduced work schedule.
(2) CFRA leave, including intermittent leave and/or reduced work
schedules, is available to instructional employees of educational estab-
lishments and institutions under the same conditions as apply to all other
eligible employees.
N
OTE: Authority cited: Sections 12935, subd. (a) and 12945.2, Government
Code; and Stats. 1993, ch. 827, (AB 1460), § 2. Reference: Section 12945.2, Gov-
ernment Code; and Stats. 1993, ch. 827 (AB 1460), § 2; Family and Medical Leave
Act of 1993, 29 U.S.C. §§2601 et seq; and Code of Federal Regulations, tit. 29, part
825.
Fair Employment and Housing CommissionTitle 2
§ 7297.5
Page 123
HISTORY
1. New section filed 2–9–93; operative 3–11–93 (Register 93, No. 7).
2. Amendment of section heading, section and N
OTE filed 7–13–95; operative
8–12–95 (Register 95, No. 28).
§ 7297.4. Requests for CFRA Leave: Advance Notice;
Certification; Employer Response.
(a) Advance Notice.
(1) Verbal Notice.
An employee shall provide at least verbal notice sufficient to make the
employer aware that the employee needs CFRA–qualifying leave, and
the anticipated timing and duration of the leave. The employee need not
expressly assert rights under CFRA or FMLA, or even mention CFRA
or FMLA, to meet the notice requirement; however, the employee must
state the reason the leave is needed, such as, for example, the expected
birth of a child or for medical treatment. The employer should inquire fur-
ther of the employee if it is necessary to have more information about
whether CFRA leave is being sought by the employee and obtain the nec-
essary details of the leave to be taken.
(A) Under all circumstances, it is the employer’s responsibility to des-
ignate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying, based
on information provided by the employee or the employee’s spokesper-
son, and to give notice of the designation to the employee.
(B) Employers may not retroactively designate leave as “CFRA leave”
after the employee has returned to work, except under those same cir-
cumstances provided for in FMLA and its implementing regulations for
retroactively counting leave as “FMLA leave.”
(2) 30 Days Advance Notice.
An employer may require that employees provide at least 30 days ad-
vance notice before CFRA leave is to begin if the need for the leave is
foreseeable based on an expected birth, placement for adoption or foster
care, or planned medical treatment for a serious health condition of the
employee or a family member. The employee shall consult with the em-
ployer and make a reasonable effort to schedule any planned medical
treatment or supervision so as to minimize disruption to the operations
of the employer. Any such scheduling, however, shall be subject to the
approval of the health care provider of the employee or the employee’s
child, parent or spouse.
(3) When 30 Days Not Practicable.
If 30 days notice is not practicable, such as because of a lack of knowl-
edge of approximately when leave will be required to begin, a change in
circumstances, or a medical emergency, notice must be given as soon as
practicable.
(4) Prohibition Against Denial of Leave in Emergency or Unforesee-
able Circumstances.
An employer shall not deny a CFRA leave, the need for which is an
emergency or is otherwise unforeseeable, on the basis that the employee
did not provide advance notice of the need for the leave.
(5) Employer Obligation to Inform Employees of Notice Require-
ment.
An employer shall give its employees reasonable advance notice of
any notice requirements which it adopts. The employer may incorporate
its notice requirements in the general notice requirements in section
7297.9 and such incorporation shall constitute “reasonable advance no-
tice.” Failure of the employer to give or post such notice shall preclude
the employer from taking any adverse action against the employee, in-
cluding denying CFRA leave, for failing to furnish the employer with ad-
vance notice of a need to take CFRA leave.
(6) Employer Response to Leave Request.
The employer shall respond to the leave request as soon as practicable
and in any event no later than ten calendar days after receiving the re-
quest. The employer shall attempt to respond to the leave request before
the date the leave is due to begin. Once given, approval shall be deemed
retroactive to the date of the first day of the leave.
(b) Medical Certification.
(1) Serious Health Condition of Child, Parent, or Spouse.
As a condition of granting a leave for the serious health condition of
the employee’s child, parent or spouse, the employer may require certifi-
cation of the serious health condition, as defined in section 7297.0, subdi-
vision (a)(1). If the certification satisfies the requirements of section
7297.0, subdivision (a)(1), the employer must accept it as sufficient.
Upon expiration of the time period which the health care provider origi-
nally estimated that the employee needed to take care of the employee’s
child, parent or spouse, the employer may require the employee to obtain
recertification if additional leave is requested.
(2) Serious Health Condition of Employee.
As a condition of granting a leave for the serious health condition of
the employee, the employer may require certification of the serious
health condition, as defined in section 7297.0, subdivision (a)(2). Upon
expiration of the time period which the health care provider originally es-
timated that the employee needed for his/her own serious health condi-
tion, the employer may require the employee to obtain recertification if
additional leave is requested.
(A) If the employer has reason to doubt the validity of the certification
provided by the employee for his/her own serious health condition, the
employer may require, at the employer’s own expense, that the employee
obtain the opinion of a second health care provider, designated or ap-
proved by the employer, concerning any information in the certification.
The health care provider designated or approved by the employer shall
not be employed on a regular basis by the employer.
1) The employer may not ask the employee to provide additional infor-
mation beyond that allowed by these regulations.
2) The employer is responsible for complying with all applicable law
regarding the confidentiality of any medical information received.
(B) In any case in which the second opinion described in (b)(2)(A) dif-
fers from the opinion in the original certification, the employer may re-
quire, at the employer’s expense, that the employee obtain the opinion of
a third health care provider, designated or approved jointly by both the
employer and the employee, concerning any information in the certifica-
tion.
(C) The opinion of the third health care provider concerning the infor-
mation in the certification shall be considered to be final and shall be
binding on the employer and the employee.
(D) The employer is required to provide the employee with a copy of
the second and third medical opinions, where applicable, without cost,
upon the request of the employee.
(E) As a condition of an employee’s return from medical leave, the em-
ployer may require that the employee obtain a release to “return–to–
work” from his/her health care provider stating that he/she is able to re-
sume work only if the employer has a uniformly applied practice or
policy of requiring such releases from other employees returning to work
after illness, injury or disability.
(3) Providing Certification.
The employer may require that the employee provide any certification
within fifteen calendar days of the employer’s request for such certifica-
tion, unless it is not practicable for the employee to do so despite the em-
ployee’s good faith efforts. This means that, in some cases, the leave may
begin before the employer receives the certification.
N
OTE: Authority cited: Sections 12935, subd. (a) and 12945.2, subd. (a), Govern-
ment Code. Reference: Section 12945.2, Government Code; Family and Medical
Leave Act of 1993, 29 U.S.C. §§2601 et seq; and Code of Federal Regulations, tit.
29, part 825.
HISTORY
1. New section filed 2–9–93; operative 3–11–93 (Register 93, No. 7).
2. Amendment of section heading, section and NOTE filed 7–13–95; operative
8–12–95 (Register 95, No. 28).
3. Editorial correction of subsection (a)(5) and NOTE (Register 95, No. 44).
§ 7297.5. Terms of CFRA Leave.
(a) The following rules apply to the permissible terms of a CFRA
leave, to the extent that they are consistent with the requirements of the
Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001
et seq. Nothing in these regulations infringes on the employer’s obliga-
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7297.5
Page 124
tions, if any, under the Consolidated Omnibus Budget Reconciliation Act
of 1985 (COBRA) (29 U.S.C. §1161 et seq.) or prohibits an employer
from granting CFRA leave on terms more favorable to the employee than
those listed below.
(b) Paid Leave.
An employer is not required to pay an employee during a CFRA leave
except:
(1) An employee may elect to use any accrued vacation time or other
paid accrued time off (including undifferentiated paid time off (“PTO”)),
other than accrued sick leave, that the employee is otherwise eligible to
take during the otherwise unpaid portion of the CFRA leave.
(2) Only if the employee asks for leave for what would be a CFRA–
qualifying event may an employer require the employee to use any ac-
crued vacation time or other paid accrued time off (including “PTO”
time), other than accrued sick leave, that the employee is otherwise eligi-
ble to take during the otherwise unpaid portion of the CFRA leave.
(A) If an employee requests to utilize accrued vacation time or other
paid accrued time off without reference to a CFRA–qualifying purpose,
an employer may not ask whether the employee is taking the time off for
a CFRA–qualifying purpose.
1) If the employer denies the employee’s request and the employee
then provides information that the requested time off is or may be for a
CFRA–qualifying purpose, the employer may inquire further into the
reasons for the absence. If the absence is CFRA–qualifying, then the
rules in section 7297.5, subdivision (b)(1) and (2), above, apply.
(3) An employer may require the employee to use, or an employee may
elect to use, any accrued sick leave that the employee is otherwise eligible
to take during the otherwise unpaid portion of a CFRA leave for:
(A) the employee’s own serious health condition, or
(B) any other reason if mutually agreed to between the employer and
the employee.
(4) An employer and employee may negotiate for the employee’s use
of any additional paid or unpaid time off to substitute for the CFRA leave
provided by this section.
(c) Provision of Health Benefits.
If the employer provides health benefits under any “group health
plan,” the employer has an obligation to continue providing such benefits
during an employee’s CFRA leave, FMLA leave, or both. The following
rules apply:
(1) The employer shall maintain and pay for the employee’s health
coverage at the same level and under the same conditions as coverage
would have been provided if the employee had been continuously
employed during the entire leave period.
(2) This obligation commences on the date leave first begins under
FMLA (i.e., for pregnancy disability leaves) or under FMLA/CFRA (i.e.,
for all other family care and medical leaves). The obligation continues for
the duration of the leave(s), up to a maximum of 12 workweeks in a
12–month period.
(3) A “group health plan” is as defined in section 5000, subdivision
(b)(1), of the Internal Revenue Code of 1986. If the employer’s group
health plan includes dental care, eye care, mental health counselling, et
cetera, or if it includes coverage for the employee’s dependents as well
as for the employee, the employer shall also continue this coverage.
(4) Although the employer’s obligation to continue group health bene-
fits under either FMLA or CFRA, or both, does not exceed 12 workweeks
in a 12–month period, nothing shall preclude the employer from main-
taining and paying for health care coverage for longer than 12 work-
weeks.
(5) An employer may recover the premium that the employer paid for
maintaining group health care coverage during any unpaid part of the
CFRA leave if both of the following conditions occur:
(A) The employee fails to return from leave after the period of leave
to which the employee is entitled has expired. An employee is deemed
to have “failed to return from leave” if he/she works less than 30 days af-
ter returning from CFRA leave.
(B) The employee’s failure to return from leave is for a reason other
than the continuation, recurrence, or onset of a serious health condition
that entitles the employee to CFRA leave, or other circumstances beyond
the control of the employee.
(d) Other Benefits and Seniority Accrual
During the period of CFRA leave, the employee is entitled to accrual
of seniority and to participate in health plans for any additional period of
leave not covered by (c) above, and also in any employee benefit plans,
including life, short–term or long–term disability or accident insurance,
pension and retirement plans, and supplemental unemployment benefit
plans to the same extent and under the same conditions as would apply
to any other leave granted by the employer for any reason other than
CFRA leave.
(1) Unpaid CFRA leave for the serious health condition of the em-
ployee shall be compared to other unpaid disability leaves whereas un-
paid CFRA leaves for all other purposes shall be compared to other un-
paid personal leaves offered by the employer.
(2) If the employer’s policy allows seniority to accrue when em-
ployees are out on paid leave, such as paid sick or vacation leave, then
seniority will accrue during any part of a paid CFRA leave.
(3) The employee returning from CFRA leave shall return with no less
seniority than the employee had when the leave commenced for purposes
of layoff, recall, promotion, job assignment, and seniority–related bene-
fits such as vacation.
(e) Continuation of Other Benefits.
If the employer has no policy, practice or collective bargaining agree-
ment which requires or authorizes any other type of unpaid personal or
disability leave or if the employer’s other unpaid personal or disability
leaves do not allow for the continuation of benefits during these leaves,
an employee taking a CFRA leave shall be entitled to continue to partici-
pate in the employer’s health plans, pension and retirement plans, supple-
mental unemployment benefit plans or any other health and welfare em-
ployee benefit plan, in accordance with the terms of those plans, during
the period of the CFRA leave.
(1) As a condition of continued coverage of group medical benefits
(beyond the employer’s obligation during the 12–week period described
above in (c)), life insurance, short– or long–term disability plans or insur-
ance, accident insurance, or other similar health and welfare employee
benefit plans during any unpaid portion of the leave, the employer may
require the employee to pay premiums at the group rate.
(A) If the employee elects not to pay premiums to continue these bene-
fits, this nonpayment of premiums shall not constitute a break in service
for purposes of longevity, seniority under any collective bargaining
agreement or any employee benefit plan requiring the payment of pre-
miums.
(2) An employer is not required to make plan payments to any pension
and/or retirement plan or to count the leave period for purposes of “time
accrued” under any such plan during any unpaid portion of the CFRA
leave. The employer shall allow an employee covered by a pension and/
or retirement plan to continue to make contributions, in accordance with
the terms of these plans, during the unpaid portion of the leave period.
(f) Employee Status.
The employee shall retain employee status during the period of the
CFRA leave. The leave shall not constitute a break in service for purposes
of longevity and/or seniority under any collective bargaining agreement
or under any employee benefit plan. Benefits must be resumed upon the
employee’s reinstatement in the same manner and at the same levels as
provided when the leave began, without any new qualification period,
physical exam, et cetera.
N
OTE: Authority cited: Sections 12935, subd. (a) and 12945.2, Government
Code. Reference: Section 12945.2, Government Code; Family and Medical Leave
Act of 1993, 29 U.S.C. §§2601 et seq; ERISA, 29 U.S.C. §§1001 et seq; and CO-
BRA, 29 U.S.C. §§1161 et seq.
HISTORY
1. New section filed 2–9–93; operative 3–11–93 (Register 93, No. 7).
Fair Employment and Housing CommissionTitle 2
§ 7297.9
Page 125
2. Amendment of section heading, section and NOTE filed 7–13–95; operative
8–12–95 (Register 95, No. 28).
3. Editorial correction of subsections (b)(1), (d)(1) and (e)(1) (Register 95, No. 44).
§ 7297.6. Relationship Between CFRA Leave and
Pregnancy Disability Leave.
(a) Separate and Distinct Entitlements.
The right to take a CFRA leave under Government Code section
12945.2 is separate and distinct from the right to take a pregnancy disabil-
ity leave under Government Code section 12945, subdivision (b)(2), and
section 7291.2 et seq. of the regulations.
(b) Serious Health Condition – Pregnancy.
An employee’s own disability due to pregnancy, childbirth or related
medical conditions is not included as a “serious health condition” under
CFRA. Any period of incapacity or treatment due to pregnancy, includ-
ing prenatal care, is included as a “serious health condition” under
FMLA.
(c) CFRA Leave after Pregnancy Disability Leave.
At the end of the employee’s period(s) of pregnancy disability, or at
the end of four months pregnancy disability leave, whichever occurs
first, a CFRA–eligible employee may request to take CFRA leave of up
to 12 workweeks for reason of the birth of her child, if the child has been
born by this date. There is no requirement that either the employee or
child have a serious health condition in order for the employee to take
CFRA leave. There is also no requirement that the employee no longer
be disabled by her pregnancy, childbirth or related medical conditions
before taking CFRA leave for reason of the birth of her child.
(1) Where an employee has utilized four months of pregnancy disabil-
ity leave prior to the birth of her child, and her health care provider deter-
mines that a continuation of the leave is medically necessary, an employ-
er may, but is not required to, allow an eligible employee to utilize CFRA
leave prior to the birth of her child. No employer shall, however, be re-
quired to provide more CFRA leave than the amount to which the em-
ployee is otherwise entitled.
(d) Maximum Entitlement.
The maximum possible combined leave entitlement for both pregnan-
cy disability leave (under FMLA and Government Code section 12945,
subdivision (b)(2)) and CFRA leave for reason of the birth of the child
(under this subchapter) is four months and 12 workweeks. This assumes
that the employee is disabled by pregnancy, childbirth or related medical
conditions for four months and then requests, and is eligible for, a
12–week CFRA leave for reason of the birth of her child.
N
OTE: Authority cited: Sections 12935, subd. (a) and 12945.2, Government
Code. Reference: Sections 12945, subd. (b)(2) and 12945.2, Government Code;
Family and Medical Leave Act of 1993, 29 U.S.C. §§2601 et seq; and Code of Fed-
eral Regulations, tit. 29, part 825.
HISTORY
1. New section filed 2–9–93; operative 3–11–93 (Register 93, No. 7).
2. Amendment of section heading, section and N
OTE filed 7–13–95; operative
8–12–95 (Register 95, No. 28).
3. Editorial correction of subsection (a) (Register 95, No. 44).
§ 7297.7. Retaliation.
In addition to the retaliation prohibited by Government Code section
12940, subdivision (f), and section 7287.8 of the regulations, it shall be
an unlawful employment practice for any person to discharge, fine, sus-
pend, expel, punish, refuse to hire, or otherwise discriminate against any
individual, except as otherwise permitted in this subchapter, because that
individual has:
(a) exercised his or her right to CFRA leave, and/or
(b) given information or testimony regarding his or her CFRA leave,
or another person’s CFRA leave, in any inquiry or proceeding related to
any right guaranteed under this subchapter.
N
OTE: Authority cited: Sections 12935, subd. (a) and 12945.2, Government
Code. Reference: Sections 12940, subd. (f) and 12945.2, Government Code.
HISTORY
1. New section filed 2–9–93; operative 3–11–93 (Register 93, No. 7).
2. Amendment filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
§ 7297.8. Remedies.
Upon determining that an employer has violated Government Code
section 12945.2, the Commission may order any remedy available under
Government Code section 12970, and section 7286.9 of the regulations.
The remedy, however, for a violation of section 7297.9 (failure to pro-
vide notice) shall be an order that the employer provide such notice.
N
OTE: Authority cited: Sections 12935, subd. (a) and 12945.2, Government
Code. Reference: Sections 12945.2 and 12970, Government Code.
HISTORY
1. New section filed 2–9–93; operative 3–11–93 (Register 93, No. 7).
§ 7297.9. Notice of Right to Request CFRA Leave.
(a) Employers to Post Notice.
Covered employers shall provide notice to their employees of the right
to request CFRA leave under the California Family Rights Act. Employ-
ers shall post the notice in a conspicuous place or places where em-
ployees tend to congregate. If the employer publishes an employee hand-
book which describes other kinds of personal or disability leaves
available to its employees, that employer shall include a description of
CFRA leave in the next edition of its handbook which it publishes follow-
ing adoption of these regulations. The employer may include both preg-
nancy disability leave and CFRA leave requirements in a single notice.
(b) Employers to Give Notice.
Employers are also encouraged to give a copy of the notice to each cur-
rent and new employee, ensure that copies are otherwise available to each
current and new employee, and disseminate the notice in any other way.
(c) Non–English Speaking Workforce.
Any employer whose workforce at any facility or establishment con-
tains ten percent or more of persons who speak a language other than En-
glish as their primary language shall translate the notice into the language
or languages spoken by this group or these groups of employees.
(d) Text of Notice.
The text below contains only the minimum requirements of the Cali-
fornia Family Rights Act of 1993 and of the employer’s obligation to pro-
vide pregnancy disability leave. Nothing in this notice requirement pro-
hibits an employer from providing a leave policy which is more generous
than that required by this act and providing its own notice of its own
policy. Covered employers may develop their own notice or they may
choose to use the text provided below, unless it does not accurately reflect
their own policy.
FAMILY CARE AND MEDICAL LEAVE (CFRA LEAVE)
AND PREGNANCY DISABILITY LEAVE
Under the California Family Rights Act of 1993 (CFRA), if you have
more than 12 months of service with us and have worked at least 1,250
hours in the 12–month period before the date you want to begin your
leave, you may have a right to an unpaid family care or medical leave
(CFRA leave). This leave may be up to 12 workweeks in a 12–month pe-
riod for the birth, adoption, or foster care placement of your child or for
your own serious health condition or that of your child, parent or spouse.
