• New California Job Bias Regulations Will Require Most Employers To Update Their  Discrimination and Harassment Prevention Policies By April 1st
  • April 28, 2016 | Authors: Katherine A. Hren; Richard S. Rosenberg
  • Law Firm: Ballard Rosenberg Golper & Savitt LLP - Encino Office
  • The state's job bias agency (the California Department of Fair Employment and Housing or "DFEH") recently announced revised regulations that will require most employers in the state to issue new workplace anti-discrimination and harassment policies by April 1, 2016.

    What These Amendments Mean For You

    The new regulations make clear that every employer in the state with 5 or more employees MUST have detailed written policies addressing workplace discrimination and harassment. Beginning April 1st, the regulations require employers to say more to employees about these subjects than in the past. This is in addition to distributing the required DFEH brochure.

    The April 1st Policy must do all of the following:
    • List all currently protected categories covered under the state's job bias law.
    • Directly state that the law prohibits illegal behavior by supervisors, coworkers and third parties.
    • Establish a formal complaint handling process that ensures all of the following:
      • An employer's designation of confidentiality to the extent possible;
      • A timely response and investigation;
      • Impartial and timely investigations by qualified personnel;
      • Proper documentation and tracking of a complaint for reasonable progress;
      • Appropriate options for remedial actions and resolutions; and
      • Timely closures and resolutions.
    • The complaint mechanism must allow complaints to be made to an individual other than the employee's immediate supervisor, including but not limited to the following options:
      • Oral or written complaints through direct communication with a designated company representative (i.e. human resources manager, EEO officer, or other supervisor); and/or
      • A complaint hotline; and/or
      • Access to an ombudsperson; and/or
      • The identification of the federal job bias agency (EEOC) or California job bias agency (DFEH) as additional avenues for complaints.
    • Instruct supervisors to report all complaints to a designated company representative, to enable the company to try to resolve the claim internally. (Note: Employers with 50 or more employees are required to include this topic in the semi-annual mandated sexual harassment prevention training as well).
    • Provide that when an employer receives a complaint of allegations, it will conduct a fair, timely, and thorough investigation that provides all parties with appropriate due process and reaches reasonable conclusions based on all the evidence collected.
    • Assure confidentiality will be maintained by the employer to the extent possible (but not indicate that the investigation will remain completely confidential).
    • Provide that appropriate remedial measures will be taken in a timely manner if misconduct is found at the end of the investigation.
    • Clearly state that employees will not suffer retaliation as a result of lodging a complaint or participating in any workplace investigation.
    How the Prevention Policy must be distributed:

    The new policy must be disseminated by one or more of the following methods:
    • Providing a printed physical copy to all employees with an acknowledgment form for the employee to sign and return;
    • Distributing the policy via e-mail with an acknowledgment return form;
    • Posting current versions of the policies on a company intranet server with a tracking system to ensure that all employees have read and acknowledged receipt of the policy;
    • Any manner that ensures all employees receive, understand, and acknowledge the policy.
    A special note for employers with multi-lingual workforces: Any employer whose workforce contains 10% or more employees who speak any language other than English as their "spoken language" MUST translate the new policy into every such language and disseminate the policy in accordance with the above procedures.

    New Key Definitions

    The new regulations add or revise the following definitions in the job bias law:
    • "Gender expression" means a person's gender-related appearance or behavior, whether or not stereotypically associated with the person's sex at birth.
    • "Gender identity" means a person's identification as male, female, a gender different from the person's sex at birth, or transgender.
    • "Sex" has the same broad definition as in the past (covering not only gender, but also pregnancy; childbirth; medial conditions related to pregnancy, childbirth, or breast feeding; gender identity; and gender expression).
    • "Sex Stereotype" means an assumption about a person's appearance or behavior, or about an individual's ability or inability to perform certain kinds of work based on a myth, social expectation, or generalization about the individual's sex.
    • "Transgender" is a general term that refers to a person whose gender identity differs from the person's sex at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as "transsexual."
    Substantial New Remedies Available Against Employers

    The new regulations now explicitly empower the DFEH to independently seek "non-monetary preventative remedies" against an employer for failure to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct, whether or not the DFEH prevails on an underlying claim of discrimination, harassment, or retaliation claim. It is unstated what these newly sanctioned remedies will entail, but it can be safely assumed they will be interpreted in the broadest manner possible.

    What Employers Should Do

    Employers should immediately review any existing policies to ensure they are in compliance with all aspects of the new law. By April 1st, employers must publish and disseminate new and/or revised compliant workplace policies addressing harassment, discrimination, and retaliation.