The First Amendment to the United States Constitution includes both an establishment clause and a free exercise clause.  Of these, the free exercise clause is often invoked in the employment context to challenge employer policies that, while facially neutral and generally applicable, incidentally burden religion.

In Employment Division, Department of Human Resources of Oregon v. Smith, decided in 1990, the State of Oregon denied unemployment benefits to individuals terminated from their jobs for ingestion of peyote for sacramental purposes at a ceremony for their Native American Church.  Peyote was classified as a Schedule I “controlled substance,” and Oregon state law prohibited possession of such substances unless prescribed by a medical practitioner.  The individuals challenged the denial of unemployment benefits and the law under the free exercise clause.  The United States Supreme Court found that the law was facially neutral and generally applicable and, as such, survived the individuals’ challenge because it was rationally related to a legitimate purpose (i.e., prevention of physical harm attendant to the use of Schedule I “controlled substances”).

For the past 31 years, the rational basis standard set forth in Smith has controlled the analytical framework applicable to a free exercise challenge of a law or policy that is facially neutral and generally applicable.  Of the three standards of review employed by the Supreme Court, rational basis – the standard applied by Smith — is the lowest level of scrutiny, and therefore the easiest to meet.  Intermediate and strict scrutiny become progressively more difficult to meet, with strict scrutiny being the highest level of review.

A prominent Supreme Court case decided several months ago in June 2021, however, Fulton v. City of Philadelphia, threatened to upend the decades-old precedent set forth in Smith.  Fulton considered whether a City’s Department of Human Services could stop referring foster children to a foster care agency, Catholic Social Services (“CSS”), because CSS refused to work with same-sex foster parents.  CSS argued that the Department’s decision violated CSS’s free exercise rights.

At oral argument on November 4, 2020, CSS urged the Supreme Court to overturn Smith.  CSS argued that the rational basis standard of review set forth in Smith should be replaced with strict scrutiny.  Had CSS prevailed in persuading the Court to overturn Smith and adopt a strict scrutiny standard of review, a facially neutral and generally applicable policy that incidentally burdened religion would not have survived a free exercise challenge unless it was narrowly-tailored to further a compelling governmental interest (a very high standard of review).

The Supreme Court ultimately declined CSS’s invitation to overturn Smith, holding on June 17, 2021 that the Fulton case’s underlying facts fell outside Smith’s scope.  The Court explained that Smith controls policies that are facially neutral and generally applicable, whereas the policies at issue in Fulton failed to meet either of these requirements.  In practical effect, the Court’s Fulton decision does not alter the existing free exercise analytical framework applicable to laws or policies that are both facially neutral and generally applicable.

Smith therefore survives for now.  But, for how long is an open question.

While joining the Court’s opinion, Justice Barrett penned a concurring opinion, noting: “I … see no reason to decide in this case whether Smith should be overruled, much less what should replace it.”  However, Justice Barrett added that in her view, “the textual and structural arguments against Smith are more compelling.”  Justice Kavanaugh joined in Justice Barrett’s concurring opinion.

Justice Alito also authored a lengthy concurring opinion, writing that Smith “committed a constitutional error,” and should be revisited shortly and overruled (and that the Court should have done this in Fulton).  Justices Thomas and Gorsuch joined in Justice Alito’s opinion.

While Smith remains good law at this time, three justices have openly called for it to be overruled, and two more have suggested that they find the arguments against it to be compelling.  Simply stated, it appears that a majority of five justices are ready and willing to revisit and overturn Smith if presented with a case permitting the Court to do so.  The only question is when that case will make its way to the Court.

Should the Supreme Court overturn Smith, employers could face many more constitutional challenges to policies that are facially neutral and generally applicable.  We will keep readers posted on developments.

Over the last two years, Human Resources professionals and Risk Managers have contended with a host of novel issues raised by the COVID-19 pandemic. This blog post presents a broad overview of some of the more prominent issues related to COVID-19 in an effort to provide some clarity and perspective to California employers. Liebert Cassidy Whitmore regularly writes on these and related issues. Keep an eye on future blog posts for more information.

Monitoring Updates at Every Level of Government

COVID-19-related guidance and requirements can be difficult to track. Changes occur so quickly that they often leave employers scrambling to catch up. Employers can strengthen their ability to track updates by familiarizing themselves with the main sources of guidance and requirements.

State Guidance and Requirements

For most California employers, changes at the state level will be the most important developments to monitor. Many developments will come from one of four sources: regulations from the Division of Occupational Safety and Health (also known as Cal/OSHA); Health Officer Orders and Guidance from the California Department of Public Health (“CDPH”); Executive Orders from the Governor; and new legislation from the California Legislature.

