The FEHC has released new amendments to Fair Employment and Housing Act regulations that take effect April 1, 2016. Employers are strongly encouraged to avoid “playing the April Fool” and learn how these changes impact employer accommodations of employees, document retention requirements for harassment prevention training, and new factors to consider when investigating complaints of harassment and discrimination.
The Fair Employment and Housing Council (“FEHC”) recently issued its final Amendments to the Fair Employment and Housing Act Regulations (“the Amendments”). The Amendments, effective April 1, 2016, set forth new compliance obligations for California employers, include prior amendments and additions to the Fair Employment & Housing Act (“FEHA”), and incorporate relevant case law.
Given the many changes, employers are urged to carefully review their existing policies for compliance with the Amendments. In addition, many of the changes impact how an employer accommodates employees, document retention requirements for harassment prevention training, and new factors to consider when investigating complaints of harassment and discrimination. The final version of the regulations with tracked changes is available by clicking here. The Amendments are summarized here:
Previously, employers were not required to have employee handbooks. Effective April 1, 2016, as part of an employer’s affirmative duty to create a workplace environment that is free from employment practices prohibited by FEHA, employers “shall” develop a harassment, discrimination, and retaliation prevention policy that:
- Is in writing;
- Lists all current protected categories covered under the Fair Employment & Housing Act (“FEHA”);
- Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by FEHA;
- Creates a complaint process to ensure that complaints receive: an employer’s designation of 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 closures.
- Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following: (A) Direct communication with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or (B) A complaint hotline; and/or (C) Access to an ombudsperson; and/or (D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
- Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training.
- 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 not indicate that the investigation will be completely confidential.
- Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
- Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
The harassment, discrimination, and retaliation prevention policy must be translated into any language that is spoken by more than 10% of the employer’s workforce.
The Amendments also specify how the policy must be disseminated to employees, which “shall” include 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.
Covered Employers Under FEHA
Sexual harassment protections apply to employers of just one employee. Most other FEHA protections apply to employers of 5 or more employees. The Amendments redefine what it means to have 5 employees. The Amendments provide that out of state employees can count toward the 5 employee requirement as long as one employee is in California, in which case that sole California employee in turn can avail him or herself to FEHA’s protections.
Protections Under FEHA for Unpaid Interns and Volunteers
In 2015, interns and volunteers were given protection under FEHA prohibiting unlawful discrimination and harassment. The Amendments define “unpaid intern and volunteers” as: “any individual (often a student or trainee) who works without pay for an employer or other covered entity, in any unpaid internship or another limited duration program to provide unpaid work experience, or as a volunteer.”
Discrimination Based on Presentation of a Section 12801.9 Driver’s License for Undocumented Persons
It is unlawful for an employer or other covered entity to discriminate against an applicant or employee because he or she holds or presents a driver’s license that was issued under section 12801.9 of the Vehicle Code. Existing law codified at section 12801.9 permits the California Department of Motor Vehicles to issue driver’s license to a person who is “unable to submit satisfactory proof that the applicant’s presence in the United States is authorized under federal law if he or she meets all other qualifications for licensure and provides satisfactory proof to the department of his or her identity and California residency.”
Protected Category or Status Must Be A “Substantial Motivating Factor” In Adverse Action In Order to Establish A Violation of Discrimination Laws
The California Supreme Court previously ruled in Harris v. City of Santa Monica (2013) 56 Cal.4th 203 that in order to support a claim for unlawful discrimination or retaliation under FEHA, an employee must prove by a preponderance of the evidence that a protected status or category was a “substantial motivating factor” in the adverse action or denial of an employment benefit. This legal standard is now expressly set forth in the Amendments.
Disability & Religious Accommodation in the Workplace
The Amendments incorporate recent changes to the law which make it is unlawful for an employer to retaliate or discriminate against a person for requesting an accommodation for his or her disability or religion, regardless of whether the accommodation was granted.
Additionally, the use of a “support animal” in the workplace may constitute a reasonable accommodation for a disability. The regulations define a “support animal” as: “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.” However, the regulations do not guarantee that such requests for a support animal must be granted. Instead, such requests are subject to an “individualized analysis reached through the interactive process.”
Previously, the regulations stated that discrimination based on “religious creed” included “any traditionally recognized religion as well as beliefs, observances, or practices, which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions.” The Amendments now add to the same section that religious creed also specifically encompasses “all aspects of religious belief, observance, and practice, including religious dress and grooming practices, as defined by Government Code section 12926.”
