How have the amendments to the Fair Employment and Housing Act (FEHA) that became effective April 1, 2016 clarified the burdens of proof for FEHA claims?
Discrimination is established if a preponderance of the evidence (a feather more than 50%) 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.
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