Cal/OSHA’s COVID-19 Emergency Temporary Standard (“ETS”) (8 C.C.R. § 3205, et seq.) has provided a relatively consistent set of COVID-19-related regulations. It outlines workplace requirements that apply to most public and private employers, all of which are designed to prevent the spread of COVID-19. The Occupational Safety and Health Appeals Board (“OSHSB”) has amended the Cal/OSHA ETS from time to time, in order to address changes in the pandemic. Employers can monitor the meeting schedule and agendas of the OSHSB for proposed changes to Cal/OSHA’s ETS. The OSHSB adopted the most recent amendments on December 16, 2021. Readers can find an overview of those changes here.

The COVID-19 pandemic has led to several short-term Executive Orders and legislative bills. Employers may check both authorities directly through online sources. LCW also monitors and announces significant changes through its labor and employment blog and Special Bulletins.

CDPH Health Officer Orders and guidance are also available online. Most recently, the CDPH updated its Guidance for the Use of Face Coverings, which requires all individuals to wear face coverings while indoors from December 15, 2021 to at least January 15, 2022 (subject to a few exceptions). Readers will find more information on the updated CDPH face covering requirements here. Although the CDPH called its update “guidance,” the changes are mandatory due to its June 11, 2021 Health Officer Order. The June 11 Order requires all individuals to follow CDPH’s face covering guidance, including its most recent iteration. When reading CDPH orders and guidance, employers should check the orders currently in effect to see whether they change the applicability of related guidance.

Local Guidance and Requirements

Once an employer reviews state-level guidance or requirements, it should check local authorities for further information. In many jurisdictions, this will mean checking the local health department for Health Officer Orders or COVID-19-related guidance. Local requirements can supplement – but cannot contradict – state requirements. For example, the August 5, 2021 CDPH Order requires employees in a number of healthcare fields to become vaccinated against COVID-19. Shortly afterward, the Los Angeles County Department of Public Health (“LACDPH”) issued a local Health Officer Order expanding the categories of healthcare workers who must be vaccinated. Employers within Los Angeles County must follow both the state and local orders. As a general rule, agencies should identify their local authorities and track updates that may supplement state-level requirements.

Federal Guidance and Requirements

The Centers for Disease Control and Prevention (“CDC”) has provided the most common source of federal guidance. Employers should check CDC guidance regularly, because many other authorities cite to the CDC directly or design their own guidance and requirements based on information from the CDC.

Congress has produced a number of laws to address the COVID-19 pandemic. It has dedicated an unprecedented level of funding to offset pandemic impacts. The President has also taken steps to address the pandemic. Most recently, he instructed the federal Occupational Safety and Health Administration (“OSHA”) to issue its own Emergency Temporary Standard that would require vaccination or testing for many employers nationwide. Federal OSHA’s Emergency Temporary Standard (“ETS”) recently withstood challenge in the Sixth Circuit Court of Appeals. OSHA will begin enforcing the COVID-19 ETS on January 10, 2022, further legal challenges notwithstanding. LCW monitors new and proposed federal legislation and regulations closely. Employers can refer to LCW’s Special Bulletins and newsletters for COVID-19-related federal updates.

 

Implementing Vaccine Requirements

Existing law does not prohibit employers from implementing a COVID-19 vaccine mandate. However, the process still involves certain considerations and requirements. First, employers should record the vaccine mandate in a written policy. Written policies promote even and consistent application. An effective vaccine mandate should also give employees time to comply with vaccination requirements, as well as describe methods for seeking accommodation. If employers adopt a vaccine mandate for applicants, they should make the requirement clear from the outset and should not ask an applicant’s vaccination status until they have extended a conditional offer for employment.

Employers must also engage in effects bargaining with employee representative organizations. Effects bargaining may cover issues like the timing of the requirement, how long employees have to come into compliance, how exemptions to a vaccine mandate will be evaluated by the employer, and how discipline will be applied.

While current definitions of the term “fully vaccinated” do not include taking booster shots, employers should monitor the CDC and CDPH in case definitions change and boosters are needed. If that happens, employers will need to update existing vaccine mandates to account for boosters.

Religious Accommodations to Vaccine Requirements

Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (“FEHA”) protect employees’ religious beliefs at the federal and state levels. In the past, employers received religious accommodation requests infrequently when compared to requests for accommodation based on other characteristics, such as disability. Recently, employers have received increasing numbers of religious accommodation requests in response to COVID-19 vaccine mandates.