Even if you are not eligible for CFRA leave, if you are disabled by
pregnancy, childbirth or related medical conditions, you are entitled to
take a pregnancy disability leave of up to four months, depending on your
period(s) of actual disability. If you are CFRA–eligible, you have certain
rights to take BOTH a pregnancy disability leave and a CFRA leave for
reason of the birth of your child. Both leaves contain a guarantee of rein-
statement to the same or to a comparable position at the end of the leave,
subject to any defense allowed under the law.
If possible, you must provide at least 30 days advance notice for fore-
seeable events (such as the expected birth of a child or a planned medical
treatment for yourself or of a family member). For events which are un-
foreseeable, we need you to notify us, at least verbally, as soon as you
learn of the need for the leave. Failure to comply with these notice rules
is grounds for, and may result in, deferral of the requested leave until you
comply with this notice policy.
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7297.10
Page 126
We may require certification from your health care provider before al-
lowing you a leave for pregnancy or your own serious health condition
or certification from the health care provider of your child, parent or
spouse who has a serious health condition before allowing you a leave
to take care of that family member. When medically necessary, leave
may be taken on an intermittent or reduced work schedule.
If you are taking a leave for the birth, adoption or foster care placement
of a child, the basic minimum duration of the leave is two weeks and you
must conclude the leave within one year of the birth or placement for
adoption or foster care.
Taking a family care or pregnancy disability leave may impact certain
of your benefits and your seniority date. If you want more information
regarding your eligibility for a leave and/or the impact of the leave on
your seniority and benefits, please contact
______________________________.
N
OTE: Authority cited: Sections 12935, subd. (a) and 12945.2, Government
Code. Reference: Sections 12940, subd. (i), 12945, subd. (b)(2) and 12945.2, Gov-
ernment Code; Family and Medical Leave Act of 1993, 29 U.S.C. §§2601 et seq;
and Code of Federal Regulations, tit. 29, part 825.
HISTORY
1. New section filed 2–9–93; operative 3–11–93 (Register 93, No. 7).
2. Amendment of section heading, section and N
OTE filed 7–13–95; operative
8–12–95 (Register 95, No. 28).
§ 7297.10. Relationship with FMLA Regulations.
To the extent that they are not inconsistent with this subchapter, other
state law or the California Constitution, the Commission incorporates by
reference the federal regulations interpreting FMLA issued January 6,
1995 (29 CFR Part 825), which govern any FMLA leave which is also
a leave under this subchapter.
N
OTE: Authority cited: Sections 12935, subd. (a) and 12945.2, Government
Code. Reference: Section 12945.2, Government Code; Family and Medical Leave
Act of 1993, 29 U.S.C. §§2601 et seq; and Code of Federal Regulations, tit. 29, part
825.
HISTORY
1. New section filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
§ 7297.11. Certification Form.
For leaves involving serious health conditions, the employer may uti-
lize the following “Certification of Health Care Provider” form or its
equivalent. Employers may also utilize any other certification form, such
as the United States Department of Labor Form WH–380, revised De-
cember 1994 (“Certification of Health Care Provider/Family and Medi-
cal Leave Act of 1993”), provided that the health care provider does not
disclose the underlying diagnosis of the serious health condition in-
volved without the consent of the patient.
N
OTE: Authority cited: Sections 12935, subd. (a) and 12945.2, Government
Code. Reference: Section 12945.2, Government Code; Family and Medical Leave
Act of 1993, 29 U.S.C. §§2601 et seq.; and Code of Federal Regulations, tit. 29,
part 825. Appendix B, Form WH–380, as revised December 1994.
HISTORY
1. New section and form filed 7–13–95; operative 8–12–95 (Register 95, No. 28).
2. Editorial correction of form (Register 95, No. 44).
Fair Employment and Housing CommissionTitle 2
§ 7297.11
Page 127
FAIR EMPLOYMENT & HOUSING COMMISSION
CERTIFICATION OF HEALTH CARE PROVIDER
(California Family Rights Act of 1993 (CFRA))
1. Employee’s Name:
2. Patient’s Name (If other than employee):
3. Date medical condition or need for treatment commenced
[NOTE: THE HEALTH CARE PROVIDER IS NOT TO DISCLOSE THE UNDERLYING DIAGNOSIS WITHOUT
THE CONSENT OF THE PATIENT]:
4. Probable duration of medical condition or need for treatment:
5. The attached sheet describes what is meant by a “serious health condition” under both the federal Family and Medical
Leave Act (FMLA) and the California Family Rights Act (CFRA). Does the patient’s condition qualify under any of
the categories described? If so, please check the appropriate category.
(1) (2) (3) (4) (5) (6)
6. If the certification is for the serious health condition of the employee, please answer the following:
Yes No
Is employee able to perform work of any kind?
(If “No”, skip next question.)
Is employee unable to perform any one or more of the essential functions of employee’s position? (An-
swer after reviewing statement from employer of essential functions of employee’s position, or, if
none provided, after discussing with employee.)
7. If the certification is for the care of the employee’s family member, please answer the following:
Yes No
Does (or will) the patient require assistance for basic medical, hygiene, nutritional needs, safety or
transportation?
After review of the employee’s signed statement (See Item 10 below), does the condition warrant the
participation of the employee? (This participation may include psychological comfort and/or arrang-
ing for third–party care for the family member.)
8. Estimate the period of time care needed or during which the employee’s presence would be beneficial:
9. Please answer the following question only if the employee is asking for intermittent leave or a reduced work schedule.
Yes No
Is it medically necessary for the employee to be off work on an intermittent basis or to work less than
the employee’s normal work schedule in order to deal with the serious health condition of the em-
ployee or family member?
If the answer to 9. is yes, please indicate the estimated number of doctor’s visits, and/or estimated dura-
tion of medical treatment, either by the health care practitioner or another provider of health services,
upon referral from the health care provider.
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7297.11
Page 128
ITEM 10 IS TO BE COMPLETED BY THE EMPLOYEE NEEDING FAMILY LEAVE.
****TO BE PROVIDED TO THE HEALTH CARE PROVIDER UNDER SEPARATE COVER.
10. When family care leave is needed to care for a seriously–ill family member, the employee shall state the care he or
she will provide and an estimate of the time period during which this care will be provided, including a schedule if
leave is to be taken intermittently or on a reduced work schedule:
11. Signature of health care provider:
Date:
12. Signature of Employee:
Date:
A “Serious Health Condition” means an illness, injury, impairment, or physical or mental condition that involves one of
the following:
1. Hospital Care
Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period
of incapacity or subsequent treatment in connection with or consequent to such inpatient care.
2. Absence Plus Treatment
(a) A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or peri-
od of incapacity relating to the same condition), that also involves:
(1) Treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct super-
vision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders
of, or on referral by, a health care provider; or
(2) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treat-
ment under the supervision of the health care provider.
3. Pregnancy [NOTE: An employee’s own incapacity due to pregnancy is covered as a serious health condition under
FMLA but not under CFRA.]
Any period of incapacity due to pregnancy, or for prenatal care.
4. Chronic Conditions Requiring Treatment
A chronic condition which:
(1) Requires periodic visits for treatment by a health care provider, or by a nurse or physician’s assistant under direct
supervision of a health care provider;
(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
5. Permanent/Long–term Conditions Requiring Supervision
A period of incapacity which is permanent or long–term due to a condition for which treatment may not be effective.
The employee or family member must be under the continuing supervision of, but need not be receiving active treat-
ment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.
6. Multiple Treatments (Non–Chronic Conditions)
Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care
provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for
restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity
of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (che-
motherapy, radiation, etc.) severe arthritis (physical therapy), kidney disease (dialysis).
Fair Employment and Housing CommissionTitle 2
§ 7403
Page 129
Chapter 3. Discrimination In Housing
(Reserved)
H
ISTORY
1. Editorial renumbering of Subchapter 3 of Chapter 3, Title 8 to Chapter 3 of Divi-
sion 4, Title 2 (Register 81, No. 3).
Chapter 4. Procedures of the Commission
§ 7400. Statement of Purpose.
These regulations interpret, implement, and supplement the proce-
dures set forth in Articles 1 (employment, Unruh Act and Ralph Act, dis-
crimination) (Gov. Code, §12960 et seq.) and 2 (housing discrimination)
of the Fair Employment and Housing Act (FEHA) (Gov. Code, §12980
et seq.). These regulations and provisions of the FEHA shall govern the
practice and procedure in all matters before the Fair Employment and
Housing Commission (Commission). They incorporate the requirements
of the Administrative Adjudication Bill of Rights, Government Code
sections 11425.10 et seq., and incorporate by reference certain sections
of the Administrative Procedure Act, Government Code sections 11370
et seq., as specified.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11370 et seq., 11425.10 et seq., 12948, 12960 et seq. and
12980 et seq., Government Code.
HISTORY
1. Repealer of former chapter 4 (subchapters 1–4, sections 7400–7467), repealer
of former subchapter 1 (sections 7400–7405), new chapter 4 (sections
7400–7438) and repealer and new section filed 3–15–99; operative 3–15–99
pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For
prior history of chapter 4, see Register 83, No. 23.
§ 7401. Delegation of Powers.
Except where otherwise prohibited by law or by these regulations, the
Commission may delegate any of the powers and duties of the Commis-
sion to the Chairperson, the Hearing Officers, or other members of the
staff of the Commission. When a regulation requires something to be de-
livered or mailed to the “Commission,” it may be delivered or mailed, un-
less otherwise specified, to the Executive and Legal Affairs Secretary
(ELAS) or Hearing Officer if there is a Hearing Officer assigned to the
case.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Section 12935(a), Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12). For prior history, see
Register 82, No. 52.
§ 7402. Definitions.
(a) “Accusation” means the charging document issued by the Depart-
ment pursuant to Government Code sections 12965 and 12981.
(b) “Administrative adjudication” means any stage of any proceeding,
including but not limited to, the hearing of the Commission following the
issuance of an accusation by the Department of Fair Employment and
Housing (Department) and enforcement of any judgment entered.
(c) “Amicus brief” means a written submission to the Commission by
a non–party who has an interest in the subject matter of a particular adju-
dicative proceeding.
(d) “Chairperson” means the Chairman or Chairwoman of the Com-
mission.
(e) “Clerk of the Commission” means any individual assigned admin-
istrative responsibilities by the ELAS.
(f) “Commission” means the Fair Employment and Housing Commis-
sion and includes any Commissioner, officer, employee, or other individ-
ual delegated any function, power, or duty of the Commission.
(g) “Commissioner” means any member of the Fair Employment and
Housing Commission, including the Chairperson.
(h) “Complainant” means a person claiming to be aggrieved by a prac-
tice which is unlawful under the FEHA and who files a complaint with
the Department, pursuant to Government Code section 12960 or 12980.
(i) “Complaint” means a complaint filed with the Department, pur-
suant to Government Code section 12960 or 12980, by a person alleging
a practice which is unlawful under the FEHA. It also means a complaint
of housing discrimination filed by the California Attorney General, pur-
suant to Government Code section 12980, subdivision (b).
(j) “Deliver” or “mail” includes, but is not limited to, sending some-
thing by facsimile (fax) or other means of electronic transmission, as al-
lowed by the rules set forth in sections 7406 and 7407.
(k) “Department” means the Department of Fair Employment and
Housing and includes any officer, employee, or other individual dele-
gated any function, power, or duty of the Department.
(l) “Director” means the Director of the Department who is the execu-
tive officer of the Department and includes any officer, employee, or oth-
er individual delegated any function, power, or duty of the Director.
(m) “ELAS” means the Executive and Legal Affairs Secretary and
chief executive officer of the Commission and includes any officer, em-
ployee or other individual delegated any function, power, or duty of the
ELAS.
(n) “Hearing” means the evidentiary hearing of the Commission held
pursuant to the issuance of an accusation by the Department.
(o) “Hearing Officer” means an administrative law judge of the Com-
mission.
(p) “Motion in limine” means a written request to the Hearing Officer
brought prior to the taking of evidence at hearing to exclude irrelevant
or prejudicial matters at hearing.
(q) “Party” includes the Department, the respondent(s), and any per-
son who has been allowed by the Commission to intervene in the pro-
ceeding.
(r) “Person” includes one or more individuals, limited liability com-
panies, partnerships, associations, governmental entity, corporations, le-
gal representatives, trustees, trustees in bankruptcy, and receivers or oth-
er fiduciaries.
(s) “Respondent” means any person who is alleged to have committed
an unlawful practice in a complaint filed with the Department pursuant
to Government Code section 12960 or 12980 and/or a person against
whom an accusation is filed pursuant to Government Code section 12965
or 12981.
(t) “Section 12948 discrimination” means allegations of a denial of
public accommodation rights or a denial of rights because of hate vio-
lence pursuant to Civil Code section 51, 51.7, 54, 54.1, or 54.2, as incor-
porated in Government Code section 12948.
(u) “Vice chairperson” is a person elected by the Commission as a
whole to assume the duties of the chair when the chairperson is absent.
Whenever the word “chairperson” appears in these regulations, it shall
include “vice chairperson.”
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
51, 51.7, 54, 54.1 and 54.2, Civil Code; and Sections 12965, 12981, 12960, 12980,
12925(d) and 12948, Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12). For prior history, see
Register 82, No. 52.
§ 7403. Department to Maintain Current Addresses and
Telephone Numbers of Complainants and
Respondents.
All complainants and respondents shall keep the Department advised
of their current telephone number and mailing address.
(a) Complainants shall file with the Department their telephone num-
bers, mailing addresses and addresses at which they can be personally
served with documents at the time they sign the complaint and shall notify
the Department of any changes of addresses and telephone numbers dur-
ing the investigation and administrative adjudication of the complaint
and until payment of any judgment is complete.
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7403.5
Page 130
(b) When serving the complaint on respondents, the Department shall
notify respondents in writing that a complaint has been filed against
them, that they are required to file their telephone numbers and mailing
addresses and addresses at which they can be personally served docu-
ments with the Department, and that they must notify the Department of
any changes of addresses or telephone number during the investigation
and administrative adjudication of the complaint and until payment of
any judgment is complete.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 12960, 12962, 12980 and 12986, Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12). For prior history, see
Register 83, No. 23.
§ 7403.5. Interpretive Guidelines. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Section
12935(i), Government Code.
HISTORY
1. New section filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
2. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7404. Public Hearing Records.
The official record of the Commission in every case which is to pro-
ceed to hearing shall be available for public inspection upon making ap-
propriate arrangements with the Clerk of the Commission.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 6253(a) and 12935(a), Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12). For prior history, see
Register 82, No. 52.
§ 7405. Representation in Matters Before the Commission.
(a) At all stages of the investigation and administrative adjudication,
a respondent may represent himself or herself, may have representation
by legal counsel, or may have non–legal representation.
(b) When a party is unrepresented or chooses representation other than
by legal counsel, the Commission shall make reasonable efforts to ensure
that the rights of the party are protected. Where not otherwise prohibited
by law, these efforts may include interpreting papers as motions before
hearings or requests for discovery, granting extensions of time to file pa-
pers, and waiving procedural requirements when in the interests of jus-
tice.
(c) Nothing in this section shall be interpreted to permit a party to en-
gage in dilatory or delaying tactics, such as choosing not to respond to
an accusation, or delaying choice of representation.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 12935(a), 12967 and 12981(c), Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12). For prior history, see
Register 82, No. 52.
§ 7406. Filing of Papers with the Commission.
(a) To file a document with the Commission, a party shall submit two
copies of the document to the Clerk of the Commission at its office in San
Francisco, California.
(b) Filing of a document is effective if the document is mailed to the
Commission by first class, overnight or express mail, registered, or certi-
fied mail, postmarked no later than the last day of the time limit. Where
mail is metered and bears a later postmark, the date of the postmark shall
control for timeliness purposes.
(c) Filing of a document is also effective if it is delivered or sent by fac-
simile transmission (fax) or other electronic delivery, such as electronic
mail (e–mail), when approved by the Commission, on or before the last
day of the time limit. If a document is filed by facsimile or other approved
electronic means of delivery, the sender shall also place two hard copies
of the document in the mail to the Commission, postmarked no later than
the last day of the time limit. The copy of any document filed by facsimile
or other approved electronic means of delivery shall bear a notation of
the date and place of transmission and the facsimile telephone number or
e–mail address, where appropriate, to which it is being transmitted.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Section 1013(f), Code of Civil Procedure; and Sections 12935(a) and
12972(a)(2), Government Code.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7407. Service of Parties and Complainants.
Whenever a party files any papers with the Commission, the party
shall serve copies of the same on all other parties and on the complainant,
or on their attorneys or representatives of record. Service may be by first
class mail, registered or certified mail, overnight or express mail, or any
other form of mail delivery. Service may also be by facsimile transmis-
sion or other approved electronic means of delivery. If a document is
served by facsimile or other approved electronic means of delivery, the
person serving the document shall also place a hard copy in the mail with-
in any applicable time limit. Service may also be by personal service.
(a) Proof of Service. Service shall be made simultaneously with filing
and proof of such service, by means of a written declaration under penal-
ty of perjury, shall be attached to the papers. Any proof of service which
meets the requirements of Code of Civil Procedure section 1013a is ac-
ceptable. A sample proof of service, which assumes service by facsimile,
followed by placing a hard copy of the document in the mail, is the fol-
lowing:
Declaration of Service by [insert means of service]
I, the undersigned, hereby declare:
I am over eighteen years of age and not a party to the within cause. My
address is [insert address]. On [insert date], I served a copy of the [list all
documents by title or description] on each of the following, by [insert
means of service], facsimile transmission and by placing the same in an
envelope (or envelopes) addressed respectively as follows:
[insert names and addresses of all persons served with the documents
and, if applicable, which party each person represents]
Each said envelope was then on said date sealed and deposited in the
United States mail at [insert location], the county in which I am
employed, with the postage thereon fully prepaid.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on [insert date] at [insert location].
[Signed by the person executing the service]
(b) Date of Service. The date of service of papers served on parties and
on complainants, and papers served by the Commission, shall be when
the paper is deposited in the United States mail, including overnight mail,
delivered in person, or sent by facsimile transmission or other approved
means of electronic delivery (assuming that a hard copy was also sent by
mail, as required by this section). Where mail is metered and bears a later
postmark, the date of the postmark shall control for timeliness purposes.
(c) Computation of Time Periods.
(1) Beginning and end of time period. In computing time periods pre-
scribed by these rules, the day of the event which starts the time period
running is not counted, but the last day of the period is included. If the
last day of the period falls on a Saturday, Sunday, or a state legal holiday,
the time period expires at the corresponding time on the next business
day.
[The next page is 349.]
Fair Employment and Housing CommissionTitle 2
§ 7409
Page 131
(2) Extension for service by mail. Whenever a time period is triggered
by service of papers on a party or on a complainant and such service is
made by regular mail, five days shall be added to the prescribed period
for response. When service is made by overnight or other express mail,
or by facsimile transmission, two state business days shall be added to the
prescribed period for response. No days will be added to any time period
when an extension of time has been granted.
(d) The rules contained in this regulation shall also govern all notices,
Commission decisions, and other papers sent out by the Commission per-
taining to administrative adjudication.
(e) Service and orders adverse to respondents. If the respondent has
not filed a Notice of Defense or appeared at the hearing, the Commission
may issue an order adversely affecting the respondent only if the Depart-
ment proves that it has served the respondent with the accusation, accusa-
tion package, and Notice of Hearing, either personally or by registered
or certified mail addressed to the last known mailing address on file with
the Department, as required by section 7403(b).
