New California Regulations Effective April 1, 2016 on Discrimination and Harassment Policies, Procedures, Languages, Record-Keeping, Abusive Conduct and More!

 
Tuesday, March 22, 2016
 

Summary

New regulations under the California Fair Employment and Housing Act (FEHA) require employers of 5 or more employees (note that out-of-state employees count toward the 5 employee requirement) to:
1. update anti-discrimination, anti-harassment, and complaint-investigation policies;
2. update sexual harassment prevention training;
3. disseminate and track receipt of the new policies and future training sessions;
4. provide the new policies in multiple languages where 10% of the workforce primarily speak a language other than English; and
5. provide the relevant standard for proving discrimination claims.

Written EEO Policies

The new regulations require that covered employers have written anti-discrimination and anti-harassment policies that meet all of the following requirements (2 CCR 11023(b)):

1. Is in writing;
2. Lists all current protected categories covered under the Act (see below);
3. Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act;
4. Creates a complaint process to ensure that complaints receive:
(A) An employer's designation of confidentiality, to the extent possible;
(B) A timely response;
(C) Impartial and timely investigations by qualified personnel;
(D) Documentation and tracking for reasonable progress;
(E) Appropriate options for remedial actions and resolutions; and
(F) Timely closures.
5. Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:
(A) Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
(B) A complaint hotline; and/or
(C) Access to an ombudsperson; and/or
(D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
6. Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.
7. Indicates that when an 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.
8. States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.
9. Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
10. Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.


Categories of individuals protected by FEHA:

o Age (40 and over)
o Ancestry
o Color
o Religious Creed (including religious dress and grooming practices)
o Denial of Family and Medical Care Leave
o Disability (mental and physical) including HIV and AIDS
o Marital Status
o Medical Condition (cancer and genetic characteristics)
o Genetic Information
o Military and Veteran Status
o National Origin (including language use restrictions)
o Race
o Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding)
o Gender, Gender Identity, and Gender Expression
o Sexual Orientation

How to Disseminate Policies
(2 CCR 11023(c))

The regulations provide that the policy must be disseminated by one or more of the following methods:

o Providing a printed copy with an acknowledgement form for employees to sign;
o Sending by email with an acknowledgement return form;
o Posting on an intranet site with a tracking system to ensure that everyone has read and acknowledged receipt;
o Discuss the policies upon hire or during new employee orientation; and/or
o Any other way to ensure receipt.

Language Requirement

If more than 10 percent of workers in a given location primarily speak a language other than English, employers must translate the policy into those languages. (2 CCR 11023(d))

Process for Investigating Complaints of Discrimination, Harassment and Retaliation

The regulations mandate that employers have a process for investigating complaints of discrimination, harassment, and retaliation that provides for (2 CCR 11023(b)):

o Confidentiality, to the extent possible;
o A timely response;
o An impartial investigation by a qualified investigator;
o Documentation and tracking;
o Appropriate options for remedial actions/resolutions; and
o Timely closure.


AB 1825 Supervisor Sexual Harassment Training and Record-Keeping Requirements


The regulations now provide further details regarding the proper training methods and recordkeeping of required supervisor sexual harassment trainings. The required training went into effect back in 2005 and generally requires two hours of supervisor harassment training every two years (commonly referred to as “AB 1825 supervisor harassment training”). The regulations now provide the following:

o Employers must maintain the following information related to the supervisor harassment trainings for a minimum of two years (2 C.C.R. 11024(b)(2)):

o Names of the supervisory employees trained,
o Date of training,
o Sign in sheet,
o Copy of all certificates of attendance or completion issued,
o Type of training,
o Copy of all written or recorded materials that comprise the training, and
o Name of the training provider.

o For any interactive electronic trainings (g., e-learning or webinar training), the trainer must also maintain copies of all materials, employee questions, and written responses to employee questions for two years after the training. (2 C.C.R. 11024(a)(2)).

o Clarifies that while the use of audio, video, or computer technology can be used in conjunction with classroom, webinar, or e-learning training, the use of such supplemental tools by themselves cannot fulfill the supervisor training requirements. (2 C.C.R. 11024(a)(2)).

