New California Regulation Regarding Anti-Discrimination, Harassment, and Retaliation Policies Takes Effect April 1, 2016
On April 1, 2016, a new California Fair Employment and Housing Act (“FEHA”) regulation will take effect, which requires employers to establish specific anti-discrimination, harassment, and retaliation policies. (See Cal. Code Regs. tit. 2, § 11023.)
Key Information Regarding the Requirements in This New Regulation:
Under this new regulation, an employer must develop a harassment, discrimination, and retaliation prevention policy that:
1. Is in writing;
2. Lists all current protected categories covered under FEHA;
3. Explains that the law prohibits co-workers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by FEHA;
4. Creates a complaint process to ensure that complaints receive:
a. an employer's designation of confidentiality, to the extent possible;
b. a timely response;
c. impartial and timely investigations by qualified personnel;
d. documentation and tracking for reasonable progress;
e. appropriate options for remedial actions and resolutions; and
f. timely closures.
5. Includes a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, and instead identifies alternative avenues by which a complaint may be made, including:
a. a direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor;
b. via a complaint hotline;
c. to an ombudsperson; and/or
d. to the Department of Fair Employment and Housing (“DFEH”) and the U.S. Equal Employment Opportunity Commission.
6. Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally.
7. Indicates 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 reaches reasonable conclusions based on the evidence collected.
8. States that confidentiality will be maintained by the employer to the extent possible, but does not indicate that the investigation will be kept completely confidential.
9. Indicates that, if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
10. Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
The new regulation also provides that the required policy must be distributed using one or more of the following methods:
- 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 a current version of the policy on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policy;
- Discussing the policy upon hire and/or during a new hire orientation session; and/or
- Any other way that ensures employees receive and understand the policy.
Additionally, any employer whose workforce at any facility or establishment contains 10 percent or more of workers who speak a language other than English as their spoken language shall translate the policy into every language that is spoken by at least 10 percent of the workforce.
California employers must ensure that, by April 1, 2016, their existing policy prohibiting discrimination, harassment, and retaliation in the workplace meets the requirements in this new regulation. If an employer’s policy does not meet all of the requirements in the regulation (or if the employer does not have a policy), the employer’s policy must be updated (or established) by April 1, 2016. Additionally, employers must ensure that, by April 1, 2016, their employees have received a copy of the policy via one of the permissible distribution methods described in the new regulation.
Employers should also be mindful that, in addition to their new obligations under this regulation, they must still comply with their existing obligation to distribute a copy of the DFEH’s pamphlet on sexual harassment (Form DFEH-185) to employees.
Please do not hesitate to contact any of our attorneys if you have any questions regarding your company’s obligations under this new regulation or need assistance with updating (or establishing) your anti-discrimination, harassment, and retaliation policy to comply with this regulation.
 California employers with 50 or more employees are also required to include this as a topic in mandatory sexual harassment prevention training they must provide under California law.
 A copy of this pamphlet is available on the DFEH’s website, at: http://www.dfeh.ca.gov/res/docs/Publications/Brochures/2015/DFEH-185.pdf.