New regulations regarding an employer’s obligation to prevent workplace misconduct have been adopted by the California Fair Employment and Housing Council (FEHC). Implementation of these new regulations will be by the Department of Fair Employment and Housing (DFEH), the state agency charged with enforcing California’s civil rights laws from unlawful harassment discrimination in employment.
These new regulations are effective April 1 and may require some action on the part of employers to update their policies to ensure compliance.
PROHIBITION OF HARASSMENT, DISCRIMINATION , RETALIATION & ABUSIVE CONDUCT
The Fair Employment and Housing Act (FEHA) requires an employer to provide a workplace that is free of harassment, discrimination, retaliation and “abusive conduct” (bullying) based on an employee or applicant’s “protected classifications” which include:
- Age (40 and over);
- Gender, gender identity and gender expression;
- Marital status;
- Medical condition (cancer and genetic characteristics);
- Mental and physical disability, including HIV and AIDS (actual and perceived);
- Military and veteran status;
- National origin and ancestry, (including language-use restrictions and protected use
of driver’s licenses granted under Vehicle Code sec. 12081.9; - Race and color;
- Religious creed, including religious dress and grooming practices;
- Sex, including pregnancy, childbirth, breast- feeding and medical conditions related
to pregnancy, childbirth or breast-feeding; and - Sexual orientation
EMPLOYER’S OBLIGATIONS FOR PREVENTION
While the majority of employers already have written policies that prohibit workplace misconduct, the amended FEHA regulations provide a mandatory list of steps an employer must take to meet the obligation to prevent harassment, discrimination, bullying and retaliation from occurring.
While the substantive law concerning these topics has not changed, the amendments set forth new and detailed requirements for employer policies, processes, and education, as well as providing new definitions of several terms, including gender identity, gender expression, and transgender.
Written Policy
Employers must implement a written policy that:
- Details all of the protected categories currently described in FEHA and that the
employer will take all reasonable steps to prevent harassment, discrimination,
bullying and/or retaliation from occurring. - Explains the law prohibits coworkers and non-employees (such as vendors,
suppliers, customers) with whom the employee comes into contact from engaging in
conduct prohibited by FEHA. - Instructs co-workers, managers and supervisors to report any conduct that could be
perceived as misconduct relating to harassment, discrimination, bullying or
retaliation to a designated company representative for investigation. - Provides that when the company receives allegations of misconduct, it will conduct a
fair, timely, and thorough investigation. - States that if, at the end of the investigation, misconduct is found, appropriate
remedial measures will be taken. - Makes clear that employees will not be exposed to retaliation as a result of lodging a
complaint or participating in a workplace investigation. - The policy must be distributed to all employees with an acknowledgment that the employee has received and understands the policy. Distribution can be accomplished by:
- Providing a hard copy of the policy to all employees;
- Sending the policy via e-mail;
- Posting current versions of the policy on a company intranet with a tracking system
ensuring all employees have read the policies; - Discussing policies upon hire and/or during a new orientation session; and/or
- Any other way that ensures employees receive and understand the policies.
Any employer whose workforce at any facility or establishment contains 10% or more of persons who speak a language other than English as their spoken language, must translate the policy into every language that is spoken by at least 10 percent of the workforce.
Complaint & Investigation Procedure
Employers must create and implement adequate methods for employees to bring complaints to the attention of management. Once a complaint has been received, the company must have a process for investigating these complaints.
Employers must create a process that ensures complaints are:
- Designated as confidential, to the extent possible;
- Responded to in a timely manner;
- Investigated in a timely and impartial manner by qualified personnel;
- Documented and tracked for reasonable progress;
- Provided appropriate options for remedial actions and resolutions; and
- Closed in a timely manner.
In addition, employees cannot be required to only go to their direct supervisor, as the direct supervisor might be the one engaging in the misconduct, or the employee might not feel comfortable going to their direct supervisor.
Employees must have the option to bring complaints to someone else such as:
- a designated company representative such as a human resource manager;
- another supervisor;
- someone at the executive level;
- a complaint hotline; or
- directly to the appropriate state (DFEH) or federal (EEOC) agency.
An employee should also be allowed to submit the complaint in writing or orally. And the employee cannot be required to first confront the person that is engaging in the wrongful conduct before being allowed to formally submit the complaint.
Management Training
Finally, prevention includes ensuring that California supervisors and managers receive training on the legal aspects of prevention and correction of wrongful conduct in the workplace.
The training must include information regarding potential employer and individual liability in civil actions and highlight a supervisor’s obligations to report sexual harassment, discrimination, bullying and retaliation.
While the law only requires employers with 50 or more employees to conduct such training every two years, it is strongly recommended that all employers conduct such management training regardless of the employee count as this can help eliminate or reduce the potential for a legal claim that can result in substantial legal liability.
RECORD-KEEPING
The amendments also include a new obligation for record retention for all sexual harassment training materials for a two year period of time. The materials that must be maintained would be sign-in sheets, course materials, and questions and written answers.
NEW DEFINITIONS
The amended regulations define several terms relating to gender discrimination:
- Gender expression – a person’s gender-related appearance or behavior, (whether or
not stereotypically associated with the person’s sex at birth); - Gender identity – a person’s identification as male, female, a gender different from
the person’s sex at birth, or transgender; - Transgender – a general term for a person whose gender identity differs from the
person’s sex at birth; - Gender discrimination & sex stereotyping – relying on assumptions about a person’s
appearance or behavior, or making assumptions 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 gender.
LEGAL IMPACT OF THE NEW REGULATIONS
The new regulations do not create a new claim or private right of action to file a lawsuit for “failure to prevent” discrimination, harassment, or retaliation unless the employee is also able to prove the underlying claim of discrimination, harassment, or retaliation.
However, any failure to comply with the new regulations would certainly be brought to the attention of a judge or jury which could undermine a defense of a claim of harassment, discrimination or retaliation.
The regulations do provide that the DFEH may seek non-monetary preventative remedies against an employer for failing to adequately prevent discrimination, harassment, or retaliation regardless of whether or not the Department proves an underlying claim of discrimination, harassment, or retaliation.
What Should I Do Now?
Review and update existing discrimination, harassment, bullying and retaliation
policies to ensure that they meet the requirements of the new regulations.
Ensure all employees and new hires have been provided a copy of the DFEH
brochure on sexual harassment (DFEH-185) and/or an alternative anti-harassment
policy that complies with Government Code section 12950.
Ensure that all managers and supervisors have been adequately trained on the legal
issues pertaining to workplace misconduct.
If our office can assist you with compliance of the new FEHA regulations, please contact us.
This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2016.