United States: HR's Work Is Never Done: New California FEHA Regulations Require Revision Of Anti-Harassment Policies

Last Updated: March 4 2016
Article by Wendy A. Sugg

On April 1, 2016, new regulations from California's Fair Employment and Housing Council will go in effect. These new regulations state that "[e]mployers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act," and require changes in employment policies. As a result, employers should carefully review their existing policies to ensure compliance with these new standards and act quickly to make any needed changes before April 1.

Among other requirements, these regulations require employers of 5 or more employees in California to have a written policy against unlawful harassment, discrimination and retaliation in the workplace, and the written policy must contain the following provisions:

  • The policy must list all of the protected categories under the Fair Employment and Housing Act: race, religion, color, national origin, ancestry, physical and/or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and/or veteran status.
  • The written policy must make clear that contractors, unpaid interns and volunteers are protected under the policy.
  • The policy must prohibit unlawful harassment, discrimination, and retaliation by supervisors, managers and co-workers, as well as by third-parties such as vendors or customers.
  • Employers are now required to establish a complaint process and include information about that process in the written policy. Employees must be informed that they can complain either to their manager or via an alternative method of reporting complaints, which can be to Human Resources or a neutral manager or supervisor, to a complaint hotline, to a designated ombudsperson, or to agencies such as the Department of Fair Employment and Housing or the EEOC.
  • The written policy must include information regarding the complaint process that includes statements regarding the extent to which a complaint or investigation will be kept confidential, a timely response to complaints, a timely and impartial investigation by a qualified person, documentation and tracking for reasonable progress, appropriate due process, a reasonable conclusion based on the evidence collected, appropriate options for remedial actions and resolutions, and timely closure.
  • The policy must direct supervisors to report any complaints of violations of the policy to Human Resources or another person in the company so that a prompt internal investigation may occur.
  • The policy must specify that anyone who complains of violations of the policy will not suffer any retaliation for bringing a complaint or participating in an investigation.
  • Employers must provide employees with a copy of the written policy. It may be provided in a written document with an acknowledgement for the employee to sign and return, or via e-mail with an acknowledgement return form. Employers using internal electronic communications or intranets may post the policy electronically, provided that the employer utilizes a tracking system to ensure employees read and acknowledge it. Alternatively, employers may discuss the policy upon hire and/or during a new hire orientation session.
  • If the workforce at any location contains 10% or more persons who speak a language other than English, the policy must be translated into every language that is spoken by at least 10% of the workforce.

While the regulations do not include any penalties for failure to maintain a compliant policy, if an employee brings a claim of harassment, discrimination or retaliation, an employer may be subject to additional damages for that failure.

The new amendments to FEHA's regulations also cover additional topics such as the definition of a "covered employer" under FEHA, rules regarding mandatory supervisor harassment prevention training, and clarifications regarding pregnancy disability leave. Given the broad scope of these regulations, employers should consult with counsel to ensure that their company policies are complete and up-to-date.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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