Once the employer becomes aware that a conflict exists between an employee’s religious belief, observance, or practice and a job requirement (e.g., vaccination against COVID-19), the employer is obligated to evaluate a potential reasonable accommodation. California regulations and federal guidance describe that an accommodation is reasonable if it eliminates the conflict between the employee’s religious belief and the job requirement. Under both Title VII and the FEHA, an employer is obligated to consider all potential reasonable accommodations; although, the employer need not offer the specific accommodation that the employee requested. An employer is excused from its obligation to accommodate only if it can show that any potential accommodation would impose an undue hardship. (Note, Title VII and the FEHA define “undue hardship” differently. Employers should consider consulting legal counsel before denying a religious accommodation request on the basis that it imposes an undue hardship.)

Employers that receive religious accommodation requests should approach each request as an individualized inquiry. Employers have an obligation to engage employees in an interactive process with the goal of identifying a reasonable accommodation.

Ongoing Duty to Exclude from the Workplace

The Cal/OSHA ETS requires employers to exclude employees from the physical workplace when an employee either has COVID-19 (positive test, positive diagnosis, or ordered to isolate) or has a close contact exposure with someone who has COVID-19 (was within 6 feet of a person with COVID-19 for a cumulative 15 minutes in any 24-hour period). The Cal/OSHA ETS also requires employers to maintain the excluded employee’s compensation, seniority, and benefits while excluded.

There are several exceptions to the exclusion requirement. If an employer can show that the employee’s close contact exposure was not work-related, then it does not need to maintain compensation, seniority, or benefits while the employee is excluded. The employer also has no obligation where the employee received disability payments or was covered by workers’ compensation and received temporary disability. Separately, an employee who had a close contact exposure need not be excluded from the workplace at all if the employee meets one of several, enumerated exceptions.

Through September 30, 2021, California required employers to provide up to 80 hours of Supplemental Paid Sick Leave (“SPSL”) to employees for COVID-19-related reasons. Employers often used SPSL to compensate employees who were excluded from the workplace under the Cal/OSHA ETS. However, the expiration of SPSL had no effect on the obligation to compensate excluded employees under the Cal/OSHA ETS. The obligations of the ETS are still effective. If an employer does not have another source of compensation available to an excluded employee, it is still obligated to maintain the employee’s compensation, seniority, and benefits unless an exception from the Cal/OSHA ETS applies.

Teleworking Considerations

Many employers relied on remote work, or “telework,” arrangements to survive the initial disruption caused by the pandemic. Now that telework has proven in many circumstances to be a viable option, some employers are evaluating expanded teleworking policies (some permanent and some on a trial basis). Employers that do so should consider designing the policy so that the employer retains discretion rather than making telework a guaranteed benefit. Certain jobs are better suited for to teleworking, while others are poorly suited or incompatible to telework. Additionally, conditions or job demands may change and may affect the practicality of teleworking arrangements. Employers should also consider potential obligations to compensate employees under Labor Code section 2802, on indemnification for expenditures, which may arise from telework arrangements. This is particularly true if teleworking is required.

Conclusion

As many HR specialists and risk managers have learned, the COVID-19 pandemic presents an ongoing challenge to remain current with applicable laws. Luckily, employers need not handle the shifting challenges alone. Experienced counsel can help employers meet the various demands created by COVID-19.

Now that the holiday season is upon us, employers can anticipate that a number of employees will make travel plans to see loved ones who they may not have been able to see in-person due to the COVID-19 pandemic. For this reason, it is important for employers to be clear and transparent with their workforce about their expectations for those who engage in travel or other high-risk activities, such as large gatherings, which can increase the spread of COVID-19. It is also crucial for employers to communicate with their workforce to comply with all federal, state, and local orders regarding travel and gatherings to avoid increasing the risk of COVID-19 infection when they return to work.

The Centers for Disease Control (CDC) and California Department of Public Health (CDPH) have provided recommendations for travel during COVID-19, and these recommendations differ for vaccinated and unvaccinated individuals. Following these recommended guidelines is essential in providing a safe and healthy environment in the workplace.

Recommendations for Vaccinated Individuals

The current guidance from the CDC and the CDPH recommends individuals delay travel until they are fully vaccinated. Someone is considered fully vaccinated for COVID-19 two weeks after their second dose in a two-dose series (Pfizer-BioNTech, Moderna, or other vaccine authorized by the World Health Organization), or two weeks after receiving a single-dose vaccine (Johnson and Johnson). Fully vaccinated individuals may travel within the United States without having to test or quarantine, as long as they remain asymptomatic. However, fully vaccinated individuals should still self-monitor for COVID-19 symptoms and get tested if symptoms develop.

Recommendations for Unvaccinated Individuals

The CDC and CDPH recommend that individuals who are not fully vaccinated refrain from traveling to avoid the risk of contracting COVID-19. Should an unvaccinated individual decide to travel, the individual should arrange to take a viral test one to three days before the trip and get tested again within three to five days after returning from travel. The individual should also quarantine for seven days upon return, even if the individual tests negative for COVID-19. If the individual tests positive for COVID-19, the individual should isolate to protect others from getting infected. Individuals who choose not to get tested for COVID-19 after traveling should stay home and self-quarantine for ten days after travel. Upon returning from travel, unvaccinated individuals should also avoid being around people who are at increased risk for severe illness, self-monitor for COVID-19 symptoms and get tested if symptoms develop, and follow all federal, state, and local recommendations or requirements.

