Preventing Workplace Harassment, Discrimination, and Retaliation

include: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Further, impairments that require special education or related services may also qualify as physical disabilities. 20 In fact, even if a person does not actually have a physical disability, that person could still state a discrimination or harassment claim based on physical disability if an employer regards him or her as having a physical disability. 21 In addition, while persons who are recovering drug abusers can claim a disability, those who are currently and unlawfully using controlled substances or illegal drugs cannot. 22 Neither the ADA nor the FEHA protect sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or current, unlawful drug use. 23 D. M ENTAL D ISABILITY The prohibition against discrimination also protects employees and job applicants with mental or psychological disorders , including intellectual disabilities, organic brain syndrome, emotional or mental illness, and learning disabilities. It does not, however, protect the unlawful use of drugs, compulsive gambling, sexual behavior disorders, kleptomania, or pyromania. 24 E. M EDICAL C ONDITION The FEHA also prohibits discrimination or harassment of an employee or job applicant because of the employee or applicant’s medical condition. To qualify as a medical condition, the health impairment must either (1) be related to or associated with cancer, or a record or history of cancer; or (2) be caused by genetic characteristics which are known to cause a disease or disorder. 25 F. S EX /G ENDER Discrimination based on sex includes sexual harassment, as well as harassment based on gender or gender stereotypes. It also includes harassment based on pregnancy, childbirth, medical conditions related to pregnancy or childbirth, or breastfeeding, or a medical condition related to breastfeeding. 26 In 2012, the definition of “gender” was amended in several California anti-discrimination laws to expressly include a person’s gender identity and gender expression. The term “gender expression” is defined as “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” 27 “Gender identity” is defined as “a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.” 28 In 2016, the DFEH published guidance on transgender rights in the workplace. The guidance, which was updated and recast as a DFEH poster in 2017, defines two types of gender transition: social transition and physical transition. Social transition involves a process of socially aligning one’s gender with the internal sense of self (e.g. changes in name and pronoun, bathroom facility

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 11