A Bird’s Eye View of the DFEH: An Interview with Patti Perez (Part 2)

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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In part one of our interview with Patti Perez, Esq., SPHR, president and CEO of Puente Consulting, and member of the DFEH’s Fair Employment and Housing Council, Perez shared insights on her role as a DFEH councilmember and discussed proposed changes to the California Family Rights Act (CFRA). In part two of our interview, she talks about other California regulations that are undergoing changes.

AMENEH ERNST: Other than the CFRA regulations, on which regulations is the Council working?

PATTI PEREZ: Another big set of regulations that is just one step behind the CFRA is what we are calling our “employment regulations” under the Fair Employment and Housing Act (FEHA).

My fellow councilmember and I scoured the entire FEHA and believe me it’s long. Minus the CFRA, since that had its own set of regulations, we looked at every protected category and all the language. We knew there was no way we could go through everything but we prioritized and selected about a dozen different areas that we needed to “beef up”—knowing it’s going to be an ongoing process.

ERNST: What did you find?

PEREZ: In looking at the areas that I was in charge of, I was surprised to find there was almost no regulatory language or guidance for either employers or employees in the area of sexual harassment. There was very little in terms of guidance indicating: how you look for it; how you find it; what is the difference between quid pro quo and hostile work environment; what some of the recognized elements were, etc.

It’s a really fine line with the regulations because we are not writing the law, we’re not rewriting statute, and we’re not codifying case law. Our goal is for a constituent to be able to look at the regulation and ideally, in one place, be able to understand not just what the law says but also if you’re an employer how you can comply with the law or if you’re an employee what your rights and responsibilities are.

My argument for addressing this topic was that, as lawyers, we know that sexual harassment involves behavior that (1) is unwelcome from an objective and subjective perspective, (2) is severe and/or pervasive, and (3) inappropriately or unreasonably interferes with the workplace. But guess what? A line employee—or even a line manager—typically doesn’t know that. They can’t recite it that way. Lawyers know the standard, but lay people don’t. So I really thought it was important to put that in there and to really start looking at these regulations as not just something lawyers use.

Of course, it’s wonderful that lawyers use it. One of the most gratifying things we’ve heard from lawyers (for example on the disability regulations that were enacted a year-and-a-half ago) is that they are pulling out the regulations during mediation and mediators are understanding the law as it’s written. They’re actually taking verbatim the regulations and using them as jury instructions. And that’s fantastic, but we don’t want it to be used only by lawyers.

Ideally the regulations will be used long before a lawsuit is filed and—what a concept—prevent a lawsuit.

ERNST: You seem to have a knack for relating to the different sides involved in employment issues. Why is that?

PEREZ: Because that’s what I do for a living, and that’s my personality. That’s also the role I feel I serve on the Council. I look at it from a pre-litigation perspective, from a preventive perspective. And because of my own personal history, my background, and how I grew up, I bring a point of view that is sympathetic to potential and actual victims of civil rights abuses. But then because of my professional background I am able to also look at it from the business point of view, and also look at it from a practical perspective because I am in a workplace every day.

So I’ve taken that approach in the role that I take in drafting these regulations. I really thought it was important to do this in terms of looking at the issue of sexual harassment.

Similarly, there was zero written on the FEHA section 12940, subsection (k), which is the affirmative obligation that employers must take all reasonable steps to prevent and correct wrongful behavior from occurring.

ERNST: Is this an area that interests you?

PEREZ: This is my wheelhouse—it’s exactly what I do. I work with clients to put in good policies, to have an effective complaint mechanism, to investigate internal complaints, and to institute good remedial measures so that this doesn’t happen again. And so there is a learning lesson implemented.

And then to the extent that the steps were not taken correctly, and something happens and there is litigation, then that becomes a really big a part of the litigation piece—because that’s an affirmative obligation that employers have. Certainly every legal complaint that I see nowadays includes not only a claim for discrimination, harassment, or retaliation, but almost always a cause of action for violation of the subsection (k) provision with claims that the employer failed to either take the complaint seriously, didn’t investigate correctly, or didn’t implement remedial measures to prevent further harm.

Again, subsection (k) had no regulatory language. There was not one word in the regulations that clarified what exactly it meant to have that obligation. So I was the primary author on the proposed language for that piece of it. With the proposed language, we are giving employers some common sense tips: Here’s what we mean when we say you have to take steps to prevent this from occurring; this is the type of policy we are looking for; this is how you disseminate it; this is what it should and shouldn’t say; a compliant mechanism should have these primary prongs; make sure that you look at it in this way, etc.

Because the regulatory process lends itself to being succinct and guideline-driven, we are limited as to the detail we can put in. With that in mind, we’ve crafted language that will go a long way towards helping employers understand what their obligations are and employees know what they should be able to expect from their employer in that regard.

ERNST: Does the Council address issues beyond the regulations?

PEREZ: The statute gives us broad powers to essentially help our constituents understand their obligations.

The Council has formed a new subcommittee that we call the “Council Outreach Subcommittee.” I’m on that subcommittee along with the Council chairman. We’re working on “What else can we do beside the regulations?” Our focus is on outreach. How do we educate small employers who may not understand what these laws are?

So we’re embarking on a series of projects that we hope will at least make a dent. Some of it is simple like scheduling our meetings in places like Fresno and Bakersfield so we get to areas outside of San Francisco, Los Angeles, Orange County, San Diego, and Sacramento.

The DFEH website has a tab called “resources,” and it has a wealth of information. Our subcommittee will also work with DFEH staff to update the brochures that are on the website. And, there’s not a brochure on every single topic. So the outreach committee is assisting the DFEH to produce documents that go hand in hand with our regulations.

Similar to what I just described in terms of the regulatory language that I drafted for subsection (k), I’m also drafting a companion brochure or a “frequently-asked-questions” document. It’s mirrored in some ways on the publications issued by the U.S Equal Employment Opportunity Commission (EEOC), which we find to be really helpful. The documents we will produce will be written in a familiar format (such as a brochure or pamphlet) and in a way that a layperson can understand it.

The plan, for example, is that once the CFRA regulations get through the entire process and are enacted—we’ll work on putting together the pamphlet that will be a companion piece. We want to do it in tandem with the regulatory process.

Another area that our subcommittee is looking at (and is included in the adopted regulatory language) is the definition of religious accommodation and religious creed discrimination. We have received input on the preliminary language from a variety of constituents about numerous topics, including dress standards. We also received input from advocacy groups on the definitions of transgender, transsexual, and the protected category prong of gender identity.

ERNST: What other regulations have you worked on?

PEREZ: I was also in charge of the AB 1825 mandatory training regulations. The regulations were enacted around 2005 but we now have almost 10 years of data in terms of the training that’s been conducted. So we made amendments, changes, and clarifications to quite a bit of the language.

And then my co-councilmember, who is the other subcommittee member, took primary responsibility for six additional sections. And the most significant ones are discreet components that have to do with pregnancy and disability.

The new pregnancy regulations clarified that the 4-month statutory time period that is allowed for pregnancy disability leave is counted as 17 1/3 weeks. We have put in proposed language that provides further guidance and clarification on this topic.

Look for part three of our interview with Patti Perez, where she talks about the reasonable accommodation provisions involving assistive animals in the workplace.

Note: This article was published in the August 2014 issue of the California eAuthority.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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