The CDC has also noted that effective December 6, 2021, all international air passengers, regardless of vaccination status, must show a negative COVID-19 test taken no more than one day before travel to the United States. Additionally, regardless of vaccination status, all individuals are required to wear a mask indoors on planes, buses, trains, and other forms of public transportation. Individuals should also follow all state and local recommendations, requirements, and safety precautions, including wearing a mask, social distancing, and washing hands frequently.

Employers should consider how they intend to address the guidance and recommendations provided in the CDC and CDPH’s travel advisories. For example, employers can consider recommending that unvaccinated employees refrain from engaging in high-risk travel and activities during the holidays, and may require them to get tested or stay home after travel. Finally, employers should continue to keep their workforce updated on their policies regarding returning to work after travel, and continue to follow the recommendations of local public health officers, the state, and the CDC regarding traveling.

We are excited to announce a new video series designed especially to serve our public safety clients. Our short Public Safety Video Briefings will tackle cutting-edge issues and core principles relevant to public safety employers. We hope you find these videos useful and thought-provoking.

 

Since the COVID-19 pandemic first began, it has had a multitude of evolving impacts on the operation of the workplace.  One impact is the increased number of requests employers are receiving from employees for reasonable accommodations.  These increases are attributed to various factors, which have evolved as the pandemic has progressed.  At the outset of the COVID-19 pandemic, many of the requests for reasonable accommodations arose from employees with medical conditions that placed them at higher risk if they contracted COVID-19.  With the development and approval of the COVID-19 vaccine and the establishment of COVID-19 vaccine requirements for employees, many of the requests for reasonable accommodations began to arise from employees with disabilities preventing them from being vaccinated or from employees with sincerely held religious beliefs, practices, or observances that conflicted with the requirement that they be vaccinated.  As California employers navigate these requests, a recent federal case provides an essential reminder for California employers.

Employers Must Engage in a Good Faith Interactive Process

In Madrigal v. Performance Transportation, LLC, the federal district court for the Northern District of California, analyzed multiple claims arising under the Fair Employment and Housing Act (FEHA) that were brought by Jorge Madrigal, who worked as a driver for Performance Transportation, LLC (PTL).  The facts are as follows:

Madrigal’s essential functions as a driver included driving and delivering food items to PTL’s customers.  When the COVID-19 pandemic began, Madrigal was on a medical leave, which his doctor extended because Madrigal had diabetes, which put him at high risk for severe illness if he contracted COVID-19.  Several months later, Madrigal provided PTL with a doctor’s note stating that he could return to work if he minimized contact with other people for six to twelve months during the COVID-19 pandemic due to his high-risk status.  Madrigal requested a reasonable accommodation to that effect, and asserted he could perform the essential functions of his position with this accommodation.

Madrigal met with three PTL employees about his request for a reasonable accommodation.  During the meeting, PTL denied Madrigal’s request to work in PTL’s warehouse, as a way to minimize contact with other persons, and ended the meeting without offering Madrigal any other reasonable accommodations.  Ten days later, PTL fired Madrigal and stated that no reasonable accommodations were available for him.

Madrigal filed a complaint against PTL, which alleged a wrongful termination claim and several FEHA claims, including claims for (1) disability discrimination, (2) failure to accommodate, (3) failure to engage in a good faith interactive process, and (4) retaliation.  PTL filed a motion to dismiss each of Madrigal’s claims.  After analyzing each of Madrigal’s claims, the court granted PTL’s motion to dismiss because Madrigal’s complaint lacked sufficient information to support his claims.  However, the court gave Madrigal the opportunity to amend his complaint to provide additional supportive information.  After Madrigal amended his complaint, the court again analyzed each of Madrigal’s claims.

In reviewing the facts, the court found that Madrigal had provided sufficient facts to support each of his claims.  Importantly, the court found that Madrigal sufficiently pled his failure to accommodate and failure to engage in an interactive process claim because the facts he provided showed he made a reasonable request for accommodation, that PTL denied the request without offering any options for accommodations, that PTL made no attempt to accommodate his disability, and that there were several different accommodations available that PTL did not explore before terminating Madrigal.  Therefore, the court did not grant PTL’s motion to dismiss, and allowed Madrigal’s complaint to proceed.

