Recent Amendments to the California Fair Employment and Housing Act Regulations Take Effect April 1, 2016

The California Fair Employment and Housing Council has recently amended the regulations to the California Fair Employment and Housing Act, which take effect on April 1, 2016.  These amendments provide basic provisions to a mandatory anti-harassment policy, and clarify some of the protected categories in the Act.  The following are a few highlights of these amendments.

The Regulations Mandate an Anti-Harassment Policy

Although many California employers already have an internal anti-harassment policy in their employee handbooks, the amendments to the regulations now make it mandatory, and require the inclusion of certain elements in the policy.  With these amendments, starting April 1st, every California employer must have a written harassment, discrimination, retaliation and prevention policy in the workplace.  The policy must be translated into every language that is spoken by at least 10% of the workforce, and it must be distributed in a method that ensures that the employees receive and understand the policy.  This may include providing a hard copy, sending a copy via electronic mail with an acknowledgment form for the employees to sign and return, posting the policy on the internet with a system to ensure all employees have read and acknowledged receipt of the policy, and/or discussing the policy upon hire and/or during new hire orientation.  Employers are also required to distribute the Department of Fair Employment and Housing’s Brochure 185 on Sexual Harassment.

To meet the requirements of the amended regulations, the policy must include the following:

  • List the categories of individuals protected under the Act, which currently are as follows:
    –     Age (40 and over)
    –     Ancestry
    –     Color
    –     Religion (including religious dress and grooming practices)
    –     Denial of family and medical care leave
    –     Physical or mental disability (including HIV and AIDS)
    –     Marital status
    –     Medical conditions (meaning cancerous/related health impairments and genetic characteristics)
    –     Genetic information
    –     Military and veteran status
    –     National origin (including language use restrictions and possession of driver’s license obtainable by undocumented persons)
    –     Race
    –     Sex (including pregnancy, childbirth, breastfeeding and related medical conditions)
    –     Gender, gender identity, gender expression and sexual orientation
  • Indicate that the law prohibits managers, supervisors, co-workers and third parties from engaging in conduct prohibited by the Act
  • Create a complaint process to ensure confidentiality, 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
  • Provide a complaint mechanism that does not require the employee to complain directly to his or her supervisor
  • Instruct supervisors to report complaints to a designated company representative
  • If the employer has 50 or more employees, to include this as a topic in mandated sexual harassment prevention training
  • Indicate that if the employer receives an allegation of misconduct, it will conduct a fair, timely and thorough investigation
  • Provide all parties appropriate due process, and reasonable conclusions based on the evidence collected
  • A statement that confidentiality will be kept by the employer to the extent possible, but to also indicate that the investigation will be completely confidential
  • A statement that if misconduct is found, appropriate remedial measures shall be taken
  • A provision that makes clear to employees that they shall not be exposed to retaliation as a result of lodging complaints or participating in a workplace investigation.

Employers should review and update their policies to reflect the new regulations.  The new regulations also provide that an employer may still be liable for sexual harassment even if the conduct was not motivated by sexual desire.

New Requirements for Mandatory Sexual Harassment Training for Supervisors

Prior to the amendments, the legislature already passed mandatory sexual harassment training for employers with 50 or more employees.  The amendments to the regulations impose new requirements with respect to this mandatory training.

Most significantly, the regulations now require training regarding “abusive conduct.”  The elements of the training require the following topics to be covered:

  • A discussion regarding the definition and specific elements of “abusive conduct”
  • Defining “abusive conduct” as “conduct of an employer or an employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests”
  • Emphasize that a single act shall not constitute abusive conduct unless the act is especially severe or egregious
  • Cover the negative effects of abusive conduct on the victim, others in the workplace and the employer, for example, reduced productivity and morale
  • Address in a meaningful way the prevention of abusive conduct

Examples of abusive conduct may include verbal abuse, or undermining a person’s work performance.  Employers must retain its training records for a minimum of two years and keep a complete set of the training materials, a list of attendees, the training provider, the date of the training, the sign-in sheet and copies of all certificates of attendance.

