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Paul Zimmerman

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Employers Be Warned: California FEHA Amendments Take Effect April 1, 2016

On April 1, 2016, amended anti-discrimination regulations under the Fair Employment and Housing Act (“FEHA”) will take effect in California. The new regulations broaden the scope of FEHA, including the definition of covered employers and the legal requirements for those employers. They also expand the categories of employees protected by FEHA.

In order to ensure proper compliance with these amended regulations, employers should commit time and resources to bolstering written anti-discrimination policies and training employees regarding the amendments so that potential complaints are handled in a compliant fashion. Among other things, the new regulations accomplish the following:

(1) Expand the number of employers covered by the Fair Employment and Housing Act (“FEHA”).

(2) Require employers to update their written anti-discrimination and harassment policies and distribute said policies to all employees, unpaid interns and volunteers.

(3) Impose new requirements for administering discrimination and harassment training.

(4) Broaden the scope of actionable gender discrimination.

(5) Allow for the enforcement of “non-monetary preventative remedies” against an employer who fails to prevent discrimination or harassment, even if there is no evidence of underlying discrimination or harassment.

Expansion of “Covered Employers”
The new FEHA regulations expand the definition of “covered employer” by including employers who have a total of five employees, even where they have less than five employees in the State of California. Notably, this amendment will impact out-of-state employers with five or more employees who have any employees in California. Employers should be vigilant in determining whether they fall within this new definition, even if their company is headquartered elsewhere.

Detailed Policies Required
The new regulations require that all anti-discrimination and anti-harassment policies be in writing and meet all of the following requirements:

    • List all protected characteristics under FEHA;
    • All employees and third parties are prohibited from engaging in discrimination, harassment or retaliation;
    • A confidential, internal complaint procedure that includes specific remedial measures and provides an alternative method to file a complaint other than contacting a direct supervisor;
    • Instruct supervisors to report complaints of misconduct to designated personnel;
    • Assurances that allegations of misconduct will be addressed through a fair, timely and thorough investigation; and
    • Specify that retaliation for making a complaint or participating in an investigation is prohibited.

Policy Redistribution
In addition to the new substantive policy requirements, the regulations require employers to disseminate the anti-discrimination and anti-harassment policies to employees.  To comply with this regulation, employers may do any one of the following:

    • Provide a copy of the policies to all employees either in hard copy or by email with an acknowledgment form for employees to sign.
    • Post the policies on a company intranet site and use a tracking system to ensure all employees read and acknowledge receipt of the policies.
    • Discuss the policies upon hire or during new-hire orientation sessions.

The regulations also require employers whose workforce includes 10% or more non-native English-speaking employees to translate the anti-discrimination and harassment policies into the appropriate languages.

Broadened Definition of Gender Discrimination
The new FEHA regulations outline several new employee characteristics protected under the Act and/or revise the definition of existing terms, including “Gender Expression,” “Gender Identity,” “Sex Stereotype,” and “Transgender.” For example “gender expression” means a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.  Whereas, “gender identity” means a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.

Non-Monetary Preventative Remedies
The new regulations provide that the Department of Fair Employment and Housing (DFEH) may elect to pursue “non-monetary preventative remedies” for failure to prevent discrimination or harassment regardless of whether the DFEH prevails on an underlying claim of discrimination or harassment. At this stage, the reference to “non-monetary preventative remedies” remains rather vague, but could potentially include enjoining certain conduct or requiring affirmative measures aimed at promoting compliance with the Act.

Attention to Detail
The amendments also include a two-year record retention requirement for all sexual harassment training materials. Among these materials would be sign-in sheets and course materials, including questions and written answers exchanged in connection with training done by webinar.

California employers should consult with counsel to ensure that their anti-harassment and non-discrimination policies and practices are in compliance with the new regulations and are properly distributed to covered employees. 

This article is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.