California Employer Compliance with New FEHA Obligations

California employers have additional obligations under the Fair Employment and Housing Act (FEHA) as of April 1, 2016 As to Written Employer Policies.

Employers are Required to Adopt Harassment/Discrimination/Retaliation Prevention Policy. FEHA already imposed an affirmative duty on California employers to “take all reasonable steps to prevent discrimination and harassment from occurring.” Now, employers are required to develop a written harassment, discrimination and retaliation policy which must include:

Explain Prohibited Conduct. Policy must list all of the current protected categories under FEHA (i.e., 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, and military and veteran status). The policy also must explain that FEHA prohibits unlawful conduct not only by supervisors and managers, but also by coworkers and third parties.
Creates a Complaint Process to Ensure Complaints are Received. The policy must set forth the process by which an individual may make a complaint to the employer of unlawful discrimination or harassment. The complaint process cannot require an employee to complain to his or her immediate supervisor, but instead must identify at least one of the following avenues for an employee to assert a complaint: (a) a designated company representative (such as a human resources manager, EEO officer or other supervisor); (b) a complaint hotline; (c) an ombudsman; and/or (d) the California Department of Fair Employment and Housing (DFEH) or the Equal Employment Opportunity Commission (EEOC).The Policy must create a complaint process where:
- the employer will provide a timely response to the complaint;
- an impartial and timely investigation will be conducted of the complaint by qualified personnel;
- the investigation will be documented and tracked to ensure that it progresses reasonably;
- the investigation will have a timely closure;
- there are appropriate options for remedial actions and resolutions;6
- The employer is required to designate the complaint as confidential, to the extent possible.
- The policy must instruct supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the employer can try to resolve the complaint internally.
Explain the Investigatory Process. The harassment, discrimination and retaliation prevention policy must:
- notify individuals that when the Company receives allegations of misconduct,
- the Company will conduct a fair, timely, and thorough investigation that provides all parties with appropriate due process and reaches reasonable conclusions based on the evidence collected.
- state that the employer will keep the investigation confidential to the extent possible, but not promise complete confidentiality,
- the employer shall take appropriate remedial measures if misconduct is found.
- clearly provide that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
Dissemination of the Policy. The amended FEHA regulations specify various methods for an employer to distribute its harassment, discrimination and retaliation prevention policy, such as:
- via email with an acknowledgment return form,
- by posting on the employer’s intranet (if there is a tracking system to ensure that employees have read and acknowledged the policy) or
- “any other way that ensures employees receive and understand the policies.”
- Also, the policy must be translated to another language if ten percent (10%) or more of the workforce at any facility speaks that language.