Earlier this year, on April 1, 2016, the California Fair Employment Housing Act (FEHA) regulations were revised and took effect with additional anti-discrimination and anti-harassment requirements and duties for California employers. These regulations are part of California’s continual commitment to ensuring safe workplaces; free of harassment, discrimination and retaliation.
Amendments To Anti-Discrimination And Anti-Harassment Regulations
What Employers Are Covered Under The FEHA?
Generally, employers with less than five (5) employees are not subject to the FEHA or the new regulations that went into effect in April 2016. However, there have been amendments that have expanded the definitions associated with what constitutes five (5) employees and where those employees actually work (whether in state or out of state).
In the case of sexual harassment, FEHA protections apply to any employer with at least one (1) employee. In most other cases, however, FEHA protections apply to employers with five (5) employees or more. Under the new 2016 amendments, the meaning of what constitutes five (5) employees has been redefined. Under the amendments, out of state employees can count towards establishing the five (5) employee requirement. However, there must be a showing that at least one (1) employee is employed within the State of California, allowing that California employee to utilize the protections afforded under the FEHA. For example, if company is based out of Arizona (4 employees in AZ) but runs a satellite office in Los Angeles (with 2 employees in LA), the employees in California would be protected under the FEHA despite the majority of employees being in Arizona.
What Are The New California Anti-Harassment / Anti-Discrimination / And Anti-Retaliation Regulations?
We are all aware that anti-discrimination laws have been around for several decades. However, most of us are all too aware that, quite often, employers do not always abide by or protect their employees by ensuring full compliance with these laws. California has taken the additional step to reaffirm and emphasize an employer’s affirmative obligations to take the necessary steps that promote and ensure a safe workplace free of the discrimination, harassment and retaliation of any kind.
Under the revised regulations, employers are now required to develop written anti-discrimination, harassment and retaliation policies, as well as, institute an internal complaint, investigation, and resolution process for their employees. Additionally, employers are required to update and/or implement sexual harassment training for managers and employees, keep track of newly instituted policies and all future training sessions, and make all new policies available to employees in languages other than English when more than 10 percent of their employees speak a primarily speak a non-English language.
The new written policy requirements under FEHA mandate that employers include the following:
- All FEHA protected categories must be listed within the policy;
- Make it clear that California law makes it unlawful for coworkers, managers, supervisors, and even third parties, who may come into contact with employees, from participating in prohibited conduct under FEHA;
- Policies must detail a comprehensive complaint process and conveys to the employee that complaints are:
- Given the employer’s guarantee of confidentiality to the most reasonable extent possible;
- That employer’s certify that complainant employees will receive timely responses;
- That all investigations will be conducted in an impartial, timely manner only by trained, qualified individuals;
- That employer’s will create adequate documentation and record-keeping of the progress of the complaint and investigations;
- The possible, adequate and appropriate possibilities for responsive action and resolution to any and all complaints; AND
- That investigations, remedial actions, and resolutions will take place timely;
- Policies must provide appropriate procedures that allow for complainant employees to circumvent their direct superiors;
- Additionally, policies must allow for available complaint alternatives, in order to encourage and protect grieved employees who may feel uncomfortable about initiating a complaint. This may include:
- Installation of a harassment / discrimination complaint hotline;
- Allow for direct communication with a qualified, designated superior or representative, including a human resources officer, equal employment opportunity officials, or any other qualified manager;
- Contact information for a local government official who oversees FEHA compliance and complaint investigations; OR
- If none of the above are available, or if the company lacks the size and resources to implement those options, the employer should provide all relevant information for contacting the California Department of Fair Employment and Housing (DFEH) and the United States Equal Employment Opportunity Commission (EEOC);
- Written policies must inform and educate all supervisors
How Do The Amendments Affect Pregnancy Discrimination & Related Pregnancy Disability Leave Laws?
The laws surrounding pregnancy disability leave (PDL) often create a great deal of confusion for both employers and employees as to how much time can be taken for PDL and when PDL can be taken during a pregnancy. Over recent years, California has attempted to change the laws in a more comprehensive way in an effort to expand protections for persons seeking PDL. The 2016 amendments seek to clarify what is required of employers to ensure compliance with PDL.
First, a person in need of PDL is not required to take only one (1) continuous period of PDL; PDL may be broken up. Furthermore, eligible employees are allowed to take up to four (4) months of PDL per pregnancy, not per calendar year. For example, if a pregnant woman is required by her doctor to take 1 month of bed rest in her second trimester of pregnancy, she does not lose her remaining 3 months of PDL which may need to be used at a later time during the pregnancy.
Second, the 2016 amendments have broadened and expanded the definitions of “eligible employees” to include transgendered female employees who become disabled due to pregnancy. Third, under the FEHA, unlawful harassment expressly specifies that any harassment associated with childbirth, breastfeeding, and/or any other related medical conditions are prohibited.
