California recently enacted two laws that expand the scope of discrimination claims and prohibit retaliation against employees for failing to participate in employer-sponsored meetings regarding religious or political matters. Both laws will take effect on January 1, 2025.
On September 27, 2024, California Governor Gavin Newsom signed Senate Bill (SB) 1137, which amends the Unruh Civil Rights Act and the Fair Employment and Housing Act and bans discrimination on the basis of the intersectionality (e.g., combination) of two or more protected traits. Existing protected traits in California include race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, gender, gender identity, gender expression, sexual orientation, reproductive health decision-making and veteran or military status.
SB 1137 defines the concept of intersectionality as follows: “Intersectionality is an analytical framework that sets forth that different forms of inequality operate together, exacerbate each other, and can result in amplified forms of prejudice and harm.” The law codifies the Ninth Circuit decision of Lam v. University of Hawai’i, 40 F.3d 1551 (9th Cir. 1994), which held that when a plaintiff asserts multiple bases of discrimination, “it is necessary to determine whether the employer discriminates on the basis of that combination of factors, not just whether it discriminates” on one of the bases alone.
Outside of the Ninth Circuit, federal circuit courts are split on whether multiple intersecting factors may lead to discrimination, which has led to a patchwork of divided rulings. SB 1137 also follows guidance from the Equal Employment Opportunity Commission, which recognizes that biases and negative stereotypes motivated by two or more protected traits may constitute intersectional discrimination under Title VII of the 1964 Civil Rights Act. For example, a Black woman could experience workplace discrimination based on her race or her gender, but also on a combination of the two, making her subject to a set of stereotypes and assumptions not shared by Black men or white women. Moreover, this type of discrimination may bridge statutes – such as a combination of age under the Age Discrimination in Employment Act and sex under Title VII (i.e. older women).
In addition to SB 1137, California also recently enacted SB 399, which bars employers from subjecting, or threatening to subject, an employee to discharge, discrimination, retaliation, or any other adverse action because the employee declines to attend an “employer-sponsored meeting” or declines to participate in, receive, or listen to any employer communications regarding “religious or political matters.” An employer who violates the law may be subject to a civil penalty of $500 per employee for each violation.
SB 399 defines “political matters” as those regarding “elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or political or labor organization.” Likewise, “religious matters” are defined as “matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.”
In enacting the new law, titled the California Worker Freedom from Employer Intimidation Act, California joins other states, including Connecticut, Hawaii, Illinois, Maine, Minnesota, New York, Oregon, Vermont and Washington, that have already enacted statutes prohibiting “captive audience” meetings, similarly limiting the ability of employers to conduct mandatory meetings on religious or political matters.
Under this new California law, employers are also prohibited from mandating employees attend employer information sessions regarding a labor organization even if the employer schedules the meeting during work time and pays employees to attend. However, SB 399 does not apply to employer-required trainings to comply with legal obligations, including obligations under civil rights laws and occupational safety and health laws.
Takeaways
Due to the imminent enaction of SB 1137 and SB 399, employers should consider revising employee handbooks and policies to specify that discrimination based on the intersection of two or more protected traits is prohibited. Likewise, employers may want to train managers and supervisors on the parameters of intersectionality discrimination and captive audience laws. Finally, to the extent an employer holds meetings relating to political or religious matters, they should be sure to treat such meetings as strictly voluntary.
