Effective Jan. 1, 2008, SB 777 revises the list of prohibited bases of discrimination to disability, gender, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic contained in the Penal Code's definition of hate crimes. The bill changes all references from "handicap" in the Education Code to "disability."

What You Should Do:

• Update policies/processes/ procedures and forms to reflect these new definitions.

• Be aware of the various protected classes and do all that you reasonably can to ensure that discrimination against these classes does not occur in your workplace.
• Be aware of protected activities and do all that you reasonably can to ensure that neither discrimination nor retaliation occurs against an employee engaged in such activities. (See below)
• Never discriminate based on the fact that an employee has a particular disability.
• Base all job-related decisions on essential job functions.
• Provide reasonable accommodation for employees with disabilities.
• Conduct the required sexual harassment training for all employees.

• Create and distribute a policy on sexual harassment and strenuously enforce (see attachment)
• Train all personnel to not discriminate on any basis, consistent with this new law.

Discrimination Defined

Discrimination, legally speaking, covers only actions taken against people because of their membership or perceived membership in a certain "protected class," or because the person associates with members of a protected class.

Discrimination means treating those people differently and disadvantageously compared with other people not in the same class. Remember, though, that everyone is part of a protected class. Everyone has a race and a marital status, is perceived as one gender or another and associates with people in protected classes.

Discrimination Based on a Protected Class

• Age. In general, you may not discriminate against employees or applicants older than 40 years of age.
• AIDS or HIV-Positive Status. Federal and state laws protect employees from any discriminatory employment actions due to their having AIDS or being HIV-positive.
• Marital Status. You may not base employment or employee benefit decisions on marital or nonmarital status.
• Domestic Partnership. You may not discriminate against a person because he or she is participating in a domestic partnership.
• Medical Condition and Genetic Characteristics. You may not base an employment decision on the employee's medical condition, if related to a diagnosis of cancer. Furthermore, you may not require testing for the presence of any genetic characteristic.
• Race or National Origin. An employee may sue for discrimination if an employment decision was based on an issue involving race or national origin, including language abilities or accents, unless a legitimate business reason can be shown.
• Pregnancy. You may not base employment or employee benefit decisions on whether an employee is pregnant. Furthermore, you must make accommodations for employees who wish to express breast milk at work.
• Religion. You may not base employment or employee benefit decisions on an employee's religious creed or lack of one. Furthermore, you must accommodate an employee's religion, unless doing so creates an undue hardship.
• Gender or Sexual Orientation. It is illegal to discriminate against an employee based on his/her actual or perceived gender or sexual orientation. Employees may dress according to self-identified gender, but they must meet reasonable workplace standards of dress and grooming.
• Harassment, Sexual and Otherwise. You must take reasonable steps to prevent any form of harassment in the workplace. If you are aware that harassment is occurring, you can be held liable for failing to stop the harassment.
• Name Change. Employers are prohibited from refusing to do business with or refusing to provide the service to, or imposing a specified requirement upon the use of the name, as a condition of doing business with or providing the service to, a person who uses a name adopted upon the solemnization of marriage or registration of a domestic partnership.

Discrimination Based on Activities

While most anti-discrimination statutes relate to protected classes of individuals, there are also a number of specific employee activities that you may not use as a basis for job-related discrimination.

• Lawful Off-duty Conduct. Even if you have only one employee, you may not discriminate based on lawful conduct employees or applicants engage in during nonworking hours away from the company premises. Lawful conduct includes free speech, political activities and moonlighting.
• Union Membership. Employees have the right to organize and form unions, with which you must bargain.
• Whistleblowing. You may not take any retaliatory actions against an employee who reports suspected illegal activity on the part of their employers.
• Making a Workers' Compensation Claim. Even if you have only one employee, you may not discharge, threaten or discriminate in any way against an employee because he or she has received an award from, has filed or even intends to file a workers' compensation claim.

Discrimination in State-Funded Programs

As of 2007, sexual orientation has been added to existing law that prohibits discrimination on the basis of race, national origin, ethnic group identification, religion, age, sex, color or disability against any person in any program or activity conducted, operated or administered by the state or by any state agency, or that is funded directly by the state, or that receives any financial assistance from the state.

As such it includes unemployment insurance, disability insurance and workers' compensation. It also defines "sex" and "sexual orientation" as having the same meaning as under the FEHA. The law also expands the definition of discrimination to include a perception that a person has any of these enumerated characteristics or that the person is associated with a person who has, or is perceived to have, any of these characteristics.

Unlawful Harassment

Sexual harassment is the most common type of workplace harassment and has garnered the most attention, but you must discourage all forms of harassment in the clearest terms. Sexual harassment is a pattern of unwelcome behavior attributable to an employee's gender or gender identification.

Workplace harassment is also unlawful if it occurs because of the victim's race, age, religion, ethnicity or any other protected class membership or association.

All workers in any size company are legally protected from unlawful harassment. It is your duty as an employer to create a hostility-free work environment for all your employees, whatever their gender, age, race or other protected class status might be.

Harassment laws cover all workplace relationships, including:

• Employee to independent contractor, and vice versa
• Vendor to employee, and vice versa
• Employee to employee
• Supervisor to employee
• All other work-related relationships

Discrimination Based on Disability

The Americans with Disabilities Act and other state and federal statutes provide significant protections for employees with disabilities. You are not only required to avoid discrimination; you must also provide reasonable accommodation for employees with disabilities.

A qualified individual with a disability is a person who meets legitimate skill, experience, education or other requirements and can perform the essential functions of the position, with or without reasonable accommodation.