DFEH Regulations Added & Amended, Effective April 1, 2016

Author: Regina Silva

The California Fair Employment & Housing Council (“FEHC”) made a number of changes to the Department of Fair Employment & Housing (“DFEH”) regulations, codified in Title Two of the California Code of Regulations.  Some of the new/revised regulations provide as follows:

Written Harassment, Discrimination, and Retaliation Prevention Policy Required

Under new section 11023 of the California Code of Regulations, Employers covered by the Fair Employment & Housing Act (“FEHA”) are now required to have a written harassment, discrimination, and retaliation policy IN ADDITION to distributing the Department’s DFEH-185 brochure on sexual harassment, or alternative writing that complies with Government Code section 12950.

This policy is to be in writing, and provide the following:

  1. List all current protected categories covered under FEHA;
  2. Indicate the law prohibits coworkers and third parties, as well as supervisors and managers, who the employee comes into contact with, from engaging in conduct prohibited by the Act;
  3. Creates a complaint process which assures employees that complaints will be designated as confidential (to the extent possible), there will be a timely response, there will be impartial and timely investigations by qualified personnel, there will be documentation and tracking for reasonable progress, that their complaints will be met with appropriate options for remedial actions and resolution, and timely closures provided.
  4. Sets forth a complaint mechanism that does not require an employee to complain directly to his/her immediate supervisor, including, but not limited, allowing for direct communications with a designated company representative (such as HR manager, EEO officer, etc..), and/or having a complaint hotline, and/or access to an ombudsperson, and/or identification of the DFEH or EEOC as additional avenues for an employee to lodge complaints.
  5. Instructs supervision to report any complaints of misconduct to a designated company representative or HR manager so that the company can try to resolve the claim internally. Employers who have 50 or more employees are also required to include this as a topic in its mandated sexual harassment prevention training.
  6. Indicates when an employer receives allegations of misconduct, the company will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
  7. States confidentiality will be kept by the employer to the extent possible, but not indicate the investigation will be completely confidential.
  8. Indicates if misconduct is found at the end of the investigation, appropriate remedial measures shall be taken.
  9. Makes clear employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

The regulations require an Employer distribute the harassment, discrimination, and retaliation prevention policy among a number of methods such as:  (1) Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return; (2) Sending the policy via e-mail with an acknowledgment return form; (3) 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; (4) Discussing policies upon hire and/or during a new hire orientation session; and/or (5) Any other way that ensures employees receive and understand the policies.

If a Company’s workforce has 10 percent or more of persons who speak a language other than English as their spoken language, than the policy is required to be translated into every language that is spoken by at least 10% of the workforce.

Under the new regulations, the DFEH may now pursue independently non-monetary preventative remedies for a violation of the sexual harassment training requirements regardless of whether or not the DFEH is able to prove an underlying claim of discrimination, harassment, or retaliation.

Sexual Harassment Training & Education Regulation Revised (Section 11025)

Under the revised regulation relating to Sexual Harassment Training & Education, there were a number of changes to this regulation including the following.

The content of the sexual harassment training must now also include:  training on how to identify behavior that might constitute unlawful harassment, discrimination, and/or retaliation under both California and federal law; supervisors must be trained in their obligations to report harassment, discriminatory, or retaliatory behavior of which they become aware; there must be coverage of the steps necessary to take appropriate remedial measures to correct the harassing behavior; there must be a discussion of the remedies for “sexual harassment victims” in civil action and the potential exposure to a company or individual who is found liable;  and there must also be a discussion of what constitutes “abusive conduct,” the negative effect of abusive conduct, examples of abusive conduct, and emphasis of level of conduct needed to arise to abusive conduct.

The documentation of training must be maintained for two years, and the records must now include: the names of the supervisory employees trained, the date of the training, the sign in sheet, a copy of all certificates of attendance or completion issues, the type of training, a copy of all written or recorded materials that comprise the training, the name of the training provider;  and if the training was by webinar, documentation that each supervisor attended the entire training and actively participated with the training’s interactive content, all written materials used by the trainer and all written questions submitted during the webinar, and all written responses or guidance the trainer provided during the webinar.

