Hunton Employment & Labor Perspectives

Among the new employment laws in effect this new year is the expansion of the California Fair Employment and Housing Act (“FEHA”) to include “reproductive health decision-making” in the list of classifications protected by the FEHA.  Accordingly, the FEHA now expressly prohibits discrimination, harassment, and retaliation based on employees’ reproductive health-decision-making.  The FEHA also makes it unlawful for an employer to require, as a condition of employment, continued employment, or a benefit of employment, the disclosure of information relating to an applicant’s or employee’s reproductive health decision-making.

“Reproductive health decision-making” is defined to include, but is not limited to, “a decision to use or access a particular drug, device, product, or medical service for reproductive health.”  There may be overlap between the classifications of “reproductive health decision-making” and “sex,” which includes pregnancy, childbirth, and breastfeeding, and their related medical conditions, as well as gender, gender identity, and gender expression.  

In light of these new protections, employers are encouraged to review and update their policies and incorporate these updates in their mandatory training.