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Leveling the playing field, part I: the law

Applying legal and ethical rules to bias and discrimination

Issues of bias and discrimination affect lawyers, law firms, their employees and their clients, around the globe. Because of the complexity of laws in this area, even well-meaning lawyers may stumble over one of the provisions of the myriad of laws and regulations prohibiting expressions of bias, discrimination or harassment in the workplace. This article series will cover some of the most relevant laws, both federal and state, and the applicable rules of professional conduct. It will also examine some of the current trends in discrimination and sexual harassment in the workplace.

This article series will not only cover the overlap between legal and ethical rules, but it will also examine jurisdictional differences between ethical rules. Because modern legal practice is often multijurisdictional, this article series will examine both the California Rules of Professional Conduct as well as the American Bar Association Model Rules of Professional Conduct.

One of the most important things to understand if you practice in jurisdictions other than California is the reach of the California Rules. Rule 1-110 specifically states that the California Rules of Professional Conduct “shall govern the activities of members in and outside this state, except as members lawfully practicing outside this state may be specifically required by a jurisdiction in which they are practicing to follow rules of professional conduct different from these rules.”

In addition, although they are not binding in California, the ABA Model Rules are useful for ethical guidance in areas not specifically addressed by the California Rules. Regarding ethics opinions, while an ABA formal opinion “does not establish an obligatory standard of conduct imposed on California lawyers,” the ABA Model Rules may be considered as a “collateral source” where there is no direct ethical authority in California (State Compensation Insurance Fund v. WPS Inc. (State Fund) (1999) 70 Cal.App.4th 644, 656).

Federal and state laws prohibiting discrimination

Many different laws and regulations address the issue of bias and discrimination in the workplace. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, national origin and sex. Other federal laws include the Age Discrimination in Employment Act (1967), the Rehabilitation Act (1973), the Americans with Disabilities Act Amendments Act (2008), and the Equal Pay Act (1963), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.

One rapidly evolving protected class involves the question of what qualifies as a disability. The Americans with Disabilities Act Amendments Act expands “major life activities” to encompass “major bodily functions.” While major life activities include things like breathing, reading, concentrating and walking, major bodily functions include things like functions of the brain, respiratory system, circulatory system and reproductive system, according to the Department of Labor.

Regarding other areas, the Department of Fair Employment and Housing prohibits discrimination based on age (over 40), ancestry, color, religious creed, denial of family and medical care leave, disability (mental and physical) including HIV and AIDS, marital status, medical condition (cancer and genetic characteristics), national origin, race, religion, sex (including pregnancy), and sexual orientation.

Bias and discrimination code sections are also covered in the California Government Code. California Government Code section 12940 states in pertinent part of paragraph (a) that it shall be an unlawful employment practice, unless the practice is based on a “bona fide occupational qualification” or upon applicable security regulations, for an employer because of the “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to hire or employ the person … or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”

Paragraph (a)(1) explains in pertinent part that this section does not prohibit an employer from refusing to hire or from discharging an employee with a physical or mental disability that causes him or her to be unable to perform his or her essential duties, even with reasonable accommodations, or if he or she “cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.”

One of the currently misunderstood areas of sexual discrimination affects the transgender community. Government Code Section 12926, Additional Definitions, defines “sex” in paragraph (p) as including but not limited to “pregnancy, childbirth or medical conditions related to pregnancy or childbirth,” and also including gender as defined in Penal Code Section 422.56 — which defines “gender” in paragraph (c) as including “a person’s gender identity and gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” This definition of gender identity and appearance is woefully misunderstood and needs to be the subject of adequate training in the workplace to ensure that the law is understood by employers and employees alike.

Please join us next month as we examine some of the latest trends in bias and discrimination law that may affect San Diego lawyers and law firms.

Patrick is chair of the California State Bar Committee on Professional Responsibility and Conduct and immediate past chair of the San Diego County Bar Association Ethics Committee. She writes and lectures on ethics nationally and internationally. Patrick is also a San Diego County deputy district attorney in the Sex Crimes and Stalking Division and has been named by her peers as one of the 2010 Top 10 criminal attorneys in San Diego by the San Diego Daily Transcript and a 2010 Superlawyer. She can be contacted at wendy.patrick@sddt.com. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.

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