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New Anti-Discrimination and Anti-Harassment Regulations in California

When do these regulations go into effect?

· April 1, 2016

What must California employers do to comply?

· Ensure they have written policies that comply with the new regulations

· Disseminate these policies in one or more of the manners described below

· Continue to disseminate Form DFEH-185

· Ensure proper complaint and investigation procedures are in place (in the manners described below)

· Ensure supervisors and human resources personnel receive proper training on the new regulations so all inquiries and complaints are addressed appropriately

Expanded Definition of Covered Employer under the Fair Employment and Housing Act

· The new regulations clarify the requirements apply to employers who employ five or more individuals, regardless of whether an employee's worksite is located within or outside California

o Out of state employees count toward the 5-employee requirement.

o Thus, if a company has 3 employees in California and 3 employees in New York, the company is subject to FEHA and may be sued

o Part-time employees and those on leave count toward the 5-employee requirement

New Anti-Discrimination and Harassment Policies

· Employers still must distribute DFEH (Form DFEH-185) brochure on sexual harassment

· In addition, new policies must comply with the following:

· Policies must be in writing

· Policies must list the following categories of people who are protected by FEHA.

o Race

o Religious Creed

o Color

o National Origin

o Ancestry

o Disability (mental and/or physical)

o Medical Condition

o Genetic Information

o Marital Status

o Sex

o Gender

o Gender Identity

o Gender Expression

o Age (40 and over)

o Military and Veteran Status

o Sexual Orientation

o Denial of Family and Medical Care Leave

o Any other basis protected by applicable federal, state and local laws

· Policies must expressly state that the employer prohibits unlawful discrimination, harassment, and retaliation by any supervisor, manager, coworker, and/or other third party that comes into contact with an employee

· Policies must provide a complaint procedure that ensures complaints are:

o Kept confidential

o Responded to in a timely fashion

o Investigated by qualified personnel in a timely and impartial manner

· Policies must provide that the complaint procedure:

o Provides for appropriate remedial action and resolution and timely closure of investigations

o Establishes a complaint mechanism(s), such as:

§ A complaint hotline

§ One that allows for direct communication with a designated company representative, such as a human resources manager, an equal employment opportunity officer or other supervisor, an ombudsperson, or through a federal or state agency

§ Does not require an employee to complain directly to an immediate supervisor or any specific personnel (since that individual may be the subject of the complaint)

§ Allows employees to complain either verbally or in writing

· Policies must direct supervisors to report complaints of misconduct to a designated company representative in attempt to resolve the matter internally

· Policies must state that allegations of misconduct will be handled fairly and timely through a thorough investigation, as well as documented and tracked to ensure reasonable progress

· Policies must state that confidentiality will be kept by the employer to the extent possible

· Policies must state that appropriate remedial measures will be taken if the investigation reveals misconduct has occurred

· Policies must set forth that the company will not retaliate against employees for submitting complaints or participating in an investigation

Communication and Distribution of New Policies

Employers must disseminate the anti-discrimination and anti-harassment policies to employees, including any of the following manners:

· Provide a copy to all employees via hard copy or email with an acknowledgment form for employees to sign

· Post the policies on a company intrasite and use a tracking system to make sure all employees read and acknowledge receipt of the policies

· Discuss the policies upon hire or during new-hire orientation sessions

· Any other way that ensures employees receive and understand the policies

Employers whose workforce includes 10% or more non-native English-speaking employees must issue the policies in such language

Discrimination and Harassment Training

· California law already required covered employers to provide regular and legally compliant training to supervisors

· Training must now cover abusive conduct, as defined by Government Code section 12950.1 (g)(2)

· Training must cover the negative effects of abusive conduct, such as decrease in morale and productivity

· Training must discuss the elements of abusive conduct

o Conduct done with malice that a reasonable person would find hostile or offensive that is not related to an employer's legitimate business interest

· Emphasize that while a single does not typically constitute abusive conduct, it may if it is particularly severe or egregious

New Definitions for Gender Identity, Gender Expression, and Transgender

· 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 male, female, a gender different than the person's sex at birth, or transgender

· Transgender - a person whose gender identity differs from the person's sex at birth

Non-Monetary Preventative Remedies Against Employer

· Even in the absence of underlying discrimination or harassment, non-monetary preventative remedies may be issued against employers

· The DFEH may elect to pursue non-monetary preventative remedies for failure to prevent discrimination or harassment, regardless of whether the DFEH prevails on an underlying claim of discrimination or harassment

For any questions regarding the new DFEH requirements or any other employment or labor relations inquiries, please contact any of our attorneys at Sagaser, Watkins & Wieland PC at (559) 421-7000.

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