All employers with employees in California should carefully review harassment, discrimination, and retaliation policies and practices to ensure compliance with amended FEHA regulations.
NEW REQUIREMENTS FOR A WRITTEN HARASSMENT, DISCRIMINATION, AND RETALIATION POLICY
Covered employers are required to have written harassment, discrimination, and retaliation prevention policies, in addition to distributing the Department of Fair Employment and Housing’s (DFEH) Brochure 185 on Sexual Harassment.
The Protected Classes
The new regulations clarify that the written policy must list all of California’s protected classes (several of which have been redefined as set forth below). Employers should make sure that their policies prohibit unlawful discrimination and harassment based on any and all of the following:
Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age for individuals over forty years of age, military and veteran status, and sexual orientation., , 
Given the continually evolving landscape of protected classes and local ordinances, employers should also consider including a statement that prohibits discrimination, harassment, and/or retaliation on “any other basis protected by applicable federal, state and local laws.”
Employers should update applicable policies and training materials that reference definitions of sexual harassment. The new regulations clarify that an employer may be liable for sexual harassment even when the harassing conduct was not motivated by sexual desire. In addition, a person alleging sexual harassment is not required to sustain a loss of tangible job benefits to establish sexual harassment. The regulations also specify that “quid pro quo” harassment may include explicitly or implicitly conditioning a job or promotion on an applicant or employee’s submission to sexual advances or other conduct based on sex, while “hostile work environment” sexual harassment involves unwelcome comments or conduct based on sex that unreasonably interfere with an employee’s work performance or create an intimidating, hostile, or offensive work environment.
The FEHC eliminates all references to “affirmative action” with regard to state contracts. As such, employers that contract with the state cannot use affirmative action components. However, such employers are permitted to use “good faith outreach efforts that are neutral and do not favor, discriminate against, or disparately impact any group.”
Who May Be Liable
The new regulations clarify that an employer’s policy must expressly state that the employer prohibits unlawful discrimination, harassment, and retaliation by any supervisor, manager, coworker, and/or any other third party that comes into contact with an employee. Notably, the new regulations make clear that employees can be personally liable for unlawful harassment of coworkers, regardless of whether an employer “knew or should have known” about the harassment. Accordingly, a company should clarify that its antidiscrimination, harassment and retaliation policy applies to all persons involved in or related to the company’s business or operation and prohibits unlawful discrimination or harassment on the part of any employee, supervisor, manager, third party, or visitor (including, by way of example, any contractor, agency temporary employee, vendor, candidate, etc.).
Complaint and Investigation Process
Employers have an “affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct” in the workplace.” Maintaining open communication and encouraging employees to report any unlawful discrimination, harassment, or retaliation is the most effective manner to ensure a workplace free of unlawful conduct. The new regulations specify that an employer policy cannot require written complaints and the policy must make clear that an employee is free to complain either verbally or in writing. Likewise, the policy must not direct employees to make complaints only to their supervisors or any specific personnel, because that individual may be the subject of the complaint.
The regulations clarify that the complaint process should allow for direct communication with a designated company representative, such as a human resources (HR) manager, an equal employment opportunity officer or other supervisor, a complaint hotline, an ombudsperson, or through a federal or state agency. Ensuring that an employee has an alternative to any specific individual is key. However, companies should also be cautious in drafting their policies to ensure that the complaint avenues included in their policy are directed to reliable company representatives that will report the matter, even if received verbally, to appropriate company personnel to ensure that the company can consistently document, investigate, and take appropriate corrective action in response to any complaint. Indeed, the regulations require that supervisors report any complaints to maximize the opportunity to quickly address and resolve matters internally where possible.
The nature of the investigation process is also addressed in the new regulations. Specifically, the policy and practice must reassure employees that complaints received will be a) treated confidentially, to the extent possible; b) responded to in a timely fashion; c) investigated promptly and thoroughly by impartial and qualified personnel; d) documented and tracked to ensure reasonable progress; e) met with appropriate and prompt corrective remedial action where misconduct is found; f) afforded a timely closure; and e) not in result of any retaliation against the complainant or any participant in the investigation.
