Amended FEHA Regulations
California has amended its Fair Employment and Housing Act (FEHA) regulations. The FEHA prohibits harassment and discrimination in employment because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, medical condition, age, pregnancy, denial of medical and family care leave, or pregnancy disability leave.
Among the more notable changes in the amended regulations is the requirement that employers with five or more employees have a written policy against unlawful harassment, discrimination, and retaliation in the workplace that:
- Is in writing.
- Lists all current protected categories covered under the FEHA.
- Indicates that the FEHA prohibits co-workers and third parties, as well as supervisors and managers with whom the employee comes into contact, from engaging in conduct prohibited by the 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:
- 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
- Identification of the Department of Fair Employment and Housing 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, pursuant to § 11024 of the regulations.
- 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 measures will be taken.
- Makes clear that employees will not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
Employers must disseminate their policies by one or more of the following methods:
- Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
- Sending the policy via email with an acknowledgment return form;
- 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;
- 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.
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 amended regulations go into effect on April 1, 2016.