On April 1, 2016, recent changes by the California Fair Employment and Housing Council to the regulations implementing the state’s Fair Employment and Housing Act (FEHA) take effect. Among the changes are an expanded training requirement, whereby employers are required to train employees on “abusive” conduct and sexual harassment, and new requirements for the components of a policy to prevent such behavior.
The revised regulations clarify that employers must distribute the California Department of Fair Employment and Housing’s DFEH-185 brochure on sexual harassment (or an alternative that complies with Government Code section 12950(b)). Employers must also develop a harassment, discrimination, and retaliation prevention policy that complies with the following requirements.
1. Written Policy
Employers’ prevention policies must be in writing.
2. All Protected Categories
The policy must list all categories currently protected under FEHA.
3. To Which Individuals Do the Prohibitions Apply?
The policy must indicate that California law prohibits the following individuals who interact with employees from engaging in conduct prohibited by FEHA:
- coworkers,
- third parties,
- supervisors, and
- managers.
4. Complaint Process Requirements
The policy must create “a complaint process to ensure that complaints receive:”
(A) An employer’s designation of confidentiality, to the extent possible;
(B) A timely response;
(C) Impartial and timely investigations by qualified personnel;
(D) Documentation and tracking for reasonable progress;
(E) Appropriate options for remedial actions and resolutions; and
(F) Timely closures.
5. The Complaint Mechanism
The policy must provide “a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor.” In addition, the complaint mechanism must include, but not be limited to, the following options for employees:
- direct communication, either oral or written, with a designated company representative (such as a human resources manager, equal employment opportunity officer, or supervisor); and/or
- a complaint hotline; and/or
- access to an ombudsperson; and/or
- identification of additional avenues for employees to lodge complaints, namely the California Department of Fair Employment and Housing (DFEH) and the U.S. Equal Employment Opportunity Commission.
6. Reporting and Training
The policy must instruct “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.” Additionally, “[e]mployers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training.”
7. Misconduct Investigations
The policy must indicate that the employer “will conduct a fair, timely, and thorough investigation” when it receives an allegation of misconduct. The investigation must provide “all parties appropriate due process” and reach “reasonable conclusions based on the evidence collected.”
8. Confidentiality in Investigations
In their prevention policies, California employers must state that they will keep any investigation of misconduct confidential to the extent possible, “but not indicate that the investigation will be completely confidential.”
9. Remedial Measures
Prevention policies must indicate that the employer will take appropriate remedial measures if an investigation results in a conclusion that misconduct occurred.
10. Retaliation
The policy must make clear “that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.”
The final version of the regulations can be found on the DFEH’s website.