o Outlines examples of interactive measures that can be used in the training to satisfy the requirements to assess a supervisor’s understanding of content and to ensure that the supervisor remains engaged in the training. (2 C.C.R. 11024(a)(2)). In an e-learning training a trainer must answer a supervisor’s question within two business days.

o Requires that the supervisor harassment training also cover:

o Potential exposure and liability for employers and individuals,
o Supervisors’ obligation to report sexual harassment, discrimination, and retaliation when they become aware,
o Steps necessary to take appropriate remedial measures to correct harassing behavior; and
o Review “abusive conduct” (in compliance with AB 2053 requirements that went into effect on January 1, 2015). (2 C.C.R. 11024(c)).

Trainers

A trainer shall be one or more of the following:
1. “Attorneys” admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964, or
2. “Human resource professionals” or “harassment prevention consultants” working as employees or independent contractors with a minimum of two or more years of practical experience in one or more of the following: a. designing or conducting discrimination, retaliation and sexual harassment prevention training; b. responding to sexual harassment complaints or other discrimination complaints; c. conducting investigations of sexual harassment complaints; or d. advising employers or employees regarding discrimination, retaliation and sexual harassment prevention, or
3. “Professors or instructors” in law schools, colleges or universities who have a post-graduate degree or California teaching credential and either 20 instruction hours or two or more years of experience in a law school, college or university teaching about employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.

Abusive Conduct/Bullying Training Requirements

Effective in 2015, FEHA was amended to require that employers, as part of sexual harassment prevention training, provide training on abusive conduct (i.e. bullying) in the workplace.

The new regulations specify that such training should address (2 CCR 11024(c)(2)(M):
1. the negative effects that abusive conduct has on victims and others in the workplace;
2. the detrimental consequences of abusive conduct on the employer (e.g., loss of productivity and reduced morale);
3. the elements of what constitutes abusive conduct, including conduct undertaken with malice that a reasonable person would find hostile or offensive and which is not related to an employer’s legitimate business interests; and
4. the fact that a single act does not constitute abusive conduct (unless the act is especially severe or egregious).


New and Updated Definitions of Protected Categories

The regulations also provide new and updated definitions of certain protected categories (2 C.C.R. 11030(e)):

o “Sex” has been redefined to be consistent with the definition in FEHA, that is, to include (but not be limited to): pregnancy; childbirth; medical conditions related to pregnancy, childbirth, or breast feeding; gender identity; and gender expression.
o “Gender expression” means a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
o “Gender identity” means a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.
o “Transgender” refers to a person whose gender identity differs from the person’s sex at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as “transsexual.”


Regulations Pertaining to Standard for Proving Discrimination


Several years ago, the California Supreme Court in Harris v. City of Santa Monica (2013) 56 Cal. 4th 203, clarified the standard that applies to discrimination claims under FEHA. The Harris court ruled that a plaintiff must prove that the protected category was a “substantial motivating factor” in the employment decision. The new regulations incorporate this “substantial motivating factor” standard and, consistent with Harris, provide that a “substantial motivating factor” is a factor that a reasonable person would consider to have contributed to the employment decision. Although the discriminatory factor does not have to be only cause of the decision, it must be more than a remote or trivial factor. (2 C.C.R. 11009(c))

Personal Liability for Unlawful Harassment


The regulations also incorporate a long-standing provision of FEHA dating back to 2001, which provided that any employee who engages in unlawful harassment of a co-employee is personally liable for harassment, regardless of whether the employer knew or should have known of the conduct and/or failed to take corrective action. (2 C.C.R. sec. 11019(b)(6)).

What Should Employers Do?

Employers with employees in California are advised to review, and update as necessary, their:
1. anti-discrimination and anti-harassment policies;
2. complaint and investigation policies and protocols;
3. sexual harassment and abusive conduct training programs;
4. practice of creating and maintaining records of these training programs; and
5. determine whether a language other than English is the primary language of 10% of their workforce and, if so, provide their policies to be translated accordingly.

Although a failure to comply with the new regulations is not a per se violation of FEHA, non-compliant policies and practices will be admissible as evidence of the employer’s failure to take all reasonable steps to prevent harassment and/or discrimination and/or retaliation from occurring.

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