The Madrigal case provides the essential reminder of an employer’s legal obligation to engage in a “timely, good faith, interactive process” with employees in response to their requests for reasonable accommodation, and an employer’s legal obligation to make reasonable efforts to identify appropriate reasonable accommodations.  The interactive process is intended to be a flexible one that involves participation by both the employer and the individual with a disability.  In most circumstances, an employer will not fulfill their obligation to engage in the interactive process if the employer does not consider whether the employee’s requested accommodation is reasonable or offer alternate accommodations that would enable the employee to perform essential job duties with or without reasonable accommodation.  While this case is still at the pleading stage, moving forward, the employer will have to demonstrate that the employee’s requested accommodation was not reasonable and that no other reasonable accommodations were available that would enable the employee to perform his or her essential job duties, including but not limited to reassigning the employee to an alternate vacant position for which the employee is qualified.

We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

 

We are excited to announce a new video series designed especially to serve our public safety clients. Our short Public Safety Video Briefings will tackle cutting-edge issues and core principles relevant to public safety employers. We hope you find these videos useful and thought-provoking.

 

This article was originally published in October 2020.  The information has been reviewed and is up-to-date as of November 2021. Though the state of California is now opening up increasingly due to improving pandemic numbers, the details included in this blog continue to serve as helpful tips during this time.

I moved to Los Angeles from New York 12 years ago.  One of my favorite aspects of practicing law here was appearing in different courthouses throughout Southern California.  I enjoyed seeing the mountains as I drove out to San Bernardino or visiting many courthouses around LA and Orange County.  I also observed oral arguments, the judge’s rulings, and the attorneys (once I recall wondering at the Santa Monica courthouse if it was really acceptable to wear flip flops to court).   Similarly, I enjoyed traveling for depositions or mediations, where I would meet my clients in person.  Having that personal interaction, even with opposing counsel, was a nice change of pace from just being in an office interacting by phone or email.  Now, however, we are litigating in a pandemic, and many things we never thought about in litigation have changed.

First, for court appearances, instead driving around and walking into the courthouse, my commute is either to my kitchen or to my LCW office so I can appear remotely.  For my first remote video appearance at the Los Angeles Superior Court, I appeared from my LCW office, just to be sure I did not have any technology issues and there would be no family interruptions.  While initially there were some complications connecting, once it worked, I had an up close view of the judge and I was able to successfully argue the motions just like I was appearing in Court.  I was able to listen to the other matters before the judge that day, just like I would if I were in court in person, but I couldn’t always see the attorneys.  One aspect that was different, and true for all video calls, is that I am conscious of how I appear on camera – now sensitive to touching my face or even drinking water.  I also need to be mindful to speak more slowly and clearly to account for any lag or lack of clarity in the transmission.  Another issue is to be mindful of lighting and how it appears on the computer.  These additional considerations were never something one needed to consider when appearing in person, but on the bright side, you don’t need to worry about parking!  While I would still prefer to appear in person to argue motions when the pandemic ends, appearing by video was very effective and could be more efficient to alleviate travel time.

Second, depositions have gone remote.  When the pandemic first started, we thought we would be back in the office in a month or two, so we just postponed our depositions.  But as we realized we would be working remotely longer than we anticipated, we began taking remote depositions.  There were so many questions to consider.  How would we show witnesses’ exhibits?  Would the witnesses cheat – could they secretly be looking at notes they prepared in advance?  What if the witness didn’t have the equipment or technology at home to do a Zoom appearance?  Could the court reporter swear the witness in if they were not in the same place?  But as all attorneys and court reporters tackled these issues, we quickly worked them out.  Through Zoom, we can share documents, and the witness can be given control to look through all the pages of an exhibit.  We can ask the witness to move the camera around the room so we can see there are no notes or others present, and can ask the witness to put their phone behind them, and in a way that we can see them doing so on their computer’s camera.  When we realized the pandemic wasn’t ending any time soon, we deposed the plaintiff in a case by Zoom during the summer of 2020 and it was an effective and successful deposition; of course, Zoom depositions are now commonplace.  We were able to thoroughly cross-examine the witness just as we would in a conference room, and the court reporter was able to prepare the same transcript.  At one point the plaintiff became emotional and cried, which to me indicates the impact of the deposition was the same as being together in a conference room.   Zoom depositions also offer more flexibility in scheduling, and may make it easier for clients to attend.  In addition, I recently agreed to accommodate a non-party witness’s work schedule to take the deposition at 7:30 a.m.  If we all had to be in the office, it would be more difficult on everyone’s schedule, but now we just need to log onto Zoom from our homes.

