[co-author: Joanne Warriner]
On April 1st, new regulations adopted under the Fair Employment and Housing Act (FEHA) take effect that require California employers of at least 5 individuals[1] to develop written discrimination, harassment, and retaliation prevention policies that prohibit misconduct and provide specific mechanisms to investigate complaints and remediate misconduct. The obligation to develop such a prevention policy is in addition to employers’ existing obligation to provide employees with a copy of the DFEH brochure on sexual harassment (DFEH-185).
To establish the protections provided to employees, prevention policies must name and extend protection to all categories[2] protected under the FEHA and provide that the law prohibits coworkers, third parties, managers, and supervisors from engaging in discrimination, harassment, and retaliation prohibited under the FEHA. Protection from misconduct must be provided to employees, whether full-time, part-time, or temporary, and to interns, apprentices, volunteers and individuals providing services under a contract.
The regulations require that policies establish a complaint process that provides for fair, timely, reasonable and thorough investigations conducted by qualified personnel, that reach reasonable conclusions based on evidence collected, and provide all parties with appropriate due process, a term which is not defined. Policies must provide that confidentiality will be maintained within the investigation to the extent possible and that investigations will be documented and tracked for reasonable progress so that timely closures will result. As for remediation, policies should provide that if misconduct is found, appropriate remedial measures will be taken. Policies must also make clear that employees will not be exposed to retaliation as a result of lodging a complaint of misconduct or participating in an investigation.
Direct communication of a complaint of misconduct must be permitted to other than an employee’s immediate supervisor, by providing as an alternative a designated company representative like a human resources manager or other supervisor, a complaint hotline, an ombudsperson, and/or information regarding access to the Department of Fair Employment and Housing (DFEH) or the U.S. Equal Employment Opportunity Commission. Further, policies must require supervisors to report any complaints of misconduct to a designated company representative so the employer can try to resolve the complaint internally. Employers with more than 50 employees or contractors are required to instruct their supervisors and managers of this requirement in mandatory sexually harassment prevention training held at least once every 2 years.
Policies may either be distributed and acknowledged in writing by employees or they can be discussed with new hires or during orientation, or another means of distribution may be used that ensures employees receive and understand the policy. Written distribution can be via email with a written acknowledgment return form or by posting via a company intranet system that tracks employees’ reading and acknowledgment of the policy. Regardless of the distribution method, it is recommended that employers obtain employees’ written acknowledgment of the policy. Including the policy in an employee handbook would meet requirements, provided written acknowledgment by employees is obtained. It should be noted that if more than 10% of the workforce speaks a language other than English as their spoken language, the policy must be translated into that language.
The DFEH can seek non-monetary preventative remedies against employers for failure to adequately prevent discrimination, harassment, and retaliation regardless of whether the DFEH proves an underlying claim of the misconduct. As for private actions, the new regulations do not create a new private right of action for failure to prevent misconduct, but a plaintiff who prevails on an underlying claim of discrimination, harassment, or retaliation may also claim a failure to prevent such misconduct. Further, employers may want to inform employees that an employee who engages in unlawful harassment of a co-employee is personally liable for the harassment, regardless of whether the employer knew or should have known of the conduct and failed to take corrective action.
[1] Note that to determine the number of individuals employed, employers must include apprentices, individuals performing service under a contract, part-time employees, employees on leave or suspension, and employees located outside California, although individuals outside California may not be protected by the policy.
[2] Including sex, gender, gender identity and expression, age, race, color, ancestry, physical and/or mental disability, medical condition, genetic information, national origin, religion, religious creed, sexual orientation, marital status, military status, and veteran status.
