or attendance at churches or schools affiliated with a national origin group
2019: A trend had developed for employment agreements to require arbitration of work place disputes which pre- served the company’s reputation, but impacted sexual ha- rassment victims because the settlement agreements arising from these arbitrations contained provisions that made the victim ineligible for rehire and required confidentiality. Te state law now prohibits these restrictions. Tereby al- lowing victims to share their stories, get their job back, liti- gate if they want to and have the opportunity to be heard.
2019: Te state’s expands definition of race discrimina- tion to include “traits historically associated with race,” explicitly hair texture and hairstyles, such as braids, twists and locks
2019: Victims of domestic violence and veteran status are added to protected classes
2019: California Fair Housing further defines assistance animals and provides more details for addressing reason- able accommodations
2019: Te state limits restrictions on religious symbols on unit entry doors
2019: Te state increases the statute of limitations to file a discrimination or harassment claim from 1 to 3 years
2019: State requires new cover page on CC&Rs advising readers that any discriminatory restrictions (based on the state’s protected classes) contained therein are void
2019: State requires publicly traded companies to have at least one woman on the board of directors
“ If particular care and attention is not paid to the ladies, we are determined to forment a rebellion and will not hold ourselves bound by any laws in which we have no voice or representation.” –Abigail Adams, U.S. First Lady, 1776
As you can see the decade in review does not necessarily create new law, but rather as a rule expands the legal definitions and they how are applied. For example, it has been illegal to discriminate on the basis of sex since 1963. However, at that time, the intent was to protect women’s rights in the workplace. In 1986, the Supreme Court ruled that sexual harassment was a form of sexual discrimination. It was not explicitly the case prior to that. If you’re over 34, it wasn’t explicitly illegal to sexually harass someone when you were born. That seems pretty outrageous now. Even throughout this past decade sex discrimination is continuing to be defined because people
continue to suffer from this abuse. Up until this year, a majority of companies in the United States were not placing women on their board of directors; something California sought to correct, and to this day do not pay women the same as men. Almost 40 years after it became illegal to discriminate based on sex, there is still a prevalent amount of discrimination going on. This is true of race and religion as well.
In addition, it is worthy to note that the federal fair housing restrictions are moving the other way in some areas. HUD has a pending proposal to change the rule for mixed-citizenship families. Currently, if a citizen applies for a federal housing assistance program and has a significant other living with them that is not a citizen, the assistance covers both. The proposed changes to the law would provide that neither can obtain assistance unless the non-citizen moves out of the household, in which case the citizen could receive benefits. HUD is also proposing to increase the disparate impact test from a 3-prong test to a 5-prong test, making it harder for victims of discrimination which create a disparate impact to receive the relief they need through federal court. Further, in 2015, the Affirmatively Furthering Fair Housing rule was adopted, which required jurisdictions receiving federal funding to evaluate patterns and causes of racial segregation in their communities. In 2018, the program was suspended and HUD proposed a new rule that focuses solely on affordable housing, scrapping the segregation analysis entirely.
Looking to the future, association boards need to be mindful of how their decisions, policies and actions impact its members, its employees, its vendors and its vendor’s employees.
Since community associations are subject to both federal and state harassment and discrimination laws, the federal shift making things harder for victims at the federal level will not impact Californians. The state protects all of the classes protected under federal law and then some. In addition, some cities are adopting additional protected classes, such as San Francisco and Santa Cruz, where height and weight are protected. When in doubt, an association should engage its corporate counsel to guide it through any issues that arise in its community.
Sandra L. Gottlieb, Esq., CCAL is a founding partner with SwedelsonGottlieb, a law firm dedicated to serving California community associations.
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