New Anti-Discrimination Rules in Calif. Coming in April

The state has revised its Fair Employment and Housing Act regulations

By Toni Vranjes March 3, 2016
Updated employment regulations are coming to California, and businesses should take some time to study the new rules.

The state has revised its Fair Employment and Housing Act (FEHA) regulations. FEHA forbids discrimination and harassment in the workplace based on race and gender and many other protected categories.

The wide-ranging rules are catching up to statutory changes that were made a while ago, said Erika Frank of the California Chamber of Commerce. The revisions go into effect on April 1.

Frank, the chamber’s general counsel and vice president of legal affairs, discussed the regulations during a recent webinar. She was joined by Jessica Hawthorne, the chamber’s senior employment law counsel, and Labor Law Helpline manager.

Among the provisions of the rules:

  • A requirement that businesses have a policy to combat discrimination, harassment and retaliation.
  • A requirement that companies disseminate the policy to the entire workforce.
  • Mandatory training for supervisors on preventing sexual harassment.
  • Precise definitions of the following terms: gender expression, gender identity, sex stereotype and transgender.
  • The extension of national-origin protections to undocumented immigrants who hold special “AB 60” driver’s licenses.
Workplace Policies

Companies with five or more employees must have a policy aimed at preventing discrimination, harassment and retaliation, Hawthorne said.

The policy should:

  • List all protected groups under the FEHA.
  • Specify that supervisors, co-workers and third parties are prohibited from engaging in unlawful behavior under the FEHA.
  • Tell supervisors to report all complaints to a company representative.
  • Have a thorough complaint process.
  • State that all complaints will be followed by a fair, complete and timely investigation.
  • Convey that the employer will strive to maintain confidentiality during the investigation, but that there is no guarantee of complete confidentiality.
  • State that the employer will take remedial measures if any wrongdoing is detected.
  • State that the employer will not retaliate against an employee for making a complaint or participating in an investigation.
Hawthorne stressed the importance of giving workers many options for reporting complaints. Employees shouldn’t be forced to complain to their immediate supervisor—because that might be the person behaving in an offensive manner.

Also, as part of the complaint process, provide contact information for the state and federal agencies that enforce anti-discrimination laws. In California, it’s the Department of Fair Employment and Housing; at the federal level, it’s the Equal Employment Opportunity Commission.

“Employees do have a right to go directly to the enforcement agency, without filing a complaint with your organization first,” Hawthorne said.

Getting the Word Out

The policy must be provided to employees through at least one of the following ways:

  • Printing out the policy and giving it to all employees, along with a form that can be signed and returned to acknowledge receipt.
  • Sending it by e-mail, with a form to acknowledge receipt.
  • Posting it on the company’s internal intranet, with a tracking system to show that workers have read the policy and verified receipt.
  • Discussing it upon hire, or during a new employee’s orientation.
  • Any other method that ensures the policy is received and understood.
“The intent is that employees actually receive the information and understand it,” Hawthorne said. “And it’s also important, under a lot of circumstances, that employees have an opportunity to ask questions about that policy.”

The more ways a company uses to disseminate the policy, the better, according to Hawthorne.

Meanwhile, be aware that the new rules include translation requirements in certain circumstances. If at least 10 percent of the employer’s workforce speaks a language other than English, then the policy must be translated into that language, she said.

Supervisor Training

Under California law, certain employers must provide training on sexual harassment prevention. This requirement applies to companies with 50 or more workers, which includes temporary employees and independent contractors. Covered employers must provide two hours of training, every two years, for all supervisors and managers in California.

As an example, Hawthorne said, a business might have 50 employees worldwide—with one employee in California who happens to be a supervisor. The company must provide that supervisor with the anti-harassment training.

For the training sessions, employers can use a variety of methods, including classroom training, e-learning and webinars.

Regardless of which method is used, the training should encourage active participation, Hawthorne emphasized. Companies can engage supervisors and managers through small-group discussions, quizzes and tests, and other techniques.

In addition, the training must:

  • Explain federal and state sexual harassment laws.
  • Address the negative effects of abusive conduct.
  • Offer tools for supervisors to recognize, prevent and respond to sexual harassment.
  • Describe the remedies that are available.
  • State that supervisors must report harassment, discrimination and retaliation.
Companies must keep relevant documents for at least two years. These records should include the name of the trainer, the date of training, the type of lessons provided  and a sign-in sheet listing who attended.

Gender Expression and Identity

The new rules define a number of terms:

  • “Gender expression” refers to gender-related appearance or behavior, regardless of whether it’s stereotypically associated with an individual’s sex at birth.
  • “Gender identity” is identification as male, female, transgender or a gender different than the person’s sex at birth.
  • “Sex stereotype” is an assumption about someone’s appearance or behavior—or  about the ability or inability to perform certain types of work—based on a myth, social expectation or generalization about that person’s sex.
  • “Transgender” refers to someone whose gender identity is different from the person’s sex at birth.
Frank cited the San Francisco Human Rights Commission as a good source of information on these topics. The commission urges training on gender identity issues for managers and employees.

National Origin Protections

The amendments prohibit businesses from discriminating against applicants or workers who hold “AB 60” driver’s licenses.

Frank recommends a very cautious approach. Unless the job requires driving, or the person is required by law to have a driver’s license, don’t ask to see someone’s license.

Toni Vranjes is a freelance business writer in San Pedro, Calif.

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