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Blog Post (Archives)

Employers: It's Your Duty to Prevent Harassment & Discrimination

(posted: June 27th, 2016)

Harassment Prevention

After months of public comment and revisions, California's Fair Employment and Housing Council adopted significant amendments to its Fair Employment and Housing Act (FEHA) regulations. These amendments took effect April 1, 2016.

The FEHA covers California's civil rights laws, protecting workers in California from unlawful discrimination and harassment in employment and providing other rights, such as leaves of absence.

The recent amendments cover a wide range of topics, some of which we've already covered. In this post we want to highlight the new rules that reinforce an employer's affirmative duty to take reasonable steps to prevent harassment and discrimination in employment.

The new rules emphasize that written harassment, discrimination and retaliation prevention policies are mandatory and set forth specific provisions that must be included in such policies.

Fair Employment and Housing Act Prohibitions

California's FEHA prohibits discrimination and harassment in employment because of:

  • Age (40 and over)
  • Gender, gender identity and gender expression
  • Genetic information
  • Marital status
  • Medical condition (cancer and genetic characteristics)
  • Mental and physical disability, including HIV and AIDS
  • Military and veteran status
  • National origin and ancestry, includes language-use restrictions and protected use of driver's licenses granted under Vehicle Code sec. 12081.9
  • Race and color
  • Religious creed, including religious dress and grooming practices
  • Sex, which includes: pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding
  • Sexual orientation

Prevention Is Paramount

The new amendments underscore the employer's affirmative obligation to take reasonable steps to prevent, and promptly correct, discriminatory, harassing and retaliatory conduct, and to create a workplace environment that is free from such misconduct.

Although employers with five or more employees are covered by California's non-discrimination laws, all employers in California are covered by FEHA's anti-harassment provision and its duty to prevent.

As an example, let's say you are sued for sexual harassment. The employee bringing the suit can't prove that he was harassed, but there is evidence you didn't take preventive measures, such as implementing a harassment prevention policy. The DFEH can obtain "non-monetary preventative remedies" against you for failing to prevent, even though there was no evidence of underlying harassment. These remedies might include such things as mandatory training of your entire workforce.

However, if you can show that you took all necessary reasonable steps to prevent or correct harassment in the workplace and your employee unreasonably failed to use the preventive and corrective measures you provided, this may help decrease the extent of your liability for harassment claims.

The amendments note that a determination of whether an employer has met its affirmative duty to take reasonable preventive and corrective steps will be assessed on a case-by-case basis, looking at numerous factors such as workforce size, budget and nature of the business.

Steps to Harassment Prevention

The new rules provide a mandatory list of steps you must take to meet your obligation to prevent harassment, discrimination and retaliation.

First, employers must implement a written harassment, discrimination and retaliation prevention policy that is distributed to all employees with acknowledgment that the employee has received and understands the policy.

Second, employers must make sure they create adequate methods for employees to bring complaints and methods for investigating these complaints. The regulations require you to create a process that ensures complaints are:

  • Confidential, to the extent possible
  • Responded to in a timely manner
  • Investigated in a timely and impartial manner by qualified personnel
  • Documented and tracked for reasonable progress
  • Provided appropriate options for remedial actions and resolutions
  • Closed in a timely manner

You must also make sure your complaint process doesn't require the employee to go only to his or her direct supervisor with complaints. Sometimes the direct supervisor might be engaging in the misconduct or might not seem like the safest option for the employee. The complaint process must allow alternative avenues to bring complaints, such as to a designated company representative, an ombudsperson, a complaint hotline or directly to the appropriate state (DFEH) or federal (EEOC) agency.

Finally, prevention includes ensuring that California supervisors receive mandatory sexual harassment prevention training and that the training meets all legal requirements. Note that the training requirements, laid out in state law AB 1825, have been updated with:

  • New documentation and recordkeeping requirements
  • New content requirements, including addressing the negative effects of abusive conduct in the workplace, supervisors' obligations to report misconduct, and the steps that can be taken to correct and remedy harassing behavior.

Put Your Harassment & Discrimination Prevention Policy in Writing

Through these amendments, the DFEH, for the first time, has provided details regarding what must be included in a compliant harassment, discrimination and retaliation prevention policy. The policy must:

  • Be in writing.
  • List all categories of individuals protected by the FEHA.
  • Specify that supervisors, managers, co-workers and third parties who come into contact with your workers are prohibited from engaging in conduct prohibited by the FEHA.
  • Create a complaint process that meets the requirements described above, including providing alternative avenues to bring complaints.
  • Instruct supervisors to report any complaints to a designated company representative so that you can try to resolve them internally.
  • Indicate that you will investigate all complaints in a fair, timely and thorough manner.
  • Not promise confidentiality but indicate that you will maintain confidentiality to the extent possible.
  • State that if misconduct is found, appropriate corrective and remedial action will be taken.
  • Emphasize that employees who bring complaints or participate in investigations will not be retaliated against.

Distribute Your Written Prevention Policy

The amendments also require that you distribute the policy using one or more set methods:

  • Printing out the policy and providing it to all employees, along with an acknowledgment form for the employee to sign and return
  • Sending it by e-mail, with an acknowledgment-of-receipt form
  • Posting it on the company's intranet, with a tracking system that ensures that all employees have read the policy and acknowledged receiving the policy
  • Discussing the policy at the time of hire or during an employee's orientation
  • Any other way that makes certain that the policy is received and understood

Furthermore, the amendments require you to translate your policy into languages spoken by at least 10 percent of your workforce.

Best Practices: What Should You Do Now?

  • Take this opportunity to revisit your anti-harassment and non-discrimination policies to make sure they are consistent with the new amendments.
  • If you have five or more employees, make sure your employee handbooks contain a pregnancy disability leave (PDL) policy. If your handbook describes other types of reasonable accommodation, transfers or temporary disability leaves, the FEHA amendments state that your handbook must also contain a policy discussing PDL and pregnancy accommodation and transfer. Previous regulations merely stated that an employer was "encouraged" to include the policy.
  • If you are covered by the mandatory training law, you will need to use an updated harassment prevention course meeting the new requirements. Note that all of our courses have been updated.
  • Remember that the April 1 FEHA amendments also contain changes to the mandatory PDL poster - "Your Rights and Obligations as a Pregnant Employee." California's PDL laws apply to any employer with five or more full-time or part-time employees and to all California public sector employers.

If you have any questions or concerns about the new harassment prevention rules, please contact us.

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