California's Fair Employment and Housing Council ("FEHC") has adopted new regulations under California’s primary anti-discrimination statute, the Fair Employment and Housing Act ("FEHA"), that take effect April 1, 2016. The new regulations require all California employers with at least 5 employees to adopt and distribute written discrimination, harassment, and retaliation prevention policies that:
- Set forth all of the protected categories currently described in FEHA (race, religious creed, color, national origin, ancestry, physical and/or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and veteran status);
- Indicate that the law prohibits coworkers and third parties, as well as managers and supervisors with whom the employee comes into contact from engaging in conduct prohibited by FEHA;
- Provide a complaint mechanism that does not require an employee to complain directly to his/her immediate supervisor, such as options for direct communication either orally or in writing with a designated company representative, such as a human resource manager or other supervisor, a complaint hotline, access to an ombudsperson, and/or identification of the DFEH and EEOC as additional avenues to lodge complaints;
- Instruct supervisors to report any complaints of misconduct to a designated company representative;
- Indicate that when the company 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 (it is not clear what the phrase "due process" means in the context of these regulations and the FEHC declined to remove this phrase or to clarify it in response to comments from the public);
- State that confidentiality will be kept by the employer to the extent possible;
- Indicate that if at the end of the investigation misconduct is found, appropriate remedial measures will be taken;
- Make clear that employees will not be exposed to retaliation as a result of lodging a complaint or participating in a workplace investigation; and
- Create a complaint process to ensure that complaints receive (a) a designation of confidentiality to the extent possible; (b) a timely response; (c) impartial and timely investigation by qualified personnel; (d) documentation and tracking for reasonable progress; (e) appropriate options for remedial actions and resolution; and (f) timely closure.
Employers must ensure that employees receive a copy of the written policy through at least one of the following methods:
- Providing a hard copy of the policy to all employees with an acknowledgement of receipt form;
- Sending the policy via e-mail with an acknowledgement return form;
- Posting current versions of the policy on a 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 orientation session; and/or
- Any other way that ensures employees receive and understand the policies.
Importantly, any employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language must translate the policy into every language that is spoken by at least 10 percent of the workforce.
The new regulations make clear that they do not create a new private right of action for failure to prevent discrimination, harassment, or retaliation, and that a private plaintiff cannot prevail on a failure to prevent claim unless they first prevail on an underlying claim of discrimination, harassment, or retaliation. The regulations do, however, provide the Department with new authority to seek non-monetary preventative remedies against an employer for failing to prevent discrimination, harassment, or retaliation regardless of whether or not the Department proves an underlying claim of discrimination, harassment, or retaliation.
The new regulations also further clarify and update definitions for the following protected categories with respect to FEHA:
- “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 California Government Code section 12926, which includes, but is not limited to, pregnancy; childbirth; medical conditions related to pregnancy, childbirth, or breast feeding; gender identity; and gender expression.
- “Sex Stereotype” means an assumption about a person’s appearance or behavior, or about an individual’s ability or inability to perform certain kinds of work based on a myth, social expectation, or generalization about the individual’s sex.
- “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.”
The new regulations also now provide that it is 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 19 12801.9 of the California Vehicle Code, which issues licenses to non-citizens.
The regulations further state that an employer or other covered entity may require an applicant or employee to hold or present a license issued under the Vehicle Code only if:
- Possession of a driver’s license is required by state or federal law; or
- Possession of a driver’s license is required by the employer or other covered entity and is otherwise permitted by law.
Importantly, under the new regulations, an employer’s or other covered entity’s policy requiring applicants or employees to present or hold a driver’s license may be evidence of a violation of FEHA if the policy is not uniformly applied or is inconsistent with legitimate business reasons (i.e., possessing a driver’s license is not needed to perform an essential function of the job).
We strongly recommend that all California employers should seek legal counsel and review, update and prepare written anti-discrimination policies as soon as possible to ensure company practices are in compliance with the Department’s new regulations as well as California law.