No Joke, California: New Discrimination Regulations Start on April Fools' Day
On April 1, 2016, California’s Fair Employment and Housing Act (“FEHA”) will be updated with new regulations. Some of the changes create new rules, some just formalize rules that are already in place. If you’re not in the mood to read the 90-page, red-lined amendments (www.dfeh.ca.gov/res/docs/FEHC/FinalText.pdf), here are 10 take-aways to consider on the hot topics of mandatory training, sexual harassment, and pregnancy:
1. All businesses with five or more employees must have a FORMAL, WRITTEN POLICY against discrimination, harassment and retaliation that lists all categories of discrimination protected by CA law AND states that the policy applies not only to supervisors and managers, but also to co-workers and third-parties AND establishes an internal complaint process containing six specific elements AND allows employees to complain to someone other than a direct supervisor AND identifies a specific person/position at the business to whom employees can always complain or provides contact information for state and federal agencies that police discrimination AND requires supervisors to report all complaints of misconduct AND requires employers to conduct fair, timely and thorough investigations of all complaints AND expressly acknowledges the importance of, and limits to, confidentiality AND requires disciplinary action to be taken in appropriate circumstances AND expressly prohibits any retaliation against employees who make complaints or otherwise participate in any investigation.
2. The new (or revised) policy described above must be distributed to all employees and acknowledgment of their receipt must be recorded and kept by the business.
3. Businesses must prove that they are providing bi-annual harassment training for “supervisors” by collecting and retaining for two years: name of employees who attended the training; date of the training; sign-in sheet; certificates of completion; description of training; copy of any written or recorded materials that comprise the training; and the name of the professional trainer.
4. Bi-annual harassment training requirements for supervisors have been expanded and must now include the following additional topics: review of “abusive conduct” in the workplace; methods for addressing and correcting wrongful behavior; remedies available to employees through filing lawsuits; potential exposure/liability of the business and the harassing individual; obligation of supervisors to report harassment; and business’ obligation to conduct an effective workplace investigation.
5. The purpose of sex discrimination laws in California has been expanded to specifically protect “gender identity” and “gender expression.”
6. Employees claiming sexual harassment do not need to (1) prove that “sexual desire” was the reason for the offensive conduct, (2) show that something bad happened to them at work because of the alleged harassment, or (3) even claim that that harassment happened to them personally – they can make their own claim based on harassment they saw happening to someone else!
7. Businesses can be held liable for sexual harassment committed by a non-employee (i.e., a vendor, a contractor, or even a visitor to the business) against another non-employee (i.e., unpaid interns, volunteers).
8. Individuals, regardless of whether they are supervisors or entry-level employees, can be personally liable for harassing their co-workers.
9. Businesses are strictly liable for harassment committed by supervisors or managers. This means if a supervisor or manager engages in unlawful harassment, the business loses. Period. End of story. Pull out the check book.
10. Employers must post notices in the workplace that explain the FEHA law and provide information on how to make complaints of unlawful discrimination. The notice, and the text on that notice, must be large enough to be easily read and all text must remain fully legible at all times. Businesses must also give a copy of this notice to any employee who tells her employer that she is pregnant, or to any employee who even asks about reasonable accommodation, transfers, or pregnancy disability leaves.