Significant Changes Made to California’s Anti-Discrimination and Anti-Harassment Laws

(Note:  This is a guest post from my colleague Evelin Bailey, an attorney in Wendel Rosen's employment law group.   Evelin has been practicing law since 2006 and focuses her practice on employment law, both advice and litigation.  Wendel Rosen will be holding a seminar on the new California anti-discrimination and harassment laws on May 25 at our conference center, see links below, led by partners Margaret Grover and Christine Noma, who are experienced employment attorneys).

By Evelin Bailey

California is constructing better protections for employees and reinforcing state laws that make clear it is an employer’s affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct. As of April 1, 2016, California employers are required to comply with the amendments to the Fair Employment and Housing Act (FEHA) regulations. Below is a summary of a few of the key changes. You may also want to check out Wendel Rosen’s Employment Practice Group’s seminar on May 25th on this very topic. For more information click here or for the full flyer click here. Space is limited and prior registration is required.

Employers Have an Affirmative Duty to take Reasonable Steps to Prevent and Promptly Correct Discriminatory and Harassing Conduct

The amendments clarify that there is no stand-alone, private cause of action against an employer for failing to prevent harassment or discriminatory conduct. Rather, a private claimant must also prevail on an underlying claim of discrimination, harassment, or retaliation. (2 C.C.R. 11023(a)(2)).

However, the Department of Fair Employment and Housing (DFEH) may seek non-monetary preventive remedies against an employer for failing to prevent harassment or discriminatory conduct even if the DFEH does not prevail on the underlying claim of unlawful harassment, discrimination, or retaliation under FEHA. (2 C.C.R. 11023(a)(3)).
The regulations state the employers must distribute to employees either the DFEH-185 brochure on sexual harassment or an alternative writing that complies with Section 12950. Under the updated regulations, employers must also develop separate harassment, discrimination, and retaliation prevention policy that:

• Is in writing;
• Lists all current protected categories under FEHA;
• Indicates that the law prohibits coworkers and third parties (e., prime or subcontractors, vendors or suppliers), as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by FEHA;
• Creates a complaint process to ensure that complaints receive: (A) an employer’s designation of confidentiality, to the extent possible; (B) a timely response; (C) impartial and timely investigations by qualified personnel; (D) documentation and tracking for reasonable progress; (E) appropriate options for remedial actions and resolutions; and (F) timely closures.
• Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following: (A) direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or (B) a complaint hotline; and/or (C) access to an ombudsperson; and/or(D) identification of FEHA and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
• Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training.
• Indicate that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
• States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.
• Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
• Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Employers must distribute the policy by:

• Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
• Sending the policy via e-mail with an acknowledgment return form;
• 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;
• Discussing policies upon hire and/or during a new hire orientation session; and/or
• Any other way that ensures employees receive and understand the policies.

AB 1825 Supervisor Sexual Harassment Training Requirements

Every two years supervisors must receive certain training on the employer’s sexual harassment prevention policies and procedures. The new regulations now provide further details of what entails a proper training program.
Employers must maintain the following information related to the supervisor harassment trainings for a minimum of two years:

• Names of the supervisory employees trained,
• Date of training,
• Sign in sheet,
• Copy of all certificates of attendance or completion issued,
• Type of training,
• Copy of all written or recorded materials that comprise the training, and
• Name of the training provider. (2 C.C.R. 11024(b)(2)).

For any interactive electronic trainings (e.g., e-learning or webinar training), the trainer must also maintain copies of all materials, employee questions, and written responses to employee questions for two years after the training. (2 C.C.R. sec. 11024(a)(2)). While the use of audio, video or computer technology can be used in conjunction with classroom, webinar or e-learning training, the use of such supplemental tools by themselves cannot fulfill the supervisor training requirements. (2 C.C.R. 11024(a)(2)). The training must be interactive and includes examples such as pre- or post-training quizzes or tests, small group discussion questions, discussion questions that accompany hypothetical fact scenarios, use of brief scenarios discussed in small groups or by the entire group, or any other learning activity geared towards ensuring interactive participation as well as the ability to apply what is learned to the supervisor’s work environment. (2 C.C.R. 11024(a)(2)(E)).

The law also requires that the supervisor harassment training cover the potential exposure and liability for employers and individuals; a supervisor’s obligation to report sexual harassment, discrimination, and retaliation when they become aware; the steps necessary to take appropriate remedial measures to correct harassing behavior; and review “abusive conduct.” (2 C.C.R. 11024(c)).

Our firm provides sexual harassment training which complies with AB 1825 in English or Spanish. Please use the contact form on our website if you would like more information about this training.

Additional and Significant Updates

The regulations now state that any employee who engages in unlawful harassment of a co-employee is personally liable for harassment, regardless of whether the employer knew or should have known of the conduct and/or failed to take corrective action. (2 C.C.R. sec. 11019(b)(6)).

The regulations were updated to comply with AB 1660, which became effective January 1, 2015. AB 1660 made it unlawful for an employer to discriminate against an applicant or employee who has a driver’s license that can be issued to undocumented persons. (2 C.C.R. sec. 11028(e)). However, keep in mind that employers are still subject to complying with the federal Form I-9 requirements.

Pregnancy discrimination now protects a transgender employee who is disabled by pregnancy. Unlawful harassment related to pregnancy also includes harassing an employee or applicant because of childbirth, breastfeeding or any related medical conditions. (2 C.C.R. 11035(f) and (g), and 11036).

The Pregnancy Disability Leave (PDL) regulations were amended to clarify an employer’s obligations with changes made to the notice requirements, including to clarify that PDL does not need to be taken in one continuous period of time and that eligible employees are permitted to take four months of PDL per pregnancy, not per year. (2 C.C.R. 11042(a)(1), 11049, and 11051).

A “support animal” may constitute a reasonable accommodation for a disability. A support animal is defined as “one that provides 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.” However, the regulation points out that whether a support animal “constitutes a reasonable accommodation requires an individualized analysis reached through the interactive process.” In other words, an employee’s requested accommodation to bring a support animal to work does not always have to be granted and will depend on the outcome of the disability interactive process to determine if that is a reasonable accommodation. (2 C.C.R. 11065(a)(3)).

What to do with all this new information?

If you got this far, congratulations! What is your next step? Look at all your employee handbook policies on discrimination, harassment, and retaliation, as well as all related training, recruiting, and/or other materials, to ensure they are compliant and updated in accordance with the requirements stated above. Not ready to update the entire handbook? You should consider providing a compliant standalone policy. Employers may wish to modify any handbook acknowledgment to specifically reference receipt of the harassment, discrimination and retaliation prevention policy. Perhaps send your HR personnel and supervisors to our employment seminar. Space is limited and prior registration is required.