Amended FEHA Regulations: Employers Required to Update Harassment & Discrimination Policies

Employment Defense
by Nicole Kamm
818.907.3235

The California Fair Employment and Housing Act’s (FEHA) proposed amendments have been approved and go into effect April 1, 2016. All employers should review the regulations and update their policies.

In large part, the amended regulations incorporate and adopt recent changes in the law.  However, the amendments also add a lengthy new section (California Code of Regulations Section 11023) that imposes additional substantive requirements related to harassment and discrimination prevention and correction.

There are extensive changes to the law.  In this blog, we’ll take a look at three primary areas:

1. New harassment and discrimination prevention policy requirements
2. New definitions concerning transgender applicants and employees
3. Expanded national origin protections for applicants and employees

Harassment & Discrimination: Mandated Policies & Procedures

FEHA now expressly states, “Employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct”, §11023(a). Employers further “have an affirmative duty to create a workplace that is free from employment practices prohibited by the Act,” §11023(b).

In addition to distributing the DFEH-185 brochure, employers must develop written policies to prevent and correct harassment, discrimination and retaliation in the workplace.  Among other things, such policies must:

• List all current protected categories covered under FEHA;
• Indicate that the law prohibits coworkers, third parties, supervisors and managers from engaging in prohibited conduct with the employee;
• Confidentiality, to the extent possible
• A timely response
• Impartial and timely investigations by qualified personnel
• Documentation and tracking for reasonable progress
• Options for remedial actions and resolutions
• Timely closures
• Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisorCreate an employee complaint process to ensure complaints receive:
• Instruct supervisors to report complaints to designated company representatives;
• Indicate that fair, timely and thorough investigations giving all parties appropriate due process will be conducted, and that reasonable conclusions based on evidence will be reached;
• State that confidentiality will be kept to the extent possible, but not that the investigation will be completely confidential;
• Indicate that remedies will be made should misconduct be found in the investigation; and
• Make clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Employers are further required to ensure employees are aware of these new or updated policies, either by providing printed copies to all employees with an acknowledgment form, sending the policy via email with an acknowledgment return form, posting the policies on a company intranet with a tracking system ensuring employees have read and acknowledged receipt, discussing the policies upon hire, and/or some other method that ensures employees receive and understand the policies.

Further, in any facility or establishment where 10 percent or more of persons speak a language other than English as their spoken language, employers shall translate the policy into every language spoken by at least 10 percent of the workforce.

Defining Terms: Gender-Related Characteristics

While already a protected category, the amended FEHA regulations include definitions for “gender expression,” “gender identity,” and “transgender”:

1. Gender Expression: Gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
2. Gender Identity: A person’s identification as male, female, or a gender different from the person’s sex at birth, or transgender.
3. Sex: Expanded to have the same definition as provided in Government Code §12926, which includes pregnancy, childbirth, medical conditions related to pregnancy, childbirth or breast feeding, gender identity and gender expression.
4. Sex Stereotypes: Definition now includes an assumption about a person’s appearance or behavior, or ability or inability to perform certain kinds of work based on myth, social expectation or generalization about the individual’s sex.
5. Transgender: A general term that refers to a person whose gender identity differs from the person’s sex at birth.  A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth.  A transgender person may or may not identify as “transsexual.”

The amendments include reference to the fact that sexual harassment need not be motivated by sexual desire and “eligible female employees” under the pregnancy disability regulations include transgender employees who are disabled by pregnancy.

Employers should ensure they display an updated poster regarding pregnancy disability leave before April 1^st. (See also the new DFEH Transgender FAQ Sheet.)

Expanded National Origin Protections for Applicants & Employees

The FEHA amendments incorporate sections of the California Vehicle Code to expand national origin protections.

Generally, it is unlawful for an employer to discriminate against an applicant or employee who holds or presents a driver’s licenses issued under §12801.9 of the Vehicle Code.

Additionally, employers may require an applicant or employee to hold or present a driver’s license under the Vehicle Code only if:

1. Possession is required by state or federal law, or
2. Possession of a driver’s license is required by the employer or other covered entity and is otherwise permitted by law.

A policy requiring applicants or employees to present or hold a driver’s license may be evidence of a FEHA violation if the policy is not uniformly applied or is inconsistent with legitimate business reasons (i.e., a driver’s license is not needed to perform an essential function of the job).

Employer Takeaway

There is a lot to absorb – the amended Act runs nearly 90 pages with numerous edits and revisions. The key things to remember are these:

1. Update your harassment and discrimination policies as soon as possible (you must be compliant by April 1, 2016).
2. Be aware of the new protections regarding national origin and gender.
3. Make sure critical policies are in writing, employees read, understand and acknowledge receipt, and supervisors are trained on changes in the law and increasing employer obligations.

Nicole Kamm is an Employment Defense Attorney. 

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