Don’t Be An April Fool
New Requirements for Employers' Anti-Harassment
and Anti-Discrimination Policies Effective April 1st
Amendments to the Department of Fair Employment and Housing (“DFEH”) regulations interpreting California’s Fair Employment and Housing Act (“FEHA” or the “Act”) will go into effect on April 1, 2016. The changes, which reflect employers’ affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act, will impact employers with five or more employees in a variety of ways, including a likely need to bolster training methods and update Employee Handbooks.
Who is a Covered Employer?
The amended regulations provide that employees located outside of California are counted in determining whether employers employ five or more individuals for coverage purposes, but such employees are not themselves covered by the protections of FEHA if the wrongful conduct occurred outside of California and was not ratified by decision makers or participants located in California. Employees on paid or unpaid leaves are also counted.
The amendments clarify that the following categories are not included for the purpose of counting the number of employees: independent contractors as defined under Labor Code §3353; individuals employed by their parents, spouse, or child; individuals employed under special license in a non-profit sheltered workshop or rehabilitation facility; and individuals employed by an employment agency.
An individual compensated by a temporary service agency for work performed for an employer contracting with that agency is an employee of both the agency and the employer for purposes of compliance to the extent the employee is under the control of the agency or the contracting employer.
Policies Against Harassment, Discrimination and Retaliation
Covered employers are required to have written policies against harassment, discrimination and retaliation which:
- List all current protected categories covered under FEHA (employers can no longer rely only on a “catch-all” policy that says that they will not discriminate or retaliate against employees based on any “category or characteristic protected by law”);
- Expressly prohibit co-workers and third parties, as well as supervisors and managers, from engaging in discriminatory conduct prohibited by FEHA;
- Create a complaint process to ensure that complaints are treated confidentially to the extent possible, a timely response, impartial and prompt investigations by qualified personnel, documentation and tracking for reasonable progress, appropriate options for remedial actions and resolutions, and timely closure;
- Detail a complaint procedure that allows an employee to complain to someone other than his or her immediate supervisor, such as a designated company representative (human resources manager, EEO officer, or other supervisor), and/or a complaint hotline, and/or an ombudsperson, and/or the DFEH and the U.S. Equal Employment Opportunity Commission (EEOC);
- Instruct supervisors to report any complaints of misconduct to a designated company representative (this instruction should be included in mandated supervisor sexual harassment prevention training as well);
- Confirm that the employer will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected;
- State that the employer will keep the investigation confidential to the extent possible (however, the policy should not indicate that the investigation can or will be completely confidential);
- Confirm that appropriate remedial measures shall be taken if, at the end of the investigation, the investigator concludes that it is more likely than not that misconduct has occurred; and
- Make clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
These written policies can be distributed in a variety of ways, including:
- Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
- Posting current versions of the policies on a company intranet with a tracking system to ensure that all employees have read and acknowledged receipt of the policies;
- Sending the policy via e-mail with an acknowledgment return form; and/or
- Discussing and providing written policies upon hire and/or during a new hire orientation session.
Employers are also encouraged to provide new employees with the DFEH’s brochure on sexual harassment (Form DFEH‑185) at the time of hire.
Finally, the policy also must be translated to a language other than English if ten percent or more of the employees at any facility use that language as their spoken language
Unpaid Volunteers and Interns
The Amendments incorporate the 2015 FEHA protections against discrimination and harassment for unpaid volunteers, interns, and persons providing services pursuant to a contract.
Standard for Discrimination and Retaliation Claims
The regulations now include the standard set forth in a 2013 California case in which the court held that an employee asserting a claim of unlawful discrimination or retaliation under FEHA must prove by a preponderance of the evidence that a protected category was a substantial motivating factor in the denial of an employment benefit. The regulations provide that this standard does not necessarily apply to other unlawful practices under FEHA, including harassment, denial of reasonable accommodation, failure to engage in the interactive process, or failure to provide certain leaves of absence.
Affirmative Duty of Employers and Employer Liability
Employers have an affirmative duty to take reasonable steps to prevent and promptly correct discrimination and harassing conduct. The new regulations state that the determination as to what is “reasonable” depends on numerous factors including, but not limited to, the employer size, budget, and the nature of the business. While there is no stand-alone cause of action for failure to take reasonable steps to prevent discrimination, retaliation or harassment—meaning that employees need to also prevail on an underlying claim of discrimination, harassment or retaliation—the DFEH may now seek non-monetary preventative remedies against an employer for a violation of the requirement to take steps to prevent violations of FEHA.
The new regulations confirm court opinions that have held that an employer may be liable for sexual harassment even when the harassing conduct was not motivated by sexual desire and that a person alleging sexual harassment is not required to sustain a loss of tangible job benefits in order to establish harassment.
Also, repeating case law, the regulations provide that an employer or other covered entity is strictly liable for the harassing conduct of its agents or supervisors regardless of whether the employer or other covered entity knew or should have known of the harassment, and is also liable for harassment perpetrated by an employee (other than an agent or supervisor) or by nonemployees against another employee when the employer knows or should have known of the conduct and fails to take immediate and corrective action.
The new regulations expressly state that an employee who engages in unlawful harassment of a co-employee is personally liable for the harassment, regardless of whether the employer knew or should have known of the conduct and/or failed to take appropriate corrective action.
