California Employers: New Harassment and Discrimination Regulations Go Into Effect April 1, 2016

CALIFORNIA EMPLOYERS: NEW HARASSMENT AND
DISCRIMINATION REGULATIONS GO INTO EFFECT APRIL 1, 2016

By Virginia K. Young, Gayle M. Athanacio and Sharon Rossi

Several amendments to the Fair Employment and Housing Act (“FEHA”) regulations addressing work-related discrimination, harassment and retaliation take effect April 1, 2016. While many of the changes to the regulations simply clarify existing law and reiterate best practices already put in place by many employers, several of the changes, highlighted below, are noteworthy. Employers with a California presence should familiarize themselves with these changes and ensure that their policies and handbooks are in step with these amended regulations.

HARASSMENT AND DISCRIMINATION PREVENTION AND CORRECTION

Written Policy Required

While the majority of California employers already have written anti-harassment and discrimination policies, the amended regulations clarify that as part of the employer’s affirmative duty to prevent and correct violations of the FEHA, employers are required to maintain a written discrimination, harassment and retaliation prevention policy. This requirement is in addition to the existing requirement that employers distribute the DFEH Form 185 on sexual harassment. The amended regulations detail the required contents of these policies; how employers must distribute them; and when employers must translate these policies into different languages.

Specifically, written policies must:

1. List all current protected categories covered under the FEHA;
2. Prohibit coworkers and third parties, as well as supervisors and managers, from engaging in prohibited conduct;
3. Include a complaint process that does not require an employee to complain directly to his or her immediate supervisor, but instead, provides for one or more of the following:

• • Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; or
  • A complaint hotline; access to an ombudsperson; or
  • Identification of the DFEH and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.

4. Require supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager;
5. Indicate that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reach reasonable conclusions based on the evidence collected;
6. Indicate that confidentiality will be kept by the employer to the extent possible, but not state that the investigation will be completely confidential;
7. Note  that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken; and
8. Prohibit retaliation against employees who lodge complaints or participate in any workplace investigation.

The regulations give employers alternative methods to distribute these policies.  They can be distributed by:

• Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
• Sending the policy via e-mail with an acknowledgment return form;
• Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;
• Discussing policies upon hire and/or during a new hire orientation session; and/or
• Any other way that ensures employees receive and understand the policies.

Employers should also note the policy must be translated into any language spoken by at least 10% of the workforce.

Guidelines for Harassment Training for Supervisors

For many years, employers of more than 50 employees have been required to provide harassment training to all supervisors (“AB1825 Training”). Last year, the FEHA statute was amended to require that this training include a segment on preventing “abusive conduct.” However, employers were given no guidance as to what type content was necessary to satisfy this training, other than the following definition of “abusive conduct”:

Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

The revised regulations are intended to provide some guidance as to the type of content that should be included to address “abusive conduct.” Specifically, training on prevention of “abusive conduct” should:

• Explain the negative effects that abusive conduct has on the victim of the conduct as well as others in the workplace;
• Include information about the detrimental consequences of this conduct on employers;
• Specifically discuss the elements of “abusive conduct,” including conduct undertaken with malice that a reasonable person would find hostile or offensive and that is not related to an employer’s legitimate business interests (including performance standards);
• Include examples of what type of behavior constitutes abusive conduct, such as repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance; and
• Emphasize that a single act shall not constitute abusive conduct, unless the act is especially severe or egregious.

The regulations additionally note that “[w]hile there is not a specific amount of time or ratio of the training that needs to be dedicated to the prevention of abusive conduct, it should be covered in a meaningful manner.”

Notably, the regulations also include additional recordkeeping obligations: starting April 1, 2016, employers must keep sign in sheet, certificates of attendance and training materials in addition to the previously required records of names of attendees, date and type of training, and training provider.

Employers who are required to provide AB 1825 training (i.e., employers with 50 or more employees) should make sure their programs and recordkeeping practices are consistent with these regulations.

COUNTING EMPLOYEES FOR FEHA COVERAGE

Although FEHA’s prohibition against harassment apply to all employers, FEHA’s discrimination provisions only apply to employers “regularly employing” five or more individuals. (The phrase “regularly employing” refers to the number of individuals employed by the employer each working day in any twenty consecutive calendar weeks in the current calendar year or preceding calendar year). The new regulations make clear that all employees are included in this count, including part-time employees, employees on paid or unpaid leave, and employees whose worksite is located within or outside of California.