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 1012.5, 1013 and 1013a, Code of Civil Procedure; Sections
11505(c), 12935(a) and 12972(a)(2), Government Code; and Evans v. Department
of Motor Vehicles (1994) 21 Cal.App.4th 958.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7408. Accusations.
(a) Only the Director or individual within the Department delegated
such authority may, in his or her discretion, issue an accusation.
(b) An accusation shall be deemed issued on the date it is filed with the
Commission. An accusation shall be filed with the Commission in the
manner set forth in section 7406.
(c) All accusations issued pursuant to Government Code section
12965, subdivision (a), alleging employment or Section 12948 discrimi-
nation, shall be issued by the Department and filed with the Commission
on or before the one–year anniversary date of the filing of the complaint.
(d) All accusations issued pursuant to Government Code section
12981, subdivision (a), alleging unlawful housing practices, shall be is-
sued by the Department and filed with the Commission on or before the
100th day after the date of the filing of the complaint, unless impractica-
ble for the Department to do so. If the Department determines that it is
impracticable to meet this deadline, it shall file in the Pleading File a copy
of the notification provided to the complainant and respondent explain-
ing the Department’s reason(s) for the delay.
(e) Contents of accusation. The form and contents of an accusation
may be determined by the Department but, at a minimum, shall meet all
of the following:
(1) be written;
(2) be in the name of the Department;
(3) contain the name of each respondent and, if applicable, the capacity
in which each respondent is being named;
(4) set forth the nature of the charges in ordinary and concise language
with appropriate references to specific sections of the FEHA or other
applicable statutes and regulations sufficient to allow the respondent(s)
to prepare a defense; and
(5) set forth the relief sought by the Department.
(f) Accusations need not be verified.
(g) The Commission may ignore or correct any error or defect in the
accusation which does not substantially affect the rights of any party.
(h) Contents of accusation package. Upon the filing of an accusation,
the Department shall serve on the respondent and the complainant, in ac-
cordance with the rules in section 7406, an “accusation package.” The ac-
cusation package shall include, but is not limited to, the following docu-
ments:
(1) a copy of the accusation;
(2) a copy of the underlying complaint(s) which is the subject of the
accusation;
(3) a copy of the Commission’s procedural regulations accompanied
by a statement that these regulations are the governing procedure for ad-
ministrative adjudication before the Commission;
(4) a copy of a subpoena and a subpoena duces tecum form with in-
structions for their use;
(5) a copy of the Statement to Respondents;
(6) a Notice of Defense form;
(7) a notice of the right to request, as needed, an interpreter or reason-
able accommodation;
(8) if applicable under Government Code section 12965(c) for allega-
tions of employment or Section 12948 discrimination, a statement re-
garding respondent’s right to elect to transfer the proceedings to court in
lieu of administrative adjudication, and a form notice to transfer proceed-
ings to court;
(9) for accusations issued pursuant to Government Code section
12981(a), regarding allegations of housing discrimination, a statement
regarding respondent’s, complainant’s, or other aggrieved person’s right
to elect to have the claims adjudicated in a civil action in lieu of adminis-
trative adjudication, and a form notice to transfer proceedings to court;
(10) if applicable under Government Code section 12981(g), for hous-
ing discrimination cases, a statement to the complainant that she or he
may only be able to recover damages for emotional distress or other in-
tangible injuries through a civil action;
(11) a notice asking the respondent to consent to electronic, rather than
stenographic, reporting of the proceedings at hearing;
(12) a copy of the Department’s notice informing respondents and
complainants of their obligation to keep the Department informed of any
change of mailing address or telephone number;
(13) a Notice of Hearing or Notice of Impending Hearing;
(14) a proof of service specifying that all of the above documents have
been served.
(i) Service of accusation and accompanying materials. The accusation
and accusation package shall be served on each respondent in accordance
with the rules in section 7407. The complainant will be provided with a
copy of the accusation and related papers pertinent to complainant.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 12965, 12948, 12980(f), 12981, 11425.10(a)(2) and 11503,
Government Code.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7409. Amended Accusations.
(a) The Department may amend an accusation, issued pursuant to
Government Code section 12965 regarding allegations of employment
or Section 12948 discrimination, to pray either for damages for emotion-
al injury or for administrative fines, or both, only within the first thirty
days after the issuance of the original accusation.
(b) The Department may amend an accusation with new charges (other
than those in subdivision (a)) any time up to 30 calendar days prior to the
original or continued date the hearing is scheduled to commence. After
that time, the Department may amend an accusation which contains new
charges only upon such terms as the Hearing Officer approves, including,
but not limited to, granting a continuance to the respondent. “New
charges” include any amendment which may affect the liability of re-
spondents, such as, but not limited to, the addition of a new respondent
or the naming of an existing respondent in a new capacity; the charging
of a violation of new sections of the FEHA; the pleading of substantive
new facts; and the prayer for new or significantly modified relief.
(c) Any new charges shall be deemed controverted and the respondent
does not need to file a new Notice of Defense. Any objections to the
amended accusation may be made orally and shall be noted on the record.
(d) At any time before the matter is submitted to the Hearing Officer
for decision, the Department may amend an accusation to make nonsub-
stantive changes.
(e) The first amended accusation shall be clearly labeled “First
Amended Accusation,” and any subsequent amended accusations shall
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7410
Page 132
be labeled consecutively. The Department shall clearly identify the
changes made to each amended accusation either by highlighting the
changes or identifying them in a separate written statement.
(f) Any amended accusations shall be filed with the Commission and
served on all parties and the complainant in accordance with sections
7406 and 7407.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11507, 12965(c)(4), 12935(a) and 12972(a)(2), Government
Code.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7410. Election to Transfer Proceedings to Court in Lieu
of Administrative Adjudication.
(a) Accusations Issued Pursuant to Government Code Section
12965(a) Regarding Allegations of Employment or Section 12948 Dis-
crimination. If the accusation (or amended accusation if the purpose of
the amendment is to add a prayer for damages for emotional injuries and/
or administrative fines) includes a prayer for damages for emotional inju-
ry or for administrative fines, or both, any respondent may elect to trans-
fer the proceedings to a court instead of having the matter heard by the
Commission. In order to do this, the respondent must serve written notice
to this effect. The respondent may use the form provided for this purpose
in the Statement to Respondents or available from the Department, or any
comparable form. The respondent must serve this notice on the Depart-
ment, the Commission, and the complainant within 30 days after service
of the accusation (or an accusation which has been amended to add a
prayer for damages for emotional injuries and/or administrative fines) on
the respondent. Where not all of the named respondents exercise election
to transfer proceedings to court, the case may be bifurcated and proceed
with administrative adjudication as to those non–electing respondents.
(b) Accusations Issued Pursuant to Government Code Section 12981
Regarding Allegations of Housing Discrimination. Any respondent or
complainant may elect to have the charges asserted in the accusation ad-
judicated in a civil action rather than before the Commission. In order to
do this, the person seeking election must serve written notice to this ef-
fect. The person may use the form provided for this purpose in the State-
ment to Respondents or available from the Department, or any compara-
ble form. The person must serve the notice on the Department, the
Commission, and all other parties, and the complainant, within 20 days
after service of the accusation.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 12948, 12965, 12965(c)(1) and 12989, Government Code.
HISTORY
1. Repealer of former subchapter 2 (articles 1–6, sections 7410–7467), repealer of
former article 1 (sections 7410–7413), and repealer and new section filed
3–15–99; operative 3–15–99 pursuant to Government Code section 11343.4(d)
(Register 99, No. 12). For prior history, see Register 82, No. 52.
§ 7411. Statement to Respondent.
The Statement to Respondent shall be substantially in the following
form:
You may make a request for a hearing by delivering or mailing the en-
closed form, called a Notice of Defense, to the Fair Employment and
Housing Commission, [fill in address of the Commission] within 15 days
after the accusation is served on you or you receive it by mail. You may
also fax the Notice of Defense to the Commission at [fill in facsimile
number], as long as you also place two hard copies of the Notice of De-
fense in the mail within the 15–day time limit. Either you or your repre-
sentative must sign the Notice of Defense. If you do not file a Notice of
Defense, the Department may proceed to hearing without you. You have
a right to be represented by a lawyer or other person in these proceedings.
The Department will always be represented by a lawyer. Whether or not
you hire an attorney to represent you at the hearing, you may want to seek
legal advice to better understand your rights and obligations.
The potential monetary damages that may be assessed by the Commis-
sion against you in an administrative adjudication may include, among
other things, actual damages, compensatory damages for emotional dis-
tress, and administrative fines or civil penalties. In an employment case
brought pursuant to Government Code section 12965, the maximum
monetary recovery per complainant for the emotional distress and ad-
ministrative fines combined shall not exceed $50,000 against each re-
spondent. These damages are in addition to any actual damages, such as
back pay, front pay, medical expenses and other out–of–pocket costs. In
a housing case brought pursuant to Government Code section 12981,
there is no upper limit on the emotional distress damages that may be
awarded against you.
You are entitled to receive the names and addresses of Department
witnesses and to inspect and copy the items mentioned in section 7417
which are held by the Department. You may contact: (here insert name
and address of appropriate Department attorney) to obtain these items.
Once the hearing is set, it may be postponed only for good cause. If you
have good cause, you must notify the Commission within 10 working
days after you discover the good cause. Failure to give notice within 10
days may mean that the hearing will not be postponed.
You must at all times keep the Department notified of your current ad-
dress, telephone number, and, if applicable, fax number.
[Add appropriate “election to transfer” language from section 7410,
subdivision (a) or (b), and state that the appropriate “election to transfer”
notice is included in the Statement to Respondent.]
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11505(b), 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12). For prior history, see
Register 83, No. 23.
§ 7412. Notice of Defense.
(a) Within 15 days after service of the accusation, the respondent may
file with the Commission a Notice of Defense, using the form provided
by the Department in the accusation package or any substantially equiva-
lent form. In the Notice of Defense, the respondent may request a hearing
and state any objections the respondent may have to the form or sub-
stance of the accusation.
(b) The Notice of Defense shall be in writing and signed by, or on be-
half of, the respondent and shall state the respondent’s mailing address,
address at which the respondent can be personally served with docu-
ments, and telephone number. If the respondent is represented by an at-
torney or non–attorney representative, or is a corporation, the Notice of
Defense shall state the name, mailing address and telephone number of
respondent’s representative. It need not be verified, or follow any partic-
ular form.
(c) The respondent shall be entitled to a hearing on the merits if the re-
spondent files a Notice of Defense.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11506, 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12).
§ 7413. Subpoenas.
(a) Subpoenas and subpoenas duces tecum may be issued for atten-
dance at the hearing and for production of documents at any reasonable
time and place in advance of the hearing or at the hearing.
(b) The Department and each party represented by legal counsel shall
issue and sign its own subpoenas and subpoenas duces tecum, using the
form in the Appendix to these regulations. Parties who are not repre-
sented by legal counsel may request the Commission to issue and sign
subpoena and subpoena duces tecum forms.
(c) The process extends to all parts of the state and shall be served in
accordance with Code of Civil Procedure sections 1987 and 1988. A sub-
poena or subpoena duces tecum may also be delivered by certified mail,
return receipt requested, or by personal service.
(d) No witness is obliged to attend unless the witness is a resident of
the state at the time of service.
Fair Employment and Housing CommissionTitle 2
§ 7417
Page 133
(e) A person served with a subpoena or subpoena duces tecum may ob-
ject to its terms by a motion which shall be resolved by the ELAS or a
Hearing Officer in an appropriate order.
(f) A witness appearing pursuant to a subpoena or subpoena duces te-
cum, other than a party, shall receive for the appearance the same mileage
and fees allowed by law to a witness in a civil case (see Government Code
sections 68092.5–68093), to be paid by the party at whose request the
witness is subpoenaed. Fees for witnesses who are officers and em-
ployees of the state or political subdivision of the state shall be governed
by Government Code sections 68096.1–68097.10).
(g) Subpoenas and subpoenas duces tecum shall be served on the op-
posing party in the manner provided in section 7407 and shall comply
with consumer notice requirements, Code of Civil Procedure sections
1985.3 and 1985.6, where applicable.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 1985.3, 1985.6, 1987, 1988, Code of Civil Procedure; Sec-
tions 11450.10, 11450.20(b), 11450.30, 11450.40, 68092.5–68093,
68096.1–68097.10, 12935(a) and 12972(a)(2), Government Code; and Sehlmeyer
v. Department of General Services (1993) 17 Cal.App.4 1072.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12).
§ 7414. Setting of Hearing.
(a) Requests for hearing. Where respondent has not stipulated in writ-
ing to waive the 90–day hearing requirement pursuant to regulation sec-
tion 7429(c), the Department shall request the Commission to set the
hearing within 90 days of issuance of the accusation. Where respondent
has stipulated in writing to waive the 90–day hearing requirement, the
Department shall make an effort to consult with the respondent and the
complainant regarding hearing dates, and shall then request the Commis-
sion to set the hearing.
(b) Notice of hearing. The Department shall deliver or mail a Notice
of Hearing to all parties and the complainant at least 30 days prior to the
date the hearing is scheduled to commence. If the hearing is continued,
advance notice as short as 10 days may be given. The Notice of Hearing
shall be substantially in the following form but may include other infor-
mation:
You are hereby notified that a hearing will be held before the Fair Em-
ployment and Housing Commission at [place of hearing] on the [date and
time of hearing] upon the charges made in the accusation served upon
you. If you do not attend the hearing, the case will be decided without you
and an order may be entered which directs you to pay money or take other
action.
You have the right to be represented by a lawyer or other representa-
tive at your own expense.
You are not entitled to the appointment of a lawyer to represent you
at public expense. The Department will be represented by a lawyer. You
are entitled to represent yourself without legal counsel. You may present
any relevant evidence, and will be given full opportunity to cross–exam-
ine all witnesses testifying against you.
You are entitled to the issuance of subpoenas to compel the attendance
of witnesses at the hearing and the production of books, documents or
other things, either before the hearing at a reasonable time and place or
at the hearing. If you are represented by a lawyer, your lawyer may use
the subpoena forms attached to this Notice. If you are unrepresented or
represented by someone other than a lawyer, you may obtain signed sub-
poena forms from the Fair Employment and Housing Commission at
[here, insert the Commission’s address and telephone number]. You are
responsible for serving the subpoenaed person or entity with the subpoe-
na, as well as serving a copy of the subpoena on the opposing party, in
the manner set forth in section 7407. You must also comply with any con-
sumer notice requirements (Code of Civil Procedure sections 1985.3 and
1985.6) where applicable.
If you or any of your witnesses will need language assistance, includ-
ing sign language, or other accommodation, you must notify the Com-
mission of this need as soon as possible, but no later than fifteen (15) days
before the hearing is to start. The Commission will secure the appropriate
interpreter.
Attached is the Commission’s regulation on Pre–Hearing Statements
and a form for you to use. Please make sure that you comply with its re-
quirements.
(c) Requests for continuance of the hearing. A request for a continu-
ance of a hearing date shall be made in writing, filed with the ELAS, and
served on all of the parties and the complainant. Before making a request,
the moving party shall contact all other parties to determine if there is any
opposition and shall state whether there is any opposition in its papers to
the ELAS.
(1) Requests for continuance will be granted only for good cause.
(2) A continuance beyond the 90–day time limitation after issuance of
an accusation provided by Government Code section 12968 will only be
granted by written stipulation of the parties, written waiver of the time
limit by all respondents, and upon approval of the ELAS. If approved, the
order of the Commission shall specify new hearing dates or shall order
the parties to set new dates.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 1985.3 and 1985.6, Code of Civil Procedure; Sections 11509,
11435.60, 12935(a) and 12972(a)(2), Government Code; and Sehlmeyer v. De-
partment of General Services (1993) 17 Cal.App.4 1072.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7415. Withdrawal of Accusation.
(a) Accusations issued pursuant to Government Code section 12965
regarding allegations of employment or section 12948 discrimination.
The Department may at any time withdraw the accusation. If a complain-
ant’s right–to–sue notice has expired and that complainant objects to the
withdrawal, however, the Commission shall decide whether to let the De-
partment withdraw the accusation and whether to allow the administra-
tive adjudication to proceed without the Department, and, if so, on what
terms.
(b) Accusations issued pursuant to Government Code section 12981
regarding allegations of housing discrimination. The Department shall
not withdraw the accusation unless the complainant withdraws the un-
derlying complaint or the Department determines, after a thorough inves-
tigation, that, based on the facts, no reasonable cause exists to believe that
an unlawful housing practice, as prohibited by the Act, has occurred or
is about to occur or the Department determines that respondent has elimi-
nated the violation which has occurred or is about to occur.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 12948, 12965, 12981 and 12981.1, Government Code.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7416. Notification of Settlement or Withdrawal of
Accusation.
The Department shall promptly notify the Clerk of the Commission of
all settlements and withdrawals of accusations or any other action termi-
nating a matter before the Commission. When properly notified, the
Commission will vacate any hearing date and close its file on the matter
on receipt of the withdrawal of the accusation.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7417. Discovery.
(a) Once an accusation is issued, a party is entitled to discovery. The
party may make a written request to another party prior to the hearing and
within 30 days after service by the Department of the initial accusation
or within 15 days after service of an amended accusation or additional
pleading. Unless otherwise agreed to by the parties, all responses to writ-
ten requests for discovery are due 30 days after the request has been
made. The following discovery is allowable:
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7418
Page 134
(1) obtain the names and addresses of witnesses who have knowledge
of the matters raised in the accusation, to the extent known to the other
party, including, but not limited to, those intended to be called to testify
at the hearing, and
(2) inspect and make a copy of any of the following in the possession
or custody or under the control of the other party or the complainant:
(A) A statement pertinent to the subject matter of the accusation, made
by the complainant or any party or any person employed by or related to
a party.
(B) Statements of witnesses proposed to be called by the party and of
other persons having personal knowledge of the acts, omissions or events
which are the basis for the proceeding, not included in (A) above;
(C) All writings, including, but not limited to, reports of mental, physi-
cal and blood examinations and things which the party proposes to offer
in evidence;
(D) Any writing or thing which is relevant and which would be admis-
sible in evidence and which is in the possession or control of a party or
the complainant;
(E) Investigative or progress reports made by or on behalf of the De-
partment or other party pertaining to the subject matter of the proceeding,
to the extent that these reports 1. contain the names and addresses of wit-
nesses or of persons having personal knowledge of the acts, omissions
or events which are the basis for the proceeding, or 2. reflect matters per-
ceived by the Department in the course of its investigation, or 3. contain
or include by attachment any statement or writing described in (A) to (E),
inclusive, or summary thereof.
(3) For the purpose of this section, “statements” include written state-
ments by the person signed or otherwise authenticated by him or her,
stenographic, mechanical, electrical or other recordings, or transcripts
thereof, of oral statements by the person, and written reports or summa-
ries of these oral statements.
(4) Nothing in this section shall authorize the inspection or copying of
any writing or thing which is privileged from disclosure by law or other-
wise made confidential or protected as the attorney’s work product.
(5) If the Department alleges conduct which constitutes sexual
harassment, sexual assault, or sexual battery, the following rule shall ap-
ply: Evidence of specific instances of a complainant’s sexual conduct
with individuals other than the alleged perpetrator is not discoverable un-
less it is to be offered at hearing to attack the credibility of the complain-
ant as provided for in section 7429(f)(7).
(b) In addition to the above, the Department and each respondent or
other party may each take a single deposition, which shall continue day
to day until completed. If an accusation charges multiple respondents, the
Department may take a single deposition per respondent. A notice of de-
position may also include a notice for production at the deposition of pa-
pers, books, accounts and documents. Unless agreed to otherwise by the
parties or upon approval of the ELAS or Hearing Officer assigned to the
case, depositions shall be scheduled for a date at least ten days after ser-
vice of the deposition notice and shall be completed on or before the 30th
day before the date initially set for hearing or the date of any continued
hearing. However, the 30–day cut–off shall not apply where respondent
has not stipulated in writing to waive the 90–day hearing requirement
pursuant to regulation section 7429(c). In those cases, the deposition
shall be completed on or before the 10th day before the hearing date.
