New regulations require updates to discrimination policies and harassment training

By: Brian E. Ewing, Esq.

Click here to download the revised Employee Relations Policy in PDF format

The California Department of Fair Employment and Housing (“DFEH”), which enforces the state’s anti-discrimination laws, has issued new regulations that take effect April 1, 2016.  The updated regulations provide new details about implementing several aspects of the state laws prohibiting discrimination and harassment in employment.  Most notably, companies should closely examine their anti-discrimination policies to insure they include specific language mandated by the regulations and will need to adjust their mandatory anti-harassment training programs and record retention practices related to those training programs.  The new regulations also incorporate other recent laws passed by the legislature.

New language to include in your anti-discrimination policies and requirements relating to how to distribute policies to your employees

In addition to distributing the DFEH 185 brochure to all new employees, employers must also have separate written anti-discrimination policies listing every single protected category under the law.  Currently, these protected categories are: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and veteran status.  In the future, when the legislature deems it appropriate to add new categories, policies will likely have to be updated.  Companies must also include all of the following information in their anti-discrimination policies:

• Language stating coworkers and third parties with whom the employee comes into contact, as well as supervisors and managers, are prohibited from discriminating against, retaliating against, or harassing employees.
• A description of the company’s complaint process for reports of discrimination, harassment, or retaliation.
• An alternate way for employees to file complaints other than filing a complaint with their direct supervisor. This could be: a designated human resources manager, EEO officer, or other supervisor, a complaint hotline, an ombudsperson, or a statement in the policy that the employee can file a complaint with the DFEH or the EEOC.  (We highly recommend designating a company representative to address complaints, but the person chosen must be reliable enough to handle the complaints competently.)
• A requirement that supervisors report any complaints of misconduct they receive to a designated company representative, such as a human resources manager. (Employers with 50 or more employees are also required to include this as a topic in anti-harassment training.)
• Language that indicates that when the company receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and will reach a reasonable conclusion based on the evidence collected.
• Language that states that the company will maintain confidentiality to the extent possible, but does not require that the investigation be completely confidential.
• A statement that if misconduct is found, appropriate remedial measures shall be taken.
• Language that makes clear that employees shall not be exposed to retaliation as a result of filing a complaint or participating in any workplace investigation.

The complaint process must allow for verbal as well as written complaints, and must ensure the employee who files a complaint receives:

• Confidentiality, to the extent possible,
• A timely response to the complaint,
• An impartial and timely investigation by qualified personnel,
• Documentation and tracking of the progress of the investigation,
• Appropriate options for remedial actions and resolutions, and
• Timely completion of the investigation.

The regulations require that this comprehensive written anti-discrimination policy be distributed to employees in one or more of the following ways:

• 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.

The regulations also require that policies be distributed in every language spoken by at least 10% of the workforce, if those employees’ “spoken language” is not English.  The regulations do not define “spoken language” and this portion of the rule was changed from “primary language” to “spoken language”, which in our view makes it vague, but it is probably safe to use “primary language” as the standard for this requirement.

New requirements for anti-harassment training

The regulations impose the following additional documentation requirements for mandatory sexual harassment training, which companies should ensure are being followed even if they use outside vendors:

• For computer based training, the trainer must retain all written questions received during the training.
• For webinars, the company shall maintain the webinar, all written materials used, all questions asked during the webinar and all responses provided, for two years.
• Companies should retain sign-in sheets, certificates of attendance or completion issued, and written or recorded materials used in the training for two years, as well as documentation of the date, and type of training and the name of the training provider.

The training should also include the following material, in addition to the requirements already listed in prior regulations:

• Pre- or post-training quizzes, small group discussion questions or scenarios, hypothetical fact scenarios, or any other activity that ensures interactive participation of the attendees. (Interactive elements were already required in training, but the new rules provide these specific examples of what can be utilized to encourage attendee participation.)
• A “meaningful” discussion of the negative effects of abusive conduct, including a review of the definition of abusive conduct (this is also required by a recent law),
• Information on potential employer and individual liability, including the fact that individuals as well as employers can be held responsible for their harassing conduct,
• Discussion about a supervisor’s obligation to report discrimination, retaliation and harassment, and
• Remedial steps to correct harassing behavior.

