Action required by April 1, 2016

Amendments to FEHA regulations impose new requirements

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New regulations for the Fair Employment and Housing Act are set to take effect April 1, 2016. Many of the provisions merely restate changes that are already in effect. But these regulations also provide some additional specificity to certain FEHA provisions and include some new obligations. Below is a summary of some of the more significant amendments.

Discrimination/Harassment/Retaliation Policies

Employers covered by the FEHA (5 or more employees) must have a written policy in place regarding prohibited discrimination, harassment and retaliation. The regulations specify that the policy must:

  • List all current protected categories covered under the Act
  • Indicate that the law prohibits co-workers and third parties, as well as supervisors and managers from engaging in conduct prohibited by the Act.
  • Create a complaint process to ensure that complaints receive confidentiality, to the extent possible; a timely response; impartial and timely investigations by qualified personnel; documentation and tracking for reasonable progress; appropriate options for remedial actions and resolutions; and timely closure.
  • Provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, but specifies that complaints can be brought through direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or a complaint hotline; and/or access to an ombudsperson and/or the DFEH and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
  • Instruct supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager (and to include this instruction in mandated supervisor sexual harassment prevention training).
  • Indicate 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.
  • State that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential;
  •  Indicate that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
  • Make clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

The discrimination/harassment/retaliation policy must be disseminated through one or more of the following methods:

  1. Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
  2. Sending the policy via e-mail with an acknowledgment return form;
  3. Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;
  4. Discussing policies upon hire and/or during a new hire orientation session; and/or
  5. Any other way that ensures employees receive and understand the policies.

The policy must be translated to a language other than English if 10% or more of the employees at any facility use that language as their spoken language.

New training requirements for mandatory supervisor training

  • Mandatory supervisor discrimination/ harassment training must contain the following:
    • How to identify behavior that may constitute unlawful harassment, discrimination, and/or retaliation under both California and federal law;
    • What steps to take when harassing behavior occurs in the workplace;
    • How to report harassment complaints;
    • Supervisors’ obligation to report harassing, discriminatory, or retaliatory behavior when they become aware of it;
    • How to respond to a harassment complaint;
    • The employer's obligation to conduct a workplace investigation of a harassment complaint;
    • What constitutes retaliation and how to prevent it;
    • Essential components of an anti-harassment policy; and
    • The effect of harassment on harassed employees, co-workers, harassers and employers.
  • Computer-based training (i.e., webinars or E-training) : For a period of two years after the date of the webinar or E-training, the employer must maintain a copy of the training, all written materials used by the trainer, all written questions submitted pursuant to the training, and document all written responses or guidance the trainer provided during the training.
  • The training must contain the following information on “abusive conduct”:
    • Explanation of the negative effects that abusive conduct has on the victim of the conduct as well as others in the workplace;
    • Information about the detrimental consequences of this conduct on employers – including a reduction in productivity and morale; and
    • Examples of abusive conduct, which may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.
    • Emphasis that a single act shall not constitute abusive conduct, unless the act is especially severe or egregious.
    • While there is not a specific amount of time or ratio of the training that needs to be dedicated to the prevention of abusive conduct, it should be covered in a meaningful manner.
  • Training records that must be kept for a minimum of two years. These records must include:
    • A sign in sheet that includes:
      • The names of the supervisory employees trained,
      • The date of training, and
      • The type of training;
    • A copy of all certificates of attendance or completion issued,
    • A copy of all written or recorded materials that comprise the training, and the name of the training provider.

The scope of protected individuals under the FEHA is now expanded to include unpaid interns, volunteers and persons performing services under a contract. The amendments now include those individuals in the definition of “employee” under the FEHA.

Clarified Definitions Regarding Gender Discrimination Issues

New definitions have been provided to cover the expanded FEHA gender discrimination protections.

  • 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.
  • Sex” has the same definition as provided in Government Code section 12926, which includes, but is not limited to, pregnancy; childbirth; medical conditions related to pregnancy, childbirth, or breast feeding; gender identity and gender expression.
  • Sex Stereotype” means an assumption about a person’s appearance or behavior, or about an individual's ability or inability to perform certain kinds of work based on a myth, social expectation, or generalization about the individual's gender sex.
  • Transgender” is a general term that 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.”

Pregnancy Discrimination/Harassment:

Prohibitions against harassment were expanded to cover an employee or applicant because of pregnancy or perceived pregnancy, childbirth, breastfeeding, or any related medical conditions.

Posting obligations for pregnancy-related protections:

The regulations require employers to post the appropriate notice regarding pregnancy-related rights on its premises, in conspicuous places with your other employment-related postings. The notice shall explain the Act's provisions and provide information about how to contact the Department of Fair Employment and Housing to file a complaint and learn more about rights and obligations under the Act. The poster and the text must be large enough to be easily read and contain fully legible text. Electronic posting is sufficient to meet this posting requirement as long as it otherwise meets the requirements of this posted electronically in a conspicuous place or places where employees would tend to view it in the workplace. The regulations incorporate a sample notice: YOUR RIGHTS AND OBLIGATIONS AS A PREGNANT EMPLOYEE, which can be accessed in the link at the end of this article.

The policy must be translated to a language other than English if 10% or more of the employees at any facility use the language as their spoken language.

National Origin Discrimination—Driver’s Licenses

Per the regulations, it is unlawful for an employer to discriminate against an applicant or employee because he/she holds or presents a driver’s license issued under California Vehicle Code Section 12801.9 (issuance of licenses to non-citizens).

The regulations also provide that an employer may require an employee to hold or present a driver’s license only if: possession of a driver’s license is required by state or federal law; or possession of a driver’s license is required by the employer or other covered entity and is otherwise permitted by law. However, the regulations specifically warn that an employer’s requirement that an applicant or employee present or hold a driver’s license may be evidence of a violation of the FEHA if the policy is not uniformly applied or is not consistent with legitimate business reasons (i.e., if possessing a driver’s license is not needed to perform an essential function of the job).

Reasonable Accommodation of Disabilities

The regulations specify that the “interactive process” that is required when assessing and providing reasonable accommodations must entail an individualized assessment of both the job at issue and the specific physical or mental limitations of the individual that are directly related to the need for reasonable accommodation.

A “support animal” may constitute a reasonable accommodation in certain circumstances. A support animal is 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. As in other contexts, what constitutes a reasonable accommodation requires an individualized analysis reached through the interactive process.

Note that this summary is not a complete or exhaustive description of the amendments to the FEHA regulations. You can read the full text of the regulations, as amended, and download the new pregnancy rights postings in English and Spanish.

Employers should promptly review their existing policies, training and notices in light of the above amended regulations, and revise, implement and distribute them accordingly. Before making any changes to your policies or practices pertaining to these amendments or any other obligations under the FEHA, it is advisable to consult with competent employment counsel.