Cal. Code Regs. Tit. 2, § 11009 - Principles of Employment Discrimination
(a)
Unlawful Practices and Individual Relief. In allegations of employment
discrimination, a finding that an employer or other covered entity has engaged
in an unlawful employment practice is not dependent upon a showing of
individual back pay or other compensable liability. Upon a finding that an
employer or other covered entity has engaged in an unlawful employment practice
and on order of appropriate relief, a severable and separate showing may be
made that the complainant, complainants or class of complainants is entitled to
individual or personal relief including, but not limited to, hiring,
reinstatement or upgrading, back pay, restoration to membership in a labor
organization, or other relief in furtherance of the purpose of the
Act.
(b) Liability of Employers. In
view of the common law theory of respondeat superior and its
codification in California Civil Code section
2338, an
employer or other covered entity shall be liable for the discriminatory actions
of its supervisors, managers or agents committed within the scope of their
employment or relationship with the covered entity or, as defined in section
11019(b), for the discriminatory actions of its employees where it is
demonstrated that, as a result of any such discriminatory action, the applicant
or employee has suffered a loss of or has been denied an employment
benefit.
(c) Discrimination is
established if a preponderance of the evidence demonstrates that an enumerated
basis was a substantial motivating factor in the denial of an employment
benefit to that individual by the employer or other covered entity, and the
denial is not justified by a permissible defense. This standard applies only to
claims of discrimination on a basis enumerated in Government Code section
12940,
subdivision (a), and to claims of retaliation under Government Code section
12940,
subdivision (h). This standard does not apply to other practices made unlawful
by the Fair Employment and Housing Act, including, but not limited to,
harassment, denial of reasonable accommodation, failure to engage in the
interactive process, and failure to provide leaves under Government Code
sections
12945 and
12945.2. A
substantial factor motivating the denial of the employment benefit is a factor
that a reasonable person would consider to have contributed to the denial. It
must be more than a remote or trivial factor. It does not have to be the only
cause of the denial.
(d) An
applicant or employee who is a victim of human trafficking, as that term is
used in Civil Code section
52.5 and Penal
Code section
236.1, may have
a separate right of action under the Fair Employment and Housing Act if he or
she alleges discrimination on a basis protected by the Act. Nothing in this
regulation shall limit any claims an individual may have under other California
laws prohibiting human trafficking.
(e) It is unlawful for anyone to discriminate
against a person who serves in an unpaid internship or any other
limited-duration program to provide unpaid work experience in the selection,
termination, training, or other terms and treatment of that person on any basis
protected by the Act.
Notes
Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12940, 12941, 12942 and 12961, Government Code; Harris v. City of Santa Monica (2013) 56 Cal.4th 203.
2. Amendment of section and Note filed 12-9-2015; operative
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