On April 1, 2016, new regulations promulgated by the California Fair Employment and Housing Council (FEHC) will go into effect, imposing new anti-discrimination and anti-harassment regulations on employers doing business in California.Among other things, the new regulations:
- Expand the number of employers covered under the California Fair Employment and Housing Act (FEHA);
- Require covered employers to either develop or update anti-discrimination and anti-harassment policies;
- Impose new requirements for conducting discrimination and harassment training;
- Update definitions of "gender identity," "gender expression" and "transgender" under the FEHA; and,
- Permit the California Department of Fair Employment and Housing (DFEH) to obtain "non-monetary preventative remedies" against an employer who fails to prevent discrimination or harassment, even in the absence of evidence of underlying discrimination or harassment.
Expansion of covered employers
Employers with fewer than five employees are generally not covered under the FEHA or the new corresponding FEHC regulations.1The new FEHC regulations now make clear that out-of-state employees count toward the five employee requirement.This would mean that under the new regulations, a Nevada-based company with a small office of three employees in California would be covered if it were to have two or more employees in Nevada or elsewhere.Additionally, employees who are out on leave (e.g., medical leave) now count toward the five employee requirement.
New anti-discrimination / anti-harassment policies required
Under the new regulations, employers must update or develop new written anti-discrimination and anti-harassment policies to comply with a myriad of new requirements.
New training requirements
Anti-discrimination and anti-harassment training must now cover "abusive conduct" as defined under California Government Code § 12950.1(g)(2).The training must, among other things, cover the negative effects of "abusive conduct," including reduction in productivity and morale, and must discuss the elements of "abusive conduct," including conduct taken with malice that is not related to an employer's legitimate business interests.
Updated definitions of "gender identity," "gender expression" and "transgender"
The new regulations provide new gender-related definitions as follows:
- Gender Identity – A person's identification as male, female, a gender different from the person's sex at birth, or transgender.
- Gender Expression – A person's gender-related appearance or behavior, whether or not stereotypically associated with the person's sex at birth.
- Transgender – 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 also identify as "transsexual."
Expanded regulatory powers
Under the new regulatory framework, the DFEH may elect to pursue "non-monetary preventative remedies" for an employer’s failure to prevent discrimination or harassment, regardless of whether the DFEH prevails on an underlying claim of discrimination or harassment.The phrase "non-monetary preventative remedies" is not defined under the new regulations.
Covered employers should take steps to ensure compliance with the new FEHC regulations.