California Employers Must Update EEO Policies by April 1, 2016

New regulations under the California Fair Employment and Housing Act (FEHA) require employers of five or more employees to update anti-discrimination, anti-harassment, and complaint-investigation policies; update sexual harassment prevention training; disseminate and track receipt of the new policies and future training sessions; and provide the new policies in multiple languages where 10% of the workforce primarily speak a language other than English. The new regulations also confirm the relevant standard for proving discrimination claims. Read on for a list of what needs to be done to comply with the new regulations:  

Written EEO Policies

The new regulations require that covered employers have written anti-discrimination and anti-harassment policies that meet all of the following requirements:

• List all current protected categories under FEHA;
• Indicate that FEHA prohibits not only supervisors and managers from engaging in prohibited conduct, but also co-workers and third parties (as a reminder, FEHA also prohibits discrimination and harassment of volunteers, unpaid interns, and individuals in apprenticeship training programs, and prohibits harassment of independent contractors);
• Specify someone to whom an employee can complain in addition to the employee’s direct supervisor, i.e., another company representative, a confidential hotline, and/or  the California Department of Fair Employment and Housing and the Equal Employment Opportunity Commission;
• Instruct supervisors to report complaints to Human Resources or another designated company contact;
• State that when complaints are received, the company will conduct a fair, timely, and thorough investigation;
• State that confidentiality will be kept to the extent possible, but not that the investigation will be kept completely confidential;
• State that appropriate remedial measures will be taken if misconduct is found to have occurred; and
• Make clear that employees will not be exposed to retaliation for making complaints or participating in an investigation.

The regulations provide that the policy must be disseminated by one or more of the following methods:

• Providing a printed copy with an acknowledgement form for employees to sign;
• Sending by email with an acknowledgement return form;
• Posting on an intranet site with a tracking system to ensure that everyone has read and acknowledged receipt;
• Discussing on hire or during new employee orientation; and/or
• Any other way to ensure receipt.

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

Complaint Process

The regulations mandate that employers have a process for investigating complaints of discrimination, harassment, and retaliation that provides for:

• Confidentiality, to the extent possible;
• A timely response;
• An impartial investigation by a qualified investigator;
• Documentation and tracking;
• Appropriate options for remedial actions/resolutions; and
• Timely closure.

Sexual Harassment Prevention Training Requirements and Record-Keeping

FEHA has long mandated that employers with 50 or more employees provide sexual harassment prevention training to new supervisors within 6 months of being hired or promoted to supervisor and then again, once every two years.  The new regulations require that:

• E-learning trainers maintain for a period of two years all written questions received and written responses or guidance provided;
• Employers providing webinar training maintain for two years a copy of the webinar, all written materials, and all written questions and responses or guidance provided;
• Employers maintain for two years not only the date and type of training provided along with the names of employees attending, but also the sign-in sheets, copies of all certificates of attendance/completion issued, and any written or recorded materials comprising the training; and
• In addition to the topics that previously had to be included, training also must: (1) cover supervisors’ obligations to report instances of harassment or retaliation of which they become aware; (2) strategies for preventing harassment, and (3) steps for taking appropriate remedial measures to correct harassing behavior.

Effective in 2015, FEHA was amended to require that employers, as part of sexual harassment prevention training, provide training on abusive conduct (i.e. bullying) in the workplace. The new regulations specify that such training should address: (1) the negative effects that abusive conduct has on victims and others in the workplace; (2) the detrimental consequences of abusive conduct on the employer (e.g., loss of productivity and reduced morale); (3) the elements of what constitutes abusive conduct, including conduct undertaken with malice that a reasonable person would find hostile or offensive and which is not related to an employer’s legitimate business interests; and (4) the fact that a single act does not constitute abusive conduct (unless the act is especially severe or egregious). 

New and Updated Definitions of Protected Categories

Although the new regulations concerning written employer policies are the most significant, the regulations also provide new and updated definitions of certain protected categories. Specifically:

• “Sex” has been redefined to be consistent with the definition in FEHA, that is, to include (but not be limited to): pregnancy; childbirth; medical conditions related to pregnancy, childbirth, or breast feeding; gender identity; and gender expression.
• “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” 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.”

Regulations Pertaining to Drivers’ Licenses Issued to Undocumented Persons

FEHA was amended last year to make it unlawful for an employer to discriminate against an applicant or employee because he or she holds a driver’s license issued under section 12801.9 of the California Vehicle Code -- licenses issued to undocumented individuals. The new regulations state that employers may require an applicant or employee to hold or present any form of driver’s license only if:

• Possession of a driver’s license is required by state or federal law for the position in question; or
• Possession of a driver’s license is uniformly required by the employer and is otherwise permitted by law, although such a policy may be evidence of a violation of FEHA if the policy is not uniformly applied or is not justified by legitimate business reasons.

Regulations Pertaining to Standard for Proving Discrimination

Several years ago, the California Supreme Court in Harris v. City of Santa Monica (2013) 56 Cal. 4th 203, clarified the standard that applies to discrimination claims under FEHA. The Harris court ruled that a plaintiff must prove that the protected category was a “substantial motivating factor” in the employment decision. The new regulations incorporate this “substantial motivating factor” standard and, consistent with Harris, provide that a “substantial motivating factor” is a factor that a reasonable person would consider to have contributed to the employment decision. Although the discriminatory factor does not have to be only cause of the decision, it must be more than a remote or trivial factor.

What Should Employers Do?

Employers with employees in California are advised to review, and update as necessary, their: (1) anti-discrimination and anti-harassment policies; (2) complaint and investigation policies and protocols; (3) sexual harassment and abusive conduct training programs; (4) practice of creating and maintaining records of these training programs; and (5) determine whether a language other than English is the primary language of 10% of their workforce and, if so, provide their policies to be translated accordingly.  Although a failure to comply with the new regulations is not a per se violation of FEHA, non-compliant policies and practices will be admissible as evidence of the employer’s failure to take all reasonable steps to prevent harassment and/or discrimination and/or retaliation from occurring.