No Fooling: April 1 Compliance Deadline for CA Discrimination and Retaliation Policies

Employers with employees in California, regardless of where the employer is based, should take the following steps now to ensure compliance. 

1. Determine Whether the Fair Employment and Housing Act (FEHA) Applies to the Company

The FEHA generally applies to employers who regularly employ five or more individuals.^[1] The new regulations clarify that the five employees do not need to be located within California. This means that companies with a minor presence in California are subject to the FEHA, if they employ a total of five or more individuals throughout their operations. Additionally, the regulations clarify that employees on paid or unpaid leave, including California Family Rights Act leave, leave of absence, disciplinary suspension, or other leave, are counted for purposes of “counting” the five or more employees.

2. Update the Company’s Written Policies

Under the new regulations, in addition to distributing the Department of Fair Employment and Housing’s (DFEH) brochure on sexual harassment, or an alternative writing that complies with the statutory requirements, employers must now also develop a harassment, discrimination, and retaliation prevention policy that satisfies the following criteria:

• Is in writing;
• Lists all current protected categories covered under the FEHA;
• Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employees comes into contact from engaging in conduct prohibited by the FEHA;
• Creates a complaint process;
• Establishes a complaint mechanism that does not require an employee to complain directly to an immediate supervisor (i.e., identifying another designated company representative, complaint hotline, ombudsperson, and/or the DFEH or the U.S. Equal Employment Opportunity Commission);
• Instructs supervisors to report any complaints of misconduct to a designated company representative, so the company can try to resolve the claim internally;
• Indicates 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;
• States that confidentiality will be kept by the employer to the extent possible, but does not indicate that the investigation will be completely confidential;
• Indicates that if at the end of the investigation misconduct is found, appropriate remedial action shall be taken; and
• Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

3. Distribute the Mandatory Written Policies to Employees

Employers must distribute the written policies to employees in one or more of the following ways:

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

Furthermore, employers 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 also translate and disseminate the policy into every language that is spoken by at least 10 percent of the workforce.

4. Re-evaluate the Company’s Complaint Procedure

To comply with the new regulations, employers must have a complaint procedure that ensures confidentiality (to the extent possible), a timely response, an impartial and timely investigation by qualified personnel, documentation and tracking of reasonable progress, appropriate options for remedial actions and resolutions, and timely closures.

5. Revise the Company’s Anti-discrimination and Anti-harassment Training Materials and Recordkeeping Practices

Employers with 50 or more employees must also revisit their anti-discrimination and anti-harassment training to ensure compliance with the new regulations, which affect both the content of the training and recordkeeping obligations. In addition to the prior requirements, the trainings must now also meaningfully address the following topics:

• A supervisor’s obligation to report sexual harassment, discrimination, and retaliation of which they become aware and any complaints of misconduct to a designated company representative so that the company can try to resolve the claim internally;
• Strategies to prevent harassment;
• Steps necessary to take appropriate remedial measures to correct harassing behavior;
• The negative effects that abusive conduct (i.e., bullying) has on the victim of the conduct as well as others in the workplace;
• The detrimental consequences of abusive conduct on employers, including reduction in productivity and morale;
• The elements of abusive conduct, including conduct undertaken with malice that a reasonable person would find hostile or offensive and that is not related to an employer’s legitimate business interests; and
• That a single act does not constitute abusive conduct, unless the act is especially severe or egregious.

The new regulations also establish various recordkeeping requirements that are based on the method of training. If the employer offers e-learning training, the trainer must maintain all written questions received and all written responses or guidance provided for a period of two years after the date of the response. Where training is provided through a webinar, the employer must maintain a copy of the webinar, all written materials used by the trainer, all written questions submitted during the webinar, and must document all written responses or guidance the trainer provided during the webinar for a period of two years after the date of the webinar. In addition to maintaining the names of the supervisory employees trained, the date of training, the type of training, and the name of the training provider, employers must now also maintain the sign-in sheet, a copy of all certificates of attendance or completion issues, and a copy of all written or recorded materials that comprise the training for a minimum of two years.

6. Understand the Protected Categories and the Newly Prohibited Conduct

The regulations expand the prohibition against gender and sex discrimination by providing new or revised definitions for, but not limited to, the following terms:

• Gender expression: a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth;
• Gender identity: a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender;
• Sex stereotype: 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 sex; and
• Transgender: 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 new regulations also expand on the prohibition against national origin and ancestry discrimination by prohibiting discrimination against an applicant or employee because he or she holds or presents a driver’s license issued under section 12801.9 of the Vehicle Code. In addition, the new regulations restrict the reasons for which employers may require an applicant or employee to hold or present a license issued under the Vehicle Code.