How Do The New Regulations Affect California’s Anti-Sexual Harassment and Discrimination Laws?
Sexual harassment and discrimination are among the most common employment violations in California. Under FEHA, employers with 50 or more employees have long been required to provide sexual harassment training for all new managers and supervisors within their first six (6) months of hiring or promotion. Additionally, FEHA has required that all managers and supervisors renew their sexual harassment prevention training at least once every two (2) years thereafter.
Under the new 2016 regulations, the additional training requirements state that:
- All e-learning sexual harassment prevention trainers must keep and maintain a record of all written questions received and written answers given for a period of at least two (2) years;
- Employers who provide their training through “webinars” must keep and maintain a record of the webinar copy, any and all written educational materials, as well as, any and all written questions and answers given for a period of at least two (2) years;
- Employers are required to keep and maintain records of the dates and types of compliance training sessions, a written record of the names of all employees who attended, any and all sign-in sheets, duplicates of any and all certificates of attendance or completion, as well as, any and all written or other recorded materials utilized during the training sessions for a period of at least two (2) years; AND
- Trainings must now also include an overview of:
- Supervisors’ responsibilities and duties to report any and all instances of harassment or retaliation that come to their attention;
- The company’s policies and techniques for preventing harassment from occurring; AND
- The company’s policies and steps for action and remedying any encountered harassment in the workplace.
In 2015, FEHA incorporated new regulations that required employers to provide additional training on abusive, bullying behavior within the company. Under the new 2016 regulations, FEHA has been expanded to include focused topics that these trainings should cover:
- The harmful effects on victims that are created by abusive conduct and behavior that occurs in the workplace;
- The negative consequences and repercussions employers experience as a result of abusive conduct in the workplace. This may include the loss of respect by employees and the decrease in motivation and company morale as a result of a workplace where workers feel unsafe and unprotected by their employers;
- What defines abusive conduct, including the elements contained therein, including any behavior or conduct that is made with malicious intent. Conduct that is malicious in nature is any conduct that any reasonable worker would feel is hostile or offensive and is completely unrelated to the business interests of the employer; AND
- Single, isolated acts are not enough to rise to the level of abusive conduct, unless that behavior or act rises to a severe or extremely egregious level.
What Changes Have Been Made Regarding Defining Protected Classes and Categories?
Today, we are seeing a growing understanding of the diversity of individuals, not just on an external level, but also from a subjective, inward level. For example, the issues of gender identity and gender expression have only recently been gathering mainstream attention to issues that many people have had to live with and hide from their daily lives due to fear of misunderstanding, harassment, discrimination, and even, retaliation. As a result of the upward trend of social awareness and education about these highly sensitive issues, the FEHA has also has updated their protected categories with new definitions that meet the needs of certain individuals. The following is a list of the significant changes and augments made to the FEHA’s definitions:
- Sex is now defined to be consistent and include, but not limited to, pregnancy, childbirth, any and all medical conditions associated to pregnancy, childbirth, or breastfeeding. Sex is further defined to include gender identity and gender expression.
- Gender expression is defined as an individual’s outward, gender-related appearance and/or behavior, regardless of whether or not that person conforms their appearance and behavior with their biological sex at birth;
- Gender Identity, refers to a person’s identification as either male, female, or neither, which differs from their biologically assigned sex at birth, including transgenderism;
- Transgender is defined as relating and referring to an individual’s gender identity that is opposite to their biologically assigned sex at birth. It is important to understand and recognize that someone who is transgender may or may not have a gender expression that is opposite of the social norms and expectations of their assigned biological birth sex. Furthermore, it is also important to understand that an individual who is transgender may or may not identify themselves as “transsexual.”
How Do the Definitions of Protected Status Related to Establishing Discrimination Claims?
A few years ago, the California Supreme Court ruled that in order to support a claim for unlawful discrimination, unlawful adverse action, or retaliation under the FEHA, an employee must prove by a preponderance of the evidence that their protected status or category was a “substantial motivating factor” in the action taken by their employer. (Harris v. City of Santa Monica (2013) 56 Cal. 4th 203.) These actions include any adverse action or denial of employment benefits.
Under the 2016 amendments to the FEHA, this legal standard set forth in Harris has now been codified and expressly set forth as law.
Are There Any Preventative Remedies Available Even If Actual Discrimination or Harassment Has Not Occurred?
Yes. The California Court of Appeals recently held under the FEHA a person cannot successfully bring a single, private lawsuit against their employer simply for failing to prevent discrimination or harassment unless there was actual discrimination or harassment in the workplace. (Dickson v. Burke Williams, Inc. (2015) 234 Cal. App. 1307.)
As a result of this ruling, the California Legislature has limited the Court’s ruling under the new regulations. While the Legislature has recognized that private plaintiffs cannot pursue “failure to pursue” claims without actual discrimination or harassment, the new amendments and regulations allow for the Department of Fair Employment and Housing (DFEH) to pursue “non-monetary preventative remedies” against an employer who fails to prevent discrimination and harassment in the workplace.
