By Mary L. Topliff, Esq. and Allison Pitigoi, Esq.
California employers already have an affirmative duty to prevent and promptly correct discriminatory and harassing conduct in the workplace under California Government Code section 12940(k) of the Fair Employment and Housing Act (“FEHA”). On April 1, 2016, amended FEHA regulations will take effect clarifying existing law and imposing new requirements for California employers with five or more employees (regardless of whether the employee’s worksite is located within or outside of California).
The following are some key provisions of the amended FEHA regulations for compliance:
- Must be in writing. Existing California law requires employers to distribute the “Department of Fair Employment and Housing (DFEH)-185” brochure on sexual harassment, but employers are now additionally required to have written harassment, discrimination and retaliation prevention policies.
- Required provisions for written policies. The following provisions must be included in California employers’ written harassment, discrimination and retaliation prevention policies:
- Protected classes. The written policy must list all of California’s protected classes, as follows: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
- Prohibited parties. The written policy must indicate that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in prohibited discrimination, harassment or retaliation.
- Complaint process. The employer must create a complaint process to ensure that complaints receive: an employer’s confidentiality, to the extent possible; a timely response; impartial and timely investigations by qualified personnel; documentation and tracking for reasonable progress; appropriate options for remedial actions and resolutions; and timely closures.
- Complaint mechanism. The employer must create a complaint mechanism that does not require the employee to complain directly to his or her immediate supervisor, such as by complaining orally or in writing to a designated company representative (e.g. HR Manager), complaint hotline or ombudsperson or to the U.S. Equal Employment Opportunity Commission (EEOC).
- Designated representatives. The written policy must instruct supervisors to report any complaints of misconduct to a designated company representative (e.g. HR Manager) so the company can try to resolve the complaint internally. For employers with 50 or more employees, this topic must be included in the mandatory supervisor sexual harassment prevention training.
- Due process. The written policy must state that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
- Confidentiality. The written policy must state that confidentiality will be kept by the employer to the extent possible, but it must not indicate that the investigation will be completely confidential.
- Remedial measures. The written policy must state that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
- No retaliation. The written policy must clearly state that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
- Requirements for distribution and communication. Employers are required to disseminate the policy to employees through one or more of the following methods: printing a copy with an employee acknowledgment form to sign and return; e-mailing a copy with an employee acknowledgment return form; posting current versions of the policies on the company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies; discussing policies upon hire and/or during a new hire orientation session; and/or any other way that ensures employees receive and understand the policies.
- No requirement that policy must be a stand-alone document. The regulations do not require that the policy be separate from an Employee Handbook or other policy manual. If the policy is part of a handbook or manual, employers must ensure that the distribution and communication requirements are satisfied and should revise acknowledgment forms to include the requisite language regarding the harassment policy.
- Translation requirements. If the employer’s workforce at any facility or establishment contains 10 percent or more non-English speaking employees, the employer must translate the policy into every language that is spoken by at least 10 percent of the workforce.
The amended regulations clarify that there is no stand-alone, private cause of action for failure to comply with these regulations. In order to have a claim against the employer, a private claimant would still be required to plead and prevail on the underlying claim of discrimination, harassment, or retaliation. However, as an exercise of its police powers, the DFEH may independently seek non-monetary preventative remedies for a violation of these regulations regardless of whether the DFEH prevails on the underlying claim for discrimination, harassment or retaliation.
California employers should review and update their existing policies and procedures regarding discrimination, harassment and retaliation for compliance with the amended FEHA regulations to reduce risks. For further information or assistance with compliance matters, please contact the Law Offices of Mary Topliff at firstname.lastname@example.org.