The new regulations impose additional training and record-keeping requirements related to the biennial supervisor training which employers of 50 or more employees have been required to provide since 2004. In addition to information which was already required to be included, training must cover:
- How to identify behavior that may constitute unlawful harassment, discrimination, and/or retaliation under both California and federal law;
- Remedial measures, including an employer’s obligation to conduct an effective workplace investigation, remedies available for sexual harassment victims in civil actions, and potential exposure and liability for employers and individuals;
- Supervisors’ obligation to report sexual harassment, discrimination, and retaliation when they become aware of such conduct;
- Appropriate remedial measures to correct harassing behavior; and
- A meaningful review of “abusive conduct” (in compliance with AB 2053 requirements that went into effect on January 1, 2015), including an explanation of the negative effects that abusive conduct has on the victim of the conduct as well as others in the workplace; information about the detrimental consequences of such conduct on employers (reduction in productivity and morale); and examples of abusive conduct (such as repeated use of derogatory remarks, insults, epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance).
Instructors must include questions that assess learning, and skill-building activities that assess the supervisors’ application and understanding of the content. This requirement can be met through pre- or post-training quizzes or tests, small group discussion questions, discussion questions that accompany hypothetical fact scenarios, and use of brief scenarios discussed in small groups or by the entire group.
Employers must maintain the following information related to the supervisor harassment trainings for a minimum of two years:
- Names of the supervisory employees trained;
- Date of training;
- Sign-in sheet;
- Copy of all certificates of attendance or completion issued;
- Type of training;
- Copy of all written or recorded materials that comprise the training; and
- Name of the training provider.
For employers who provide training via a webinar or E-training, the employer must maintain for a period of two years after the date of the training a copy of the training, all written materials used by the trainer, all written questions submitted pursuant to the training, and document all written responses or guidance the trainer provided during the training.
Modifications to Protected Class Definitions and Protections
With respect to national origin and ancestry discrimination, the regulations incorporate prior law making it unlawful for an employer or other covered entity to discriminate against an applicant or employee because he or she holds or presents a driver’s license issued under section 12801.9 of the Vehicle Code.
The amendments further recognize protection against discrimination and harassment based on sex, gender identity, gender expression, and transgender, and provide definitions for those terms.
“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.
“Sex” has the same definition as provided in Government Code section 12926, which includes, but is not limited to, pregnancy; childbirth; medical conditions related to pregnancy, childbirth, or breastfeeding; gender identity; and gender expression.
“Transgender” 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.” (This comes only a few months after the DFEH issued guidance (1) stipulating that employers must let transgender employees have access in correspondence with their gender identity to restroom, shower, locker room and other such facilities, and (2) suggesting that employers provide individual or unisex restrooms to enhance privacy for all employees).
Protections for pregnancy disability are extended to transgender individuals and, in keeping with prior amendments to the Act, to childbirth, breastfeeding, and any related medical conditions. The regulations also mirror prior revisions to the Act which provide that pregnancy disability leave does not need to be taken in one continuous period of time and that four months of pregnancy disability leave must be provided per pregnancy, not per year.
In accordance with AB 987, which went into effect on January 1, 2016, the regulations affirm that it is unlawful for an employer to retaliate or discriminate against a person for requesting an accommodation for his or her disability, regardless of whether the accommodation was granted.
The definition of “religious creed” was revised to encompass all aspects of religious belief, observance, and practice, including religious dress and grooming to bring it in accordance with AB 1964. The amendments further incorporate a court holding and statutory amendments which prohibit:
refusal to hire an applicant or terminating an employee to avoid the need to accommodate a religious practice constitutes religious creed discrimination; and/or
- segregation of an employee from customers or the general public in order to accommodate an employee’s religious practice unless expressly requested by an employee in accordance with AB 1964.
An employer or other covered entity may be liable for sexual harassment even though the offensive conduct has not been directed at the person alleging sexual harassment, regardless of the sex, gender, gender identity, gender expression, or sexual orientation of the perpetrator.
California Pregnancy Disability Leave Notice
The language of the pregnancy disability leave (“PDL”) notices in DFEH “Notice A” (“Your Rights and Obligations as A Pregnancy Employee”) and “Notice B” (“Family Care and Medical Leave and Pregnancy Disability Leave”) have been modified. All California employers should take the necessary steps to obtain the revised PDL notice and post the new PDL notice in all California work locations as of Friday, April 1, 2016. The new notice explains the FEHA provisions that relate to PDL, including: an employee’s right to request reasonable accommodation, transfer or pregnancy disability leave; an employee’s obligations to provide adequate advance notice to the employer of the need for reasonable accommodation, transfer or pregnancy disability leave; the employer’s requirement, if any, that the employee provide medical certification to establish the medical advisability for pregnancy disability leave, reasonable accommodation or transfer; and how to contact the Department of Fair Employment and Housing to file a complaint and learn more about rights and obligations under the Act.
What Employers Need to Do Now
- Review and update policies to comply with the new regulations;
- Distribute the updated policies using one or more of the identified methods (we recommend also distributing DFEH Form 185);
- Ensure that proper complaint and investigation procedures exist and are being followed;
- Train the appropriate company personnel to ensure proper compliance with the new regulations; and
- Implement the required tracking system.