Practically speaking, this means that an employer with two employees in California and three in Nevada is a FEHA-covered employer for all purposes, and cannot avoid a discrimination or retaliation suit by one of the California employees by arguing it does not employ five or more employees. The good news is that the regulations specifically state (in accordance with applicable case law) that this method of determining employer coverage under the FEHA does not mean that employees located in other states can avail themselves of the FEHA remedies, unless the wrongful conduct occurs in California, or is ratified by decision makers located in California.

Nonetheless, assuming an employer is not covered by the FEHA—or any other employment statute—because the employer does not have enough employees can be a tricky business. This is particularly true where multiple related entities, work locations or employers are involved.

Guidance on National Origin Discrimination And Drivers’ Licenses

Effective January 1, 2015, the FEHA was amended to specifically prohibit, as a form of national origin discrimination, discrimination against an employee or applicant because he or she holds a driver’s license issued under section 12801.9 of the Vehicle Code (which allows certain individuals to obtain valid driver’s licenses even if they are unable to prove that their presence in the U.S. is lawful under federal immigration laws). The new regulations attempt to clarify this amendment by reiterating that discrimination based on this type of driver’s license is not permitted, and reminding employers that requiring an applicant or employee to present or hold a driver’s license where a license is not needed to perform an essential function or required by state or federal law, or failing to apply a requirement consistently, may be evidence of a FEHA violation.

UPDATED DEFINITIONS:

Interns and Unpaid Volunteers

As most California employers know, the FEHA was amended in 2015 to expressly protect interns against discrimination; and to protect interns and volunteers against harassment based on any protected category. The new regulations add the following definition of “unpaid interns and volunteers”:

any individual (often a student or trainee) who works without pay for an employer or other covered entity, in any unpaid internship or another limited duration program to provide unpaid work experience, or as a volunteer. Unpaid interns and volunteers may or may not be employees.

Employers who have unpaid interns and volunteers should make sure that their policies are up to date and that unpaid interns and volunteers receive a copy of anti-harassment and anti-discrimination policies as appropriate.

Sex Discrimination

The new FEHA regulations add definitions of gender identity, gender expression and transgender, which were all specifically enumerated as protected categories under the FEHA in 2011.

• “Gender expression” means a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
• “Gender identity” means a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.
• “Transgender” is a general term that refers to a person whose gender identity differs from the person’s sex at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth.  A transgender person may or may not identify as “transsexual.”

Employers should make sure their written policies and practices are consistent with these definitions.

UPDATED GUIDELINES RE REASONABLE ACCOMMODATION

Religious Accommodation

In 2012, the FEHA was amended to require reasonable accommodation of religious beliefs or practices. The new regulations now specifically reference reasonable accommodation of religious beliefs in their “Reasonable Accommodation” section (section 11062) and, consistent with current case law, state that it is unlawful to discriminate or retaliate against a person for requesting reasonable accommodation based on religion, regardless of whether the employer granted the request.

Support Animals and Reasonable Accommodation

Employers faced with employees’ requests to bring their service animals to work are often confused about how to proceed. The new regulations attempt to clarify matters by refining the definition of a “support animal” as “one that provides emotional, cognitive, or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression.”

Importantly, the regulations remind us that a request to bring an assistive animal to work is requires an individualized interactive process – as does any request for accommodation of a disability. As the DFEH stated in its initial statement of reasons, the amendment is:

necessary to preclude a blanket rule permitting all support animals in the work place and to encourage employers and employees to engage in than interactive process to determine whether a particular support animal is in fact reasonable and appropriate in a particular work setting.

Employers should be sure that their policies and practices reflect applicable reasonable accommodation requirements, and be mindful that an individualized approach is required for all reasonable accommodation requests.

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If you have any questions regarding the material in this update, please contact the Rogers Joseph O’Donnell attorney with whom you regularly work, or the authors of this legal update.

RJO’s Labor & Employment Law Practice Group is comprised of experienced labor and employment attorneys who regularly represent and advise employers, big and small, in a wide variety of industries.

The content of this article is intended to provide a general guide to the subject matter, and is not a substitute for legal advice in specific circumstances.