Important Amendments to California Discrimination and Harassment Regulations

Effective April 1, 2016, significant amendments to the California Fair Employment and Housing Act (FEHA) will take effect. These impact every employer, including out of state employers, with at least 5 workers in California. Here are the critical highlights of these amendments.

Mandatory Written Anti-Discrimination/Harassment Policy

Of greatest import, the amendments require every covered employer to have a written policy that:

• Lists all FEHA protected categories (race, religious creed, color, national origin, ancestry, physical/mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation and military and/or veteran status).
• Specifies that employees are protected from discrimination or harassment from any workplace source, including third parties (vendors, customers).
• Provides a confidential complaint process that ensures a timely response, impartial investigation by qualified personnel, documentation and tracking, appropriate remedial actions and resolutions, and timely closure.
• Provides avenues for complaint other than to a direct supervisor.
• Requires supervisors to report complaints to a designated employer representative.
• States that employees will not be exposed to retaliation for making a complaint or participating in a workplace investigation.

In order to ensure that employees receive the written policy, employers may publish the policy through various means. These include: providing a copy to existing employees and during the hiring process, posting it in the workplace, and obtaining a written acknowledgement. Translation of the policy is required into every language that is spoken by at least 10% of the workforce.

Definitions

The amendments also contain definitions that are important in the context of gender discrimination.

• 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 a male, female, a gender different from the person’s sex at birth, or transgender.
• Transgender = a term for a person whose gender differs from the person’s sex at birth.
• Sex stereotyping = relying on assumptions about a person’s appearance or behavior, or making assumptions 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 gender.

Recordkeeping Requirement

Employers with 50+ employees are required to provide sexual harassment prevention training to supervisors at least every 2 years. The amendments require employers to retain materials related to this training, including sign-in sheets and course materials, for at least 2 years.

What Employers Should Do

Covered employers (5+ employees) should immediately review their policies to ensure they are in compliance with the amended regulations before April 1^st. If you have any doubt whether your business is in compliance, we recommend you contact your qualified employment law counsel.