Last year, the United States Supreme Court held in EEOC v. Abercrombie & Fitch Stores, Inc. (2015) 135 S. Ct. 2028 that an employer may not refuse to hire an applicant if the employer was motivated by avoiding the need to accommodate a religious practice. The Supreme Court ruled that such conduct violates the prohibition on religious discrimination contained in Title VII of the Civil Rights Act of 1964. The Amendments now expressly incorporate the Supreme Court’s ruling into the regulations.
Finally, an employer may not require that an employee be segregated from customers or the general public in order to accommodate an employee’s religious practice unless it derives from an expressed requested by an employee as an accommodation.
Amendments to Comport with California’s Anti-Harassment Laws
A new regulation incorporates existing law allowing for personal liability for harassment against an employee who engages in unlawful harassment of a co-employee, regardless of an employer’s knowledge. The regulations also clarify an employer’s affirmative duty to take reasonable steps to prevent and correct discriminatory and harassing conduct. The Amendments restate existing law that there is no stand-alone, private cause of action against an employer for failing to prevent harassment or discriminatory conduct. Instead, a plaintiff must also plead and prevail on an underlying claim of discrimination, harassment, or retaliation in order to bring a claim against an employer for failing to take reasonable steps to prevent and correct discrimination or harassment. Still, the DFEH may seek non-monetary preventive remedies (such as injunctive relief) against an employer for failing to prevent harassment or discriminatory conduct even if it does not prevail on the underlying FEHA claim for unlawful harassment, discrimination, or retaliation.
Sexual Harassment Training and Education
The Amendments provide further detail for employers to fully comply with AB 1825 Supervisor Harassment Training as follows: (a) employers must maintain records related to the supervisor harassment trainings for a minimum of two years and (b) those records must include: the names of the supervisory employees trained, the date of the training, a sign in sheet, copies of any certificates of attendance or completion issued, the type of training involved, a copy of all written or recorded materials related to the training, and the name of the trainer. The Amendments require that the supervisor harassment training include new content requirements. The Amendments also discuss in detail how non-live trainings (such as e-learning or webinars) must be conducted and provides guidance on the degree and manner in which trainings need to be interactive to be compliant.
Sex Discrimination and Harassment
The Amendments provide definitions for “gender identity,” “gender expression,” and “transgender” as previously stated under California law. “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. “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.”
The Amendments also included the following additions: (1) an employer may be liable for sexual harassment even when the harassing conduct was not motivated by sexual desire; (2) a person alleging sexual harassment is not required to sustain a loss of tangible job benefits in order to establish harassment; and (3) the regulations have been updated to specify “quid pro quo” (Latin for “this for that”) and “hostile work environment” types of sexual harassment.
Pregnancy Discrimination & Related Pregnancy Disability Leave (“PDL”)
The Amendments clarify an employer’s PDL obligations in conformance with earlier changes to the law. PDL need not to be taken in one continuous period of time and eligible employees are authorized to take four months of PDL per pregnancy, not per year. The Amendments expanded the definition of “eligible female employee” to include a transgender employee who is disabled by pregnancy. The regulations also specify that unlawful harassment because of pregnancy includes harassment based on childbirth, breastfeeding, or any related medical conditions.
A PDL notice should be a unified notice that includes information about PDL and how to contact the DFEH to file a complaint for a related violation. The notice should be large enough to be easily read and can be posted electronically as long as it is in a place or places where employees would tend to view it in the workplace. As with the discrimination, harassment and retaliation policy requirements stated above, the notice must be translated into every language other than English spoken by at least 10 percent of the workforce.
Even though many of the above Amendments simply incorporate existing California law, the new FEHC regulations present a challenging compliance landscape for employers, regardless of size. Each year, the Legislature introduces dozens of bills affecting the California workplace, many of which are signed by the Governor. Accordingly, employers should review and update their policies at least yearly. Even well-meaning employers could run afoul of FEHA and the FEHC’s related regulations if they do not continuously educate themselves about changes to the law and consult with employment counsel. Klinedinst’s knowledgeable employment attorneys are available to review your employee handbook, policies, and provide compliance advice. You may contact Nadia Bermudez at 619-239-8131.