California’s Fair Employment and Housing Act (“FEHA”) prohibits discrimination, retaliation, and harassment in the workplace. Recent amendments to FEHA’s implementing regulations issued by the California Department of Fair Employment and Housing include significant new obligations for employers, and clarify a range of important issues.
The amendments take effect on April 1, 2016. The full text of the amended regulations can be found here. We summarize below some of the more significant provisions.
1. Detailed Discrimination and Harassment Prevention Policy.
Existing law already requires employers to take reasonable steps to prevent and correct discriminatory and harassing conduct. The new regulations specify the steps employers must take in adopting a harassment, discrimination, and retaliation prevention policy. Among other requirements, the prevention policy must:
- Be in writing;
- List all current protected categories covered under FEHA;
- Explain that the law prohibits coworkers and third parties, as well as supervisors and managers, from engaging in conduct prohibited by FEHA;
- Create a complaint process to ensure that complaints under the policy receive (1) confidential treatment, to the extent possible; (2) a timely response; (3) an impartial and timely investigation by qualified personnel; (4) documentation and tracking for reasonable progress in the investigation; (5) appropriate options for remedial actions; and (6) timely closure of the investigation;
- Provide a mechanism for employees to make complaints to someone other than the employee’s direct supervisor (such as a designated company representative, a complaint hotline, an ombudsperson, and/or identification of the California Department of Fair Employment and Housing or the United States Equal Employment Opportunity Commission) as additional avenues for lodging complaints;
- Instruct supervisors to report any complaints of misconduct to a designated company representative;
- Advise employees that, upon receipt of a complaint, the employer will conduct a fair, timely, and thorough investigation and reach reasonable conclusions based on the evidence collected;
- State that confidentiality will be kept by the employer to the extent possible;
- Indicate that appropriate remedial measures will be taken upon a finding of misconduct; and
- Provide that employees shall not be exposed to retaliation for filing any complaint or participating in any workplace investigation.
The prevention policy must be disseminated to all employees through at least one of the several means enumerated in the amended regulations (such as providing a copy to all employees with an acknowledgement form, sending via email with an acknowledgement return form, posting current versions of the policy on the intranet with a tracking system, discussing policies upon hire and/or during a new hire orientation session, and/or utilizing other methods that ensure employees receive and understand the policy.) The employer must also translate the policy into every language that is spoken by at least 10% of the workforce.
2. FEHA Coverage.
FEHA applies to employers that regularly employ 5 or more employees. The amended regulations clarify that an entity is a covered “employer” if it employs 5 or more individuals regardless of whether the employee works inside or outside of California. While employees located outside of California may be counted toward the minimum number of employees for FEHA coverage, these employees are not themselves protected by FEHA if the wrongful conduct did not occur in California and individuals located in California did not ratify the wrongful conduct.
3. Clarification of Certain Groups Protected under FEHA.
The new regulations clarify statutory prohibitions against gender discrimination and harassment by defining a number of terms:
- “Gender expression” means a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
- “Gender identity” means a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.
- “Transgender” 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 regulations also incorporate FEHA protections against discrimination and harassment provided to unpaid interns and volunteers that went into effect on January 1, 2015 and otherwise clarify the protections available under FEHA to individuals other than employees:
- Unpaid interns and volunteers. The regulations provide that it is unlawful to discriminate in the selection, termination, training, or treatment of unpaid interns or other individuals employed in a limited-duration program to provide unpaid work experience. Unpaid interns and volunteers are also protected against unlawful harassment.
- Freelancers, independent contractors, and other persons performing services pursuant to a contract. These individuals are deemed to be “employees” for purposes of the anti-harassment provisions of the statute, so that FEHA’s anti-harassment provisions apply fully to them.
4. Mandatory Supervisor Sexual Harassment Training.
Under existing law, California employers with 50 or more employees are required to provide sexual harassment training to all new supervisors within six months of assuming a supervisory position and to all supervisors once every two years. The new FEHA regulations include additional requirements for this mandatory training, which must now include: (1) supervisors’ obligation to report sexual harassment, discrimination, and retaliation of which they become aware, (2) strategies to prevent harassment, and (3) remedial measures necessary to correct harassing behavior.
The new regulations also include provisions implementing the so-called “anti-bullying” amendment to Government Code Section 12950.1, which requires employers to train supervisors with regard to prevention of “abusive conduct” in the workplace. “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.” This training is aimed at preventing “bullying” in the workplace, without regard to whether such conduct is motivated by sex, race, or any other protected category. The new regulations set forth specific requirements addressing how the mandated training should deal with the topic of abusive conduct.
The regulations also include a number of record-keeping provisions that require employers to maintain documentation of compliance with the training obligations for at least two years.
5. Pregnancy Discrimination and Pregnancy Disability Leave.
The regulations on pregnancy discrimination have been updated to include:
- Expanded the definition of “eligible female employee” to include a transgender employee who is disabled by pregnancy.
- Clarification that unlawful harassment because of pregnancy also includes harassing an employee or applicant because of childbirth, breastfeeding, or any related medical conditions.
The Pregnancy Disability Leave (“PDL”) regulations have been updated and clarified as follows:
- The requirement to provide and post a PDL notice may be satisfied by a single notice that combines the required information, including the following:
- The notice must now include information about FEHA’s provisions and contain information about how to contact DFEH to file a complaint.
- The poster containing the PDL notice must be large enough to be easily read.
- The poster can still be posted electronically, so long as it is put in a place or places where employees would tend to view it in the workplace.
- The notice must be translated into every language spoken by at least 10 percent of the workforce.
- The regulations also clarify that PDL need not to be taken in one continuous period of time, and that the four month allotment for PDL applies per pregnancy, not per year.
6. National Origin Discrimination.
The regulations have been updated to reflect the requirements of AB 1660 (effective January 1, 2015), which made it unlawful for an employer to discriminate against an applicant or employee who has a driver’s license that can be issued to undocumented persons.
7. Religious Discrimination.
The amended regulations have been updated to take into account statutory changes and case rulings addressing religious discrimination and accommodation of religious beliefs. The regulations now reflect FEHA’s prohibition against religious discrimination and the employer’s duty to provide reasonable religious accommodations to individuals serving in apprenticeship programs and unpaid internships. The regulations further provide that unless expressly requested by an employee, an accommodation is not reasonable if it requires the employee to be segregated from customers or the general public. Additionally, an employer cannot discriminate or retaliate against an individual for requesting reasonable accommodation based on religion, regardless of whether the employer granted the request.
8. Disability Accommodation.
The amended regulations also clarify an employer’s obligations regarding disability accommodations as follows:
- It is unlawful for an employer to retaliate or discriminate against a person for requesting an accommodation for his or her disability, regardless of whether the accommodation was granted.
- A “support animal” may constitute a reasonable accommodation in certain circumstances. A “support animal” is defined as “one that provides emotional, cognitive, or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression.” However, the regulations state that whether a support animal “constitutes a reasonable accommodation requires an individualized analysis reached through the interactive process.”
9. Burden of Proof in Discrimination Claims.
As stated in the new regulations, discrimination is established if a preponderance of the evidence demonstrates that an enumerated basis was a “substantial motivating factor” in the denial of an employment benefit, and the denial is not justified by a permissible defense. A factor constitutes a “substantial motivating factor” if a reasonable person would consider it to have contributed to the denial.
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Employers should review and update their policies and procedures to ensure compliance with the amended FEHA regulations. For more information or to discuss compliance issues, please contact Schiff Hardin’s Labor & Employment Group.