Fair Employment and Housing Council

Governor Edmund G. Brown, Jr., signed into law SB 1038 (Committee on Budget & Fiscal Review) on June 27, 2012.  Effective January 1, 2013, among other changes, the bill will amend the Fair Employment and Housing Act (FEHA) to: (1) eliminate the Fair Employment and Housing Commission and replace it with a Fair Employment and Housing Council within the Department; (2) transfer the Commission's regulatory function to the Department's Council; and (3) end administrative adjudication of FEHA claims.

   For the status of the Fair Employment and Housing Commission's amendments to its pregnancy and disability regulations, please see below:  

 

Pregnancy Regulations

The Fair Employment and Housing Commission’s pregnancy regulations submitted to the Office of Administrative Law have been approved. The regulations become effective on December 30, 2012.

Background:

On November 30, 2012, the Office of Administrative Law approved the Commission’s pregnancy regulations.  The text of the regulations is, with a few minor grammatical changes, identical to the version adopted by the Commission on October 2, 2012.  A copy of the approved pregnancy regulations is attached below.

AVAILABILITY OF DOCUMENTS ON THIS WEBSITE

Copies of the March 2, 2012 Notice of Proposed Rulemaking and exhibits, the Initial Statement of Reasons, the text of the original regulations in underline and strikeout, the Notice of Modifications, the text of the June 13, 2012 regulations in underline and strikeout, a “clean” version of the June 13, 2012 regulations without either underlining or strikeout, the modified August 14, 2012 proposed regulations, with changes from the June 13, 2012 version indicated in underline and strikeout and highlighted in yellow, the modified September 14, 2012 proposed regulations, with changes from the August 14, 2012 versions indicated in underline and strikeout and highlighted in yellow, and a “clean” copy of the September 14, 2012 version with all deletions and strikeouts omitted, the adopted October 2, 2012 regulations, and the approved November 30, 2012 regulations, in underline and strikeout and in a clean version, can be accessed BELOW.

  1.   Text Proposed Pregnancy Regulations [pdf]
  2.   Initial Statement of Reasons [pdf] – Pregnancy
  3.   Notice of Proposed Rulemaking [pdf] – Pregnancy
  4.   Notice of Modifications [pdf] – Pregnancy
  5.   Text Modified June 13, 2012 Pregnancy Regs [pdf] – Pregnancy
  6.   Text Modified June 13, 2012 Pregnancy Regs – Clean Version [pdf] – Pregnancy
  7.   Notice of Modifications [pdf] – Pregnancy
  8.   Text Modified August 14, 2012 Pregnancy Regs [pdf] – Pregnancy
  9.   Notice of Modifications [pdf] – Pregnancy
10.   Text Modified September 14, 2012 Pregnancy Regs [pdf] – Pregnancy
11.   Text Modified September 14, 2012 Pregnancy Regs [pdf] – Clean Version
12.   Text Adopted October 2, 2012 Pregnancy Regs [pdf]
13.   Text Approved November 30, 2012 Pregnancy Regulations, with underline and strikeout [pdf]
14.   Text Approved November 30, 2012 Pregnancy Regulations – Clean Version [pdf]

