The California Department of Fair Employment and Housing (DFEH) recently enacted regulations that will require employers, as of April 1, 2016, to develop written anti-discrimination/harassment policies with certain content requirements.
California law already requires employers to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct, to distribute a government-issued brochure on sexual harassment, and to conduct sexual harassment prevention trainings if the employer has 50 or more employees. In addition to these conditions, employers are now required under the new regulations to create and distribute a written anti-discrimination/harassment policy that meets certain specifications.
Under the new regulations, the anti-discrimination/harassment policy must be in writing, and must, at a minimum:
- List all of the protected categories under California’s Fair Employment and Housing Act, which currently are: race, religious creed, color, national origin, age, ancestry, physical and/or mental disability (including HIV and AIDS), medical condition, genetic information, marital status, sex (childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding), gender, gender identity, gender expression, age, sexual orientation, and military and/or veteran status;
- Make clear that those who interact with an employee, including co-workers, supervisors, managers and third parties (e.g., contractors), are prohibited from engaging in any discriminatory, harassing, or retaliatory conduct;
- Create a complaint process that: (1) establishes a complaint mechanism, e.g., a designated HR representative, complaint hotline, or access to an ombudsperson, so that the employee does not have to complain directly to an immediate supervisor, (2) is confidential, to the extent possible, (3) ensures a timely response and investigation by qualified personnel, (4) provides for documentation and tracking to ensure reasonable progress, (5) provides for appropriate remediation actions and resolutions, and (6) enables timely closure of the investigation;
- Indicate that the employer will conduct a fair, timely and thorough investigation when it receives allegations of misconduct, that confidentiality will be kept to the extent possible, and that if misconduct is found at the end of an investigation, appropriate remedial action will be taken;
- Instruct supervisors to report any complaints of misconduct to a designated company representative so the employer can try to resolve the complaint internally (if the employer has 50 or more employees, it must also include this as a topic in its required sexual harassment prevention training); and
- Make clear that the employer will not retaliate against an employee who submits a complaint or participates in a workplace investigation.
Employers must provide employees with a copy of their written policy, either by:
- Distributing a hard copy or electronic copy via email and having employees sign an acknowledgement form;
- Posting the policy on a company intranet site with a tracking system that ensures all employees have read and acknowledged receipt, or
- Discussing the policies upon hire and/or during a new hire orientation session.
If 10% or more of the employees at any location speak a language other than English, the policy must be translated into that language.
While these regulations impose new requirements, they do not amend California Government Code §12940(k), which provides that there is no standalone, private cause of action for failure to prevent harassment and discrimination – an employee still must prove actual unlawful discrimination, harassment, or retaliation to win a claim. Nevertheless, the DFEH may seek non-monetary preventative remedies for an employer’s failure to prevent discrimination, harassment, or retaliation, regardless of whether the employee could prevail on the underlying claim. Additionally, failure to comply with these regulations may be used by employees in a harassment or discrimination action to show that a company does not take anti-harassment and anti-discrimination seriously.
California employers should review and revise their policies, employee handbooks, and anti-discrimination/harassment training materials to comply with these new regulations before they go into effect on April 1, 2016.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.