No this is not a cruel April Fool’s Day joke. As of April 1, revised California Fair Employment Housing Act (FEHA) regulations will take effect, with new anti-discrimination and anti-harassment obligations for California employers. If you have not already updated your Discrimination and Harassment Policies to track the amendments to FEHA, now is the time.
Our office has already updated and drafted a number of Harassment and Discrimination Policies in response to these new regulations. Feel free to contact us at any time.
The new regulations make it mandatory for every California employer employing five or more employees (regardless of location) to have a written anti-discrimination, harassment and retaliation policy. This means that out of state companies with 1-2 California employees may now be sued under FEHA.
Discrimination and Harassment policies must now include all of the following:
List all protected categories covered under the FEHA. These include:
- 4o Age (40 and over)
- Ancestry
- Color
- Religious Creed (including religious dress and grooming practices)
- Denial of Family and Medical Care Leave
- Disability (mental and physical) including HIV and AIDS
- Marital Status
- Medical Condition (cancer and genetic characteristics)
- Genetic Information
- Military and Veteran Status
- National Origin (including language use restrictions)
- Race
- Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding)
- Gender, Gender Identity, and Gender Expression
- Sexual Orientation
Specify that the law prohibits unlawful conduct by coworkers and third parties, as well as supervisors and managers;
Set forth a complaint process, that includes:
- Timely investigations and response to complaints;
- Impartial investigations by qualified personnel;
- Means for tracking progress of investigation;
- Appropriate remedial actions and resolution; and
- Timely closure.
Provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor. Complaint options should include:
- Direct communication, either verbally or in writing, with a designated company representative, another supervisor or complaint hotline, so that the employee has options outside of his or her immediate supervisor;
- Access to an ombudsperson; and/or
- Identification of the California Department of Fair Employment and Housing (DFEH) and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints;
Instruct supervisors to report all complaints of misconduct to designated company personnel.
Indicate that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation. If misconduct is found, appropriate remedial measures will be taken.
Specify that confidentiality will be maintained to the extent possible, although the policy should not indicate that the investigation will be completely confidential.
Clearly state that employees will not be retaliated against for lodging a complaint or participating in any workplace investigation.
Employers must distribute the updated policy through one or more of these methods:
- Hard copy to all employees with an acknowledgement form for the employee to sign and return;
- Email to employees, along with an acknowledgement return form;
- Post on the company intranet, along with a tracking system that ensures all employees have read the policy and acknowledged receipt;
- Discuss the policy with new hires or during orientation sessions; and/or
- Other distribution methods that ensure employees receive and understand the policy.
Employers whose workforce at any facility or establishment contains 10 percent or more employees who speak a language other than English as their primary spoken language must translate the policy.
For employers with 50 or more employees:
The new regulations also update training and record keeping requirements under California’s existing supervisor harassment training provision. The following now apply:
- Training must instruct supervisors of their obligation to report complaints of discrimination, harassment or retaliation to a designated company representative, and must review with supervisors the steps necessary to take appropriate remedial measures to correct harassing behavior.
- The training must cover “abusive conduct,” including the definition of abusive conduct, the negative impact of abusive conduct, the elements of and examples of abusive conduct, and the fact that a single act will not constitute abusive conduct unless it is sufficiently severe and egregious. The regulations state that there is not a specific amount of time that must be spent on abusive conduct in the training but it should be covered in a meaningful manner.
o Employers must maintain training documentation for a minimum of two years.
- Documentation includes names of the supervisors trained, training date, sign-in sheet, certificates of attendance or completion, type of training, copies of written or recorded training materials, and the name of the training provider.
- For webinar training, employers must also retain a copy of the webinar, written materials used by the trainer, written questions submitted during the program, and written responses or guidance that the trainer provided during the webinar. For e-learning training, employers must retain written questions received and written responses or guidance provided.
Other updates to the FEHA regulations include:
New definitions of gender expression, gender identity, sex stereotype, and transgender;
- “Gender expression” means a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
- “Gender identity” means a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.
- “Transgender” is a general term that refers to a person whose gender identity differs from the person’s sex at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as “transsexual.”
A woman/female disabled by pregnancy includes a transgender employee who is disabled by pregnancy;
Clarification of what constitutes actionable harassment and the basis for co-worker liability;
A new rule permitting the DFEH to recover “non-monetary preventative remedies” against an employer, regardless of whether the agency prevails on an underlying claim for discrimination, harassment or retaliation; and
A prohibition of discrimination against a non-citizen applicant or employee who holds a driver’s license issued under Section 12801.9 of the California Vehicle Code. Specifically, the regulations now allow employers to require an applicant or employee to hold or present a driver’s license as part of employment only if it is required by: (a) state or federal law, or (b) the employer’s policies for a legitimate business purpose (and permitted by applicable law).
We recommend that California employers take the following immediate steps:
- Ensure you have written policies that comply with the new regulations and that the policies are disseminated in one or more of the approved methods (in addition to Form DFEH-185).
- Ensure proper complaint and investigation procedures are in place.
- Ensure supervisors and human resources personnel receive proper training on the new regulations so that all inquiries and potential complaints can be addressed in a compliant manner.
On May 4, 2017, President Trump signed an Executive Order Promoting Free Speech and Religious Liberty. Could this order allow discrimination against LGBTQ individuals and women, as feared? Will this impact the workplace? No. Here is the line to remember: Existing laws cannot be overturned by Executive Orders.
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