Depositions are to be taken in the manner prescribed by Code of Civil
Procedure section 2025, except that any application for a protective or-
der, an order to stay the taking of the deposition and quash the deposition
notice, or an order to compel the taking of the deposition shall be made
to the Commission rather than to the courts. The rules and time limits for
enforcement of discovery set forth below in subdivision (c) shall apply
to depositions as well.
(c) Procedures for enforcement
(1) Any party claiming that its discovery, including subpoenas and
subpoenas duces tecum, has not been complied with (the Moving Party)
may serve on the Opposing Party and file with the ELAS, or Hearing Of-
ficer, if one has been assigned to hear the discovery matter, a motion to
compel discovery, against the party refusing or failing to comply with
this section (the Opposing Party). The motion shall state facts showing
that the Opposing Party failed or refused to comply with this section, a
description of the matters sought to be discovered, the reason or reasons
why the matter is discoverable under this section, that a reasonable and
good faith attempt to reach an informal resolution of the issue with the
Opposing Party has been made, and the ground or grounds of the Oppos-
ing Party’s refusal so far as known to the Moving Party.
(2) The Moving Party shall serve the motion upon the Opposing Party
and file the motion with the Commission within thirty (30) days after the
Opposing Party has failed or refused to respond to the written request for
discovery or to testify pursuant to a deposition notice. The Opposing
Party shall have seven (7) days from the date of service of the motion to
file and serve a response. The ELAS or assigned Hearing Officer, in his
or her discretion, may allow a greater or lesser time in which to file a mo-
tion or response.
(3) A party’s “failure or refusal to respond” to discovery includes
when that party has stated or indicated that it will not provide any re-
sponse to the discovery or where, on the Moving Party’s notification to
the party that the response provided is incomplete or inadequate, that the
party will not supplement the response, or where the Moving Party has
advised that party in writing that its lack of meaningful, good faith re-
sponse shall be considered a failure or refusal to respond for the purposes
of section 7417(c)(2).
(4) The ELAS or assigned Hearing Officer has the discretion to decide
the matter without hearing. If the ELAS or Hearing Officer decides that
a hearing is necessary, s/he has the discretion to conduct it by telephone
or with the parties present.
(5) Where the matter sought to be discovered is under the custody or
control of the Opposing Party and the Opposing Party asserts that the
matter is not a discoverable matter under the provisions of this section,
or is privileged against disclosure under these provisions, the ELAS or
Hearing Officer may order matters provided in subdivision (b) of section
915 of the Evidence Code to be lodged with the Commission and may
examine the matters in accordance with its provisions.
(6) Unless otherwise stipulated by the parties, the ELAS or Hearing
Officer shall, no later than 15 days after the hearing (or, if no hearing has
been held, within 15 days after receipt of the moving papers), make an
order denying or granting the motion. The order shall be in writing setting
forth the matters which the Moving Party is entitled to discover under this
section. The ELAS or Hearing Officer shall serve by mail upon the par-
ties a copy of the order. Where the order grants the motion in whole or
in part, the order shall not become effective until 10 days after the date
the order is served. Where the order denies relief to the Moving Party, the
order shall be effective on the date it is served.
(7) Unless the ELAS or Hearing Officer rules otherwise, any discov-
ery enforcement proceedings shall stay the 90–day requirement under
Government Code section 12968 for the commencement of the hearing.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Section 2025, Code of Civil Procedure; Sections 11440.40, 12968,
12972, 11507.6 and 11507.7, Government Code; and Section 915, Evidence
Code.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7418. Interpreters and Accommodation.
(a) In proceedings where a party, a party’s representative, or a party’s
expected witness requires an interpreter for any language, including sign
language, that party shall be responsible for notifying the Commission,
following the pre–hearing motion procedure in section 7419. The Com-
mission shall be responsible for securing the interpreter and shall assess
the costs of the interpreter as an ordinary cost of the hearing.
(b) In proceedings where a party, a party’s representative, or a party’s
expected witness has a disability requiring accommodation either at the
Fair Employment and Housing CommissionTitle 2
§ 7422
Page 135
hearing or at any other stage of the administrative adjudication, that party
shall be responsible for complying with Judicial Rule 989.3 and/or Evi-
dence Code section 754, set forth in the Appendix to these regulations.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Section 754, Evidence Code; Judicial Rule 989.3; and Sections
11425.10(a)(9) and 11435.05–11435.65, Government Code.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7419. Pre–Hearing Motions.
Pre–hearing motions before the Commission shall not decide substan-
tive matters. Substantive matters, including jurisdictional or legal chal-
lenges, are to be presented at the hearing on the merits and, except as ex-
pressly provided below, shall not be the subject of proceedings before
hearing.
(a) If all parties stipulate in writing that there is a jurisdictional or other
threshold dispositive issue which should, in the interests of judicial econ-
omy, be decided before proceeding to the merits of the case, the Hearing
Officer assigned to hear the case may take evidence solely on the jurisdic-
tional or other threshold issue and issue a written ruling on this issue
alone. If the Hearing Officer rules for the Department, the parties shall
set the case for the hearing on the merits. If the Hearing Officer rules
against the Department, the procedure in section 7434 shall be followed
and the issue will be placed before the Commission for decision in the
matter. If the Commission decides for the Department, the case will then
be remanded to the Hearing Officer for a hearing on the merits.
(b) Allowable pre–hearing (non–discovery) motions.
(1) Intervention.
(2) Amicus briefs.
(3) Motion compelling deposition of an unavailable witness.
(4) Consolidation or severance of matters for hearing.
(5) Request for Interpreter, in compliance with the rules set forth in
section 7418 and Government Code sections 11435.05 through
11435.65.
(6) Motion for disqualification of the hearing officer, in compliance
with the rules set forth in Government Code section 11425.40, subdivi-
sions (a) through (c).
(7) Motion to Amend Accusation.
(8) Motion to Withdraw Accusation.
(9) Motion to Change Venue.
(10) Other motions, on prior approval of the ELAS.
(c) Pre–hearing motions: procedure.
(1) Pre–hearing motions shall be filed with the ELAS, or assigned
Hearing Officer, be in writing, and include a proof of service indicating
service on all parties and the complainant.
(2) No special form of motion is required.
(3) Unless these regulations set forth a different time for filing a partic-
ular motion (see, e.g., section 7409 for Amended Accusation; section
7415 for Withdrawal of Accusation; and section 7429(c), for Motion to
Change Venue), pre–hearing motions shall be filed and served at least 15
calendar days before the date set for commencement of the hearing. Such
motions may be heard on shorter notice on written application to, and ap-
proval of, the ELAS, for good cause, on such terms as determined by the
ELAS. The non–moving party shall have seven (7) days from the date of
service of the motion to file and serve a response. The ELAS, or Hearing
Officer assigned to hear the case, in his or her discretion, may allow a
lesser or greater time in which to file a motion or response.
(4) An order granting or denying a motion shall be made by the ELAS
or Hearing Officer assigned to hear the case. The order shall be in writing
and served by mail on all parties of record.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
References: Sections 11425.10(a)(5),(9), 11435.05–11435.65 and 11425.40,
Government Code; Section 754, Evidence Code; and Judicial Rule 989.3.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7420. Ex Parte Communications.
Except as otherwise allowed under the Administrative Procedure Act,
Government Code sections 11430.10–11430.80, or as authorized by Ju-
dicial Rule 989.3 or under these regulations, there shall be no communi-
cation, direct or indirect, regarding any issue in a pending proceeding, to
the Hearing Officer, ELAS, or Commission from an employee or repre-
sentative of the Department or from an interested person outside of the
Department, or from the respondent or complainant, without notice and
opportunity for all parties to participate in the communication.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11430.10–11430.80, Government Code.
HISTORY
1. Repealer of former article 2 (sections 7420–7425) and repealer and new section
filed 3–15–99; operative 3–15–99 pursuant to Government Code section
11343.4(d) (Register 99, No. 12).
§ 7421. Consolidation and Severance.
(a) A Hearing Officer, on his or her own motion, may order consolida-
tion of two or more cases or severance of any consolidated cases or of is-
sues in a single case. The Hearing Officer shall provide notice to all par-
ties and allow a reasonable time for the parties to file and serve any
objections in writing. Failure to assert objections within the time allowed
shall constitute a waiver of objection to the order of consolidation or sev-
erance.
(b) A party who brings a motion for consolidation or severance shall
comply with section 7419.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11507.3, 12935(a) and 12972(a)(2). Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12).
§ 7422. Pre–Hearing Statements.
(a) Prior to hearing, the parties shall make best efforts to confer in per-
son or by telephone to resolve or define any issues relating to the hearing.
Thereafter, each party shall prepare a pre–hearing statement.
(b) No later than five (5) state business days prior to the scheduled date
of hearing, each party shall file with the Commission a pre–hearing state-
ment signed by the party or his/her representative of record. This state-
ment shall include, if relevant, but need not be limited to, the following:
(1) A brief summary of any stipulated facts.
(2) Identification of all operative pleadings by their title and date
signed.
(3) A current estimate from each party of the time necessary to try its
case.
(4) The name of each witness each party may call at hearing, along
with a brief statement of the content of each witness’s expected testimo-
ny.
(5) The name and address of each expert witness each party intends to
call at hearing, along with a brief statement of the opinion each expert is
expected to give and a copy of the current resume or curriculum vitae of
each expert witness.
(6) A list of documentary exhibits each party intends to present at hear-
ing and a description of any physical or demonstrative evidence.
(7) The identity of any witness whose testimony will be presented by
affidavit pursuant to section 7428 or by deposition pursuant to section
7427.
(8) A concise statement of any significant evidentiary issues.
(9) A copy of any pre–hearing motion filed by either party, any re-
sponse filed thereto, and, if applicable, any order from the ELAS or Hear-
ing Officer.
(10) Any anticipated motions in limine.
(c) The pre–hearing statement may be prepared in the format provided
in the Appendix to these regulations.
(d) Failure to disclose fully all required items in the pre–hearing state-
ment without good cause will, at the discretion of the Hearing Officer,
result in the exclusion or restriction of evidence at hearing.
(e) The parties are not required to disclose any witnesses or exhibits
which may be presented for rebuttal or impeachment purposes.
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7423
Page 136
NOTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11511, 11514, 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12). For prior history, see
Register 83, No. 23.
§ 7423. Pre–Hearing Conferences.
(a) The Hearing Officer assigned to hear the case may order a pre–
hearing conference, which ordinarily will be held by telephone, unless
the Hearing Officer determines otherwise.
(b) The pre–hearing statements and any pre–hearing motions and re-
sponsive papers shall provide the basis for discussion of issues and rul-
ings at the pre–hearing conference.
(c) At or after the pre–hearing conference, the Hearing Officer may is-
sue a prehearing order, or dictate into the record, the matters determined
at the conference.
(d) Pre–hearing conferences need not be open to public observation.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11425.20(c), 11511.5, 12935(a), 12972(a)(2), Government
Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12).
§ 7424. Settlement Conferences.
(a) At any time after the Department issues an accusation, any party
may file with the ELAS and serve upon all parties and the complainant
a request for a settlement conference. Nothing in these regulations pre-
cludes the parties from discussing settlement whether or not a settlement
conference is convened.
(b) Upon receipt of a request for a settlement conference, the ELAS
shall ascertain if the other party agrees and shall assess whether a settle-
ment conference is feasible, and, if so, shall assign a settlement confer-
ence Hearing Officer to convene a settlement conference. The confer-
ence may be conducted by telephone or with the parties and complainant
present, within the discretion of the settlement conference Hearing Offi-
cer.
(c) The discussions at the settlement conference shall remain confi-
dential and shall not be disclosed to the Hearing Officer assigned to hear
the case. All settlement materials received by the settlement conference
Hearing Officer shall be maintained in a separate settlement file. If efforts
at settlement are unsuccessful or if the matter goes to hearing, a different
Hearing Officer, who shall have no access to the settlement file, shall be
assigned to hear the case.
(d) No evidence of an offer of compromise or settlement made in
settlement negotiations shall be admissible in any administrative adjudi-
cation before the Commission, whether as affirmative evidence, by way
of impeachment, or for any other purpose.
(e) The respondent and his/her representative, the Department’s repre-
sentative, and any other party to the action shall attend the settlement con-
ference, or otherwise be available. Each party shall send, or have avail-
able, someone who has the authority to discuss and give tentative
approval of a settlement. The complainant may be present, but in all
events shall be available by telephone for consultation during the confer-
ence.
(f) If a settlement is reached at, or as a result of, a settlement confer-
ence, the terms of the settlement shall be set forth in a written stipulation,
settlement agreement or consent order, or orally placed on the record.
(g) Settlement conferences are not open to public observation.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11425.20(c), 11511.7, 11415.60(a), 12963.7 and 12932(d),
Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12).
§ 7425. Intervention.
(a) The complainant may intervene as a matter of right in any adminis-
trative adjudication before the Commission. In order to intervene, the
complainant shall notify the Commission and the parties in writing of his/
her intent to intervene.
(b) Any other person who wishes to intervene in the administrative ad-
judication of a case which is before the Commission shall file a motion
so requesting with the Commission in accordance with section 7419(b).
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12).
§ 7426. Amicus Briefs.
Before the hearing has commenced, any person wishing to file an ami-
cus curiae brief in a matter which is before the Commission shall file a
motion so requesting with the Commission in accordance with section
7419(b). After the hearing has commenced, the Commission may, in its
discretion, permit any person to file an amicus brief at any time before
the Commission decides the case.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7427. Depositions of Unavailable Witnesses.
Where a witness will be unable to attend or cannot be compelled to at-
tend the hearing, any party may move the Commission for an order that
the witness be deposed in the manner prescribed by law for depositions
in Code of Civil Procedure section 2025. The motion shall be governed
by the procedure set forth for pre–hearing motions in section 7419(b).
The motion shall set forth the nature of the pending proceeding; the name
and address of the witness whose testimony is desired; a showing of the
materiality of the testimony; a showing that the witness will be unable,
as defined in Evidence Code section 240, or cannot be compelled to at-
tend, and shall request an order requiring the witness to appear and testify
before an officer named in the petition for that purpose. Where the wit-
ness resides outside the state and where the Commission has ordered the
taking of the testimony by deposition, the Moving Party shall obtain an
order of the court to that effect by filing a petition therefor in the superior
court in Sacramento County. The proceedings thereon shall be in accor-
dance with the provisions of Government Code section 11189. At the
hearing, the deposition may be used in accordance with the rules in Code
of Civil Procedure section 2025, subdivision (u). This section is in addi-
tion to the deposition authorized by section 7417(b).
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11511, 11189, 12935(a) and 12972(a)(2), Government Code;
Section 2025, Code of Civil Procedure; and Section 740, Evidence Code.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7428. Evidence by Affidavit.
(a) At any time 10 or more days prior to a hearing or a continued hear-
ing, any party may serve on the opposing party a copy of any affidavit
which he or she proposes to introduce into evidence, together with a no-
tice as provided in subdivision (b). Unless the opposing party, within
seven days after such receipt of the affidavit, serves on the proponent a
request to cross–examine the affiant, the opposing party’s right to cross–
examine the affiant is waived and the affidavit, if introduced in evidence,
shall be given the same effect as if the affiant had testified orally. If an
opportunity to cross–examine the affiant is not afforded after a timely re-
quest to do so is made as provided herein, the affidavit may be introduced
in evidence, but shall be given only the same effect as other hearsay evi-
dence.
(b) The notice referred to in subdivision (a) shall be substantially in the
following form: The enclosed affidavit of [name of affiant] will be intro-
duced as evidence at the hearing in [title of proceeding]. [Name of affiant]
Fair Employment and Housing CommissionTitle 2
§ 7429
Page 137
will not be called to testify orally and you will not be entitled to question
[him/her] unless you notify [name of person offering the testimony or his/
her attorney] at [address] that you wish to cross–examine this person. To
be effective, your request must be mailed, sent by facsimile machine
(faxed) or delivered to [name of person offering the testimony or his/her
attorney] on or before [date which is at least seven days after the date of
mailing or delivering the affidavit to the opposing party], together with
a proof of service.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11514, 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7429. Hearings.
(a) Every hearing in a contested case shall be presided over by a Hear-
ing Officer appointed by the Commission. The Hearing Officer shall hear
the case alone, unless a quorum of the Commission decides to hear the
case along with the Hearing Officer. If the Commission itself decides to
hear the case, the rules in the Administrative Procedure Act, Government
Code sections 11512 and 11517(a), shall govern the proceeding.
(b) The hearing shall be open to public observation, unless the Hearing
Officer orders closure of a hearing for one of the reasons set forth in Gov-
ernment Code section 11425.20, subdivision (a) (1)–(3).
(1) The Hearing Officer may exclude persons whose conduct impedes
the orderly conduct of the hearing; restrict or regulate attendance because
of the physical limitations of the hearing room; or take other action to pro-
mote due process or the orderly conduct of the hearing.
(2) The Hearing Officer may grant a motion to exclude witnesses un-
der Evidence Code section 777.
(c) Time and place of hearing.
(1) The hearing shall commence within 90 days of the filing of the ac-
cusation unless the parties waive the 90–day hearing requirement con-
tained in Government Code section 12968, or a continuance has been
granted, subject to the rule in section 7414, subdivision (c).
(2) The Department shall make arrangements for the place of hearing,
unless otherwise ordered by the Commission. The hearing shall be held
in the county in which the alleged violation of the Fair Employment and
Housing Act occurred or where the respondent does business, unless the
parties agree, or the Commission orders, that the hearing take place in
some other place. A party may move for a change in the place in hearing
by written motion to the Commission in compliance with regulation sec-
tions 7406, 7407 and 7419, no later than 10 days after service of the No-
tice of Hearing, because of economic hardship, convenience of wit-
nesses, or other good cause.
(3) The hearing shall ordinarily be conducted with the parties present
before the Hearing Officer, unless the Hearing Officer, with the approval
of the parties, permits the hearing to be conducted by telephone, televi-
sion, or other electronic means.
(4) The Department shall attempt to consult with the respondent or re-
spondent’s representative prior to sending out the Notice of Hearing, in
order to select mutually agreeable dates of hearing.
(d) Conduct of hearings
(1) The proceedings at the hearing shall be reported by a stenographic
reporter. Upon the consent of all the parties, however, the proceedings
may be reported electronically.
(2) If the Hearing Officer determines to order a transcript, the Com-
mission shall receive an original and one copy. The Commission retains
the original and the copy goes to the Department. Respondents and com-
plainants, if they desire a copy of the transcript, are responsible for order-
ing their own copy of the transcript.
(e) Motions during hearing
(1) Motions during the hearing, including motions in limine, shall be
directed to the Hearing Officer, and may be made orally on the record or
in writing with copies served on all parties and the complainant. The
Hearing Officer shall rule on all motions, except as provided below in 2.,
orally on the record, unless s/he reserves ruling until after the close of the
hearing, in which case the ruling shall be made a part of the proposed de-
cision.
(2) The Hearing Officer shall not entertain motions in the nature of mo-
tions for non–suit, dismissal, or for judgment, but must proceed with the
taking of evidence until all of the testimony to be offered by all the parties
has been received.
(f) Evidence rules
(1) Oral evidence shall be taken only on oath or affirmation.
(2) Each party shall have these rights: to call and examine witnesses,
to introduce exhibits; to cross–examine opposing witnesses on any mat-
ter relevant to the issues, even though that matter was not covered in the
direct examination; to impeach any witness, regardless of which party
first called him or her to testify; and to rebut the evidence against him or
her. Any party may call any other party during its case in chief, pursuant
to Evidence Code section 776.
