On April 1, 2016 the new amendments to the Fair Employment and Housing (FEHA) anti-discrimination regulations will take effect. Although the substantive law has not changed, the amendments provide new requirements that employers must comply with, as well as new definitions around gender. Here is what employers should know:
Anti-Harassment Policy Now Mandatory
While most California employers have adopted anti-harassment policies in the workplace, the FEHA amendments now make this policy mandatory. In addition, the new regulations specify certain conditions that employers must follow. Starting April 1, every California employer must have a written harassment, discrimination, and retaliation prevention policy that:
- Lists all protected categories under FEHA;
- Mentions that employees are protected from illegal conduct from any workplace source–including third parties who are in the workplace;
- Establishes a confidential and timely complaint process that ensures impartial investigation by qualified personnel, accurate documentation, and appropriate remedial actions and solutions;
- Informs employees about other personnel who can receive their complaint, other than a direct supervisor;
- Requires supervisors to report claims of misconduct to a designated company representative; and
- Guarantees no retaliation if employee makes a complaint or cooperate in a workplace investigation
The employer must publicize their policy by providing a copy upon hire, obtaining written acknowledgment from each employee who receives the policy, and posting it in the workplace. In addition, the policy must be translated if more than 10% of the workplace speaks another language besides English.
Sexual Harassment Training Record Keeping
The amendments state that there must be a two-year requirement for retaining all sexual harassment training materials. This includes sign in sheets, training questions, and course materials.
New Definitions Around Gender
The new regulations define several terms regarding gender discrimination, including:
- Gender expression: a person’s gender-related appearance or behavior, regardless if it is stereotypically associated with person’s sex at birth
- Gender identity: a person’s identification as male, female, a gender different from the person’s sex at birth
- Transgender: a person whose gender identity differs from the person’s sex at birth
- Sex stereotyping: relying on assumptions about a person’s appearance or behavior. Making assumptions about a person’s ability to perform certain work based on gender generalizations.
Next Steps for Employers
California employers should re-examine their polices and procedures to comply with the new amendments. We recommend that employers distribute any amended policies to employees and perform the appropriate trainings so that employees are aware of the workplace guidelines.
If you have any questions about your obligations or compliance as an employer, please contact us at firstname.lastname@example.org or reach out to your Mitzel Group, LLP attorney directly.