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by Jennifer Brown Shaw and Alayna Schroeder | The Daily Recorder | Mar 24, 2016

In late 2015, the California Fair Employment and Housing Council finalized changes to regulations addressing employment discrimination, harassment, and retaliation prevention. The new regulations are effective on April 1, 2016, and require significant changes to California employers’ related policies.

What the Policy Must Include

The regulations require employers to develop and distribute a written policy that meets certain requirements for addressing discrimination, harassment, and retaliation prevention. The policy must list all categories protected by the Fair Employment and Housing Act (FEHA). It also must specify that the law prohibits coworkers and third parties, as well as supervisor as managers, from engaging in conduct prohibited by the FEHA.

In addition, the policy must include a complaint process. The process should be designated confidential to the extent possible, and the employer must provide a timely response, conduct an impartial and timely investigation by qualified personnel, develop documentation and tracking for reasonable progress, include appropriate options for remedial actions and resolutions, and ensure timely closures.

The policy also must include a complaint mechanism that allows an employee to complain to someone other than his or her immediate supervisor, such as an organizational representative (e.g., human resources manager or EEO officer), either orally or in writing; a complaint hotline; an ombudsperson; and/or the Department of Fair Employment and Housing or the U.S. Equal Employment Opportunity Commission (the state and federal government agencies that investigate and enforce many EEO laws). The policy should instruct supervisors to report complaints of misconduct to a designated employer representative, such as a human resources manager, so the employer can try to resolve the claim internally.

The policy must also address the employer’s investigation and response. The policy should state that when the employer receives allegations of “misconduct,” it will conduct a fair, timely, and thorough investigation that provides all parties “appropriate due process” and “reaches reasonable conclusions based on the evidence collected.” And, the policy should include a provision stating that the employer will keep the information confidential to the extent possible, but not that the investigation will be completely confidential. The policy must commit the employer to taking appropriate remedial measures if “misconduct” is found, and make clear that employees will not be subject to retaliation for bringing a complaint or participating in the investigation of a complaint.

Procedural Requirements

Employers must disseminate the policy either by printing it with an acknowledgment form for the employee to sign and return, sending it via e-mail with an acknowledgement form, posting it on an intranet site with a tracking system that ensures employees have read and acknowledged receipt, discussing policies upon hire and/or during new hire orientation, or distributing it another way that ensures employees receive and understand it. If an employer’s workforce at any location contains 10 percent or more of employees who speak a language other than English, the employer must translate the policy into that language.

Other Changes

The regulations make other significant changes, as well, including changes to mandatory sexual harassment training. In addition to new recordkeeping obligations, the changes specify additional content that must be included in such training—specifically, supervisors’ obligation to report discriminatory, harassing, or retaliatory conduct, and a comprehensive review of “abusive conduct,” which the legislature mandated be part of such training last year.

The regulations also broaden the applicability of the FEHA to employers with five or more employees in any location, not just in California, including employees on leave or suspension. (However, the law only protects employees when wrongful conduct occurs in California and is not “ratified by decision makers or participants outside California.”) Additionally, the regulations also incorporate changes to the law that have developed as a result of cases and legislation within the last few years.

Finally, to enforce the prohibition on discriminating against an individual for having a driver’s license obtained without proof of lawful presence in the United States, the regulations also specify that an employer cannot require an employee to present a driver’s license unless required by state or federal law or when otherwise permitted by law (e.g., a driver’s license is needed to perform an essential function of the job).

Unanswered Questions

Unfortunately, the regulations leave many questions unanswered. For example, the regulations do not define the term “misconduct,” or even specify that the alleged misconduct—which supervisors must report and employers must investigate—must be related to illegal discrimination, harassment, or retaliation. Additionally, the regulations do not provide guidance as to the appropriate level of investigation based on the circumstances. The regulations also do not specify whether the acknowledgement must be a standalone document, versus a general handbook acknowledgement, the format many employers use to distribute their policies. Nor do they indicate whether an employer with an existing policy that does not include all the required elements must immediately issue a new, compliant policy.

Also, the new regulations do not specifically address potential liability for failing to meet the policy requirements. However, they do specify that while there is no standalone, private cause of action for an employer’s failure to take reasonable steps to prevent and correct discriminatory and harassing conduct (unless the employee prevails on the underlying discrimination, harassment, or retaliation claim), the DFEH may still independently seek non-monetary preventative remedies. In other words, failure to comply with the specific policy requirements, at the very least, may subject an employer to the DFEH’s scrutiny.

What Employers Must Do

Given these ambiguities, the breadth of these changes, as well as the relatively short notice, employers should work with employment counsel to develop comprehensive strategies for ensuring compliance with the new regulations. Employers without existing EEO policies should develop them, and all employers should ensure their complaint and investigation procedures comply with the new requirements.