The adage that “there is no rest for the weary” is perhaps an all too familiar one for California employers. Although employers might have already spent the past few months implementing a host of new laws that took effect in early 2016, there has been less fanfare about the upcoming regulatory amendments under the Fair Employment and Housing Act (“FEHA,” Cal. Govt. Code § 12900, et seq.) that go into effect April 1, 2016.
The FEHA statute, which generally applies to employers of five or more employees, is most known for prohibiting workplace harassment and discrimination based on protected characteristics, such as race, age, gender, sexual orientation, and disability. Toward the end of 2014, the Department of Fair Employment and Housing (“DFEH”), the agency charged with enforcing FEHA, proposed extensive changes to the applicable regulations to incorporate new laws and “clarify” existing law. The final text (Cal. Code Regs., tit. 2 § 10500, et seq.) was approved a year later on December 9, 2015. The following summarizes some of the more substantial amendments.
Discrimination and Harassment. While employers have had a duty to take “reasonable steps” to prevent and correct discriminatory and harassing conduct, the adequacy of those reasonable steps will now be evaluated based on factors such as an employer’s workforce size, budget, the nature of its business, and the facts of a particular case. In connection to other prophylactic measures, employers must not only distribute California’s DFEH-185 brochure on sexual harassment (or an alternative compliant writing), but also prepare and disseminate a written harassment, discrimination, and retaliation prevention policy that satisfies numerous content requirements. The written policy must:
- List every protected characteristic recognized by FEHA, which now includes gender identity, gender expression, sexual orientation, and military and veteran status;
- Specify that co-workers, managers, and third parties are also prohibited from engaging in discrimination and harassment;
- Detail a complaint process that will provide for the timely investigation and conclusion of a complaint;
- Set forth different avenues that employees can use to communicate complaints;
- Identify the DFEH and U.S. Equal Employment Opportunity Commission as additional avenues to lodge complaints;
- Direct supervisors to report any complaints to a designated company representative;
- State that confidentiality will be maintained to the extent possible;
- Indicate that remedial measures will be taken if misconduct is found;
- Make clear that retaliation will not result from a complaint or participation in an investigation; and
- Be available in any primary spoken language used by at least 10 percent of the workforce at any facility or establishment.
Sexual Harassment Training. Employers of 50 or more employees are required to provide harassment training and education to all supervisors once every 2 years or within six months following the hiring or promotion of a new supervisor. Trainings can be administered in a variety of formats, but they have to cover the educational items specified in the regulations and be conducted by an attorney, law school instructor, human resource professional, or harassment prevention consultant. The new amendments also require that trainings dedicate a component to preventing abusive conduct, defined as conduct that is objectively hostile, offensive, and unrelated to an employer’s legitimate business interests. Further, trainings must feature interactive components that facilitate learning, such as quizzes or small group discussion questions.
Employers should also be aware of the additional recordkeeping requirements that might apply if they elect to conduct their harassment trainings through e-learning programs or online webinars. Webinars, in particular, impose an additional responsibility upon employers to maintain, for a period of two years, a copy of the webinar, and all written materials used, written questions submitted, and written responses or guidance given during the webinar.
Although an employer’s failure to comply with the new requirements alone does not establish a private cause of action, it may expose the employer to the DFEH’s enforcement action. Under the new regulations, the DFEH may separately seek non-monetary remedies for an employer’s failure to take reasonable measures to prevent discrimination, harassment, or retaliation, whether or not the agency successfully establishes an underlying claim. Given the scope of these changes and the potential risks in delay, employers should begin reviewing their existing policies and practices to ensure compliance with the new FEHA regulations before they take effect on April 1, 2016.