January 21, 2021

Volume XI, Number 21

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Employers Should Ensure Their Policies Comply with the Recent Amendments to the California Fair Employment and Housing Act

The Amendments to the California Fair Employment and Housing Act (FEHA) regulations that went into effect on April 1, 2016, provide helpful guidance to employers and further clarify the requirements of California law prohibiting harassment, discrimination and retaliation under FEHA. Employers should be aware of several important changes to the FEHA regulations as described here.

Employers Must Have a Written Policy Prohibiting Discrimination, Harassment and Retaliation.

Pursuant to the amended regulations, this policy should meet all of the following requirements:

  • List all currently protected categories under FEHA, which include race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, sexual orientation, gender, gender identity, gender expression, age (40 and over), and military and veteran status.
  • Specify that employees are protected from unlawful workplace conduct not only by co-workers, supervisors and managers but also by third parties such as volunteers, interns, customers, vendors and independent contractors. 
  • Create a confidential complaint process that ensures employees that an investigation will be treated confidentially, to the extent possible. Employees also should be informed that they will receive a timely response; the employer will conduct a fair and impartial investigation by qualified personnel; the investigation will be documented and tracked to make certain it is progressing in a timely manner; and there will be appropriate remedial actions if misconduct is found, as well as a timely closure to the investigation. 
  • Make clear that employees and others involved will not be retaliated against as a result of making a complaint or participating in any workplace investigation.
  • Inform employees that there are several ways to lodge a complaint under the policy, and be clear that not all complaints must be directed to the employee’s direct supervisor. Other avenues may include designating a company representative or ombudsperson to receive the complaint, establishing a complaint hotline, and/or providing information regarding the California Department of Fair Employment and Housing and the Equal Employment Opportunity Commission.
  • Specify that the complaint need not be in writing; employees are free to complain either verbally or in writing.
  • Require supervisors to report any complaints of misconduct to a designated company representative. 

Employers Should Disseminate the Policy through Appropriate Means.

  • The FEHA regulations provide that the policy prohibiting discrimination, harassment and retaliation must be disseminated by one or more of the following methods:
  • Providing employees with a printed copy, including an acknowledgement form for employees to sign
  • Sending the policy via email with an acknowledgement return form
  • Including information regarding the policy and discussing it during employee new hire orientation
  • Posting on the company’s intranet site with an appropriate tracking system designed to ensure all employees have read and acknowledged receipt
  • Any other method designed to ensure receipt of the policy.

Employers Must Translate These Policies

If more than 10 percent of employees in a given location primarily speak a language other than English, employers must translate the policy into those languages.

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© 2020 Wilson ElserNational Law Review, Volume VI, Number 159
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Wilson Elser forms strategic alliances with our clients to help them manage and navigate the ever-changing legal and legislative regulatory terrain of employment and labor law.

Fueled by increasing use of social media in the workplace, recent Supreme Court rulings, dramatic changes in EEOC regulations and the ever-broadening scrutiny of the U.S. Department of Labor, today’s employers face formidable challenges including an inevitable surge in employment claims.

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