HIGHLIGHTS:

• California's Fair Employment and Housing Council (FEHC) has issued new mandates regarding employers' harassment, discrimination and retaliation policies that take effect on April 1, 2016.
• The rules set new standards for how employers must comply with California's Fair Employment and Housing Act (FEHA) requirements, and to ensure compliance with the new standards, employers' anti-harassment, discrimination and non-retaliation policies should be reviewed and updated.

New mandates issued by California's Fair Employment and Housing Council (FEHC) for harassment, discrimination and retaliation policies take effect on April 1, 2016. These rules set new standards for how employers must comply with California's Fair Employment and Housing Act (FEHA) requirements. To ensure compliance with the new standards, employers' anti-harassment, discrimination and non-retaliation policies should be reviewed and updated. This alert discusses highlights of the new requirements.

Expanded Definition of Covered Employers

The FEHC regulations expand the definition of a "covered employer." A covered employer is "any person or individual engaged in any business or enterprise regularly employing five or more individuals."¹ For purposes of counting the five or more employees, employees who are on paid or unpaid leave, including leave under the California Family Rights Act, leave of absence, disciplinary suspension or other leave, are counted.² Significantly, now employees located outside of California are also counted for purposes of determining whether an employer meets the test for coverage under the FEHA by employing five or more individuals.³ However, employees who are located outside of California are not covered by the FEHA "if the wrongful conduct did not occur in California and it was not ratified by decision makers or participants located in California."⁴

This new rule potentially covers out-of-state employers with fewer than five employees actually working in California, at least for purposes of implementing compliant policies for their California employees.

Expanded Requirements for Harassment, Discrimination and Retaliation Policies

The new regulations restate the established principle that covered California employers have an "affirmative duty to create a workplace environment that is free from employment practices" prohibited by the FEHA.⁵ To comply with the regulations, covered California employers must now ensure that their harassment, discrimination and retaliation policies:

1. are in writing
2. list all current protected categories under the FEHA; currently, the protected categories are "race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person"⁶
3. indicate that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the FEHA
4. create a complaint process to ensure that complaints receive a) an employer's designation of confidentiality to the extent possible, b) a timely response, c) impartial and timely investigations by qualified personnel, d) documentation and tracking for reasonable progress, e) appropriate options for remedial actions and resolutions, and f) timely closures
5. provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, a) direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, Equal Employment Opportunity (EEO) officer or other supervisor; and/or b) a complaint hotline; and/or c) access to an ombudsperson; and/or d) identification of the Department of Fair Employment and Housing (DFEH) and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints
6. instruct supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally; employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to Section 11024 of these regulations
7. indicate that when an employer receives allegations of misconduct, it will conduct a fair, timely and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected
8. state that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential
9. indicate that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken
10. make clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation

In addition, covered California employers must either distribute DFEH-185, the brochure prepared by the DFEH on sexual harassment, or an alternative writing that complies with the statute.⁷

New Rules for Dissemination of Policy

Under the new regulations, employers must meet new requirements for disseminating the written policy by 1) providing copies of their policies to all employees with acknowledgment forms for employees to sign and return, 2) sending their policies via email with acknowledgment return forms, 3) posting current versions of the policies on company intranets with tracking systems to ensure all employees have read and acknowledged receipt of the policies, 4) discussing policies upon hire and/or during a new hire orientation sessions, and/or 5) any other way that ensures employees receive and understand the policies.

When 10 percent or more of an employer's workforce at a facility or establishment speak a language other than English, the policy must be translated into every such language that meets that threshold.

These requirements make it all the more important for employers to develop procedures for ensuring that employees acknowledge receipt of their policies at the time of hiring or whenever the policies are updated.

New Requirements for Harassment Training and Record-Keeping

California employers with 50 or more employees must provide their supervisors with sex harassment training every two years and new supervisors with sex harassment training within the first six months of becoming a supervisor. The regulations impose new requirements for the content of the sex harassment training:

• Supervisors must be trained on how to identify behavior that may constitute unlawful harassment, discrimination and/or retaliation under bothCalifornia and federal law.⁸
• Training must cover remedies for "sexual harassment victims" in civil actions and the potential employer and/or individual exposure and liability.⁹
• Supervisors must be trained in their obligation to reportharassing, discriminatory or retaliatory behavior of which they become aware.¹⁰
• The training must cover the steps necessary to take appropriate remedial measures to correct harassing behavior.¹¹
• Supervisors must also be provided with information regarding "abusive conduct" and its negative effects in the workplace. Although the regulations do not prescribe a specific amount of time or ratio of the training that should be devoted to "abusive conduct," they require that this subject should be covered in a "meaningful manner."¹²