Other new regulations regarding gender identity, pregnancy, religious creed, and service animals  

The new regulations include broad new definitions of gender expression and gender identity.  Employers need to be sensitive to employees who fall under these protected characteristics.

The new regulations include more details about employees’ rights when they are pregnant or new mothers.  First, the prohibition against discriminating based on pregnancy includes a prohibition of discriminating against mothers who are breastfeeding.  Also, pregnant women are entitled to four months of unpaid pregnancy leave per pregnancy, not per year.  That leave need not be taken all at one time.  Employers are now required to include in their pregnancy disability leave notices information about employees’ rights to reasonable accommodations of pregnancy, including job transfer (at the employee’s option), and the right to take unpaid leave, in a conspicuous place on the premises, or electronically “in a conspicuous place or a place where employees would tend to view it.”  This notice must also include the employee’s obligation to give the company reasonable advance notice of the need to take leave, and the employer’s requirement for medical certification, if any. The posting can be electronic as long as it is in a “conspicuous place.”  The company’s next revision of its handbook must also include policies addressing reasonable accommodation of pregnancy, the right to job transfers, and the right to take unpaid leave.  The policy, like the general anti-discrimination policy, must be distributed to employees in every language that is a “spoken language” of at least 10% of the workforce.

The new regulations also incorporate new changes to the laws prohibiting religious discrimination.  Because of those changes, companies are required to grant reasonable accommodations for religious creed.  “Religious creed” encompasses “all aspects of religious belief, observance, and practice.”  A reasonable accommodation is one that “eliminates the conflict between the religious practice and the job requirement.”  The new regulations explicitly state (as did a recent bill passed by the legislature) that these protections include reasonable accommodations of religious dress and grooming.  The regulations prohibit employers from refusing to hire someone simply to avoid granting a reasonable accommodation of the applicant’s religious creed.  They also specifically note that segregating an employee from customers or other employees is not a reasonable accommodation.  The new rules also require a company’s “dress and grooming standards”, in other words, the dress policy, be “flexible enough to account for religious practices.”  Also, the changes in the rules reinforce the requirement to not discriminate against an employee for requesting a reasonable accommodation of religion, even if the accommodation is denied.

The new rules also include changes regarding service animals.  The DFEH removed the requirement that a service animal be “trained.”  The new rules also provide that a reasonable accommodation of disability can include, in certain circumstances, allowing an employee to have a “support animal” for traumatic brain injury or mental disability.  The interactive process required in response to requests for disability accommodation should be used for requests from employees to use service animals.  This new regulation in particular appears ripe for abuse, and companies are going to have to be very cautious in handling employee requests to use service animals.

Additional new regulations

The new regulations state temporary employment agencies can be held jointly liable for prohibited conduct, as well as the contracting company.  They also state that the protections under the law apply to all employees working within California even if the company is located outside California.  The rules explicitly state an employer can be liable for harassment directed towards its volunteers, interns, and persons providing services pursuant to a contract, a well as employees (this incorporates a recent amendment to the law).

Importantly, the new regulations allow the DFEH to impose non-monetary sanctions on employers for failure to prevent discrimination, retaliation, or harassment, even if no such conduct occurs.  Such sanctions would most likely include official orders to comply with the regulations.

What to do:

• Update your anti-discrimination policies to include all protected classes and all required language.
• If you distribute your anti-discrimination policy electronically, get confirmations that employees read it, and post it in easy to find places.
• Ensure your record retention for anti-harassment training meets the new requirements.
• If you conduct your own anti-harassment training, update the materials to include interactive quizzes, discussion questions, and/or examples, to prompt audience participation.
• Update (or implement) your religious accommodation policy, if you have not done so already.
• Update your dress code to state that the dress code is not meant to restrict religious dress or grooming.
• Translate your anti-discrimination policy and pregnancy accommodation policy into languages spoken by 10% or more of your employees as their primary language and distribute those policies in every language required.
• Ensure your human resources department/representative is trained regarding the new definitions and requirements.

Our firm is ready to assist you in reviewing your policies to conform to the new DFEH regulations.

By: Brian E. Ewing, Esq.