The California Fair Employment and Housing Council is considering proposed amendments to the regulations interpreting the Fair Employment and Housing Act (FEHA). The draft regulations are posted at www.dfeh.ca.gov.FEHCouncil.htm. They reflect recent amendments to the FEHA itself and changes based on case law developments and accepted “best practices.” The following summarizes the most significant proposals.
Written Harassment and Discrimination Policies
The Council proposes adding a regulation requiring employers to have written policies prohibiting unlawful discrimination and harassment. The Council’s stated intent is to “distill a large amount of disjointed case law and ‘best practices’ into a concise, user-friendly regulation.”
The proposed regulation mandates that employers’ policies, among other things, list the current protected categories covered by the FEHA; state that the law prohibits harassment and discrimination by third parties, as well as co-workers, supervisors and managers; include an effective internal complaint process; ensure employees of confidentiality to the extent possible; expressly prohibit retaliation; and provide that the employer will take remedial action as appropriate.
Of note, the proposed, mandatory policy includes detailed requirements regarding investigations. The proposal would require to employer to: (1) conduct an impartial and timely investigation by qualified personnel; (2) document the reasonable progress of the investigation; (3) ensure confidentiality to the extent possible; (4) provide appropriate options for remedial actions; and (5) provide a timely response and “closure.”
The regulation requires employers to ensure that employees receive and understand the policy. There are several ways employers may distribute the policy, such as by providing a hard copy with written acknowledgment of receipt, emailing the policy with a return acknowledgement, posting the policy the intranet with a tracking system to ensure all employees read and acknowledge receipt of the policy, and discussing the policy upon new hire and orientation. The proposed regulation would also require employers to translate the policy into every language spoken by more than 10 percent of the workforce.
The proposed regulations also address sexual harassment training mandated by AB 1825. The draft regulation clarifies what training materials must be retained for a minimum of two years, including sign-in sheets, copies of certificates of attendance, written or recorded training materials (including webinars), and any written questions employees submit. The amended regulation also provides specific examples of interactive training, including quizzes, small group discussion questions, and discussing hypothetical factual scenarios. The regulation would expand the required training topics to include “potential employer/individual exposure/liability”; supervisors’ obligation to report sexual harassment, discrimination and retaliation; and strategies to prevent or correct harassing conduct.
Consistent with recent legislation, the draft regulation requires that training include information about the negative effects of “abusive conduct,” both on the victim and other employees. The regulation provides, however, that this requirement for “abusive conduct” training does not give employees a right to sue for abusive conduct unless the conduct is based on a classification protected under the FEHA, such as sex, race, national origin, age, disability, etc.
Prevention and Correction
The proposed regulations also address an employer’s duty to take reasonable care to prevent and correct discriminatory and harassing conduct under the FEHA. The regulation stresses that an employee cannot bring a “stand alone” claim of failure to prevent or correct illegal conduct, but must also plead and prove the underlying claim of discrimination, harassment or retaliation. However, the regulation provides that the Department of Fair Employment and Housing (DFEH) may independently obtain “non-monetary preventative remedies” against an employer, regardless of whether the DFEH prevails on the underlying discrimination, harassment or retaliation claim.
Sex Discrimination and Harassment
Several proposed amendments relate to discrimination based on sex. First, to conform to the FEHA, the regulations clarify that the FEHA protects everyone, not just females, from sex discrimination. They also flesh out the provisions of the Gender Non-Discrimination Act by defining the terms “gender expression,” “gender identity” and “transgender.”
The Council proposes adding a new regulation setting forth substantive principles of sexual harassment law that courts have developed over the years. For example, the new regulation describes “quid pro quo” and “hostile work environment” harassment; points out that harassment may be unlawful even when not motivated by sexual desire; provides that only severe or pervasive harassment is actionable; and stresses that employees may be personally liable for co-worker harassment even when the employer did not know or have reason to know of the harassment. According to the Council, its purpose in providing this “brief distillation of the law” is to “provide much needed guidance to employers and employees in an easy-to-understand format . . . .”
Interns and Volunteers
In response to recent legislation expanding FEHA protection to unpaid interns and volunteers, the proposed regulations define the term “employee” to include individuals who work “in any unpaid internship or another limited duration program to provide unpaid work experience, or as a volunteer.”
The draft regulations will require provide employers to ensure that their policies and procedures (1) incorporate best practices, (2) take into account the substantive legal principles that courts and the DFEH apply to employment discrimination cases, and (3) reflect the most recent amendments to the FEHA. Some of the above proposed regulations, such as abusive conduct training, will require employers to make changes or implement new policies. The regulations also may impose new requirements regarding investigations and complaint procedures. Even employers with comprehensive policies likely will have to revise them if the Council implements the proposed regulations.