Exhibits to Notice of Proposed Rulemaking - Pregnancy

   
  1.   Stats. 1999, c. 591 (A.B. 1670), § 9.
  2.   Assembly Committee on the Judiciary, May 11, 1999 hearing, A.B. 1670 analysis prepared by Drew Liebert, Assembly Judiciary Committee.
  3.   Assembly Committee on Appropriations, May 26, 1999 hearing, A.B. 1670 analysis prepared by Chuck Nicol, Appropriations.
  4.   Senate Judiciary Committee, August 17, 1999 hearing, A.B. 1670 analysis prepared by “DLM.”
  5.   Senate Appropriations Committee, August 30, 1999 hearing, A.B. 1670 analysis prepared by Lisa Matocq.
  6.   Stats. 2004, c. 647 (A.B. 2870), § 5.
  7.   Assembly Committee on Labor and Employment, April 21, 2004 hearing, A.B. 2870 analysis prepared by Ben Ebbink, Labor & Employment Committee.
  8.   Assembly Committee on Appropriations, May 5, 2004, A.B. 2870 analysis prepared by Stephen Shea, Appropriations.
  9.   Senate Committee on Labor and Industrial Relations, June 23, 2004 hearing, A.B. 2870 analysis prepared by Frances Low.
10.   Stats. 2011, c. 510 (S.B. 299), § 1.5.
11.   Stats. 2011, c. 678 (A.B. 592), § 1.5.
12.   Stats. 2011, c. 261 (S.B. 559.)
13.   University of California Newsroom article, April 4, 2006: Few Women Take Pregnancy Leave in California, Study Finds.
14.“   Sex By Age By Employment Status for the Population 16 Years and Over,” Universe: Population 16 years and older, Data Set Census 2000 Summary File 4 (SF 4) – Sample Data (2000) available at http://www.calmis.ca.gov/FILE/Census2000/LFbySexbyAge.xls.
15   .California Department of Public Health TABLE 2-2. General Fertility Rates, Total Fertility Rates, and Birth Rates by Age and Race/Ethnic Group of Mother, California, 2005 - 2009.
16.    Guendelman, Pearl, Graham, Angulo and Kharrazi, “Utilization of Pay-in Antenatal Leave Among Working Women in Southern California,” Maternal and Child Health Journal, Vol. 10, No. 1, January 2006, p. 63, 66. Abstract of Utilization of Pay-in Antenatal Leave Among Working Women in Southern California.
17.   California Department of Public Health, Table 2-9. Number and Percent of Live Births by Number of Prenatal Visits and Race/Ethnic Group of Mother, California, 2006.
18.   Rittenhouse, Marchi, Braveman, ”Improvements in Prenatal Care Utilization and Insurance Coverage in California: An Unsung Public Health Victory?” Abstr Acad Health Serv Res Health Policy Meet. 2002; 19: 23. Family and Community Medicine & Institute for Health Policy Studies, University of California, San Francisco.
19.   LEHD State of California County Reports - Quarterly Workforce Indicators, Third Quarter, 2010, Age Group 14-99, Gender, Female, available at http://www.labormarketinfo.edd.ca.gov/?pageid=127.
20.   Job Accommodation Network, “Workplace Accommodations: Los Cost, High Impact”, p. 2, last updated September 1, 2011.
21.   Employment Development Department, Labor Market Information Division, Table 3A, Number of Businesses, Number of Employees, and Third Quarter Payroll by Size of Business, State of California, Third Quarter, 2 010 available at http://www.calmis.ca.gov/file/indsize/2010sfcoru.xls.
22.   Hillmer, Hillmer, and McRoberts, (2004) “The Real Costs of Turnover: Lessons from a Call Center,”[pdf] Human Resource Planning, Vol. 27, Issue 3, p. 34.
23.   U.S. Chamber of Commerce, Institute for a Competitive Workforce, (2007) “Recruitment and Retention of the Frontline and Hourly Wage Worker: A Business Perspective.” p. 2 available at http://www.uschamber.com/sites/default/files/reports/frontlinehourlywagepaper.pdf [pdf] (last visited October 31, 2011).
24.   U.S. Census Bureau, (2005) “Maternity Leave and Employment Patterns of First Time Mothers,” p. 6, available at http://www.census.gov/prod/2005pubs/p70-103.pdf [pdf] (last visited December 2, 2009).
25.   National Business Group on Health, “Healthy Pregnancy and Healthy Children: Opportunities and Challenges for Employers: The Business Case for Promoting Healthy Pregnancy,” pp. 10-13 available at http://www.businessgrouphealth.org/pub/f3001e0d-2354-d714-513a-1b102fb69bbe[pdf] (last visited February 17, 2012). 

DISABILITY REGULATIONS

The Fair Employment and Housing Commission’s disability regulations submitted to the Office of Administrative Law have been approved. The regulations become effective on December 30, 2012.

Background:

The Commission's disability regulations will be filed with the Secretary of State and will become effective December 30, 2012. The text of the regulations is identical to the version adopted by the Commission on December 18, 2012. A copy of the approved disability regulations is attached below.

