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By Ted Schneider, Esq.

The California Fair Employment and Housing Council (“FEHC”) has issued new anti-discrimination and anti-harassment regulations effective April 1, 2016. If you are an employer, and you have questions or concerns regarding any of the new anti-discrimination and anti-harassment regulations we encourage you to contact Schneiders & Associates, L.L.P.  Our employment attorneys can review your existing policies to ensure they are compliant with the new regulations, and assist you with creating compliant policies if necessary.  Among other changes, the new regulations:

1. Increase the number of employers covered by the Fair Employment and Housing Act (“FEHA”).

  • Employers with fewer than 5 employees are generally not subject to FEHA. However, the new regulations provide that out of state employees count toward the 5-employee requirement, changing what it means to have 5 employees.
  • Small employers and employers with relatively small California operations should be mindful of these new regulations in order to avoid surprises if they are threatened with a lawsuit under FEHA.
  • If you are a small employer exceeding the 5-employee threshold as of April 1, it is advised that you consult an attorney regarding compliance with FEHA.

2. Require employers to develop new anti-discrimination and harassment policies that meet numerous new and detailed requirements.

  • Must be in writing.
  • List categories of individuals protected by FEHA, which include:

a. Age (40 and over)

b. Ancestry

c. Color

d. Religious Creed

e. Disability (mental and physical) including HIV & AIDS

f. Marital Status

g. Medical Condition (cancer & genetic characteristics)

h. Genetic Information

i. Military or Veteran Status

j. National Origin (including language use restrictions)

k. Race

l. Sex (including pregnancy, childbirth, breastfeeding and medical conditions related)

m. Gender, Gender Identity, and Gender Expression

n. Sexual Orientation

  • Make clear that FEHA prohibits coworkers, third parties, supervisors and managers from engaging in discriminatory, harassing, or retaliatory conduct.
  • Provide a complaint procedure that ensures complaints are:  kept confidential (to the extent possible), responded to in a timely manner, investigated by “qualified personnel” in a timely and impartial manner, and documented and tracked.  The complaint procedure must also provide for appropriate remedial action and resolution and timely closure of investigations.
  • Establish a complaint mechanism.
  • Instruct supervisors to report any complaints of misconduct to a designated company representative so the company can try to resolve the claim internally.
  • State that allegations of misconduct will be addressed through a fair, timely, and thorough investigation.
  • State that confidentiality will be kept by the employer to the extent possible.
  • Make clear that the company will not retaliate against employees for lodging a complaint or participating in an investigation.

3. Require employers to distribute those policies to employees in English as well as in any additional languages that are spoken by at least 10% of the workforce.

To comply with this regulation, employers may do any one of the following:

  • Provide a copy of the policies to all employees either in hard copy or by email with an acknowledgment form for employees to sign.
  • Post the policies on a company intranet site and use a tracking system to ensure all employees read and acknowledge receipt of the policies.
  • Discuss the policies upon hire or during new-hire orientation sessions.
  • The regulations also require employers whose workforce includes 10% or more non-native English-speaking employees to issue the anti-discrimination and harassment policies in each such language.

4. Enact new requirements for conducting discrimination and harassment training.

Anti-discrimination and anti-harassment training must now cover “abusive conduct” as defined in Government Code section 12950.1(g)(2).  The training must cover the negative effects and discuss the elements of “abusive conduct.”

The attorneys at Schneiders & Associates regularly conduct workplace discrimination and harassment training in compliance with the new policies and regulations. Contact us to schedule training for your workplace.

5. Update the definitions of “gender identity,” “gender expression” and “transgender” under FEHA.

The new regulations provide new definitions for “gender expression,” “gender identity” and “transgender.”  Specifically, “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.  Finally, “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.”

6. Include a new rule that would allow the Department of Fair Employment and Housing (DFEH) to obtain “non-monetary preventative remedies” against an employer who fails to prevent discrimination or harassment, even if there is no evidence of underlying discrimination or harassment.

Employers should understand these new regulations in order to avoid inadvertent violations and potential liability. The attorneys at Schneiders & Associates, LLP can ensure your compliance so you can focus on running your business. Our firm represents employers exclusively. Contact us to speak with an attorney today.