Finally, mediations have also gone virtual.  Before the pandemic, a mediation typically involved both sides in separate rooms and the mediator going back and forth to reach a settlement.  Mediations often lasted into the early evening, settling when everyone was worn out after a long day.  There also was a lot of downtime when the mediator was with the other side, which gave the attorneys and clients time to chat and build more personal connections.  Mediations on Zoom are different.  During the pandemic, I participated in two Zoom mediations.  They were both shorter overall than I think they would have been in person; perhaps there was more of a desire to cut to the chase when everyone was in a room alone in front of a computer or people had Zoom fatigue.  There was also more free time, because often when the mediator was with the other side, everyone just muted and turned the camera off, and then we would be alerted when it was time to go back.  While this made for more efficient use of time, we lost some of the opportunities for personal connections (though in one mediation when we had some downtime, the mediator showed us how to play Scattergories online and we all shared our dogs on video).

As the pandemic hopefully winds down, we may continue to use technology for remote appearances at motion hearings, depositions, and mediations.  In addition, while we cannot do in-person witness interviews, Zoom allows us to connect face-to-face better than a telephone.  Senate Bill 1146 was enacted and signed by the Governor on September 18, 2020.  This law took effect immediately as urgency legislation and implements pandemic-related changes including permitting remote depositions at the election of the deponent or the deposing party, as well as changes for electronic service, electronic signatures, and trial continuances.

 

Over the last several years, virtually all levels of government have increasingly recognized the critical link between building a diverse, equitable, and inclusive workplace and effectively meeting the needs of the communities they serve—in particular, historically underserved and marginalized communities.

At the federal level, the Biden Administration has issued several Executive Orders that recognize the need for a systemic approach to identifying and addressing policies and programs “that serve as barriers to equal opportunity.”  Most recently, in June 2021, President Biden signed Executive Order 14035, which in part, directs the Office of Personnel Management (in coordination with several federal commissions and executive councils and departments) to develop a federal Government-wide Diversity, Equity, Inclusion, and Accessibility (DEIA) Initiative and Strategic Plan.  The DEIA plan must identify strategies to advance equitable policies and practices in areas including, but not limited to federal workforce recruitment, hiring, background investigations, performance reviews, and promotions, as well as take a data-driven approach to determine what federal agency practices result in inequitable employment outcomes.

At the state level, California is currently working in partnership with a staffing organization to source talent in a manner that helps the government “better reflect the diversity of the state – in geography, racial and ethnic representation, sexual orientation and gender identity, professional experience, and disability status.”  Additionally, for decades, the California Community College system has promulgated and enforced robust equal employment opportunity (EEO) regulations that require districts to develop and implement EEO Plans and utilize external recruitments for all vacant positions.

Finally, at the local level, many cities, counties and other municipal agencies are examining their own recruitment and hiring practices, including by hiring EEO/Diversity, Equity, and Inclusion (DEI) officers to assist in these efforts.

The challenge that all California public agencies face is that they must navigate two competing obligations: their increased interest (and in some cases legal duty) to promote EEO/DEI in the workplace; and their duty to comply with the constitutional prohibition against discrimination and “preferential treatment” effectuated by Proposition 209.  To engage in such balancing, those involved in agency recruitment and hiring should first understand the legal parameters and obligations that surround EEO hiring.  Second, they should understand the range of proactive strategies that may operate within this legal framework. Each of these is discussed below.

The Legal Backdrop: Proposition 209 and the Legislative Responsive

Proposition 209, which voters passed in 1996, amended the California Constitution to now read:

“The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

While discrimination against protected classes was unlawful long before passage of Prop. 209, the additional prohibition against “preferential treatment” has been broadly interpreted by the California Supreme Court to prohibit any consideration of protected status by a public agency in a hiring or other decision. This prohibition extends to practices that give special consideration to a protected group for the purpose of correcting an identified underrepresentation of that group. In other words, what was once called “benign” discrimination in the context of traditional affirmative action programs no longer exists; in California, there is no such thing as “benign” discrimination.

However, despite this prohibition against preferential treatment in public employment, the California Legislature has declared that Proposition 209 “does not prevent governmental agencies from engaging in inclusive public sector outreach and recruitment programs that, as a component of general recruitment, may include, but not be limited to, focused outreach and recruitment of minority groups and women if any group is underrepresented in entry-level positions of a public sector employer.”  (Gov. Code, § 7400, et. seq.)    

Further, the Legislature enacted legislation requiring public agencies to engage in general recruitment and outreach that includes outreach and recruitment of individuals who are “economically disadvantaged.”  Given the timing of this legislation in relation to the passage of Prop. 209, it is likely that the Legislature enacted this mandate as a way to require employment practices that did not violate Prop. 209 while nonetheless improving outreach to minority communities—given the correlation between poverty and race in the United States.

It is against this legal backdrop that agencies should consider several best practices to correct systemic inequities and promote DEI, all while finding the best, most qualified candidates for the job.