Definitions for Sex-Based Discrimination and Sexual Harassment

The regulations have also been amended to prohibit discrimination on the basis of “gender identity” and “gender expression.”  The new regulations define “gender expression” as a person’s gender-related appearance or behavior, regardless of any stereotypical perceptions associated with the person’s sex at birth.  In addition, “gender identity” is defined as a person’s identification as either male or female, regardless from and person’s sex at birth.  “Transgender” is defined as a person whose gender identity is different from the person’s sex at birth.

Revisions Regarding Pregnancy Discrimination and Pregnancy Disability Leave

The regulations related to pregnancy disability leave have also been amended with respect to the provision addressing when a woman is disabled by pregnancy, and defining who is an eligible female employee.  This has been made applicable to pregnant transgender individuals.  The regulations also clarify that a pregnancy disability leave does not need to be taken in one continuous period of time, but employees are eligible for up to four months of leave per pregnancy, not per year.

The regulations require employers to distribute and post a notice regarding the rights and obligations of pregnant employees.

Revisions Regarding Religious Creed Discrimination

The amendments to the regulations expand the definition of “religious creed” to include all aspects of religious belief, observance, and practice, including religious dress and grooming practices as defined by the Fair Employment and Housing Act.

In addition, the regulations also state that refusing to hire an applicant or terminating an employee to avoid accommodating a religious practice constitutes religious creed discrimination.  The regulations further clarify that unless the employee asks, accommodating an employee due to religion is not reasonable if it requires the employer to segregate the employee from customers or the general public.  It also makes unlawful for an employer to discriminate or retaliate against one who requests a reasonable accommodation for religion, irrespective of whether or not the request is granted.  This obligation to accommodate for religious observances, dress and grooming are extended to apply to apprentices and unpaid interns.

Amendments to Regulations Regarding Support Animals and Disability Discrimination

At the outset, the amended regulations provide that it is unlawful to discriminate or retaliate against a person for requesting reasonable accommodation based on a mental or physical disability.  The amendments also clarify that whether a “support animal” constitutes a reasonable accommodation shall, as in other contexts, be determined by “an individualized analysis reached through the interactive process.”  A “support animal” is defined 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.”  In addition, the new regulations no longer require that the support animal be trained to provide assistance for the employee’s disability.

Amendments Regarding Unpaid Interns and Volunteers

An unpaid intern and volunteer has been defined as an individual, usually a student or trainee, who works without pay in an unpaid internship or other limited duration program to provide unpaid work experience, or as a volunteer.  Under the amendments, it is unlawful for employers to discriminate in the selection, termination, training or other terms and treatment of interns.  It is also unlawful to harass unpaid interns, volunteers and persons providing services pursuant to a contract.

Discrimination Based on Undocumented Persons’ Driver’s Licenses is Prohibited

The regulations were also amended to comply with recent legislation that prohibits discrimination against applicants or employees who hold a driver’s license that can be issued to undocumented persons who are unable to submit proof that their presence in the United States is authorized under federal law.

Take-Aways

These amendments should prompt employers to review and revise their policies and to distribute them as soon as possible.

Kristine E. Kwong

Kristine E. Kwong

Email: [email protected]
Tel: +1 213 629 7977

Ms. Kwong advises and counsels clients on a wide range of business and employment issues, including wage and hour matters, non-compete and restrictive covenant agreements, executive compensation packages, the full range of disciplinary matters, discrimination, harassment and leaves of absences, including the Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), Pregnancy Disability Leave (PDL), the Americans With Disabilities Act of 1990 (ADA), and the California Fair Employment and Housing Act (FEHA). She has defended class action lawsuits in wage and hour matters, discrimination, harassment and retaliation claims.

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About Kristine E. Kwong

Email: [email protected]
Tel: +1 213 629 7977
Ms. Kwong advises and counsels clients on a wide range of business and employment issues, including wage and hour matters, non-compete and restrictive covenant agreements, executive compensation packages, the full range of disciplinary matters, discrimination, harassment and leaves of absences, including the Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), Pregnancy Disability Leave (PDL), the Americans With Disabilities Act of 1990 (ADA), and the California Fair Employment and Housing Act (FEHA). She has defended class action lawsuits in wage and hour matters, discrimination, harassment and retaliation claims.