On April 1, 2016, California will institute amended anti-discrimination regulations as part of the Fair Employment and Housing Act (“FEHA”). The new regulations broaden the scope of FEHA, including the definition of covered employers and the legal requirements for those employers. The new regulations also expand the categories of employees protected by FEHA. Compliance with these amended regulations will require employers to put additional resources and effort towards training employees and preventing discrimination. At first blush, employers may consider these new FEHA requirements onerous, but implementing the 5 steps below may provide an employer with stronger legal defenses.
Step 1: All Employers, Including Those Outside California, Should Check to See if They are Covered by the FEHA Amendments
The amended FEHA regulations expand the definition of “covered employer” by including companies who have a total of five employees, even if they have less than five employees in the State of California. This change will impact out of state employers with five or more employees who have any employees within California. All employers, including those who are headquartered outside of California, should check whether they fall within this new definition.
Step 2: Identify Additional Individuals Now Protected Under these Amendments
FEHA protections against discrimination and harassment now apply to unpaid interns and volunteers. While the revisions do not go as far as to designate these individuals as employees, for the purposes of FEHA, they must receive the same information and treatment as employees.
Step 3: Broaden Your Definitions for Gender Discrimination
FEHA now includes additional types of gender discrimination, including:
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 a gender different from the person’s sex at birth;
Transgender - a general term for a person whose gender identity differs from the person’s sex at birth;
Sex Stereotyping - or making assumptions about an individual’s ability or inability to perform certain kinds of work based on appearance, myth, social expectation, or generalization about the individual’s gender.
Step 4: Employers Must Update and Redistribute Their Policies
Historically, in California, only sexual harassment policies have had to be in writing. Now, all anti-discrimination and anti-harassment policies must be in writing and must include:
Categories of individuals protected by the FEHA;
All employees and third parties are prohibited from engaging in discrimination, harassment or retaliation;
A confidential, internal complaint procedure that includes specific remedial measures and provides an alternative method to file a complaint other than contacting a direct supervisor;
Instructions to supervisors on how to report complaints of misconduct;
Assurances that allegations of misconduct will be addressed through a fair, timely and thorough investigation; and
Guarantees that the company will not retaliate against employees for lodging a complaint or participating in an investigation.
Once the policies have been updated, ensure that the new policies are distributed to all employees, unpaid interns and volunteers. If appropriate, post on the company intranet site. Provide a signature page or acknowledgment of receipt to ensure receipt by all individuals and retain such records
If more than 10% of the company workforce speaks a primary language other than English, employers should translate and distribute the policies in that language.
Step 5: Training is the Cornerstone of Prevention
Employers should make sure to provide training to all employees regarding these new policies and issues raised by the FEHA amendments, including proper complaint and investigation procedures. Further, employers should include all written new policies in new-hire paperwork during the onboarding process and train appropriate personnel to respond to potential complaints.