Communication and Distribution of the Policy
The regulations require employers to communicate and distribute the updated harassment, discrimination, and retaliation prevention policy. Employers can choose among a number of methods specifically offered in the regulations as follows:
- Printing and providing a copy to all employees with an acknowledgment form for employees to sign and return
- Sending the policy via email with an acknowledgment return form
- Posting current versions of the policies on a company intranet with a tracking system to ensure that all employees have read and acknowledged receipt of the policies
- Discussing policies upon hire and/or during a new hire orientation session
- Any other way that ensures employees receive and understand the policies
The regulations also require that, “[a]ny employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language shall translate the policy into every language that is spoken by at least 10 percent of the workforce.”
Prevention and Training
California law already required covered employers (with 50 or more employees) to provide regular and legally compliant training to supervisors. However, in addition to the mandatory supervisory training, the content of such training must also now include a component on abusive conduct. Specifically, sexual harassment training must explain the negative effects that abusive conduct has on the victim of the conduct, as well as on others in the workplace. The discussion should also include information about the detrimental consequences of this conduct on employers—including a reduction in productivity and morale. The training should specifically discuss the elements of “abusive conduct,” including conduct undertaken with malice that a reasonable person would find hostile or offensive and that is not related to an employer’s legitimate business interests (including performance standards). Examples of abusive conduct may include repeated infliction of verbal abuse (such as the use of derogatory remarks, insults, epithets, and verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating) or the gratuitous sabotage or undermining of a person’s work performance. Finally, trainings should emphasize that a single act does not constitute abusive conduct, unless the act is especially severe or egregious. Although there is not a specific amount of time or ratio of the training that needs to be dedicated to preventing abusive conduct, the topic must be covered in a meaningful manner.
Other new content requirements include training for supervisors on their legal obligation to report sexual harassment, discrimination, and retaliation; appropriate steps related to investigations, as referenced above; available implementing mechanisms to address and correct any unlawful conduct in a prompt manner; available civil remedies; and potential exposures against both a company and an individual, including clarification on the applicable standards related to coworker harassment.
In addition to the content requirements, employers are required to keep records of the training for a minimum of two years. The records must include a complete set of all the training materials used (whether recorded and/or in writing), the list of all attendees’ names, the training provider, the date of the training, the actual sign-in sheet, and copies of all certificates of attendance or completion. Because the FEHC often requires that employers provide this information in response to discrimination charges filed by employees, regardless of the nature of the charge, employers should be careful to retain this information.
Charges and Litigation: New Discrimination Standards and Remedies
The new regulations provide that a determination about whether an employer has failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring (Government Code section 12940(k)) specifically includes an individualized assessment that depends on numerous factors sometimes unique to a particular employer, including but not limited to, its workforce size, budget, and nature of its business, as well as upon the facts of a particular case.
However, the regulations also clarify that there is no standalone private cause of action under the Government Code section related to the independent and specific policy requirements under 12940(k) separate and apart from discriminatory action. For a private claimant to establish an actionable claim under Government Code section 12940(k), the private claimant must also plead and prevail on the underlying claim of discrimination, harassment, or retaliation. Nevertheless, in an exercise of its police powers, the DFEH may independently seek nonmonetary preventative remedies for a violation of Government Code section 12940(k), failing to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct, whether or not the DFEH prevails on an underlying claim of discrimination, harassment, or retaliation.
OTHER NOTABLE CHANGES
Many employers have begun to address requests from employees for assistive animals in the workplace and have developed documentation related to reasonable accommodations and the definition of “assistive” and “support” animals. Such employers should confirm that their documentation is updated to include the new definition of “support animal,” which is as follows: “A support animal is one that provides emotional, cognitive, or other similar support to a person with a disability, including but not limited to, traumatic brain injuries or mental disabilities, such as major depression.” The new regulations also clarify that access to a support animal may be deemed to be a reasonable accommodation, based on the same individualized analysis required by the required interactive process.
