Beginning April 1, 2016, amended anti-discrimination, harassment and retaliation regulations take effect for all companies with five or more employees (full- or part-time) if any of those employees work in California. Now may be a good time for all employers to consider whether their equal employment opportunity (“EEO”) policy needs refreshing in light of recent federal and state case laws, state and local legislative enactments and Equal Employment Opportunity Commission (“EEOC”) guidance (enforcement positions). Areas where many employers will likely need to make changes include (but are not limited to): (1) list of protected groups, (2) scope and specificity of the reasonable accommodation policy and (3) the retaliation provision in terms of who is protected and what is prohibited. In light of the amended regulations, employers with any workers in California should consider taking steps promptly to implement, verify and/or update the content of their written EEO policies.
The amended regulations create no new protected classes under California’s Fair Employment and Housing Act (“FEHA”). However, they refine, clarify and add more detailed requirements to California’s anti-discrimination, harassment and retaliation law. The regulations explain, for instance, that discrimination is established if the employee’s protected status was a “substantial motivating factor” in the denial of an employment benefit to that person. The regulations also clarify that the term “employee” includes unpaid interns and volunteers.
The amended FEHA regulations mandate that employers develop detailed written policies that address discrimination, harassment and retaliation. Those policies must now include, for example, (1) a listing of all current protected categories under FEHA, (2) an express instruction to supervisors that they must report complaints, (3) the details of the employer’s investigation procedures and (4) a clear-cut statement that employees will be protected from retaliation for filing a complaint or participating in an investigation. California employers that have not updated their EEO policies in recent years should double-check that all relatively new protected classes are listed, including gender identity, gender expression and veteran and military status. Complaint procedures must now include, among other requirements, a prompt, thorough and impartial investigation conducted by a qualified investigator; notice to the complainant of confidentiality (to the extent possible); a complaint mechanism that does not require an employee to voice concerns directly to his or her immediate supervisor; and appropriate and timely documentation, feedback and corrective action. Employers have to distribute their written policies in English, as well as any other language that is spoken by at least 10 percent of the workforce at a particular facility or location.
California’s amended FEHA regulations supplement the employer’s preexisting duty to post a notice regarding the illegality of sexual harassment and to distribute the state-published brochure on sexual harassment or an alternative writing that directs employees on how to contact the California Department of Fair Employment and Housing (“DFEH”), among other components. An updated notice, “Your Rights and Obligations as a Pregnant Employee,” which is available on the DFEH’s website (replaces former “Notice A” as of April 1, 2016), should also be posted in a conspicuous place at the worksite.
In addition, the new regulations define California’s mandatory supervisory sexual harassment training in greater detail, including what constitutes “abusive conduct.” New definitions of “gender expression,” “gender identity” and “transgender” are included. The regulations also expand the record-keeping requirements for such training. In addition to sign-in sheets, employers must retain all written training materials and copies of the certificates of attendance. Employers using e-learning or webinars to meet training requirements must also record all questions and responses or guidance given.
What This Means for Employers with Employees in California
Employers with any employees in California should consider taking the following steps in light of the amended FEHA regulations that take effect on April 1, 2016.
- Review and update written anti-discrimination, harassment and retaliation policies to ensure full compliance with California’s amended FEHA regulations, and compose such policies if they do not already exist.
- Disseminate anti-discrimination, harassment and retaliation policies to all employees in hard copy or electronic format with an acknowledgment return form, upon hire, or in any other way that ensures employees receive and understand these policies.
- Translate EEO policies into every language that is spoken by at least 10 percent of the workforce at that facility.
- Verify that timely and thorough employee complaint and investigation procedures are in place.
- Train managers and human resources personnel on how to address employee complaints in accordance with the new regulations.
- Track, review and update, as necessary, sexual harassment and abusive conduct training programs.
- Post all required notices, including the revised notice of rights and obligations regarding pregnancy disability leave.