AVAILABILITY OF DOCUMENTS ON THIS WEBSITE


Copies of the Commission’s initial proposed disability regulations, the Notice of Proposed Rulemaking, the Initial Statement of Reasons, the text of the June 13, 2012, the August 14, 2012, the September 14, 2012, the October 2, 2012 modified regulations, and the new November 29, 2012 regulations, and the Notice of Modifications can be accessed below.

 1. Text Proposed Disability Regs [pdf]
 2.  Initial Statement of Reasons [pdf] – Disability
 3.  Notice of Proposed Rulemaking [pdf] – Disability
 4.  Notice of Modifications [pdf] – Disability
 5.  Text Modified June 13, 2012 Disability Regs [pdf] – Disability
 6.  Text Modified June 13, 2012 Disability Regs – Clean Version [pdf] – Disability
 7.  Notice of Modifications [pdf] – Disability
 8.  Text Modified August 14, 2012 Disability Regs – with underlining/strikeout [pdf]
 9.  Text Modified August 14, 2012 Disability Regs [pdf] – Disability
10.  Notice of Modifications [pdf] – Disability
11.  Text Modified September 14, 2012 Disability Regs clean-[pdf] – Disability
12.  Text Modified September 14, 2012 Disability Regs - with underlining/strikeout [pdf]
13.  Text Adopted October 2, 2012 Disability Regs [pdf]
14.  Notice of Modifications [pdf] – Disability
15.  Text November 29, 2012 Disability Regs [pdf] – Disability

16.  Text Approved December 2012 Disability Regulations [pdf] – Disability


Documents Relied Upon in the Notice of Proposed Rulemaking - Disability

  1. The Prudence Kay Poppink Act of 2000 (Stats. 2000, c. 1049(A.B. 2222), § 6, Kuehl (PKP Act); Gov. Code, §§ 12926, 12926.1 & 12940
  2. Green v. State of California  [pdf] (2007) 42 Cal. 4th 254
  3. The Genetic Information Non-discrimination Act of 2008 (GINA) (Stats. 2008, c. 10 (A.B. 1543), § 13) (Pub. Law 110-233)
  4. Stats. 2011, c. 261 (S.B. 559), “Cal-GINA”
  5. The Americans with Disabilities Act Amendment Act of 2008 (ADAAA) (Public Law 110-325) (S 3406)), 42 U.S.C. § 12101, et seq.
  6. The ADAAA interpretative regulations (29 C.F.R. pt. 1630, et seq, eff. May 24, 2011)
  7. EEOC’s Appendix to Part 1630 – Interpretative Guidance on Title I of the ADA, 29 C.F.R. pt. 1630.2, subd. (j)(5), app. § 1630.2, subd. (j)(i)(vi)
  8. EEOC’s Enforcement Guidance:  Reasonable Accommodation and Undue Hardship Under the ADA, (EEOC Notice No. 915.002 at No. 7) (7/27/00), 2 EEOC Compl. Man. (CCH) ¶6910 (2000)
  9. Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050. 1065 (obesity per se is not a disability)
  10. EEOC guidance on the ADAAA, which includes "severe obesity" as a disability.  (ADAAA interpretative regulations, 29 C.F.R. pt. 1630.3; EEOC's Section 902 Definition of Disability, §902.2, subd. (c)(5)(ii).)
  11. Enforcement Guidance on Disability-Related Inquiries and Medical Exams of Employees under the ADA
  12. Table 1, CA EDD Data (last checked 11/4/11
  13. Pie Chart Showing 2010 Employment Accusations Filed by DFEH by Protected Basis [pdf]
  14. Job Accommodation Network (JAN), “Workplace Accommodations:  Low Cost, High Impact,” Updated September 1, 2011, page 5 (available athttp://askjan.org/media/LowCostHighImpact.doc) [Word]
  15.   BLS National Jobs Report based on October 2011 Data,  [pdf]  “The Employment Situation – October 2011, “Table A-6.  Employment status of the civilian population by sex, age, and disability status, not seasonally adjusted” (last checked on 11/4/11)
  16. ADAAA interpretative regulations, pages 16997-8, citing Elizabeth Emens, Integration Accommodation, 156 U. Pa. L. Rev. 839, 850-59 (2008) (explaining a wide range of potential third-party benefits that may arise from workplace accommodations)