California Imposes New Rules on Employer Harassment, Discrimination and Retaliation Prevention
Published by Eric A. Welter and Laura B. Thomasian on April 6, 2016
California employers need to engage in a prompt and thorough review of their employment policies and procedures in light of dramatic changes in state law that took effect on April 1, 2016.
If you are a California employer, now is definitely the time to revisit your employee handbook. Effective April 1, 2016, most employers in California will have to update their policies regarding harassment, discrimination, and retaliation prevention to ensure compliance with a new California regulation that is arriving just in time to welcome spring.
California Code of Regulations, Title 2, Section 11023 now sets out specific requirements for employers to follow to ensure compliance with their statutory duty to take reasonable steps to prevent and promptly correct any discriminatory, harassing, or retaliatory conduct. This adds an entirely new section (11023) to the California Code of Regulations and emphasizes employers’ affirmative duty to prevent and correct discriminatory, harassing, and retaliatory conduct in the workplace.
California employers covered by the Fair Employment and Housing Act (FEHA) are now required to distribute DFEH-185, which is a brochure on sexual harassment provided by the California Department of Fair Employment and Housing (DFEH) — or they must deliver a sufficient written alternative that fully complies with Government Code Section 12950.
In addition to this requirement, the new regulation requires that employers develop and disseminate a written harassment, discrimination, and retaliation prevention policy containing the following specific information:
- A list of all of the protected categories covered under the California Fair Employment and Housing Act (“FEHA”).
- A statement that the law prohibits coworkers, third parties, supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by FEHA.
- A complaint handling process to ensure complaints receive:
- An employer’s designation of confidentiality, to the extent possible;
- A timely response and closure, as well as an impartial and timely investigation by qualified personnel;
- Documentation and tracking for reasonable progress; and
- Appropriate options for remedial actions and resolutions.
- A complaint mechanism, where the complaints can be either made verbally or in writing, that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to a designated company representative, a complaint hotline, an ombudsperson and/or the DFEH or EEOC.
- A statement that instructs supervisors that they must 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. The regulation further states that employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training.
- A statement that indicates 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.
- A statement that confidentiality will be kept by the employer to the extent possible but not that the investigation will be completely confidential.
- A statement that if at the end of the investigation misconduct is found, appropriate remedial measures will be taken.
- A statement that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
For any employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language, the new regulation requires the employer to translate the policy into every language that is spoken by at least 10 percent of the workforce. The new regulation also requires that this written harassment, discrimination, and retaliation prevention policy be disseminated via one or more of the following methods:
- Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
- Sending the policy via e-mail with an acknowledgment return form;
- Posting current versions of the policy on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policy;
- Discussing policies upon hire and/or during a new hire orientation sessions; and/orAny other way that ensures employees receive and understand the policy.
In addition to the new regulation, California DFEH also amended its existing employment regulations to address gender definitions, national origin protections and non-monetary preventative remedies. For these changes, the same effective date (April 1, 2016) also applies. Some of the key points include:
The law now defines several new employee characteristics protected and/or revises the definition of existing terms, including “Gender Expression,” “Gender Identity,” “Sex Stereotype,” and “Transgender.”
The new regulations also prohibit discrimination against a non-citizen applicant or employee who holds a driver’s license issued under Section 12801.9 of the California Vehicle Code.
Significantly, employers are now prohibited from asking an applicant or employee to hold or present a driver’s license as part of employment except if to do so is required by state or federal law, or the employer’s policies for a ‘legitimate business purpose’ (and permitted by applicable law). This means that if you apply a driver’s license requirement inconsistently or fail to establish and clearly maintain a legitimate business purpose for your policy, it may be deemed a violation of FEHA.
Finally, the law will permit the DFEH to independently pursue non-monetary preventative remedies against an employer if DFEH believes that the employer failed to prevent and correct discriminatory, harassing and retaliatory conduct. Significantly, DFEH can do this without having to identify or prove any underlying prohibited act.
California employers should take the time now to review and update their policies and procedures regarding harassment, discrimination, and retaliation prevention. Employers concerned about compliance with the new regulation or needing assistance with a review of their policies and procedures should consult legal counsel as soon as possible to ensure full alignment between their existing or revised policies (as well as their communications with employees about these policies) and the new requirements set forth by California law.