(3) The hearing need not be conducted according to technical rules re-
lating to evidence and witnesses, except as hereinafter provided. Any
relevant evidence shall be admitted if it is the sort of evidence on which
responsible persons are accustomed to rely in the conduct of serious af-
fairs, regardless of the existence of any common law or statutory rule
which might make improper the admission of the evidence over objec-
tion in civil actions.
(4) Hearsay evidence may be used for the purpose of supplementing
or explaining other evidence. If an appropriate objection is made at hear-
ing, hearsay evidence shall not be sufficient in itself to support a finding
unless it would be admissible over objection in civil actions.
(5) The rules of privilege shall apply in administrative adjudications
before the Commission to the extent that they are recognized under the
Evidence Code.
(6) The Hearing Officer has discretion to exclude evidence if its proba-
tive value is substantially outweighed by the probability that its admis-
sion will necessitate undue consumption of time because of its collateral
or cumulative nature, or create substantial danger of undue prejudice or
of confusing the issues.
(7) In any proceeding under subdivisions (a), (h) or (i) of Government
Code section 12940, or section 12955, alleging conduct that constitutes
sexual harassment, sexual assault, or sexual battery, evidence of specific
instances of a complainant’s sexual conduct with individuals other than
the alleged perpetrator is subject to all of the following limitations:
(A) The evidence is not discoverable unless it is to be offered at a hear-
ing to attack the credibility of the complainant as provided for under (C)
below. This paragraph is intended only to limit the scope of discovery;
it is not intended to affect the methods of discovery allowed by statute.
(B) The evidence is not admissible at the hearing unless offered to at-
tack the credibility of the complainant as provided for under (C) below.
Reputation or opinion evidence regarding the sexual behavior of the
complainant is not admissible for any purpose.
(C) Evidence of specific instances of a complainant’s sexual conduct
with individuals other than the alleged perpetrator is presumed inadmis-
sible absent an offer of proof establishing its relevance and reliability and
that its probative value is not substantially outweighed by the probability
that its admission will create substantial danger of undue prejudice or
confuse the issue.
(8) At the beginning of the hearing, the Department shall introduce
into the record, for jurisdictional purposes only, the Pleading File in the
case. The Pleading File shall contain, at a minimum, the complaint(s) and
accusations(s), any Notice(s) of Defense or other responsive papers filed
by the respondent(s) and the proofs of service for each document. If
applicable under Government Code section 12980(f), 12981(a), or
12981(c), the pleading file shall also contain a copy of any notifications
provided to the complainant and respondent explaining the Department’s
reason(s) for failing to complete the investigation or issue the accusation
within 100 days, or make a final administrative disposition of the com-
plaint within one year.
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7430
Page 138
NOTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11440.30, 11440.40, 11512, 11513, 11517(a), 11425.20,
12940, 12955 and 12968, Government Code; and Sections 352, 776 and 777, Evi-
dence Code.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7430. Default Hearings.
(a) At a default hearing, the Hearing Officer may take action based
upon the respondent’s express admission or upon other evidence intro-
duced at the hearing by the Department. Affidavits or declarations under
penalty of perjury may be used as evidence without notice to respondent
as allowed by section 7428.
(b) The Hearing Officer and/or Commission may issue an order ad-
versely affecting the respondent in a default hearing if the Department
has complied with the rules set forth in section 7407(e).
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11505(c), 11514 and 11520, Government Code.
HISTORY
1. Repealer of former article 3 (sections 7430–7439) and repealer and new section
filed 3–15–99; operative 3–15–99 pursuant to Government Code section
11343.4(d) (Register 99, No. 12).
§ 7431. Official Notice.
In reaching a decision, official notice may be taken, either before or
after submission of the case for decision, of any generally accepted tech-
nical or scientific matter within the Commission’s special field, and of
any fact which may be judicially noticed by the courts of this state, pur-
suant to Evidence Code sections 451 and 452. Parties present at the hear-
ing shall be informed by the Hearing Officer or Commission of the mat-
ters to be noticed, and those matters shall be noted in the record, referred
to therein, or appended thereto. All parties shall be given a reasonable op-
portunity to refute the officially noticed matters by evidence or by written
or, if requested, oral presentation of authority to the Commission.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Section 11515, Government Code; and Sections 451–52, Evidence
Code.
HISTORY
1. New section filed 3–15–99; operative 3–15–99 pursuant to Government Code
section 11343.4(d) (Register 99, No. 12).
§ 7432. Post–Hearing Matters.
(a) Post–hearing briefs. The parties shall be given the opportunity to
file post–hearing briefs, as directed at the hearing. Copies shall be served
on the parties and on the complainants as provided in section 7407.
(b) Date of submission of matter for decision. The matter will be
deemed submitted to the Hearing Officer for decision on the date the
Hearing Officer receives the transcripts of the hearing, hears oral argu-
ment, or receives the last timely post–hearing brief, whichever event oc-
curs last.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12).
§ 7433. Proposed Decisions.
(a) Form of decision.
(1) The decision shall be in writing, be based on the record, and include
a statement of the factual and legal basis of the decision.
(2) If the factual basis for the decision includes a determination based
substantially on the credibility of a witness, the statement shall identify
specific evidence of the observed demeanor, manner, or attitude of the
witness that supports the determination, and on judicial review the court
shall give great weight to the determination, to the extent that the determi-
nation identifies the observed demeanor, manner, or attitude of the wit-
ness that supports it.
(3) The statement of the factual basis for the decision shall be based
exclusively on the evidence of record in the proceeding and on matters
officially noticed in the proceeding. The Hearing Officer’s experience,
technical competence, and specialized knowledge may be used in eva-
luating evidence.
(b) Preparation of proposed decision. Within 60 days after the case is
submitted, the Hearing Officer shall prepare and serve on the Commis-
sion, all parties and the complainant, or their representatives of record,
a proposed decision in such a form that it may be adopted by the Commis-
sion as the Commission’s decision in the case. Failure of the Hearing Of-
ficer to deliver a proposed decision within the time required does not
prejudice the rights of the Commission in the case.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11425.10(a)(6), 11425.50 and 11517, Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12).
§ 7434. Commission Decisions.
(a) Adoption or modification of proposed decision. Upon receipt of a
proposed decision, the Commission may do any of the following:
(1) Adopt the proposed decision in its entirety.
(2) Reduce or otherwise mitigate the proposed remedy and adopt the
balance of the proposed decision.
(3) Make technical or other minor changes in the proposed decision
and adopt it as the decision. Action by the Commission under this para-
graph is limited to clarifying changes or changes of a similar nature that
do not affect the factual or legal basis of the proposed decision.
(b) Non–adoption of proposed decision. If the proposed decision is not
adopted as provided in subdivision (a), the Commission may decide the
case upon the record, including the transcript, or may refer the case to the
same Hearing Officer, if available, to take additional evidence. The par-
ties shall be notified of their ability to order a transcript in the case. If the
case is assigned to a Hearing Officer for the taking of additional evidence,
he or she shall prepare a proposed decision as provided in section 7433,
subdivision (a) upon the receipt of the additional evidence and the tran-
script and other papers which are part of the record of the prior hearing.
A copy of the proposed decision shall be served on the Commission and
all parties and complainant, as prescribed below in subdivision (e).
(1) Before deciding any case on the record, the Commission shall give
the parties the opportunity to present further written argument and/or, if
the Commission so chooses, to present further oral argument before the
Commission.
(2) If the analysis of the further argument reveals the need for addition-
al evidence, the Commission may order the taking of additional evi-
dence, either by the Commission or by the Hearing Officer. Following
receipt of the additional evidence, the Commission may require further
written or oral argument before deeming the case submitted to it for deci-
sion. If additional oral evidence is taken by the Commission, no Commis-
sioner may vote unless the member heard the additional oral evidence.
(c) The proposed decision shall be deemed adopted by the Commis-
sion 100 days after service to the Commission by the Hearing Officer, un-
less within that time: (1) the Commission notifies the parties that the pro-
posed decision is not adopted and commences proceedings to decide the
case itself upon the record, or (2) the Commission refers the case to the
Hearing Officer to take additional evidence.
(d) The decision of the Commission shall be a public record.
(e) Copies of the Commission decision shall be served by the Commis-
sion by first class, certified or registered mail on all parties and the com-
plainant or their representatives of record. Proof of service shall be as set
forth in section 7407.
(f) Within 15 days after service of a copy of the decision on a party,
but not later than the effective date of the decision, the party may apply
to the Commission for correction of a mistake or clerical error in the deci-
sion, stating the specific ground on which the application is made. Notice
of the application shall be given to the other parties to the proceeding. The
application is not a prerequisite for seeking judicial review.
(1) The Commission may refer the application to the Hearing Officer
who wrote the proposed decision or may delegate its authority under this
section to one or more persons.
Fair Employment and Housing CommissionTitle 2
§ 7438
Page 139
(2) The Commission may deny the application, grant the application
and modify the decision, or grant the application and set the matter for
further proceedings. The application is considered denied if the Commis-
sion does not dispose of it within 30 days after it is made.
(3) Nothing in this section precludes the Commission on its own mo-
tion, or on motion of the Hearing Officer, from modifying the decision
to correct a mistake or clerical error. A modification under this subdivi-
sion shall be made within 30 days after issuance of the decision.
(4) The Commission shall, within 15 days after correction of a mistake
or clerical error in the decision, serve a copy of the correction on each
party and complainant on which a copy of the decision was previously
served.
(g) The decision shall become effective 30 days after it is mailed to the
parties and the complainant, unless a reconsideration of the decision is
ordered within that time, or the Commission orders that the decision shall
become effective sooner, or a stay of execution is granted by the Com-
mission.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11517, 11518.5 and 11519, Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12). For prior history, see
Register 83, No. 23.
§ 7435. Precedential Decisions.
(a) The Commission may designate, as a precedential decision, any de-
cision or part of any decision that contains a significant legal or policy
determination of general application that is likely to recur. Once the
Commission designates a decision or part of a decision as precedential,
the Commission may rely on it or that part of it as precedent and the par-
ties may cite to such decisions in their argument to the Commission and
courts.
(b) The Commission shall publish, on an annual basis, an index of sig-
nificant legal and policy determinations made in its precedential deci-
sions and shall publish annually the availability of this index in the Cali-
fornia Regulatory Notice Register. The Commission shall also make the
index and precedential decisions available for inspection in its office and
shall make the index available to the public by subscription or other on–
line means.
N
OTE: Authority cited: Sections 12935(a) and (h), and 12972(a)(2), Government
Code. Reference: Sections 11425.10(a)(7), 11425.60 and 12935(h), Government
Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12). For prior history, see
Register 83, No. 23.
§ 7436. Reconsideration.
(a) The Commission may order a reconsideration of all or part of a
Commission decision on its own motion or by petition of any party. A
party may petition the Commission for reconsideration within 20 days of
the date a decision is mailed to the party. The power to order reconsidera-
tion shall expire 30 days after the delivery or mailing of a Commission
decision to all parties and the complainant or upon the termination of a
stay of not to exceed 30 days which the Commission may grant for the
purpose of filing a petition for reconsideration. If the Commission needs
additional time to evaluate a timely petition for reconsideration, the
Commission may grant a stay of the expiration for no more than 10 days,
for the sole purpose of considering the petition.
(b) The decision may be reconsidered by the Commission on all the
pertinent parts of the record and such additional evidence and argument
as the Commission permits, or the Commission may assign the case back
to the Hearing Officer for the taking of additional evidence, pursuant to
the rules set forth in section 7435, subdivision (b). If oral evidence is in-
troduced before the Commission, no Commissioner may vote unless he
or she heard the evidence.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Section 11521, Government Code.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12). For prior history, see
Register 83, No. 23.
§ 7437. Judicial Review.
The Commission incorporates by reference the rules for judicial re-
view which are found in the Administrative Procedure Act, Government
Code section 11523, and, for housing discrimination cases, Government
Code section 12987.1.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11523 and 12987.1, Government Code; and Section 1094.5,
Code of Civil Procedure.
HISTORY
1. Repealer and new section filed 3–15–99; operative 3–15–99 pursuant to Gov-
ernment Code section 11343.4(d) (Register 99, No. 12). For prior history, see
Register 83, No. 23.
§ 7438. Appendices.
A. Subpoena and subpoena duces tecum form.
B. Judicial Council Rule 989.3 and Evidence Code section 754.
C. Pre–hearing statement form.
N
OTE: Authority cited: Sections 12935(a) and 12972(a)(2), Government Code.
Reference: Sections 11450.10, 11435.05 and 11511.5(a)(9), Government Code;
Section 754, Evidence Code; and Judicial Council Rule 989.3.
HISTORY
1. Repealer and new section (including appendices A–C) filed 3–15–99; operative
3–15–99 pursuant to Government Code section 11343.4(d) (Register 99, No.
12). For prior history, see Register 83, No. 23.
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7438
Page 140
Appendix A
Attorney (Name and Address):
Attorney for (Name):
Telephone Number:
In the Matter of the Accusation )
of the )
DEPARTMENT OF FAIR EMPLOYMENT ) Case No. _______
AND HOUSING )
v. )
SUBPOENA
,)
SUBPOENA DUCES TECUM
Respondent(s). )
). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
,)
Complainant(s). )
TO (Name):
1. YOU ARE ORDERED TO APPEAR AS A WITNESS in this action at the date, time and place shown in the box below UNLESS you make
a special agreement with the person named in item 3:
a. Date: Time:
b. Address:
2. AND YOU ARE
a.
ordered to appear in person.
b.
ordered to appear in person and to produce the records described in the accompanying affidavit. The personal attendance of the custodian
or other qualified witness and the production of the original records are required by this subpoena. The procedure authorized by subdivision
(b) of section 1560, and sections 1561 and 1562, of the Evidence Code will not be deemed sufficient compliance with this subpoena.
c.
You are not required to appear in person if you comply with Evidence Code sections 1560 and 1561.
3. IF YOU HAVE ANY QUESTIONS ABOUT THE TIME OR DATE FOR YOU TO APPEAR, OR IF YOU WANT TO BE CERTAIN THAT
YOUR PRESENCE IS REQUIRED, CONTACT THE FOLLOWING PERSON BEFORE THE DATE ON WHICH YOU ARE TO APPEAR:
a. Name:
b. Telephone Number:
4. Witness Fees: You are entitled to witness fees and mileage actually traveled both ways, as provided by law, if you request them before your
scheduled appearance from the person named in item 3.
DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT.
Date Issued:
(Type or Print Name) (Signature of Person issuing Subpoena)
(Title)
THE SUBPOENAING PARTY IS REQUIRED TO SERVE A COPY OF THIS SUBPOENA ON THE OPPOSING PARTY (DEPARTMENT
OF FAIR EMPLOYMENT AND HOUSING OR RESPONDENT), AS WELL AS ON THE WITNESS WHO IS BEING SUBPOENAED, AND
MUST COMPLY WITH ANY APPLICABLE CONSUMER NOTICE REQUIREMENTS (Code of Civil Procedure §§ 1985.3 and 1985.6).
Fair Employment and Housing CommissionTitle 2
§ 7438
Page 141
Appendix B
RULE 989.3 REQUESTS FOR ACCOMMODATIONS BY
PERSONS WITH DISABILITIES
(a) [Policy] It shall be the policy of the courts of this state to assure that
qualified individuals with disabilities have equal and full access to the ju-
dicial system. Nothing in this rule shall be construed to impose limita-
tions or to invalidate the remedies, rights, and procedures accorded to any
qualified individuals with disabilities under state or federal law.
(b) [Definitions] The following definitions shall apply under this rule:
(1) “Qualified individuals with disabilities” means persons covered by
the Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seq.);
Civil Code section 51 et seq.; and other related state and federal laws; and
includes individuals who have a physical or mental impairment that sub-
stantially limits one or more of the major life activities; have a record of
such an impairment; or are regarded as having such an impairment.
(2) “Applicant” means any lawyer, party, witness, juror, or any other
individual with an interest in attending any proceeding before any court
of this state.
(3) “Accommodation(s)” may include, but are not limited to, making
reasonable modifications in policies, practices, and procedures; furnish-
ing, at no charge, to the qualified individuals with disabilities, auxiliary
aids and services, which are not limited to equipment, devices, materials
in alternative formats, and qualified interpreters or readers; and making
each service, program, or activity, when viewed in its entirety, readily ac-
cessible to and usable by qualified individuals with disabilities request-
ing accommodations. While not requiring that each existing facility be
accessible, this standard, known as “program accessibility,” must be pro-
vided by methods including alteration of existing facilities, acquisition
or construction of additional facilities, relocation of a service or program
to an accessible facility, or provision of services at alternate sites.
(4) The “rule” means this rule regarding requests for accommodations
in state courts by qualified individuals with disabilities.
(5) “Confidentiality” applies to the identity of the applicant in all oral
or written communications, including all files and documents submitted
by an applicant as part of the application process.
(c) [Process] The following process for requesting accommodations
is established:
(1) Applications requesting accommodation(s) pursuant to this rule
may be presented ex parte in writing, on a form approved by the Judicial
Council and provided by the court, or orally as the court may allow.
Applications should be made at the designated Office of the Clerk, or to
the courtroom clerk or judicial assistant where the proceeding will take
place, or to the judicial officer who will preside over the proceeding.
(2) All applications for accommodations shall include a description of
the accommodation sought, along with a statement of the impairment that
necessitates such accommodation. The court, in its discretion, may re-
quire the applicant to provide additional information about the qualifying
impairment.
(3) Applications should be made as far in advance of the requested ac-
commodations implementation date as possible, and in any event should
be made no less than five court days prior to the requested implementa-
tion date. The court may, in its discretion, waive this requirement.
(4) Upon request, the court shall place under seal the identity of the
applicant as designated on the application form and all other identifying
information provided to the court pursuant to the application.
(d) [Permitted communication] An applicant may make ex parte
communications with the court; such communications shall deal only
with the accommodation(s) the applicant’s disability requires and shall
not deal in any manner with the subject matter or merits of the proceed-
ings before the court.
(e) [Grant of accommodation] A court shall grant an accommodation
as follows:
(1) In determining whether to grant an accommodation and what ac-
commodation to grant, the court shall consider, but is not limited by, the
provisions of the Americans with Disabilities Act of 1990 and related
state and federal laws.
(2) The court shall inform the applicant in writing of findings of fact
and orders, as may be appropriate, that the request for accommodations
is granted or denied, in whole or in part, and the nature of the accommo-
dation(s) to be provided, if any.
(f) [Denial of accommodation] An application may be denied only if
the court finds that:
(1) The applicant has failed to satisfy the requirements of this rule; or
(2) The requested accommodation(s) would create an undue financial
or administrative burden on the court; or
(3) The requested accommodation(s) would fundamentally alter the
nature of the service, program, or activity.
(g) [Review procedure]
(1) An applicant or any participant in the proceeding in which an ac-
commodation has been denied or granted may seek review of a determi-
nation made by nonjudicial court personnel within 10 days of the date of
the notice of denial or grant by submitting a request for review to the judi-
cial officer who will preside over the proceeding or to the presiding judge
if the matter has not been assigned.
(2) An applicant or any participant in the proceeding in which an ac-
commodation has been denied or granted may seek review of a determi-
nation made by a presiding judge or any other judicial officer of a court
within 10 days of the date of the notice of denial or grant by filing a peti-
tion for extraordinary relief in a court of superior jurisdiction.
(h) [Duration of accommodations] The accommodations by the
court shall commence on the date indicated in the notice of accommoda-
tion and shall remain in effect for the period specified in the notice of ac-
commodation. The court may grant accommodations for indefinite peri-
ods of time or for a particular matter or appearance.
Adopted, eff. Jan. 1, 1996.
