United States: Amendments To FEHA Regulations Effective April 1, 2016

On April 1, 2016, amendments to California's Fair Employment and Housing Act (FEHA) regulations will become effective. While the amendments bring the regulations into compliance with various recent statutory changes and case law interpretations, they also contain several new requirements that impact mandatory employer policies, trainings, and notices.

New Harassment, Discrimination, and Retaliation Prevention Policy Requirements

Currently, the FEHA does not mandate specific requirements for an employer to fulfill its duty to take reasonable steps to prevent discrimination and harassment. Beginning April 1, however, California employers must have a policy against unlawful harassment, discrimination, and retaliation that meet the following criteria:

  • Is in writing.
  • Lists all currently protected categories under the FEHA.
  • Indicates that managers, supervisors, coworkers, and third parties with whom employees come into contact are prohibited from engaging in unlawful conduct under the FEHA.
  • Includes a description of the employer's internal complaint process.
  • Provides various avenues to lodge a complaint other than to a direct supervisor.
  • Instructs supervisors to report complaints to a designated company representative, such as a human resources manager.
  • Affirms that the employer will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
  • States that confidentiality will be kept by the employer to the extent possible.
  • Confirms that appropriate remedial measures shall be taken if misconduct is found.
  • Makes clear that employees shall not be exposed to retaliation as a result of making a complaint or participating in a workplace investigation.
  • States that contractors, unpaid interns, and volunteers are protected under the policy.

Employers must disseminate this policy to employees by one or more of the following methods: (1) providing a printed copy to all employees with an acknowledgment form for the employee to sign and return; (2) sending the policy by email to all employees with an acknowledgment return form; (3) posting current versions of the policy on a company intranet with a tracking system ensuring that all employees have read and acknowledged receipt of the policy; (4) discussing the policy upon hire and/or during a new-hire orientation session; and/or (5) any other way that ensures employees receive and understand the policy.

Where the workforce includes individuals whose spoken language is not English, the policy must be translated into every language that is primarily spoken by at least 10 percent of the workforce.

Legal Standard to Establish Unlawful Discrimination

The amended regulations also update the legal standard to establish unlawful discrimination to conform with the California Supreme Court's decision in Harris v. City of Santa Monica (2013) 56 Cal. 4th 203. As interpreted by the Harris court, to establish a claim for unlawful discrimination or retaliation, an employee must prove by a preponderance of the evidence that a protected category was a substantial motivating factor in the denial of an employment benefit.

However, the regulations specify that this legal standard does not apply to other practices made unlawful by the FEHA, including harassment, denial of reasonable accommodation, failure to engage in the interactive process, and failure to provide certain leaves of absence.

Nonmonetary Preventative Remedies by DFEH

The amendments clarify that no stand-alone, private cause of action exists for failing to prevent harassment or discriminatory conduct under Government Code section 12940(k). In order for a private claimant to bring a claim against an employer for failing to prevent unlawful conduct, the individual must also plead and prevail on the underlying claim of discrimination, harassment, or retaliation.

However, the Department of Fair Employment and Housing (the state agency responsible for enforcing the FEHA) may independently seek nonmonetary, preventative remedies against an employer for failure to take reasonable measures even if it does not succeed on the underlying claim of discrimination, harassment, or retaliation.

Protections for Unpaid Interns and Volunteers

The amendments include protections against discrimination and harassment for unpaid interns and volunteers as follows:

  • Define unpaid interns and volunteers as "any individual (often a student or trainee) who works without pay for an employer or other covered entity, in any unpaid internship or another limited duration program to provide unpaid work experience, or as a volunteer. Unpaid interns and volunteers may or may not be employees."
  • Make it unlawful for an employer to discriminate against unpaid interns in the selection, termination, training, or other terms or treatment of those individuals on any basis protected by the FEHA.
  • Make it unlawful for unpaid interns, volunteers, and persons providing services pursuant to a contract to be subjected to unlawful harassment in the workplace on any basis protected by the FEHA.

Sex Discrimination and Harassment Definitions and Standards

The updated regulations regarding sex discrimination and harassment:

  • Include new definitions that clarify that discrimination and harassment may be based on gender identity (a person's identification as male, female, a gender different from the person's sex at birth, or transgender), gender expression (a person's gender-related appearance or behavior, whether or not stereotypically associated with the person's sex at birth), transgender (a person whose gender identity differs from the person's sex at birth), or sex stereotyping (assumptions about a person's appearance, behavior, or ability to perform certain types of work based on a myth, social expectation, or generalization about the individual's sex).
  • Define "hostile work environment" to include sexual harassment by a supervisor, coworker, or third party.
  • Extend protections to employees, applicants, and independent contractors.
  • Clarify that it is no defense to a complaint of harassment based on sex that the alleged harassing conduct was not motivated by sexual desire.
  • Incorporate existing FEHA statutory law that an individual alleging sexual harassment is not required to sustain a loss of tangible job benefits in order to establish harassment.
  • Incorporate definitions of "quid pro quo" and "hostile work environment" sexual harassment.

New Criteria for Sexual Harassment Training

Since 2005, California has required that employers with 50 or more employees provide sexual harassment prevention training to supervisory employees every two years. The amended regulations impose new training and record-keeping requirements as follows:

  • Employers must maintain the following information related to the trainings for a minimum of two years:

    • Names of the supervisory employees trained
    • Date of training
    • Sign-in sheet
    • Copy of all certificates of attendance or completion issued
    • Type of training
    • Copy of all written or recorded materials that that the training comprises
    • Name of the training provider
  • For web-based or e-learning options for required sexual harassment trainings:

    • A "qualified" expert (a lawyer or human resources professional) must be available to answer employee questions within two days of the training.
    • Harassment training materials, including copy of the webinar, written materials used by the trainer, and questions and answers exchanged between the employees and the trainer during the webinar, must be retained for two years.
    • Interactive participation is required and must include the ability to apply what is learned to the supervisor's work environment.
  • Supervisor harassment training must cover:

    • Potential exposure and liability for employers and individuals.
    • Supervisors' obligation to report sexual harassment, discrimination, and retaliation of which they become aware to a designated company representative, such as a human resources manager.
    • Steps necessary to take appropriate remedial measures to correct harassing behavior.
    • Prevention of "abusive conduct" as defined by Government Code section 12950.1(g)(2).

Pregnancy Disability Leave

After April 1, employers with five or more employees will be required to post a revised Pregnancy Disability Leave notice. (Click here for a copy of the poster.) The notice should be placed in a conspicuous location where employees can easily read it. Electronic posting is permitted, as long as the notice is posted in a conspicuous place or places where employees would tend to view it in the workplace.

In addition, if an employee handbook describes other kinds of reasonable accommodation, transfers, or temporary disability leaves available to employees, the employer must include a description of reasonable accommodation, transfer, and pregnancy disability leave in the next edition of its handbook that is published after April 1. Alternatively, the employer may distribute a copy of its notice at least annually.

Finally, an employer whose workforce consists of 10 percent or more persons whose spoken language is not English must translate the notice into every language that is primarily spoken by at least 10 percent of the workforce.

Discrimination Based on an Undocumented Person's Driver's License Prohibited

The regulations were also amended to comply with recent legislation prohibiting discrimination against applicants or employees who hold the type of driver's license that can be issued to undocumented persons who are unable to submit satisfactory proof that their presence in the United States is authorized under federal law.

What Should Employers Do?

Given the broad range of topics covered by the amendments, employers with California employees should review their policies, procedures, and training programs to ensure compliance with the amended regulations.

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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