Effective April 1, 2016, new regulations of the California Department of Fair Employment and Housing (DFEH) impose stringent new anti-discrimination and anti-harassment requirements on almost all employers having any employees in California. Unlike in the past, the new amendments to regulations under California’s Fair Employment and Housing Act (FEHA) apply to any employer having five or more “employees,” any
of whom are located in California. The word “employees” is important, because the new FEHA regulations count toward the minimum of five “employees” unpaid interns, volunteers and persons out on leave from active employment. Further, it appears that this new FEHA regulation is intended to apply even to employers with headquarters outside of California if any of their employees are located in California.
The FEHA regulatory amendments require all affected employers to have written policies prohibiting workplace discrimination and harassment. The policies must apply to prohibit discrimination and harassment by co-workers, who are made individually liable for their own violations, and by third parties such as vendors in the workplace. The regulations demand that the written policy list all currently-protected categories protected under FEHA: Race, religion, 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 or veteran status. Prohibited “sex discrimination” includes discrimination based on pregnancy, childbirth, breastfeeding and related medical conditions. Interestingly, the regulations also prohibit discrimination against employment applicants holding a special California driver’s license issued to persons without proof of legal presence in the United States. It is not yet clear how this will work in conjunction with the employer’s existing Federal obligation to confirm eligibility for employment.
The employer’s written policy must specify a confidential complaint process that satisfies a number of criteria. Workplace retaliation for making good faith complaints of perceived discrimination or harassment is prohibited. The written policy must be publicized to all employees, with tracking of its receipt by employees. If 10% of the employer’s work force speaks a language other than English, the written policy must be translated to that language.
Further, the new regulations attempt to resolve a number of uncertainties about who is protected, specifying that both males and females are protected from gender discrimination, and requiring that transgender persons be treated and provided facilities consistent with their gender identity. There are many other changes, such as a new entitlement to four months for pregnancy leave that is not required to be taken continuously. If an employer has more than 50 employees, there are additional requirements, such as periodic sexual harassment prevention training for supervisors.
Employers operating in California are well advised to review their policies and practices, and to consult with qualified counsel regarding changes that may be required. Conkle, Kremer & Engel attorneys help clients remain compliant with laws, regulations and case developments affecting employers in California.