The regulation also clarifies that while audio, video, or computer technology can be used in conjunction with the webinar, classroom, or e-learning training, the use of such supplemental tools cannot satisfy the supervisor training requirements alone.  There has to be other training methods, such as questions, quizzes or test, group discussions, hypotheticals, etc…

Definition of Covered Employer Clarified (Section 11008)

The definition of covered employer for purposes of application of FEHA has been expanded.  Generally, a covered employer is any person or business regularly employing five or more individuals.  For purposes of calculating five or more employees, employees on paid or unpaid leave, leave of absence, or suspension are also calculated.  Moreover, employees who are located outside of California are now also included in this count, although, those employees outside of California would not be covered by FEHA “if the wrongful conduct did not occur in California and it was not ratified by decision makers or participants located in California.”

Employee Responsible for Harassment of Co-Employee (Section 11019)

A provision was added to the DFEH regulations which provides that “an employee who engaged in unlawful harassment of a co-employee is personally liable for the harassment,” regardless of whether or not the employer knew about the alleged harassment, or should have known about the alleged harassment, and failed to take any action.  This new amendment is consistent with the FEHA statute governing harassment.

Pregnancy Discrimination Amendments

The new regulations expanded the definition of “eligible female employee” to include a transgender employee who is disabled by pregnancy. (Section 11035)

Clarifies that it is an unlawful employment practice to harass an employee or applicant because of pregnancy or perceived pregnancy, childbirth, breastfeeding, or any related medical condition. (Section 11036)

Pregnancy Disability

The regulations also clarified an employee is eligible to take up to four month of leave per pregnancy, and that the leave need not be taken in one continuous period. (Section 11042)

The regulations also provided an employer must provide advance notice of employee rights and obligations regarding pregnancy, childbirth, and related medical conditions, and that the notice must be in easily readable text and posted in a conspicuous place where employees are employed.  The notice must also “explain” the FEHA’s provisions and contact information for filing a complaint with the DFEH or learning more about employee rights and obligations.  The notice must be translated into each language spoken by at least 10% of the workforce.  The DFEH has a copy of this Notice available on its website.  [Form 100-20] (Section 11049).

Definitions Regarding Sex and Gender Expanded

The regulations expanded the definitions of numerous terms regarding sex and gender:

“Gender expression” means a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.  (Section 11030)

“Gender identity” means a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.  (Section 11030)

“Sex” includes, but is not limited to, pregnancy, childbirth, breastfeeding, and any related medical conditions, and gender identity and expression.  (Section 11030)

“Sex Stereotype” means an assumption about a person’s appearance or behavior, or about an individual’s ability or inability to perform certain kinds of work based on a myth, social expectation, or generalization about the individual’s sex.  (Section 11030)

“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.” (Section 11030)

Religious Discrimination

Under the new regulations, the definition of religious discrimination was further expanded based upon statutory changes and case law interpretation.

Unpaid interns and volunteers are included in the protections from religious discrimination.  (Section 11059).

The regulations also clarify an employer’s duty to accommodate an individual’s religion, and that it is unlawful to: (1) fail to hire or terminate an employee in order to avoid accommodating a religion; (2) discriminate or retaliate against an employee who requests a reasonable accommodation; or (3) require segregation of an employee from customers or the public in order to accommodate an employee’s religious practice, unless it is expressly requested by the employee.  (Section 11062.)

What these changes mean for Employers in California:

Now that the FEHC is providing more detailed guidance about employer required policies, and training, Employers should ensure they are in compliance with these regulations and policies and trainings are up-to-date.  The DFEH has a more expanded summary of the various changes to the DFEH regulations found here.

ABOUT THE AUTHOR: Ms. Silva is a graduate of University of the Pacific.  She is Director of Employment Practices in the firm’s Employment Practices Group.  She is a former prosecutor and has considerable trial experience.  Contact her at rsilva@tysonmendes.com

Download Article Here: DFEH Regulations Added & Amended, Effective April 1, 2016

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