Significant amendments to the Fair Employment and Housing Act (FEHA) regulations take effect on April 1, 2016. The amendments mandate detailed written policies against harassment, discrimination, and retaliation, update sexual harassment training requirements, and provide new definitions for certain protected characteristics. Mandatory Written Policy Against Harassment, Discrimination, and Retaliation Under the new regulations, all employers must have a written harassment, discrimination and retaliation prevention policy that lists all current protected categories under the Fair Employment and Housing Act and informs employees that they will not be exposed to retaliation. The policy must specify that employees are protected from illegal conduct from any workplace source, including third parties who are in the workplace. The policy must create a complaint process to ensure that 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.
The amended regulations also instruct employers to include in the policy a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor. Further, the policy must require supervisors to report any complaints of misconduct to a designated company representative. Employers must ensure that employees receive and acknowledge the policy by one of the following methods: (1) printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return; (2) sending the policy via e-mail with an acknowledgment return form; (3) posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies; (4) discussing policies upon hire and/or during a new hire orientation session; or (5) any other way that ensures employees receive and understand the policies. Translation of Policy Required? The amended regulations further require that the policy be translated under the following circumstances: “[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.” New Definitions The amended regulations define gender identity, gender expression, and transgender, and explain that gender discrimination includes sex stereotyping. Training Requirements Mandatory sexual harassment prevention training requirements for employers with 50 or more employees, have been updated with: (1) new documentation and recordkeeping requirements; and (2) new content requirements, including: addressing the negative effects of abusive conduct in the workplace; supervisors’ obligations to report misconduct; and the steps that can be taken to correct and remedy harassing behavior. What Should Employers Do? In light of these amendments, California employers should review and revise their policies and procedures to ensure compliance, and disseminate any amended policies. This publication was written by Emily Leahy and produced by the client services team of Dorothy Liu, Ray Lynch, Paul Mello, and Lisa Pooley of HansonBridgett