Because the term “non-monetary preventative remedies” is somewhat ambiguous, it is not completely clear as to how broadly the new regulations will be applied or at what level the DFEH will intervene. However, it is a positive gain for employees who feel that their workplace may be overly exposed to potential violations of anti-discrimination and anti-harassment laws. These regulations allow for a non-judicial, administrative avenue to safely report and seek inspection of their working conditions, especially if those employees do not feel comfortable reporting their concerns directly to their superiors.
Additional Amendments To The FEHA
What Accommodations Must Be Made For Disabilities & Religious Affiliations?
Disability and religious accommodations are often a subject of noncompliance in workplace disputes. Unfortunately, it is not uncommon for employers to mishandle these issues (whether inadvertently or deliberately), which is usually due to a lack of understanding about California’s accommodation laws and protections.
The 2016 amendments have adopted and incorporated recent legal developments that make it unlawful for an employee to be retaliated or discriminated against when that employee has requested accommodations for their disability or religion. It is important to note that retaliation and/or discrimination may exist even if the accommodation was granted by the employer.
Use of Support / Therapy Animals
Many individuals require the use of support (or therapy) animals in their daily lives, particularly when handling the stresses associated with their jobs. The use of support animals in the workplace may be considered a reasonable accommodation for a person with a qualifying disability. Under the FEHA regulations, “support animals” are defined as those who provide “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.”
It is important to note that the FEHA regulations do not provide automatic protections and guarantees for support animals. Persons in need of a support animal in the workplace must submit requests through their employers and follow the interactive process with their employer. For more information on the reasonable accommodation processes in California, click here.
Under previous FEHA regulations, the definitions of “religious creed” included “any traditionally recognized religion as well as beliefs, observances, or practices, which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions.” The 2016 amendments have expanded these definitions to include recognition of “all aspects of religious belief, observance, and practice, including religious dress and grooming practices, as defined by Government Code section 12926.”
Furthermore, the United States Supreme Court held in 2015 that employers are not allowed to refuse to hire an applicant on the basis of avoiding the need to accommodate certain religious practices. (EEOC v. Abercrombie & Fitch Stores, Inc. (2015) 135 S. Ct. 2028.) Under the Supreme Court’s ruling, they determined that this type of “avoidance conduct” is a direct violation of religious discrimination laws under Title VII of the Civil Rights Act of 1964. Accordingly, the 2016 amendments to California’s FEHA regulations have directly incorporated the Supreme Court’s ruling into codified law.
Additionally, employers are prohibited from requiring certain employees be segregated from customers or the general public in an attempt to “accommodate” an employee’s religious practices. The only exception to this prohibition is if there has been a unilateral, express request from the employee to do so.
How Does the Law Relate to Drivers’ Licenses that are Issued to Undocumented Persons?
In 2015, the FEHA was amended to prohibit employers from discriminating against individual (applicants or employees) simply because that person holds a valid driver’s license issued to undocumented persons. In California, driver’s licenses are issued to undocumented individuals pursuant to California Vehicle Code section 12801.9. Section 12801.9 grants the California Department of Motor Vehicles the ability to issue a driver’s license to a person who is “unable to submit satisfactory proof that the applicant’s presence in the United States is authorized under federal law if he or she meets all other qualifications for licensure and provides satisfactory proof to the Department of his or her identity and California residency.”
Under the 2016 amendments, employers may require an applicant or an employee to hold or present any form of a driver’s license only if:
- The holding of a valid driver’s license is mandatory under state or federal law for the specific job in question; OR
- The holding of a valid driver’s license is uniformly required by the employer and is permitted under the law. However, on a note of caution, an employer does open itself to liability under this standard if they are unable to demonstrate and evidence that the policy is not uniformly applied or the policy is not justified by a legitimate business reason.
What Protections Are Afforded to Unpaid Interns and Volunteers?
In California, unpaid interns and volunteers are afforded the same FEHA protections against unlawful discrimination and harassment as any regularly paid employee. Under the 2016 amendments, “unpaid interns and volunteers” have been defined as follows: “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.”
How Do I Know If My Employer Is Ensuring Compliance With The 2016 Amendments and Regulations?
All qualifying California employers, by now, should have taken a number of steps to ensure that their workplaces are in compliance with the new regulations. Employees should have already received written notices of revised or new policies in a manner that complies with the regulations. Additionally, for companies with 50 or more employees, the policies surrounding the new training requirements should have already been made available in writing and discussed with employees, supervisors, and managers.
Also importantly, employers should have already ensured that they have implemented proper complaint processes and investigation procedures that conform to the 2016 amendments and regulations. Finally, employers should be proactively ensuring that their supervisors, managers, and human resources personnel have been (or have been scheduled for) receiving the proper training on these amendment in order to remain in compliance with the changes in the law.