April 1st New DFEH Requirements
The Fair Employment and Housing Council (“FEHC”) has issued new anti-discrimination and anti-harassment regulations with which almost all California employers must comply. The new regulations will go into effect April 1, 2016. Again, if you are an existing Parallax Education client, these updates have already been made to your Instructor-led anti-harassment and anti-discrimination trainings, and has been made to your web-based trainings.
New anti-discrimination and anti-harassment policies
Employers have always been required to distribute the DFEH brochure on sexual harassment (Form DFEH-185) to employees. Now they must do much more. Under the new regulations, employers must have in place anti-discrimination and anti-harassment policies that meet a panoply of requirements. The policies must:
• Be in writing.
• List the categories of individuals protected by FEHA, which are:
o Age (40 and over)
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 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
• Make clear that FEHA prohibits coworkers, third parties, supervisors and managers from engaging in discriminatory, harassing, or retaliatory conduct.
• Provide a complaint procedure that ensure that complaints are: kept confidential (to the extent possible), responded to in a timely manner, investigated by “qualified personnel” in a timely and impartial manner, and documented and tracked. The complaint procedure must also provide for appropriate remedial action and resolution and timely closure of investigations.
• Establish a complaint mechanism, such as a complaint hotline or access to an ombudsperson, that does not require an employee to complain directly to an immediate supervisor.
• Instruct supervisors to report any complaints of misconduct to a designated company representative so the company can try to resolve the claim internally.
• State that allegations of misconduct will be addressed through a fair, timely, and thorough investigation.
• State that confidentiality will be kept by the employer to the extent possible.
• Indicate that if misconduct is found during the investigation, appropriate remedial measures will be taken.
• Make clear that the company will not retaliate against employees for lodging a complaint or participating in an investigation.
Dissemination of new policies
In addition to the new substantive policy requirements, the regulations require employers to disseminate the anti-discrimination and anti-harassment policies to employees. To comply with this regulation, employers may do any one of the following:
• Provide a copy of the policies to all employees either in hard copy or by email with an acknowledgment form for employees to sign.
• Post the policies on a company intranet site and use a tracking system to ensure all employees read and acknowledge receipt of the policies.
• Discuss the policies upon hire or during new-hire orientation sessions.
The regulations also require employers whose workforce includes 10% or more non-native English-speaking employees to issue the anti-discrimination and harassment policies in each such language.
New requirements for conducting discrimination and harassment training
Anti-discrimination and anti-harassment training must now cover “abusive conduct” as defined in Government Code section 12950.1(g)(2). Among other things, the training must: cover the negative effects of “abusive conduct,” including reduction in productivity and morale; discuss the elements of “abusive conduct,” including conduct taken with malice that a reasonable person would find hostile or offensive and that is not related to an employer’s legitimate business interests; and emphasize that while a single act ordinarily will not constitute abusive conduct, it could if it is particularly severe or egregious.