SPECIAL FOCUS: FEHA Amendments Take Effect April 1

Why it matters

The April 1 deadline is looming for California employers, who are facing amendments to the state's Fair Employment and Housing Act (FEHA), including the creation of an affirmative duty to "prevent and promptly correct" discriminatory, and harassing conduct, new definitions of terms and the mandatory imposition of an anti-harassment policy. Although most employers already have written policies in place prohibiting discrimination in the workplace, the updated regulations formalize the requirement, with conditions that the policy is in writing, list all current protected categories under the statute, and make clear that employees will not be exposed to retaliation as a result of making a complaint. All employees must receive a copy of the policy and the policy must be translated into every language spoken by at least 10 percent of the workforce. Several definitions were tweaked in the amendments, including "gender expression," "gender identity," "transgender," and "sex stereotyping," and employers must also observe new record retention requirements, holding on to all sexual harassment training documents (such as sign-in sheets and course materials) for two years. The amendments provide an opportunity for employers to review all facets of their employment policies and procedures to ensure compliance with FEHA and the changes.

Detailed discussion

Effective April 1, 2016, amendments to California's Fair Employment and Housing Act become law. The result of a lengthy process involving proposals from the Fair Employment and Housing Council and multiple periods of public comment, the amendments include new definitions and new requirements for employers. Some of the biggest changes are detailed below.

• Affirmative duty. The FEHA regulations now make clear that California employers have "an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct" as well as "an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act." That being said, the regs provide a measure of comfort for employers by stating that "[t]here is no stand-alone, private cause of action" for failure to prevent harassment or discrimination under the statute; a private claimant must plead and prevail on an underlying claim of discrimination, harassment, or retaliation to establish an actionable claim under the Act. A determination as to whether the employer has complied with FEHA "includes an individualized assessment, depending upon numerous factors sometimes unique to the particular employer including, but not limited to, its workforce size, budget, and nature of its business, as well as upon the facts of a particular case."
• Anti-harassment, discrimination, and retaliation policy. To achieve compliance with FEHA regulations, every employer in the state of California must now have a harassment, discrimination, and retaliation prevention policy. While most employers likely already have such policies in place, the regs mandate several specifics: the policy must be in writing, list all current protected categories under FEHA, and explicitly state that employees are protected from illegal conduct from any workplace source – including third parties. In addition, the policy needs to establish a confidential complaint process that ensures a timely response, impartial and timely investigation by qualified personnel, documentation and tracking for reasonable process, appropriate options for remedial actions and resolutions, and timely closure. A clear chain of action with regard to complaints must be established by the policy, providing employees with notice about ways to file a complaint other than to a direct supervisor and stating that supervisors are required to report any complaints of misconduct to a designated company representative. Finally, the policy must inform employees that they will not be subject to retaliation as a result of either making a complaint or participating in a workplace investigation. The changes do permit employers some leeway with regard to publicizing the policy and its details. The policy can be posted on the company intranet, sent to workers via e-mail, or printed and provided to employees when they begin work, as long as the employer obtains a written acknowledgement from each worker that he or she has received the policy. Importantly for employers with multi-lingual workforces, the policy must be translated into every language that is spoken by at least 10 percent of the workforce.
• Sexual harassment training recordkeeping requirements. The amendments mandate that employers keep all sexual harassment training materials for two years (employers are already required under FEHA to train employees about potential liability in civil actions for violations of the statute – on both an individual and employer basis) and set forth a supervisor's obligations to report sexual harassment, discrimination, and retaliation. Documents that should be kept on hand will include sign-in sheets for the training classes as well as course materials and any written questions or answers conducted during the training.
• Definitions. Several terms were provided with a definition in the FEHA changes, among them, "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," and "transgender," "a general term for a person whose gender identity differs from the person's sex at birth." The amendments also include a note to employers that sex stereotyping ("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") falls under the category of gender discrimination.
• Other changes. The 90 pages of amended FEHA regulations make many other tweaks, including adding language about employer defenses ("It is no defense to a complaint of harassment based on sex that the alleged harassing conduct was not motivated by sexual desire"), recognition of support animals, defined as an animal 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," and "may constitute a reasonable accommodation in certain circumstances," and modifications to employer notice to employees about pregnancy disability leave.

To read the FEHA amendments, click here.