Recent Amendments to California’s Fair Employment and Housing Act (FEHA) Regulations go into effect on April 1, 2016. These amendments include:

  • Detailed requirements for mandatory written harassment, discrimination, and retaliation policies including detailed requirements for complaint and investigation procedures
  • New or revised definitions of gender expression, gender identity, sex, sex stereotype, and transgender
  • Provisions preventing discrimination against applicants or employees that hold driver’s licenses issued to undocumented individuals

Requirements for Written Harassment and Discrimination Policies

The amended regulations require employers to implement written harassment, discrimination, and retaliation prevention policies that:

  • List all current protected categories under the Act
  • Indicate that, in addition to supervisors and managers, the law prohibits coworkers and third parties that the employee comes into contact with from engaging in conduct prohibited by the Act
  • Create a complaint process to ensure that complaints receive an employer’s designation of confidentiality to the extent possible, a timely response, impartial and timely investigations by qualified personnel, documentation and tracking for reasonable progress, appropriate options for remedial actions and resolution, and timely closures
  • Provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor
  • Instruct supervisors to report complaints of misconduct to a designated company representative, e., a Human Resources Manager, so the company can try to resolve the claim internally.
  • Indicate that when allegations of misconduct are received, the employer will conduct a fair, timely, and thorough investigation that provides appropriate due process to all parties and reaches reasonable conclusions based on the evidence collected
  • State that confidentiality will be kept by the employer to the extent possible
  • Indicate that when misconduct is found, appropriate remedial measures shall be taken
  • Make clear that employees will not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation

Requirements for Distributing Policies

The amendments require employers to distribute their written harassment/discrimination policies to employees by one or more of the following methods:

  • Providing a printed copy of the policy to all employees with an accompanying acknowledgment form for the employee to sign and return;
  • Sending the policy via e-mail with an accompanying acknowledgement form for the employee to sign and return;
  • Posting current versions of the policies on a company intranet with a tracking system to ensure that all employees have read and acknowledged receipt;
  • Discussing policies upon hire and/or during a new hire orientation session; and/or
  • Any other way that ensures that employees receive and understand the policeis.

If 10% or more of an employer’s workforce at a particular location speak a language other than English, the employer must translate the policy into that language.

Mandatory Sexual Harassment Training

The existing regulations require employers with 50 or more employees to provide sexual harassment training to new supervisors within six months of being hired into or promoted to a supervisory role and every two years thereafter. In addition to the current required content, the amendments require these training sessions to include instruction about how to identify behavior that may constitute unlawful harassment, discrimination, and/or retaliation under both California and federal law, the supervisor’s obligation to report harassing, discriminatory, or retaliatory behavior of which they become aware, and to report complaints to a designated company representative.

The amendments also impose a two-year record retention requirement for all sexual harassment training materials including copies of any webinars, written materials used by the trainer, sign-in sheets, certificates of attendance, certificates of competion, other course materials, and written questions and answers exchanged during the training.

New and Revised Definitions

New and revised definitions under the amendments include:

  • Gender expression means a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
  • Gender identity means a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.
  • Sex has the same definition as provided in Government Code section 12926, which includes, but is not limited to, pregnancy; childbirth; medical conditions related to pregnancy, childbirth, or breastfeeding; gender identity; and gender expression.
  • Sex Stereotype means an assumption about a person’s appearance or behavior, or about an individual’s ability or inability to perform certain kinds of work based on a myth, social expectation, or generalization about the individual’s sex.
  • Transgender is 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 identify as “transsexual.”

Provisions Regarding Driver’s Licenses Issued to Undocumented Persons

The amendments make it unlawful for an employer to discriminate against a non-citizen applicant or employee because they hold a driver’s license issued under Section 12801.9 of the Vehicle Code. Employers can only require applicants or employees to have or present a driver’s license if a driver’s license is required by state or federal law for the position or if the employer uniformly requires possession of a driver’s license, provided the requirement is consistently applied and related to a legitimate business purpose.

Recommended Actions

Bryan Cave recommends that all California employers review and revise, as appropriate, their current policies and procedures and distribute a written copy of that policy to all employees by one of the approved methods of delivery before April 1, 2016. Full text of the Regulation can be found here.