Kevin Kish

In Kish’s world, the more things change, the more they stay the same.

“Disability discrimination makes up the most commonly cited basis in the cases we see,” said the executive director of the California Department of Fair Employment and Housing. “That’s been true for years.”

Sexual harassment claims have also long been common, he said, in workplaces ranging from “low-wage jobs to highly elite firms.”

When employers fail to deal with these issues before they rise to the level of official complaints or legal actions, Kish said, there is also another common denominator: ignorance of the law.

“A lot of what I’m seeing isn’t bad faith as much as a lack of understanding,” Kish said. He added that legal violations are often a symptom of a wider problem with “bad management.”

The former Bet Tzedek Legal Services attorney was appointed by Gov. Jerry Brown just over two years ago at age 38. In that time he has seen changes, specifically a growing number of discrimination claims relating to language, age and transgender issues.

Suits related to language or country of origin have been rare, but DFEH made headlines recently when it sued the clothing retailer Forever 21 Retail Inc. after if investigated worker claims of an “English-only” policy at a San Francisco store.

The press release announcing the action, incidentally, can be viewed in English or Spanish on DFEH’s website. The case is ongoing. Department of Fair Employment and Housing v. Forever 21 Retail Inc., CGC-17-557825 (S.F. Super. Ct., filed March 29, 2017).

Meanwhile, he said, baby boomer retirements are “cresting.” Kish added that the state workforce is particularly affected; at his own agency about 40 percent of workers are already eligible to retire.

An increasing number of workplaces contain many boomers and millennials, Kish said, with fewer Generation Xers like himself to translate. When workers are disciplined or let go, older ones often blame age discrimination. Millennials, in turn, sometimes say they are being punished for what they perceive as normal communication styles.

But some of the biggest emerging misunderstandings relate to the growing issues of transgender people, he said, in particular the idea that people can assert a gender identity without undergoing a “physical transition.”

Reasonable accommodations need to be made anyway, Kish said, something that may have come as a surprise to two employers DFEH recently began investigating.

“I think transgendered people are in an [important] moment,” Kish said.

— Malcolm Maclachlan