New Harassment/Discrimination Prevention Policy Requirements Take Effect April 1
California's Fair Employment and Housing Council (“FEHC”) has adopted new regulations under the Fair Employment and Housing Act (“FEHA”) that take effect April 1. For the most part, the new regulations reflect recent changes in the law (e.g. making clear that FEHA protects interns and volunteers and persons providing services pursuant to a contract). However, the new regulations contain an important new substantive requirement that employers adopt a written discrimination, harassment, and retaliation prevention policy that meets specified requirements. According to the FEHC, this new policy requirement is in furtherance of employers' obligation to prevent (and not just correct) discrimination, harassment, and retaliation in the workplace, and is in addition to employers' existing obligation to provide its workforce with a copy of the DFEH brochure on sexual harassment (DFEH-185) and/or an alternative anti-harassment policy that complies with Government Code section 12950. Under the new regulations, employers must have a broader discrimination, harassment, and retaliation prevention policy that:
1. Is in writing;
2. Sets forth all of the protected categories currently described in FEHA (race, religious creed, color, national origin, ancestry, physical and/or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and veteran status);
3. Indicates that the law prohibits coworkers and third parties, as well as managers and supervisors, with whom the employee comes into contact from engaging in conduct prohibited by FEHA;
4. Provides a complaint mechanism that does not require an employee to complain directly to his/her immediate supervisor, such as options for direct communication either orally or in writing with a designated company representative, such as a human resource manager or other supervisor, a complaint hotline, access to an ombudsperson, and/or identification of the DFEH and EEOC as additional avenues to lodge complaints;
5. Instructs supervisors to report any complaints of misconduct to a designated company representative;
6. Indicates that when the company 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 (it is not clear what the phrase “due process” means in the context of these regulations and the FEHC declined to remove this phrase or to clarify it in response to comments from the public);
7. States that confidentiality will be kept by the employer to the extent possible;
8. Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures will be taken;
9. Makes clear that employees will not be exposed to retaliation as a result of lodging a complaint or participating in a workplace investigation; and
10. Creates a complaint process to ensure that complaints receive (a) a designation of confidentiality, to the extent possible; (b) a timely response; (c) impartial and timely investigation by qualified personnel; (d) documentation and tracking for reasonable progress; (e) appropriate options for remedial actions and resolution; and (f) timely closure. It is not clear from the regulations whether the details of this process need to be spelled out in the policy and the FEHC did not clarify this in response to comments and requests from the public.
Dissemination of the policy may be through one or more of the following methods:
1. Providing a hard copy of the policy to all employees with an acknowledgement of receipt form;
2. Sending the policy via e-mail with an acknowledgement return form;
3. Posting current versions of the policy 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 orientation session; and/or
5. Any other way that ensures employees receive and understand the policies.
Any employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language must translate the policy into every language that is spoken by at least 10 percent of the workforce.
The new regulations make clear that they do not create a new private right of action for failure to prevent discrimination, harassment, or retaliation, and that a private plaintiff cannot prevail on a failure to prevent claim unless they first prevail on an underlying claim of discrimination, harassment, or retaliation. However, the regulations do newly provide that the Department may seek non-monetary preventative remedies against an employer for failing to adequately prevent discrimination, harassment, or retaliation regardless of whether or not the Department proves an underlying claim of discrimination, harassment, or retaliation.
California employers should review and revise existing discrimination, harassment, and retaliation policies to ensure that they meet the requirements of the new regulations and/or should adopt a new discrimination, harassment, and retaliation prevention policy that meets the requirements of the new regulations.