EVIDENCE CODE
§ 754. Deaf or Hearing Impaired Persons; Interpreters; . Qualifi-
cations; Guidelines; Compensation; Questioning; Use of Statements
(a) As used in this section, “individual who is deaf or hearing im-
paired” means an individual with a hearing loss so great as to prevent his
or her understanding language spoken in a normal tone, but does not in-
clude an individual who is hearing impaired provided with, and able to
fully participate in the proceedings through the use of, an assistive listen-
ing system or computer–aided transcription equipment provided pur-
suant to Section 54.8 of the Civil Code.
(b) In any civil or criminal action, including, but not limited to, any ac-
tion involving a traffic or other infraction, any small claims court pro-
ceeding, any juvenile court proceeding, any family court proceeding or
service, or any proceeding to determine the mental competency of a per-
son, in any court–ordered or court–provided alternative dispute resolu-
tion, including mediation and arbitration, or any administrative hearing,
where a party or witness is an individual who is deaf or hearing impaired
and the individual who is deaf or hearing impaired is present and partici-
pating, the proceedings shall be interpreted in a language that the individ-
ual who is deaf or hearing impaired understands by a qualified interpreter
appointed by the court or other appointing authority, or as agreed upon.
(c) For purposes of this section, “appointing authority” means a court,
department, board, commission, agency licensing or legislative body, or
other body for proceedings requiring a qualified interpreter.
(d) For the purposes of this section, “interpreter” includes, but is not
limited to, an oral interpreter, a sign language interpreter, or a deaf–blind
interpreter, depending upon the needs of the individual who is deaf or
hearing impaired.
(e) For purposes of this section, “intermediary interpreter” means an
individual who is deaf or hearing impaired, or a hearing individual who
is able to assist in providing an accurate interpretation between spoken
English and sign language or between variants of sign language or be-
tween American Sign Language and other foreign languages by acting
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7438
Page 142
as an intermediary between the individual who is deaf or hearing im-
paired and the qualified interpreter.
(f) For purposes of this section, “qualified interpreter” means an inter-
preter who has been certified as competent to interpret court proceedings
by a testing organization, agency, or educational institution approved by
the Judicial Council as qualified to administer tests to court interpreters
for individuals who are deaf or hearing impaired.
(g) In the event that the appointed interpreter is not familiar with the
use of particular signs by the individual who is deaf or hearing impaired
or his or her particular variant of sign language, the court or other ap-
pointing authority shall, in consultation with the individual who is deaf
or hearing impaired or his or her representative, appoint an intermediary
interpreter.
(h) Prior to July 1, 1992, the Judicial Council shall conduct a study to
establish the guidelines pursuant to which it shall determine which test-
ing organizations, agencies, or educational institutions will be approved
to administer tests for certification of court interpreters for individuals
who are deaf or hearing impaired. It is the intent of the Legislature that
the study obtain the widest possible input from the public, including, but
not limited to, educational institutions, the judiciary, linguists, members
of the State Bar, court interpreters, members of professional interpreting
organizations, and members of the deaf and hearing–impaired communi-
ties. After obtaining public comment and completing its study, the Judi-
cial Council shall publish these guidelines. By January 1, 1997, the Judi-
cial Council shall approve one or more entities to administer testing for
court interpreters for individuals who are deaf or hearing impaired. Test-
ing entities may include educational institutions, testing organizations,
joint powers agencies, or public agencies.
Commencing July 1, 1997, court interpreters for individuals who are
deaf or hearing impaired shall meet the qualifications specified in subdi-
vision (f).
(i) Persons appointed to serve as interpreters under this section shall
be paid, in addition to actual travel costs, the prevailing rate paid to per-
sons employed by the court to provide other interpreter services unless
such service is considered to be a part of the person’s regular duties as
an employee of the state, county, or other political subdivision of the
state. Payment of the interpreter’s fee shall be a charge against the
county, or other political subdivision of the state, in which that action is
pending. Payment of the interpreter’s fee in administrative proceedings
shall be a charge against the appointing board or authority.
(j) Whenever a peace officer or any other person having a law enforce-
ment or prosecutorial function in any criminal or quasi–criminal investi-
gation or proceeding questions or otherwise interviews an alleged victim
or witness who demonstrates or alleges deafness or hearing impairment,
a good faith effort to secure the services of an interpreter shall be made,
without any unnecessary delay unless either the individual who is deaf
or hearing impaired affirmatively indicates that he or she does not need
or cannot use an interpreter, or an interpreter is not otherwise required by
Title II of the Americans with Disabilities Act of 1990 (Public Law
101–336) and federal regulations adopted thereunder.
(k) No statement, written or oral, made by an individual who the court
finds is deaf or hearing impaired in reply to a question of a peace officer,
or any other person having a law enforcement or prosecutorial function
in any criminal or quasi–criminal investigation or proceeding, may be
used against that individual who is deaf or hearing impaired unless the
question was accurately interpreted and the statement was made know-
ingly, voluntarily, and intelligently and was accurately interpreted, or the
court makes special findings that either the individual could not have
used an interpreter or an interpreter was not otherwise required by Title
II of the Americans with Disabilities Act of 1990 (Public Law 101–336)
and federal regulations adopted thereunder and that the statement was
made knowingly, voluntarily, and intelligently.
(l) In obtaining services of an interpreter for purposes of subdivision
(j) or (k), priority shall be given to first obtaining a qualified interpreter.
(m) Nothing in subdivision (j) or (k) shall be deemed to supersede the
requirement of subdivision (b) for use of a qualified interpreter for indi-
viduals who are deaf or hearing impaired participating as parties or wit-
nesses in a trial or hearing.
(n) In any action or proceeding in which an individual who is deaf or
hearing impaired is a participant, the appointing authority shall not com-
mence proceedings until the appointed interpreter is in full view of and
spatially situated to assure proper communication with the participating
individual who is deaf or hearing impaired.
(o) Each superior court shall maintain a current roster of qualified in-
terpreters certified pursuant to subdivision (f).
(Amended by Stats. 1995, c. 143 (A.B. 1833), §1. eff. July 18, 1995.)
Appendix C
PRE–HEARING STATEMENT
You may, but do not have to, use this form to prepare your Pre–Hearing
Statement which must be filed with the Commission no later than five
working days before the scheduled date of hearing. Failure to fully dis-
close all required items in the Pre–Hearing Statement may result in the
exclusion or restriction of evidence at the hearing. Please see the Com-
mission’s procedural regulations, at California Code of Regulations,
Title 2, sections 7400 et seq., for more details.
In the Matter of the Accusation )
of the )
)
DEPARTMENT OF FAIR ) PRE–HEARING STATEMENT
EMPLOYMENT AND ) (Cal. Code Regs. §7422)
HOUSING )
)
v. ) Case No.:
) Hearing Date:
(RESPONDENT’S NAME), )
) . . . . . . . . . . . . . . . . . . . . . . . . . .
Respondent(s). )
) . . . . . . . . . . . . . . . . . . . . . . . . . .
(COMPLAINANT’S NAME), )
Complainant(s). )
)
1. Brief summary of any stipulated facts:
2. Pleadings in the case:
Date of accusation:
Date(s) of any amended accusation(s):
Date of Notice of Defense:
Title and date of any other pleading filed in the case:
3. Estimated time necessary to try your case:
4. List of all witnesses as follows:
Name of witnesses/brief statement of anticipated testimony.
5. List of all expert witnesses as follows:
Name of expert witness/brief statement of anticipated testimony.
6. Exhibits
Each exhibit shall be separately listed and shall include a description
that is sufficient for identification.
7. Evidence by Affidavit or Deposition (must comply with California
Code of Regulations, Title 2, §§7427 and 7428.)
Name of Witness Reason that witness is
unavailable
8. Major evidentiary issues, if any, in the case:
Fair Employment and Housing CommissionTitle 2
§ 7457
Page 143
9. Attach copy of any pre–hearing motion, any response to the motion,
and any order.
10. Attach any anticipated motions in limine.
11. Other issues or matters.
Date:
Signature:
Typed Name:
Attorney for:
§ 7439. Filing of Notice of Defense. [Renumbered]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11506 and 12935(a), Government Code.
HISTORY
1. Renumbering of former Section 7439 to Section 7438 filed 6–2–83; effective
thirtieth day thereafter (Register 83, No. 23).
§ 7440. Purpose of Motions Before Hearing. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12935(a), 12965(a), 12967–12969 and 12981, Government Code.
HISTORY
1. Repealer of former article 4 (sections 7440–7448) and repealer of section filed
3–15–99; operative 3–15–99 pursuant to Government Code section 11343.4(d)
(Register 99, No. 12).
§ 7441. Form of Motions Before Hearing. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Section
12935(a), Government Code.
HISTORY
1. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7442. Procedures for Motions Before Hearing.
[Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Section
12935(a), Government Code.
HISTORY
1. New subsection (a) filed 6–2–83; effective thirtieth day thereafter (Register 83,
No. 23).
2. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7443. Decisions and Appeal. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12935(a), 12967, 12968, 12969 and 12981, Government Code.
HISTORY
1. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7444. Permissible Motions Before Hearing. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Section
12935(a), Government Code.
HISTORY
1. Amendment of subsection (a) filed 6–2–83; effective thirtieth day thereafter
(Register 83, No. 23).
2. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7445. Amended or Supplemental Accusations.
[Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11507 and 12935(a), Government Code.
HISTORY
1. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7446. Withdrawal of Accusation Prior to Hearing or
Intervention by a Complainant. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12935(a), 12965 and 12967, Government Code.
HISTORY
1. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7447. Discovery. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11507.5, 11507.6 and 12935(a), Government Code.
HISTORY
1. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7448. Intervention and Amicus Briefs. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11500(b) and 12935(a), Government Code.
HISTORY
1. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7450. Hearings. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11506, 12967, 12972 and 12981(b), Government Code.
HISTORY
1. New section filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
2. Repealer of former article 5 (sections 7450–7459.4) and repealer of section filed
3–15–99; operative 3–15–99 pursuant to Government Code section 11343.4(d)
(Register 99, No. 12).
§ 7451. Time and Place of Hearing. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11500(a), 11508, 11509, 12935(a) and 12968, Government Code.
HISTORY
1. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7452. Continuances. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11524, 12935(a) and 12968, Government Code.
HISTORY
1. Renumbering of former Section 7453 to Section 7452 filed 6–2–83; effective
thirtieth day thereafter (Register 83, No. 23).
2. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7453. Depositions of Unavailable Witnesses and
Evidence by Affidavit. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11514 and 12935(a), Government Code.
HISTORY
1. Renumbering of former Section 7453 to 7452, and renumbering of former Sec-
tion 7454 to Section 7453 filed 6–2–83; effective thirtieth day thereafter (Regis-
ter 83, No. 23).
2. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7454. Depositions of Unavailable Witnesses and
Evidence by Affidavit. [Renumbered]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11514 and 12935(a), Government Code.
HISTORY
1. Renumbering of Section 7454 to Section 7453 filed 6–2–83; effective thirtieth
day thereafter (Register 83, No. 23).
§ 7455. Subpoenas. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11510, 12935(a), 12972, and 12981(b), Government Code.
HISTORY
1. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7456. Pre–Hearing Statement. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
12935(a), 12967, 12972 and 12981(b), Government Code.
HISTORY
1. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7457. Conduct of Hearings. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11512, 11517(a) and 12935(a), Government Code; Feist v. Rowe (1970) 83 Cal.
Rptr. 465, 3 Cal.App.3d 404; Cooper v. State Board of Medical Examiners of
Dept. of Professional and Vocational Standards of California (1950) 217 630, 35
Cal.2d 242, 18 AL.R.2d 593; Leeds v. Gray (1952) 242 P.2d 48, 109 Cal.App.2d
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 7458
Page 144
874; Le Strange v. City of Berkeley (1962) 26 Cal.Rptr. 550, 210 Cal.App.2d 313;
International Union of Operating Engineers, Local No. 12 v. Fair Employment
Practice Commission (1969) 81 Cal. Rptr. 47, 276 C.A. 2d 504, certiorari denied
90 S. Co. 1356, 397 U.S. 1307, 25 L.Ed. 2d 648.
HISTORY
1. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7458. Withdrawal of Accusation After Intervention by a
Complainant or After Commencement of
Hearing. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11512(b), 12935(a), 12969, 12972 and 12981(b), Government Code.
HISTORY
1. Amendment filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
2. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7459. Motions During Hearing. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11512, 12935(a), 12967, 12972 and 12981(b), Government Code.
HISTORY
1. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7459.1. Motions for Nonsuit, Dismissal or Judgment.
[Repealed]
NOTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11517(b), 12935(a), Government Code; Frost v. State Personnel Board (1961)
190 Cal. App.2d 1, 3–6; Kramer v. State Board of Accountancy (1962) 200
Cal.App.2d 163, 175; O’Mara v. State Board of Pharmacy (1966) 246 Cal.App.2d
8, 10–11.
HISTORY
1. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7459.2. Evidence Rules. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11511, 11513, 11514, 11515, 12972 and 12981(b), Government Code.
HISTORY
1. New section filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
2. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7459.3. Default Hearings. [Repealed]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11520, 12935(a), 12967, 12972 and 12981(b), Government Code.
HISTORY
1. Renumbering of former Section 7459.4 to Section 7459.3 filed 6–2–83; effec-
tive thirtieth day thereafter (Register 83, No. 23).
2. Repealer filed 3–15–99; operative 3–15–99 pursuant to Government Code sec-
tion 11343.4(d) (Register 99, No. 12).
§ 7459.4. Default Hearings. [Renumbered]
N
OTE: Authority cited: Section 12935(a), Government Code. Reference: Sections
11520, 12935(a), 12967, 12972 and 12981(b), Government Code.
HISTORY
1. Renumbering of Section 7459.4 to Section 7459.3 filed 6–2–83; effective thir-
tieth day thereafter (Register 83, No. 23).
Article 6. Post–Hearing Matters [Repealed]
HISTORY
1. Repealer of former article 6 (sections 7460–7466) filed 3–15–99; operative
3–15–99 pursuant to Government Code section 11343.4(d) (Register 99, No.
12).
Subchapter 3. Investigative Hearing
(Reserved)
Subchapter 4. Advisory Agencies and
Councils
(Reserved)
Chapter 5. Contractor Nondiscrimination
and Compliance
Subchapter 1. General Matters
§ 8101. Office of Compliance Programs.
(a) Creation and Authority. The Department of Fair Employment and
Housing (DFEH) is responsible for the administration of policies, the im-
plementation of standards, and the enforcement of the rules and regula-
tions set forth in this chapter. The DFEH has created the Office of Com-
pliance Programs (OCP) to carry out these responsibilities. The OCP will
operate under the procedures established in this chapter as well as under
other procedures of the Commission as set out in this division.
COMMENT As of the date these regulations were adopted, DFEH
headquarters and OCP were located at 1201 I Street, Suite 211, Sacra-
mento, CA 95814, telephone (916) 323–4547.
(b) Administrator. The OCP will operate under the direction of an Ad-
ministrator of Compliance Programs who shall be appointed by and be
responsible to the Director of the Department. The Administrator will
have direct responsibility for the appointment of staff and the organiza-
tion and operation of the OCP consistent with the terms of the Act and
the provisions of this chapter.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. Repealer of Chapter 5 (Sections 8317–8323) and new Chapter 5 (Subchapters
1–4, Sections 8101–8502, not consecutive) filed 12–17–82; effective thirtieth
day thereafter (Register 82, No. 52). For prior history, see Register 81, No. 3.
§ 8102. Definitions.
The words defined in this section shall have the meanings set forth be-
low whenever they appear in this chapter, unless:
(1) the context in which they are used clearly requires a different mean-
ing; or
(2) a different definition is prescribed for a particular subchapter or
provision.
The definitions set forth previously in this division in Sections 7285.2,
7286.5, 7287.2, 7290.7, 7291.2(b), 7292.1, 7293.6, and 7295.1 are also
applicable to this chapter.
(a) Bid means any proposal or other request by an employer to a con-
tract awarding agency wherein the employer seeks to be awarded a state
contract.
(b) Business means any corporation, partnership, individual, sole pro-
prietorship, joint stock company, joint venture, or any other legal entity.
(c) Construction means the process of building, altering, repairing, im-
proving, or demolishing any public structure or building, or other public
improvements of any kind to any State of California real property. It does
not include the routine operation, routine repair, or routine maintenance
of existing structures, buildings, or real property.
(d) Contract or state contract means all types of agreements, regardless
of what they may be called, for the purchase or disposal of supplies, ser-
vices, or construction to which a contract awarding agency is a party. It
includes awards and notices of award; contracts of a fixed–price, cost,
cost–plus–a–fixed–fee, or incentive type; contracts providing for the is-
suance of job or task orders. It also includes supplemental agreements or
contract modifications with respect to any of the foregoing.
Fair Employment and Housing CommissionTitle 2
§ 8104
Page 145
(e) Contract awarding agency or awarding agency means any depart-
ment, agency, board, commission, division or other unit of the State of
California which is authorized to enter into state contracts.
(f) Contractor means any person having a contract with a contract
awarding agency or a subcontract for the performance of a contract with
such an agency.
(g) Data means recorded information, regardless of form or character-
istic.
(h) (Reserved)
(i) Decertification means the decision by OCP that an employer’s non-
discrimination program fails to comply with the requirements of the Fair
Employment and Housing Act and/or its implementing regulations either
because it is poorly designed or because it has not been properly implem-
ented or because of the person’s failure to cooperate with OCP it cannot
be determined whether the nondiscrimination program meets the re-
quirements of this chapter. Decertification of a program shall continue
until OCP certifies that the contractor is in compliance with the require-
ments of this chapter.
(j) Decision means the decision of the hearing officer regarding the al-
legations of a show cause notice issued pursuant to Section 8503 of this
chapter. A decision shall dismiss, modify, or sustain the allegations of the
show cause notice; provide the factual basis for the decision; and include
any sanctions to be recommended to the awarding agency together with
a statement of the reasons in support thereof.
(k) Employee means an individual under the direction and control of
a contractor under any appointment or contract of hire or apprenticeship,
express or implied, oral or written.
(l) (Reserved)
(m) May denotes the permissive.
(n) Minority refers to an individual who is ethnically or racially classi-
fiable in one of four major groups: Black, Hispanic. Asian or Pacific Is-
lander; or American Indian or Alaskan Native.
(1) Black includes persons having their primary origins in any of the
black racial groups of Africa, but not of Hispanic origin;
(2) Hispanic includes persons of primary culture or origin in Mexico,
Puerto Rico, Cuba, Central or South America, or other Spanish derived
culture or origin regardless of race;
(3) Asian/Pacific Islander includes persons having primary origins in
any of the original peoples of the Far East, Southeast Asia, the Indian
Subcontinent, or the Pacific Islands. This area includes, for example,
China, Japan, Korea, the Philippine Islands, and Samoa; and
(4) American Indian/Alaskan Native includes persons having primary
origins in any of the original peoples of North America, and who main-
tain culture identification through tribal affiliation or community recog-
nition.
(o) Nondiscrimination Clause means the clause to be included in each
state contract or subcontract pursuant to these regulations.
(p) Person means any business, individual, union, committee, club, or
other organization or group of individuals.
(q) Prime contractor means any individual or organization who direct-
ly contracts with the State of California.
(r) Service and supply contract includes any contract except a con-
struction contract.
(s) Services means the furnishing of labor, time, or effort by a contrac-
tor, not involving the delivery of a specific end product other than reports
which are merely incidental to the required performance. This term shall
not include collective bargaining agreements or arrangements between
parties which constitute that of employer and employee.
(t) Shall denotes the imperative.
(u) Subcontract means any agreement or arrangement executed by a
contractor with a third party in which the latter agrees to provide all or
specified part of the supplies, services or construction required in the
original state contract. This does not include arrangements between par-
ties which constitute that of employer and employee.
