New Fair Employment and Housing Act (FEHA) regulations require employers covered by the Act to develop and distribute written discrimination, harassment, and retaliation prevention policies that meet certain required elements in order to satisfy the employer’s affirmative duty under the FEHA to prevent and promptly correct discriminating and harassing conduct. The regulations are effective April 1, 2016.
While the required elements generally comport with pre-existing law and best practice language, employers should review their policies to ensure full compliance and disseminate updated policies (with accompanying acknowledgement forms) promptly.
Sidley lawyers regularly review policies and train managers and supervisors on these issues, including providing employers with 50 or more employees with the state-mandated sexual harassment prevention training, so reach out to your Sidley lawyer with any questions regarding the new regulations.
Pursuant to the new regulations, employers must develop a written harassment, discrimination, and retaliation prevention policy that, among other things:
- Lists all current protected categories covered under the FEHA;
- Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the FEHA;
- Creates a complaint reporting process that, among other things, ensures that complaints receive a timely response, impartial investigation and appropriate remedial actions and also provides a mechanism for employees to report complaints to someone other than his or her immediate supervisor;
- Indicates 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;
- States that confidentiality will be kept by the employer to the extent possible; and
- Makes clear that retaliation for making a complaint or participating in any workplace investigation is prohibited.
Employers must disseminate the policy through one or more of the following methods: (1) printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return; (2) sending the policy via e-mail with an acknowledgment return form; (3) posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies; (4) discussing policies upon hire and/or during a new hire orientation session; and/or (5) any other way that ensures employees receive and understand the policies.
These dissemination requirements are in addition to employers’ continuing obligation to distribute to employees the DFEH’s brochure on sexual harassment (DFEH-185), or an alternative writing compliant with the FEHA.
Pregnancy Disability Leave Clarifications and Changes
Additionally, the amended regulations require changes to the mandatory pregnancy disability leave poster. Employers with 5 or more employees are required to post a specific notice to employees explaining their rights and obligations regarding pregnancy, childbirth or related medical conditions. The notice includes information about an employee’s right to request reasonable accommodation, transfer or pregnancy disability leave; an employee’s obligations to provide adequate advance notice; and the employer’s requirement, if any, that the employee provide medical certification of the need for pregnancy disability leave, reasonable accommodation or transfer.
Other Notable Amendments
In addition to the additions relating to discrimination and harassment prevention policies, the new FEHA amendments, among other things, expand the number of employers covered by the FEHA; update the definitions of “gender identity,” “gender expression,” and “transgender” under the FEHA; impose new requirements for discrimination and harassment training (in particular, with respect to “abusive conduct”); and include a rule that would allow the Department of Fair Employment and Housing (DFEH) to obtain “non-monetary preventative remedies” against an employer who fails to prevent discrimination or harassment, even if there is no evidence of underlying discrimination or harassment.