I recently read that April 1 is the only day of the year where people stop and actually consider what they see online with real scrutiny. Well, this is no April Fool’s joke: the Fair Employment and Housing Council has established new regulations [pdf] effective April 1, 2016.
The Fair Employment and Housing Act (FEHA) creates an affirmative duty for employers to take reasonable steps to prevent and promptly correct discriminatory and harassing behavior. The new regulations require employers to develop a comprehensive harassment, discrimination and retaliation prevention policy that meets a number of requirements set forth in the regulation. Specifically, the new policy must be in writing and:
- List all categories protected by FEHA (including but not limited to gender identity, gender expression and sexual orientation);
- State that the law prohibits coworkers and third parties from engaging in prohibited conduct;
- Provide a complaint process ensuring complaints receive all of the following:
- An employer’s designation of confidentiality, to the extent possible;
- A timely response;
- Impartial investigations by qualified personnel;
- Documentation and tracking for reasonable progress;
- Appropriate options for remedial actions and resolutions; and
- Timely closures;
- Provide a complaint mechanism in addition to complaining directly to an immediate supervisor (e.g. communication with a human resources manager or a complaint hotline);
- Instructs supervisors to report any complaints to a designated company representative;
- State that upon receipt of a complaint, an employer will conduct a fair, timely and thorough investigation providing all parties due process and reasonable conclusions based on the evidence;
- State that confidentiality will be kept to the extent possible, but not that the investigation will be completely confidential;
- State that if misconduct is found, appropriate remedial measures will be taken; and
- Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in an investigation.
This policy must be communicated to the workforce: by hard copy or email with an attached acknowledgment form; posting the policy on a company intranet with a tracking system to ensure receipt by all employees; discussing the policy upon hire or during a new hire orientation; or any other way that ensures employees receive and understand the policy.
As always, prior planning prevents poor performance, and training is essential. Employers should make sure their policies are up to date, and supervisors are educated on how to comply with the regulations.