Best Practices for Hiring the Best While Facilitating DEI in the Workforce

Promoting DEI in the workplace involves much more than just ensuring that agencies act defensively to protect against discrimination in their hiring practices.  It requires agencies to be proactive, which involves: taking concrete steps to foster a workplace culture that genuinely values the benefits of a broadly diverse workforce; being willing to examine their own policies and practices for potential engrained and systemic biases; and implementing practices designed to preclude irrational factors from influencing institutional decisions and behavior.

Implementing lawful EEO/DEI strategies also requires an understanding of what EEO/DEI hiring is, and what it is not.  EEO/DEI hiring is not about lowering standards in order to get a more diverse group of applicants to the table.  Rather, EEO/DEI hiring is about eliminating the false predictors of performance that cause qualified candidates to be excluded from consideration.      By engaging in these recommended practices, agencies can begin to improve workforce diversity by a) building highly diverse and qualified applicant pools; b) from which agencies use objective processes to select the most qualified candidates—without consideration given to protected status.

Finally, what all the suggested strategies below have in common is that they support a hiring process that:

  • utilizes neutral practices that do not give preference based on protected status, but are designed to increase the diversity of qualified pools;
  • from which the agency hires without consideration given to protected status;
  • using a structured, fair process implemented by well-trained staff.

1. Use Data to Inform Your Strategies. Two different policy considerations inform agencies’ interests in workforce diversification: 

First, “EEO”—as the term suggests—is concerned with equality in employment. Thus, it is concerned with processes that are fair and equitable for job candidates.  Data that informs EEO strategies looks at such things as the demographics of qualified applicant pools, as compared to who the agency invites to interview, as compared to who the agency ultimately selects for the position.

Second, “DEI”—as this term suggests—is concerned not just with the composition of the workforce, but a work culture that is equitable and inclusive.  Additionally, it considers how workforce diversity affects equity in community access to services and employment. Data relevant to these interests include such things as comparing the demographics of the workforce to the community the agency serves.

Neither consideration should be looked at in isolation.  For example, focusing exclusively on the demographics of a community to guide workforce composition could lead to employment discrimination—if the community itself is not diverse. That said, if an agency does not have a clear picture of its own workforce and community, it is ill equipped to design strategic initiatives that are designed to meet its employment and community service needs.

Data may also be used to identify the underrepresentation of protected groups in the workforce.  Agencies can utilize various methods and measures to assess this kind of disproportionality. For example, the California Community College system compares the percentage of individuals in a particular protected group in a job category with their projected availability in the workforce from which the candidate pool is drawn.

Representation in the work force below eighty (80) percent of projected availability is considered underrepresentation.  Agencies interested in designing focused recruitment programs should consider developing data that documents underrepresentation. As noted above, the Legislature expressly authorizes focused recruitment efforts where an agency has identified underrepresentation.

2. Conduct Focused or Highly Inclusive Recruitments Informed by Your Data. First, it is important to distinguish “focused recruiting” from “targeted recruiting.”  “Targeted” recruiting only recruits within the group from which you are hoping to hire—and is unlawful.  “Focused” recruiting ensures that the position is advertised to the general population within the geographic area of the recruitment—and then also reaches out to members of the protected group that you want to be more represented in the workforce.  For example, if a County Mental Health Department determined that African Americans were underrepresented among its psychologists, it would not be lawful to exclusively announce the position through the Association of Black Psychologists. However, it would be lawful to reach out to the ABP, in addition to publishing the job announcements through the agency’s regular general recruitment process.

Further, it is possible (and probably more common) that agencies identify an interest in increasing the representation of a particular group or groups in the workforce, without the ability to demonstrate statistical underrepresentation.  For example, the demographics of the community the agency serves is not a relevant indicator of workforce underrepresentation—but might inform an agency’s policy interest in increasing the representation of a particular group in its workforce.  Similarly, an agency may have data that is suggestive of underrepresentation, but is statistically inconclusive. In these situations, because there is not a clear indication of underrepresentation, the law does not expressly authorize focused recruitment.  However, we think an agency could engage in what we call “highly inclusive” recruitments that recruit through general circulation platforms, and then also recruit through a wide array of specialized platforms.

3. Train HR Employees, Hiring Committees, Hiring Managers and Other Decision Makers, Including Boards and Councils, Regarding EEO/DEI Practices. California law requires that all agency officials and employees receive anti-harassment training upon hire and every two years thereafter.  In addition, employees and officials involved in hiring decisions, including Human Resources employees, members of selection committees, hiring managers, and board and council members should receive EEO training.  Trainings should cover nondiscrimination laws and regulations; the benefits of workforce diversity; elimination of bias in hiring decisions; and best practices for selection committees and hiring managers.

