Beginning on April 1, 2016, new regulatory amendments will apply to California restaurants, bars, and other employers of five or more full or part-time employees, since such employers are subject to the Fair Employment and Housing Act (“FEHA,” Cal. Govt. Code § 12900, et seq.). The FEHA prohibits discrimination and harassment on the basis of various protected characteristics, including gender, race, age, religion, and disability. For employees with disabilities, the FEHA requires employers to engage in the interactive process to determine a reasonable accommodation and to accommodate the employee. It also prohibits retaliation against employees who engage in activities that are legally protected.
If you don’t have a written policy against discrimination, harassment, and retaliation, now is the time to work with a lawyer on one. Notably, one of the many changes is that the amended FEHA regulations require every California employer to develop a harassment, discrimination, and retaliation prevention policy that:
- Is in writing.
- Lists all current protected categories covered under FEHA (which now includes sexual orientation, gender identity, gender expression, and veteran and military status).
- Specifies that supervisors, managers, coworkers, and third parties are also prohibited from engaging in the discrimination, harassment, and retaliation.
- Creates a confidential complaint process to ensure that complaints receive a timely response, an impartial and timely investigation by qualified personnel, documentation and tracking for reasonable progress, appropriate remedial actions and resolutions, and timely closure.
- Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor.
- Instructs supervisors to report any complaints of misconduct to a designated company representative (e.g., HR director or manager) so the company can try to resolve the claim internally. (Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training.)
- 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, but not indicate that the investigation will be completely confidential.
- Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
- Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
This is only a brief excerpt of the many changes. A full copy of the amendments may be found here.
As the new amendments will impose greater burdens on employers, they could lead to more lawsuits and administrative claims against bars and restaurants. Employers should review their current practices, employee handbooks, and any other policies, and speak to a lawyer to ensure compliance.