Records of the sex harassment training must be maintained for a minimum period of two years. Such records include:

• names of the supervisory employees who were trained
• the date of the training
• the name of the training provider
• the sign-in sheet
• a copy of all certificates of attendance or completion issued
• the type of training
• a copy of all written and recorded materials that comprise the training
• any written questions asked of the trainer and any written responses or guidance
• a copy of any webinar, e-learning or other Internet-based training program, including all written materials used by the trainer, as well as written questions submitted during the webinar and documentation of any written responses or guidance provided during the webinar

New Regulations Confirm No "Private Right of Action" But Establish Mechanism for Administrative Agency Enforcement

The regulations restate that employers "have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct" under the FEHA.¹³ However, the regulations also recognize that there is no "stand alone" private cause of action under the FEHA for an employer's failure to take such steps. Rather, an employee must plead and prevail on the underlying claim of discrimination, harassment or retaliation.¹⁴

Nonetheless, the regulations make it clear that the DFEH may seek to impose "non-monetary" preventive remedies on an employer for failing to meet its "affirmative duty" regardless of whether the DFEH prevails on an underlying claim of discrimination, harassment or retaliation.¹⁵ The regulations do not specify the exact actions the DFEH can take to enforce this obligation or the exact remedies available to the DFEH. It is expected that the DFEH will seek broad remedial powers under this provision, which will most likely be the subject of future regulation or court challenge.

Regulations Affect Other Aspects of FEHA Enforcement

The wide-ranging changes to the regulations implementing California's FEHA, set forth in a 90-page document, cover other provisions of the FEHA affecting compliance with its substantive requirements and, potentially, how claims under the FEHA will be litigated. It is recommended that these be reviewed with counsel in connection with implementing ongoing compliance with FEHA's requirements and handling claims of discrimination, harassment and retaliation.
   

Notes

¹ Regs. s. 11008(d).

² Regs. s. 1108(d)(2).

³ Regs. s. 11008(d)(1).

⁴ Id.

⁵ Regs. s. 11023(b).

⁶ Cal. Gov't Code s. 12940(a). The regulations also clarify, or expand, the definitions of certain protected categories. The term "gender expression" means "a person's gender-related appearance or behavior, whether or not stereotypically associated with the person's sex at birth." Regs. s.11030(a). The term "gender identity" means "a person's identification as male, female, a gender different from the person's sex at birth, or transgender." Regs. s.11030(b). The term "sex" has the same definition as provided in Government Code section 12926, which includes, but is not limited to, pregnancy; childbirth; medical conditions related to pregnancy, childbirth or breast feeding; gender identity and gender expression. Regs. s.11030(c). The term "sex stereotype" means "an assumption about a person's appearance or behavior, or about an individual's ability or inability to perform certain kinds of work based on a myth, social expectation, or generalization about the individual's sex." Regs. s.11030(d). The term "transgender" is 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.'" Regs. s.11030(e).

⁷ Cal. Gov't Code s. 12950. A covered employer can distribute its own announcement, provided that it covers the following components: "(1) The illegality of sexual harassment. (2) The definition of sexual harassment under applicable state and federal law. (3) A description of sexual harassment, utilizing examples. (4) The internal complaint process of the employer available to the employee. (5) The legal remedies and complaint process available through the department. (6) Directions on how to contact the department. (7) The protection against retaliation provided by Title 2 of the California Code of Regulations for opposing the practices prohibited by this article or for filing a complaint with, or otherwise participating in an investigation, proceeding, or hearing conducted by, the department or the council."

⁸ Regs. s.11024(a)(9)(1); (c)(2)(A).

⁹ Regs. s.11024(c)(2)(D). The regulations make it clear that an individual can be personally liable "regardless of whether the employer knew or should have known of the conduct and/or failed to take appropriate corrective action." Regs. s.11019(b)(6).

¹⁰ Regs. s.11024(a)(9)(4); (c)(2)(F).

¹¹ Regs. s.11024(c)(2)(J).

¹² Regs. s.11024(c)(2)(M). "Abusive conduct" is defined as "conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person's work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious." Cal. Gov't Code s. 12950.1(g)(2).

¹³ Regs. s.11023(a); Cal. Gov't Code s. 12940(k).

¹⁴ Regs. s.11023(a)(2).

¹⁵ Regs. s.11023(a)(3).