(v) Subcontractor means any individual or organization holding a sub-
contract for the performance of all or any part of a state contract.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. Amendment filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
§ 8102.5. Nondiscrimination Agreement.
State contracts exempt from the requirements of Section 8107 shall in-
clude, as an express or implied term, the term set out in either Section
8107 Clause (a) or Clause (b). Breach of this term of contract may consti-
tute a material breach of the contract, and may result in the imposition of
sanctions by the awarding agency and may result in decertification from
future opportunities to contract with the state.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. New section filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
2. Editorial correction filed 7–5–83; and correction of HISTORY printing error
(Register 83, No. 28).
§ 8103. Requirement of Nondiscrimination Program.
All employers who are, or wish to become, contractors with the state
must develop and implement a nondiscrimination program as defined in
Section 8104 of this chapter unless specifically exempted pursuant to
Section 8115 of this chapter.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8104. Nondiscrimination Program.
(a) Definition and Purpose. A nondiscrimination program (hereinafter
referred to as “the Program”) is a set of specific and result–oriented pro-
cedures to which a contractor or subcontractor commits itself for the pur-
pose of insuring equal employment opportunity for all employees or
applicants for employment. It may include an affirmative action compo-
nent which establishes goals and timetables to remedy any underutiliza-
tion of minorities and/or women which is identified. The Program shall
contain the following elements:
(1) Development or reaffirmation of the contractor’s equal employ-
ment opportunity policy in all personnel actions.
(2) Formal internal and external dissemination of the contractor’s
policy.
(3) Establishment of responsibilities for implementation of the con-
tractor’s program.
(4) Annual identification of any existing practices which have resulted
in disproportionately inhibiting the employment, promotion or retention
of those protected by the Act.
(A) Analysis of Employment Selection Procedures. The Program shall
include an identification and analysis of contractor promotional and en-
try–level selection procedures and shall identify any such procedures
which have resulted in disproportionately inhibiting the employment,
promotion or retention of minorities or women. The retention of such
practices so identified can only be justified according to the principles of
“business necessity” upon a demonstration that no reasonable alterna-
tives to such practices exist. The prospective contractor shall eliminate
any practices which cannot be so justified.
(B) Workforce Analysis. The Program will contain a workforce analy-
sis which shall consist of a listing of each job title which appears in appli-
cable collective bargaining agreements of payroll records ranked from
the lowest paid to the highest paid within each department or other similar
organizational unit, including departmental or unit supervisory person-
nel. For each job title, the total number of incumbents, and the total num-
ber of male and female incumbents, and the total number of male and fe-
male incumbents in each of the following groups must be given: Blacks,
[The next page is 357.]
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ NIL
Page 146
Fair Employment and Housing CommissionTitle 2
§ 8107
Page 147
Hispanics, Asian/Pacific Islanders, and American Indian/Native Alas-
kans. The wage rate or salary range for each job title must be given. All
job titles, including all managerial job titles, must be listed. If there are
separate work units or lines of progression within a department, a sepa-
rate list must be provided for each such work unit, or line, including unit
supervisors. For lines of progression there must be indicated the order of
jobs in the line through which an employee could move to the top of the
line. Where there are no formal progression lines or usual promotional
sequences, job titles should be listed by department, job families, or dis-
ciplines, in order of wage rates or salary ranges.
(C) Utilization Analysis. Employers with 250 or more employees must
perform a utilization analysis which shall consist of an analysis of the ma-
jor job groups at the facility in order to determine whether women and
minorities are being underutilized when compared to their availability.
A job group for this purpose shall consist of one or more jobs which have
similar content, wage rates and opportunities. Underutilization is defined
as having a statistically significant lower utilization of minorities or
women in a particular job group than their availability. Availability is de-
fined as the availability in the labor force. The labor force for this purpose
may vary depending upon the type of job in question, and the contractor’s
past practice, and could encompass the contractor’s existing employees,
the area immediately surrounding the facility where the vacancy exists
for low–skill jobs or it could encompass the entire nation for highly–
skilled managerial positions. The employer shall conduct a separate utili-
zation analysis for each minority group and women.
(5) Development and execution of action oriented programs designed
to correct problems and attain equal employment opportunities for all
applicants and employees.
(6) Design and implementation of internal audit and reporting systems
to measure the effectiveness of the total program.
(b) Employers who have identified a practice or practices which have
an adverse impact on one or more groups protected by the Act and which
may unlawfully discriminate against members of such groups may wish
to include an affirmative action component in their nondiscrimination
programs to minimize liability for discrimination, and correct past injus-
tices; such affirmative action may be required of employers who are
found to have discriminated in violation of the Act. Such a voluntary af-
firmative action component might contain, but need not be limited to, the
following:
(1) Active support of local and national community action programs
and community service programs designed to improve the employment
opportunities of minorities and women;
(2) Providing training opportunities to minorities and women within
the employer’s organization which will qualify them for promotion when
openings become available;
(3) Encouraging qualified women and minorities within the employ-
er’s organization to seek and accept transfers and promotions which in-
crease their future opportunities;
(4) Actively recruit qualified minorities and women, even those not
currently seeking such employment;
(5) Establishing and/or supporting training programs for entry level
positions; and
(6) Establishing goals and objectives by organizational units and job
groups, including timetables for completion. Establishment and imple-
mentation of a nondiscrimination program which contains an effective
affirmative action component will create a rebuttable presumption that
a contractor is in compliance with the requirements of Government Code,
Section 12990 and its implementing regulations.
(c) An employer with multiple facilities may establish a single nondis-
crimination program for its organization, but must perform separate anal-
yses pursuant to subsections (a)(4)(A), (B), and (C) above for each estab-
lishment.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. Amendment of subsection (a)(4)(A) filed 6–2–83; effective thirtieth day there-
after (Register 83, No. 23).
§ 8106. Prima Facie Compliance.
Compliance with a nondiscrimination or affirmative action program
subject to review and approval by a federal compliance agency shall con-
stitute prima facie evidence that a contractor has complied with the re-
quirements of Sections 8103 and 8104, unless the federal agency has
found that the program is not in compliance with federal law, in which
case compliance with a current federal commitment letter or conciliation
agreement shall constitute prima facie evidence that a contractor has
complied with the requirements of Sections 8103 and 8104. Such prima
facie evidence can be rebutted by a preponderance of the evidence to the
contrary.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8107. Nondiscrimination Clause.
Each state contract shall contain a Nondiscrimination Clause unless
specifically exempted pursuant to Section 8115. The governmental body
awarding the contract may use either clause (a) or clause (b) below.
Clause (a) will satisfy the requirements of Section 12990 of the Govern-
ment Code only; clause (b) contains language which will satisfy the re-
quirements of both the Fair Employment and Housing Act and Article
9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code
(adopted pursuant to Government Code, Sections11135–11139.5). Stan-
dardized state form OCP–1, containing clause (a), and OCP–2, contain-
ing clause (b), will be available through the OCP. These forms may be
incorporated into a contract by reference and will fulfill the requirement
of this section. The contracting parties may, in lieu of incorporating form
OCP–1 or OCP–2, include the required clause in the written contract di-
rectly.
Clause (a)
1. During the performance of this contract, contractor and its subcon-
tractors shall not unlawfully discriminate against any employee or appli-
cant for employment because of race, religion, color, national origin, an-
cestry, physical handicap, medical condition, marital status, age (over
40) or sex. Contractors and subcontractors shall insure that the evaluation
and treatment of their employees and applicants for employment are free
of such discrimination. Contractors and subcontractors shall comply
with the provisions of the Fair Employment and Housing Act (Gov.
Code, Section 12900 et seq.) and the applicable regulations promulgated
thereunder (Cal. Admin. Code, Tit. 2, Section 7285.0 et seq.). The appli-
cable regulations of the Fair Employment and Housing Commission im-
plementing Government Cod, Section 12990, set forth in Chapter 5 of Di-
vision 4 of Title 2 of the California Administrative Code are incorporated
into this contract by reference and made a part hereof as if set forth in full.
Contractor and its subcontractors shall give written notice of their obliga-
tions under this clause to labor organizations with which they have a col-
lective bargaining or other agreement.
2. This Contractor shall include the nondiscrimination and compliance
provisions of this clause in all subcontracts to perform work under the
contract.
Clause (b)
1. During the performance of this contract, the recipient, contractor
and its subcontractors shall not deny the contract’s benefits to any person
on the basis of religion, color, ethnic group identification, sex, age, physi-
cal or mental disability, nor shall they discriminate unlawfully against
any employee or applicant for employment because of race, religion, col-
or, national origin, ancestry, physical handicap, mental disability, medi-
cal condition, marital status, age (over 40) or sex. Contractor shall insure
that the evaluation and treatment of employees and applicants for em-
ployment are free of such discrimination.
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 8108
Page 148
2. Contractor shall comply with the provisions of the Fair Employment
and Housing Act (Gov. Code, Section 12900 et seq.), the regulations pro-
mulgated thereunder (Cal. Admin. Code, Tit. 2, Sections 7285.0 et seq.),
the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the
Government Code (Gov. Code, Sections 11135–11139.5), and the regu-
lations or standards adopted by the awarding state agency to implement
such article.
3. Contractor or recipient shall permit access by representatives of the
Department of Fair Employment and Housing and the awarding state
agency upon reasonable notice at any time during the normal business
hours, but in no case less than 24 hours notice, to such of its books, re-
cords, accounts, other sources of information and its facilities as said De-
partment or Agency shall require to ascertain compliance with this
clause.
4. Recipient, contractor and its subcontractors shall give written notice
of their obligations under this clause to labor organizations with which
they have a collective bargaining or other agreement.
5. The contractor shall include the nondiscrimination and compliance
provisions of this clause in all subcontracts to perform work under the
contract.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. Amendment filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
§ 8108. Subcontracts.
The contractor shall include the nondiscrimination clause in its con-
tract in all subcontracts to perform work under the contract, either direct-
ly or by incorporation by reference. Any such incorporation by reference
shall be specific and prominent.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8109. Enforcement of Clause.
The “Nondiscrimination Clause” in state contracts and subcontracts
shall be fully and effectively enforced. Any breach of its terms may con-
stitute a material breach of the contract and may result in the imposition
of sanctions against the contractor, including but not limited to cancella-
tion, termination, or suspension of the contract in whole or in part, by the
contract awarding agency or decertification from future opportunities to
contract with the State of California by DFEH.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. New section filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
§ 8112. Contract Awarding Agency, Unresponsive Bids.
(a) A contract awarding agency shall refuse to accept a bid or proposal
on a state contract subject to this chapter when the bid is unaccompanied
by a “Statement of Compliance” pursuant to Section 8113, and shall de-
clare any such bid or proposal unresponsive.
(b) A contract awarding agency shall declare unresponsive any bid or
proposal on a state contract that is submitted by a contractor on OCP’s
list of decertified contractors.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. New subsection (b) filed 6–2–83; effective thirtieth day thereafter (Register 83,
No. 23).
§ 8113. Statement of Compliance.
(a) As a part of its bid an eligible prospective contractor which bids on
a state contract must submit a statement under penalty of perjury to the
awarding agency that it has complied with the requirement of Section
8103 of this chapter.
(b) No state contract, unless otherwise exempted pursuant to Section
8115, shall be awarded by any contract awarding agency unless the pro-
spective contractor has filed with the agency as a part of its bid a state-
ment, made under penalty of perjury, that the prospective contractor has
complied with the requirements of Section 8103 of this chapter.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8114. Subcontracting Prohibited with Ineligible Entities.
(a) OCP shall establish and maintain a list of decertified contractors,
which shall be updated monthly and published in the first California No-
tice Register published each month.
(b) No contractor with the State of California shall, during the per-
formance of any contract with the State, enter into any subcontract with
any person listed on OCP’s list of decertified contractors during the
month in which the bid is submitted.
(c) Subcontracting with a decertified contractor in violation of the pro-
visions of this section may constitute a material breach of the contract and
may result in the imposition of sanctions against the contractor, including
but not limited to cancellation, termination, or suspension of the contract,
in whole or in part by the awarding agency, or decertification by DFEH.
Specific knowledge of the unlawfulness of the subcontract is not required
to establish a breach, but will be considered by OCP and the contract
awarding agency in their determination of the appropriate sanctions.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. New section filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
§ 8115. Exemptions.
(a) Licensed rehabilitation workshops which are contractors of state
contracting agencies are exempted from the requirements of this chapter.
(b) Contracts of less than $5,000 are automatically exempt from the
requirements of Section 8107; contractors holding only such contracts
are automatically exempt from the requirements of Section 8103, but are
subject to Section 8102.5.
(c) A contractor with fewer than fifty (50) employees in its entire
workforce may receive an automatic exemption from the Program re-
quirements of Section 8104, subdivisions (a)(4)(B)–(C) pertaining to
workforce and utilization analyses by filing a current “California Em-
ployer Information Report” annually with OCP. The OCP may remove
any exemption granted under this subsection, in connection with any de-
tailed review or any investigation instituted pursuant to Section 8401 or
8402, or whenever the contractor is found to be in substantial noncom-
pliance with the requirements of this chapter.
(d) Contracts and subcontracts which are awarded pursuant to a decla-
ration of public emergency, a declaration or determination of emergency
pursuant to Government Code, Section 14809 or Government Code, Sec-
tion 14272, subdivision (a), (b), or (c), or a declared threat to the health,
welfare or safety of the public are fully exempted from the requirements
of Section 8107, and contractors holding only such contracts are ex-
empted from the requirements of Section 8103, but remain subject to
Section 8102.5.
(e) A construction contractor with fewer than 50 permanent em-
ployees may obtain an exemption from the requirements of Section 8104,
subdivision (a)(4)(B)–(C) pertaining to workforce and utilization analy-
ses by filing a CEIR annually with OCP. The OCP may remove any ex-
emption granted under this subsection, in connection with any detailed
review or any investigation instituted pursuant to Section 8401 or 8402,
or whenever the contractor is found to be in substantial noncompliance
with the requirements of this chapter.
(f) Exemptions of subsections (a) and (d) of this section shall be
granted only upon application to the state contract awarding agency prior
to the date the contract is awarded. The contract awarding agency shall,
prior to the grant of any exemption under this section, require proof of
satisfaction of the exemption conditions of this section. The OCP may is-
sue opinion letters and guidelines from time to time to assist contact
awarding agencies in making determinations under this section.
Fair Employment and Housing CommissionTitle 2
§ 8201
Page 149
NOTE: Authority cited: Sections 12935(a) and 12990(d) Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. Amendment filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
§ 8116. Advertisements for New Employees.
In all written advertisements or recruitment efforts for new employees
during the performance of a regulated contract, a contractor is required
to prominently identify itself with the phrase “State Equal Opportunity
Employer” or similar wording.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8117. Recruitment.
In the event that any labor organization from which employees are nor-
mally recruited and/or with which the contractor has a collective bargain-
ing agreement is unable or unwilling to refer minorities or women the
contractor or subcontractor shall take the following steps and, for a peri-
od of two years, keep a record thereof:
(a) Notify the California Employment Development Department and
at least two minority or female referral organizations of the personnel
needs and request appropriate referrals, and
(b) Notify any minority or female persons who have personally listed
themselves with the contractor or subcontractor as seeking employment
of any existing vacancies for which they may qualify;
(c) Notify minority, women’s and community organizations that em-
ployment opportunities are available.
(d) Immediately notify OCP of the existence of the historical and pres-
ent relationship between the contractor and labor organizations and detail
the efforts of the contractor to secure adequate referrals through the labor
organizations.
Neither the provisions of any collective bargaining agreement, nor the
failure by a union with which the contractor has a collective bargaining
agreement, to refer either minorities or women shall excuse the contrac-
tor’s obligations under Government Code, Section 12990, or the regula-
tions in this chapter.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8117.5. Notice of Contract.
Contract awarding agencies shall give written notice to the Adminis-
trator within 10 working days of award of all contracts over $5,000. The
notice shall include name, address and telephone number of the contrac-
tor; federal employer identification number; state contract identification
number; date of contract award; contract amount; project location; name
of contractor’s agent who signed the contract; name of contract awarding
agency and contract awarding officer; and brief description of the pur-
pose or subject of the contract.
NOTE: Authority cited: Sections 12935(a) and 12990(d) Government Code. Ref-
erence: Section 12990, Government Code.
§ 8118. Contract Forms.
The State Department of General Services will have printed copies of
the forms referred to in this chapter and shall make them available upon
request.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8119. Access to Records and Employment Site.
(a) Each contractor shall provide OCP with any relevant information
requested and shall permit OCP access to its premises, upon reasonable
notice, during normal business hours for the purpose of conducting on–
site compliance reviews, employee interviews, and inspecting and copy-
ing such books, records, accounts and other material as may be relevant
to a matter under investigation for the purpose of determining and enforc-
ing compliance with this chapter.
(b) All information provided to DFEH in response to a request from
OCP which contains or might reveal a trade secret referred to in Section
1905 of Title 18 of the United States Code, or other information that is
confidential pursuant to Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code, shall be considered confi-
dential, except that such information may be disclosed to other officers
or employees of DFEH and may be introduced as evidence in any hearing
conducted pursuant to Section 8503 of this Chapter or Section 12967 of
the Government Code. The hearing officer or the director shall issue such
orders as may be appropriate to protect the confidentiality of such infor-
mation.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8120. Complaints of Discrimination or Noncompliance.
(a) Any interested person may lodge a written complaint of noncom-
pliance with either DFEH or the contract awarding agency. The com-
plaint shall state the name and address of the contractor, and shall set
forth a description of the alleged noncompliance. Complaints lodged
with the awarding agency shall be immediately referred to the Adminis-
trator of OCP. No complaint may be lodged after the expiration of one
year from the date upon which the alleged noncompliance occurred.
OCP shall cause any written complaint lodged under the provisions of
this section on which it intends to take action to be served, either person-
ally or by ordinary first class mail, upon the respondent contractor and
the awarding agency within 45 days. At the discretion of the Administra-
tor, the complaint may not contain the name of the complaining party.
(b) OCP shall notify the contract awarding agency of any action pur-
suant to Section 8501 instituted against a contractor of the agency, and
permit the agency to become a party to the action, except that the agency
shall be fully responsive to any request for information made by OCP in
connection with the action.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
Subchapter 2. Regulations Applicable to
Construction Contracts
§ 8200. Scope.
This subchapter applies to all nonexempt businesses which seek or
hold any state construction contract or subcontract. The regulations in
this subchapter are applicable to all of a construction contractor’s em-
ployees who are engaged in on–site construction including those em-
ployees who work on a construction site where no state work is being per-
formed.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8201. Notice of Requirements.
The following notice shall be included in, and shall be a part of, all so-
licitations for offers and bids on all nonexempt state construction con-
tracts and subcontracts, except that newspaper or trade publication ad-
vertisements need only state that the contract is subject to state contractor
nondiscrimination and compliance requirements pursuant to Govern-
ment Code, Section 12990:
NOTICE OF REQUIREMENT FOR NONDISCRIMINATION
PROGRAM (GOV. CODE, SECTION 12990)
Your attention is called to the “Nondiscrimination Clause” set forth or
referred to herein, which is applicable to all nonexempt state construction
contracts and subcontracts and to the “Standard California Nondiscrimi-
nation Construction Contract Specifications” set forth herein. The Speci-
fications are applicable to all nonexempt state construction contracts and
subcontracts of $5,000 or more.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 8202
Page 150
§ 8202. Application to Permanent and Temporary
Workforce.
A construction contractor’s nondiscrimination program established
pursuant to Sections 8103 and 8104 of this chapter must ensure nondis-
crimination within both its permanent workforce and its temporary on–
site workforce. The Section 8104 requirements of workforce and utiliza-
tion analyses, however, must be prepared only for permanent employees.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8202.5. Transfers Prohibited.