Employers should also note that the “training” requirements have been removed from the regulations, and the regulations now longer allow employers to require, as a minimum standard, that an animal be “trained to provide assistance for the employee’s disability.” Accordingly, the specific reference to that element should be removed from any certification.
The new regulations confirm that the leave entitlement for pregnancy disability leave is four months (which does not need to be taken in one continuous period of time) and that employees are eligible for up to four months of leave and continued benefits per pregnancy, not per year. Additionally, a transgender individual who is disabled by pregnancy is not excluded from the pregnancy, childbirth, or related medical conditions provisions. Under the new regulations, employers must modify their policies as necessary and post a new notice (either a compliant employer notice and/or the agency notice) regarding the right to take pregnancy disability leave. The new regulations confirm that an electronic policy is sufficient, provided that it is electronically posted in a “conspicuous place or places where employees would tend to view it in the workplace.” The information required in the posting includes the following:
- An employee’s right to request reasonable accommodation, transfer, or pregnancy disability leave
- Employees’ obligations to provide adequate advance notice to the employer of their need for pregnancy disability leave
- The employer’s requirement, if any, for the employee to provide medical certification to establish pregnancy disability leave
If an employer fails to provide reasonable advance notice, it is is precluded from taking any adverse action against the employee, including denying reasonable accommodation, transfer, or pregnancy disability leave for failing to furnish the employer with adequate advance notice of a need for reasonable accommodation, transfer, or pregnancy disability leave.
Like the new harassment policy regulations, the new pregnancy disability regulations similarly require translation into “every language that is spoken by at least 10 percent of the workforce.”
ACTION ITEMS FOR EMPLOYERS
Employers should ensure that their discrimination, harassment, and retaliation policies, as well as all related training, recruiting, and/or other materials are compliant and updated in accordance with the requirements stated above. Employers that are not prepared to immediately update their handbook should consider providing a compliant standalone policy in the interim. Employers that use California handbook “supplements” will need to update those documents to adhere to the new regulations. Employers may wish to modify any Handbook Acknowledgment to specifically reference receipt of the harassment, discrimination, and retaliation prevention policy. HR personnel and supervisors should understand the changes in policy, including new definitions of certain protected categories provided in the regulations. Finally, employers should review their protocols regarding assistive animals and policies, notice practices, and postings regarding pregnancy disability and disability leave to ensure that they conform to the new regulations.
CHECKLIST FOR YOUR POLICIES AND PRACTICES
- Are you a covered employer, even if your headquarters are located outside California?
- Do you distribute DFEH Brochure 185 on Sexual Harassment?
- Do you have a written Harassment, Discrimination, and Retaliation Prevention Policy?
- Does your policy include the full, updated list of protected classes, including updated gender-related definitions and updates regarding discrimination against driver’s licenses issued under section 12801.9 of the Vehicle Code?
- Have you updated any definitions of protected classes, definitions of harassment, and definitions of “abusive conduct” or bullying that may be used in your policy or training?
- Does your policy clarify that unlawful harassment is prohibited by all supervisors, managers, coworkers, and third parties?
- Do you have a complaint process that satisfies all new requirements?
- Does your policy identify a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor?
- Do you require supervisors to report any complaints to an appropriate company representative, such as an HR manager, so the company can try to resolve claims internally?
- Does your policy reference all of the investigation protocols related to a confidential, prompt, thorough, and impartial investigations?
- Does your policy confirm that appropriate remedial action will be taken when warranted?
- Does your policy make appropriate assurances that the company will not permit retaliation against anyone who makes a complaint or participates in any workplace investigation?
- Do you provide compliant harassment training to supervisors (incorporating the new requirements and proper recording of attendance)?
- Do you inform supervisors and coworkers that they can be personally liable for harassment?
- Have you updated language in protocols and documentation regarding assistive animals in the workplace?
- Are you properly tracking pregnancy disability leave based on the new regulations?
- Have you posted the updated mandatory pregnancy disability leave poster—“Your Rights and Obligations as a Pregnant Employee,” which reflects the new amendments?
- Have you translated your policies as required by the new regulations?