CA Harassment/Discrimination Prevention Policy Requirements

CA employers must adopt a discrimination, harassment, and retaliation prevention policy meeting specific requirements.

New Policy and Training Requirements

California's Fair Employment and Housing Council ("FEHC") has adopted the § 11023 Harassment and Discrimination Prevention and Correction regulations under the Fair Employment and Housing Act (FEHA). These regulations take effect April 1, 2016.

The regulations make it clear California employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.

The new regulations require that employers adopt a written discrimination, harassment, and retaliation prevention policy that meets specific requirements. The regulations re-enforces that employers have the obligation to prevent as well as correct discrimination, harassment, and retaliation in the workplace.

Employers must continue to provide employees with a copy of the DFEH brochure on sexual harassment (DFEH-185) and/or an alternative anti-harassment policy that complies with Government Code section 12950.

The new regulation also requires employers to have a discrimination, harassment, and retaliation prevention policy that:

(1) Is in writing;

(2) Lists all current protected categories covered under the Act;

(3) Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act;

(4) 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.

(5) 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 the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.

(6) 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, pursuant to section 11024 of these regulations.

(7) Indicates 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.

(8) States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.

(9) Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.

(10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Plus:

• Dissemination of the policy shall include one or more of the following methods:
  
  
  • 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.

• Any employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language shall translate the policy into every language that is spoken by at least 10 percent of the workforce.

California employers should:

• Review and update their anti-discrimination and harassment policies prior to April 1, 2016.
• Distribute these policies via one or more of the approved methods (this is in addition to Form DFEH-185).
• Make certain proper complaint and investigation procedures are in place.
• Make certain human resources personnel are trained on how to address all discrimination and harassment policy questions and how to handle any complaints.

For more information contact on these new requirements:

CA Department of Fair Employment and Housing (DFEH): Call 800-884-1684 (voice) or 800-700-2320 (TTY) or visit their website at http://www.dfeh.ca.gov/FEHCouncil.htm

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