It is a violation of the contract, of Government Code Section 12990
and the regulations in Chapter 5 of Division 4 of Title 2 of the California
Administrative Code to transfer women and minority employees or train-
ees from contractor to contractor or from project to project for the sole
purpose of meeting the contractor’s nondiscrimination obligations.
N
OTE: Authority cited: Sections 12935(a) and 12990(d) Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. New section filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
§ 8203. Standard California Nondiscrimination
Construction Contract Specifications. (Gov.
Code, Section 12990.)
In addition to the nondiscrimination clause set forth in Section 8107,
all non–exempt state construction contracts and subcontracts of $5,000
or more shall include the specifications set forth in this section.
STANDARD CALIFORNIA NONDISCRIMINATION
CONSTRUCTION CONTRACT SPECIFICATIONS (GOV. CODE,
SECTION 12990)
These specifications are applicable to all state contractors and subcon-
tractors having a construction contract or subcontract of $5,000 or more.
1. As used in the specifications:
a. “Administrator” means Administrator, Office of Compliance Pro-
grams, California Department of Fair Employment and Housing, or any
person to whom the Administrator delegates authority;
b. “Minority” includes:
(i) Black (all persons having primary origins in any of the black racial
groups of Africa, but not of Hispanic origin);
(ii) Hispanic (all persons of primary culture or origin in Mexico, Puer-
to Rico, Cuba, Central or South America or other Spanish derived culture
or origin regardless of race);
(iii) Asian/Pacific Islander (all persons having primary origins in any
of the original peoples of the Far East, Southeast Asia, the Indian Subcon-
tinent or the Pacific Islands); and
(iv) American Indian/Alaskan Native (all persons having primary ori-
gins in any of the original peoples of North America and who maintain
culture identification through tribal affiliation or community recogni-
tion).
2. Whenever the contractor or any subcontractor subcontracts a por-
tion of the work, it shall physically include in each subcontract of $5,000
or more the nondiscrimination clause in this contract directly or through
incorporation by reference. Any subcontract for work involving a con-
struction trade shall also include the Standard California Construction
Contract Specifications, either directly or through incorporation by refer-
ence.
3. The contractor shall implement the specific nondiscrimination stan-
dards provided in paragraphs 6(a) through (e) of these specifications.
4. Neither the provisions of any collective bargaining agreement, nor
the failure by a union with whom the contractor has a collective bargain-
ing agreement, to refer either minorities or women shall excuse the con-
tractor’s obligations under these specifications, Government Code, Sec-
tion 12990, or the regulations promulgated pursuant thereto.
5. In order for the nonworking training hours of apprentices and train-
ees to be counted, such apprentices and trainees must be employed by the
contractor during the training period, and the contractor must have made
a commitment to employ the apprentices and trainees at the completion
of their training, subject to the availability of employment opportunities.
Trainees must be trained pursuant to training programs approved by the
U.S. Department of Labor or the California Department of Industrial Re-
lations.
6. The contractor shall take specific actions to implement its nondis-
crimination program. The evaluation of the contractor’s compliance with
these specifications shall be based upon its effort to achieve maximum
results from its actions. The contractor must be able to demonstrate fully
its efforts under Steps a. through e. below:
a. Ensure and maintain a working environment free of harassment, in-
timidation, and coercion at all sites, and at all facilities at which the con-
tractor’s employees are assigned to work. The contractor, where possi-
ble, will assign two or more women to each construction project. The
contractor shall specifically ensure that all foremen, superintendents, and
other on–site supervisory personnel are aware of and carry out the con-
tractor’s obligations to maintain such a working environment, with spe-
cific attention to minority or female individuals working at such sites or
in such facilities.
b. Provide written notification within seven days to the director of
DFEH when the union or unions with which the Contractor has a collec-
tive bargaining agreement has not referred to the Contractor a minority
person or woman sent by the Contractor, or when the Contractor has other
information that the union referral process has impeded the Contractor’s
efforts to meet its obligations.
c. Disseminate the Contractor’s equal employment opportunity policy
by providing notice of the policy to unions and training, recruitment and
outreach programs and requesting their cooperation in assisting the Con-
tractor to meet its obligations; and by posting the company policy on bul-
letin boards accessible to all employees at each location where construc-
tion work is performed.
d. Ensure all personnel making management and employment deci-
sions regarding hiring, assignment, layoff, termination, conditions of
work, training, rates of pay or other employment decisions, including all
supervisory personnel, superintendents, general foremen, on–site fore-
men, etc., are aware of the Contractor’s equal employment opportunity
policy and obligations, and discharge their responsibilities accordingly.
e. Ensure that seniority practices, job classifications, work assign-
ments and other personnel practices, do not have a discriminatory effect
by continually monitoring all personnel and employment related activi-
ties to ensure that the equal employment opportunity policy and the Con-
tractor’s obligations under these specifications are being carried out.
7. Contractors are encouraged to participate in voluntary associations
which assist in fulfilling their equal employment opportunity obliga-
tions. The efforts of a contractor association, joint contractor–union, con-
tractor–community, or other similar group of which the contractor is a
member and participant, may be asserted as fulfilling any one or more of
its obligations under these specifications provided that the contractor ac-
tively participates in the group, makes every effort to assure that the
group has a positive impact on the employment of minorities and women
in the industry, ensures that the concrete benefits of the program are re-
flected in the Contractor’s minority and female workforce participation,
and can provide access to documentation which demonstrates the effec-
tiveness of actions taken on behalf of the Contractor. The obligation to
comply, however, is the Contractor’s.
8. The Contractor is required to provide equal employment opportuni-
ty for all minority groups, both male and female, and all women, both mi-
nority and non–minority. Consequently, the Contractor may be in viola-
tion of the Fair Employment and Housing Act (Gov. Code, Section 12990
et seq.) if a particular group is employed in a substantially disparate man-
ner.
9. Establishment and implementation of a bona fide affirmative action
plan pursuant to Section 8104 (b) of this Chapter shall create a rebuttable
presumption that a contractor is in compliance with the requirements of
Fair Employment and Housing CommissionTitle 2
§ 8304
Page 151
Section 12990 of the Government Code and its implementing regula-
tions.
10. The Contractor shall not use the nondiscrimination standards to
discriminate against any person because of race, color, religion, sex, na-
tional origin, ancestry, physical handicap, medical condition, marital sta-
tus or age over 40.
11. The Contractor shall not enter into any subcontract with any person
or firm decertified from state contracts pursuant to Government Code
Section 12990.
12. The Contractor shall carry out such sanctions and penalties for vio-
lation of these specifications and the nondiscrimination clause, including
suspension, termination and cancellation of existing subcontracts as may
be imposed or ordered pursuant to Government Code Section 12990 and
its implementing regulations by the awarding agency. Any Contractor
who fails to carry out such sanctions and penalties shall be in violation
of these specifications and Government Code Section 12990.
13. The Contractor shall designate a responsible official to monitor all
employment related activity to ensure that the company equal employ-
ment opportunity policy is being carried out, to submit reports relating
to the provisions hereof as may be required by OCP and to keep records.
Records shall at least include for each employee the name, address, tele-
phone numbers, construction trade, union affiliation if any, employee
identification number when assigned, social security number, race, sex,
status, (e.g., mechanic, apprentice trainee, helper, or laborer), dates of
changes in status, hours worked per week in the indicated trade, rate of
pay, and locations at which the work was performed. Records shall be
maintained in any easily understandable and retrievable form; however,
to the degree that existing records satisfy this requirement, contractors
shall not be required to maintain separate records.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. Amendment filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
§ 8204. Reporting Requirement.
Contractors holding construction contracts of $50,000 or more must
submit quarterly utilization reports to OCP on forms to be provided by
OCP. In such reports the contractor must provide identifying information
and report the number and percentage of journey worker, apprentice, and
trainee hours worked in each job classification by sex and ethnic group,
together with the total number of employees and total number of minority
employees in each classification by sex. The quarterly utilization reports
must cover each calendar quarter and must be received by OCP no later
than the 15th day of the month following the end of the quarter (April 15,
July 15, October 15, and January 15). Contractors who are required to
submit utilization reports to the federal government may submit a copy
of the federal report to the OCP at the same time they submit the report
to the federal government in lieu of the state quarterly utilization report.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. New section filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
§ 8205. Effect on Other Regulations.
The Regulations in this subchapter are in addition to the regulations
contained in this division which apply to contractors and subcontractors
generally. See particularly, California Administrative Code, Title 2, Di-
vision 4, Chapter 1 through 5, Sections 7285.0 through 7285.7, 7286.3
through 7296.4, 7400 through 7469.1, 8100 through 8120, and 8400
through 8407.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. New section filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
Subchapter 3. Regulations Applicable to
Service and Supply Contracts
Article 1. Small Contracts
§ 8300. Scope.
This subchapter applies to all contractors which seek or hold any non-
exempt state service and supply contract or subcontract.
N
OTE: Authority cited: Sections 12935(a) and 12990(d) Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. New section filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
§ 8301. Definition of Small Contract.
All state contracts with a dollar value of twenty–five thousand dollars
($25,000) or less are for purposes of this subchapter defined as “small”
contracts.
N
OTE: Authority cited: Sections 12935(a) and 12990(d) Government Code. Ref-
erence: Section 12990, Government Code.
§ 8302. Post Award Filing.
Contractors awarded small contracts need not file any information
with OCP after execution of the contract, but must provide OCP access
to records required under Section 8303 upon request.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence, Section 12990, Government Code.
§ 8303. Post Award Compliance.
(a) Each contractor of a “small” contract shall compile and shall main-
tain for inspection for two years after award:
(1) Information regarding the contractor: Federal Employer Identifi-
cation number; state contract identification number; legal name of the
business organization, parent corporation or other outside ownership in-
terest, if applicable, business telephone number, street address, city, state
and zip code; mailing address, if different; total number of employees,
identified by sex, race and national origin; name, business phone and
mailing address of contractor’s EEO/AA officer, if there is one, and name
of the person responsible for the maintenance of information required
pursuant to subsection (b) below.
(2) Information regarding the contract: Dollar value of contract; time
for performance of the contract; date of contract award; name of contract
awarding agency, and contract awarding officer; brief description of the
purpose or subject of the contract.
(3) A copy, if one was required to be prepared of the prime contractor’s
current California Employer Identification Report (CEIR), or equivalent
federal form (See Section 7287.0(a) of this division regarding the prepa-
ration of CEIR’s.)
(b) Failure to comply with the requirements of this section may result
in a determination that the contractor has materially breached the state
contract and the decertification of the contractor from future state con-
tracts.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Sections 12990, Government Code.
HISTORY
1. New subsection (b) filed 6–2–83; effective thirtieth day thereafter (Register 83,
No. 23).
§ 8304. Verification.
A contract awarding agency shall, upon request by OCP, verify infor-
mation provided to OCP by an agency contractor performing a small con-
tract. Such requests for verification shall be limited to that information
required by OCP on any standardized state forms or other form where
such information is specifically required by these regulations, and such
information is also contained in the awarding agency’s files.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
BARCLAYS CALIFORNIA CODE OF REGULATIONS Title 2
§ 8310
Page 152
Article 2. Regulated Contracts
§ 8310. Regulated Contracts, Dollar Value.
All State contracts with a dollar value of more than twenty–five thou-
sand dollars ($25,000) are for the purposes of this subchapter classified
as “regulated” contracts.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8311. Post Award Informational Filing.
(a) The prime contractor of a “regulated” contract shall file with OCP
within twenty–eight (28) days from the date of execution of a “regulated”
contract or the effective date of these regulations, whichever occurs later:
(1) Information Regarding the Contractor: Federal Employer Identifi-
cation Number; state contract identification number; legal name of the
business organization; business telephone number, street address, city,
state and zip code; mailing address, if different; name, business phone
and mailing address of contractor’s EEO/AA Officer.
(2) Information Regarding the Contract: Dollar value of contract; date
of contract award; name of contract awarding agency, and contract
awarding officer; brief description of the purpose or subject of the con-
tract.
(3) (Reserved)
(4) A copy of the prime contractor’s current California Employer Iden-
tification Report (CEIR) or equivalent federal form (EEO–1). If the
prime contractor is not otherwise required to prepare a CEIR, it must do
so in order to comply with the requirements of this section. (See Section
7287.0 (a) of this division regarding the preparation of CEIR’s.)
This information shall be updated annually thereafter, so long as the
contractor remains subject to these regulations.
(b) Contractors awarded more than one state contract in one year may
file only the information required in subdivision (a)(2) and (a)(4) above
for the second and all subsequent contracts awarded during the year.
(c) The OCP and the contract awarding agency shall make forms avail-
able for providing the information required under this section.
(d) Failure to comply with the requirements of this section may result
in a determination that the contractor has materially breached the state
contract and the decertification of the contractor from future state con-
tracts.
N
OTE: Authority cited: Sections 12935(a), and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. New subsection (d) filed 6–2–83; effective thirtieth day thereafter (Register 83,
No. 23).
§ 8312. Designating EEO/Affirmative Action Officer.
All contractors of regulated contracts shall designate an individual re-
sponsible for the implementation of the contractor’s Nondiscrimination
Program.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
Subchapter 4. OCP Review Procedures
§ 8400. Scope.
This subchapter sets forth the review procedures to be followed by
OCP in implementing this chapter.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8401. OCP Review Procedures.
In order to monitor the equal employment practices of contractors and
their compliance with the requirements of this chapter, contractors shall
be subject to review. Contractors may be selected for review on the basis
of any specific neutral criteria contained in a general administrative plan
for the enforcement of this chapter.
(a) Desk Review. All contracts shall be subject to desk reviews con-
ducted by and at the discretion of OCP. A desk review will involve a re-
view of the applicable contract(s), the information required of the con-
tractor pursuant to Section 8303 or 8311 of these regulations, the
compliance with and implementation of the Program required by this
Chapter, and any additional related information required by OCP. In ad-
dition, OCP may review the current and past personnel procedures and
practices of a contractor whenever such a review is, within the discretion
of OCP, considered appropriate.
(b) Field Review. OCP may conduct a field review of a contractor’s
workplace. Field reviews will be made during contractor’s regular busi-
ness hours. OCP shall notify the contractor of its intent to conduct a field
review under this section and shall arrange a mutually convenient time
to conduct it.
(c) A contractor will not be selected for a routine desk or field review
if it has been the subject of such a review within the preceding 24 months
and was found to be in compliance. Prior review will not exempt a con-
tractor from compliance investigations conducted pursuant to Section
8402, or follow–up desk or field reviews.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8402. Compliance Investigations.
(a) OCP may conduct a compliance investigation of a contractor’s em-
ployment practices for the purpose of determining whether the contractor
holding a state contract is acting or has acted in violation of the nondis-
crimination and compliance requirements imposed by this chapter. In-
vestigations under this section shall involve a detailed review of the con-
tractor’s entire employment practices and procedures. Investigations
under this section may be conducted when the Administrator determines
a pattern of unlawful discrimination in employment may have occurred
within the past twelve months or be ongoing. Such a determination shall
be in writing and shall be based upon:
(1) A complaint by a contract awarding agency; or
(2) The results of the regular compliance review activities of the OCP;
or
(3) A notice of any complaint of employment discrimination filed pur-
suant to Section 8120 of this Chapter or Government Code, Section
12960; or
(4) The failure of the contractor to provide compliance information re-
quired by this chapter or reasonably requested by OCP.
(b) Whenever a contractor which is the subject of a compliance inves-
tigation pursuant to this section is also the subject of a complaint pursuant
to Government Code, Section 12960, if possible, OCP and any other unit
of DFEH investigating the contractor’s employment practices shall coor-
dinate their investigations.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8403. Letters of Commitment.
If, in the course of a compliance investigation, OCP concludes that a
contractor may be in violation of the provisions of this chapter, OCP and
the contractor may informally agree to resolve the identified deficiencies
through the mechanism of a written letter of commitment. The letter of
commitment shall set forth the deficiencies identified by OCP, the action
the contractor shall take to correct the deficiencies, and the time by which
the corrective action shall be taken and the deficiencies resolved.
N
OTE: Authority cited: Sections 12935 (a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
Subchapter 5. OCP Enforcement
Proceedings
§ 8500. Scope.
This subchapter sets forth the enforcement procedures to be followed
by OCP in implementing this chapter.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
Fair Employment and Housing CommissionTitle 2
§ 8504
Page 153
§ 8501. Show Cause Notice.
(a) When the Administrator has reasonable cause to believe that a con-
tractor performing under a state contract is in violation of the nondiscrim-
ination and compliance requirements imposed by this chapter or is in vio-
lation of a letter of commitment or conciliation agreement, he or she may
issue a notice requiring the contractor to show cause before a hearing of-
ficer, why appropriate action to ensure compliance should not be insti-
tuted. The show cause notice shall specifically state the contractor’s non-
compliance and any recommended sanctions. The show cause notice
shall be dated and served on the contractor personally or by registered
mail, and such service shall constitute notice to the contractor of the defi-
ciencies. In addition, the show cause notice shall be served by ordinary
first class mail on the contract awarding agency. A hearing on the show
cause notice shall be held no sooner than the thirtieth day after the is-
suance of the show cause notice but shall be at the earliest date OCP can
reasonably schedule the hearing.
(b) During the thirty (30) day “show cause” period, OCP and the con-
tractor shall make every effort to resolve the deficiencies which led to the
issuance of the show cause notice through conciliation, mediation, and
persuasion.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. New subsection (a) filed 6–2–83; effective thirtieth day thereafter (Register 83,
No. 23).
§ 8502. Conciliation Agreements.
At the discretion of the Administrator, deficiencies contained in a
show cause notice may be resolved through the use of written concilia-
tion agreements. A conciliation agreement shall provide for such reme-
dial action as may be necessary to correct the violations and/or deficien-
cies noted. In addition, the Administrator may require periodic
compliance reports detailing the actions taken by the contractor to correct
the deficiencies, and identifying statistical results of such actions.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
§ 8503. Hearing.
If the deficiencies listed in the show cause notice are not resolved dur-
ing the thirty (30) day period, a hearing shall be held before a hearing offi-
cer appointed by the Director of the Department of Fair Employment and
Housing.
A notice of hearing will be dated and served upon the contractor per-
sonally or by registered mail. The hearing may be postponed by OCP for
good cause. If the contractor has good cause, the contractor shall contact
the OCP within 10 days of receiving notice of hearing.
The procedures of hearing shall include: testimony under oath, the
right to cross–examination and to confront adversary witnesses, the right
to representation, and the issuance of a formal decision.
In addition to the above requirements of this section, the hearing shall
be conducted in accordance with Government Code Sections 11507.6,
11507.7, 11508 (with the exception that the Office of Compliance Pro-
grams shall be substituted for the Office of Administrative Hearings),
11510, 11511, 11512(c) and (d), 11513, 11514, 11520, 11523; the sec-
tions cited above are incorporated herein by reference.
The hearing officer shall decide whether to dismiss, modify or sustain
the allegations of the show cause notice.
The form and content of the decision will be in accordance with the
requirements of Government Code Section 11518 herein incorporated by
reference.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. New section filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
§ 8504. Potential Remedies.
If a violation of this chapter is found at the hearing, the hearing officer
may decertify the contractor’s nondiscrimination program and may rec-
ommend to the contract awarding agency that the existing contract be ter-
minated. Decertification shall continue until the deficiency is corrected
and satisfactory evidence thereof is presented to OCP. Other potential
remedies include, but are not limited to the imposition of periodic report-
ing requirements and the withdrawal of exemptions.
N
OTE: Authority cited: Sections 12935(a) and 12990(d), Government Code. Ref-
erence: Section 12990, Government Code.
HISTORY
1. New section filed 6–2–83; effective thirtieth day thereafter (Register 83, No.
23).
* * *
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