4. Update Job Announcements. In order to identify the most qualified candidates for any job, selection committees should work with Human Resources to review and update job announcements before posting a vacancy.  Agencies should ensure that job announcements reflect the actual functions of the job and that the required and preferred qualifications accurately reflect the knowledge, skills, and abilities (KSAs) that are reasonable predictors of success for a particular role.  For example, if a hiring manager wants to include “Master’s Degree preferred,” the agency should be sure that a Master’s is—in fact—a reliable predictor of performance. This is because the preference for a Master’s also may reduce the diversity of the pool.  We especially encourage agencies to update job descriptions to ensure they capture the most current knowledge and skills relevant to the position.  Agencies will find the greatest concentration of diverse, qualified candidates among those who are most recent to the field.  Thus, a process that gives more recent entrants to the field an opportunity for consideration will have the tendency to diversify the qualified pool.

5. Develop Agency-Wide Hiring Procedures for All Stages of the Hiring Process. Agencies should establish procedures that standardize hiring practices at each stage of the process, including the final round of interviews.  Procedures should include developing guidelines for the review of written applications (paper screenings); appropriate interview questions that assess the KSAs of the candidates; and rating criteria and model answers for the interview questions.  Rating criteria and model answers should only assess candidates’ answers based on the job-related criteria articulated in the applicable job description.  Trained Human Resources employees should review interview questions developed by selection committees or hiring managers to ensure the questions do not implicate protected statuses.

6. Focus on Workplace Culture. Ultimately, any agency’s best tool for recruitment and retention is to foster an inclusive, curious, and respectful work culture. Nontraditional candidates look for a work environment where they will be welcomed and respected. Thus attracting—and retaining—a diverse workforce hinges on creating the sort of work culture that serves to attract and retain the employees who contribute to an agency’s diversity.

 The key factors essential to promoting an inclusive and respectful work culture include:

    • Visible buy-in from leadership and all agency stakeholders, including an agency’s executives, board or council, and union leadership;
    • Demonstrated action through policy development; and
    • Dedication of resources to agency-wide training.

Developing mentorship programs and sponsoring cultural events that celebrate workforce and community diversity can also assist in this process.

Agencies interested in examining their recruitment and hiring policies and practices to identify whether they serve as barriers to equal employment opportunities for qualified individuals should contact trusted legal advisers.

 

It is no secret that the COVID-19 pandemic has had some type of impact on many people’s mental health. On October 10, 2021, the World Health Organization (WHO) recognized World Mental Health Day, and this year’s theme is “Mental health care for all: let’s make it a reality.” The past 18 months have brought forth a number of challenges for almost everyone, and particularly for many frontline workers – including health care workers, teachers, police officers, and firefighters – who have been working tirelessly throughout this pandemic to help serve their communities. The Centers for Disease Control has reported that burnout can negatively affect employees in a number of ways. It can lead to decreased job engagement, lower productivity, and may also cause higher employee turnover as workers may choose to leave their jobs or careers altogether. In honor of World Mental Health Day, below are some tips and suggestions for employers to consider in creating a mentally healthy work environment for employees throughout these difficult times and moving forward.

Increase Communication with Employees

It is crucial for employers to stay in touch with their employees and be transparent regarding any changes in their work environment. If possible, try to involve employees and obtain their input on ways to make their work experience better or more manageable. Employers should also be open minded about each employee’s experiences and personal challenges, and try to respond with empathy and support, and where appropriate, encourage them to seek help. Being transparent and increasing communication with employees builds trust with the workforce and shows the organization’s commitment to a culture of caring.

Provide Resources for Support

There may be some cases where employees are unaware of the resources for support available to them. Employers should let employees know of available mental health resources provided and encourage employees to make use of them. This can include offering a list of resources for mental health support or reminding employees of the workplace policy on accommodations, paid sick leave, or other available sources for time off. By regularly providing information about how employees can seek resources to help with their mental health problems, this may help reduce the stigma that is often associated with seeking help. Other ideas for providing resources to support mental health include creating and maintaining a dedicated quiet space or time for relaxation or meditation during the workday.

Offer Flexibility When Available

If remote work or a flexible work schedule is an option for certain workplaces, consider allowing an employee to take that option when possible. Offering flexible work options, such as allowing an employee to work remotely, can likely help lessen the stress of a long commute, traffic, and childcare concerns.

Be Mindful of Employee Privacy Concerns

While we want to encourage employees to take care of their mental health, employers should also keep in mind that employees are entitled to keep their mental health conditions private, and should not solicit information from employees about their mental health conditions except in limited circumstances. California law also prohibits employers from discriminating against employees based on a disability, which includes perceived disabilities.

Addressing and prioritizing mental health is important to productivity and sustainability for all workplaces. By considering and implementing the suggestions above, employers can help provide employees with a supportive and more mentally healthy work environment.