FEHA’s New Amendments Require Employers To Create An Anti-Discrimination Policy
California’s Fair Employment and Housing Act (FEHA) already provides employees with more protections against discrimination in the workplace than federal laws. These include applying to any employer who employs at least five employees and not having a cap on the compensatory damages for pain and suffering and punitive damages that federal employment discrimination laws contain. The FEHA became even stronger on April 1, 2016 when new amendments went into effect. These new rules place additional requirements on employers to prevent discrimination, sexual harassment, and retaliation from happening and to correct any discriminatory practices in the workplace.
Your Employer’s Obligation to Implement an Anti-Discrimination Policy
Under the FEHA, an employer’s duty to take reasonable steps to prevent and correct discrimination, harassment, and retaliation is an affirmative duty. This is different than other state and federal laws, which allows employers to use prevention and correction as affirmative defenses to an employee’s claims of discrimination, harassment, and retaliation—giving California employees greater rights. This is an important distinction because employees in California can include a separate claim in their lawsuits for an employer’s failure to take reasonable steps, which can increase their damage awards.
The new regulations have added a new section—Section 11023—to California’s Code of Regulations, which gives employers further guidance on their duty to prevent and correct these illegal practices. Under the new law, employers are required to create a detailed written policy to prevent discrimination, harassment, and retaliation. These policies must include the following provisions:
- Must be in writing
- List all current protected groups under the FEHA
- Explain that the law protects against conduct prohibited by the FEHA not only by supervisors and managers, but also by co-workers and third-parties, such as salespersons and customers.
- Create a complaint process that complies with the FEHA’s new regulations.
- Provide a procedure for employees to make a complaint to someone other than his direct supervisor, such as a company representative, a company hotline, or ombudsperson. In addition, the employee must be notified of his right to make a complaint to the California Department of Fair Employment and Housing and the federal Equal Employment Opportunity Commission in addition to or instead of filing a complaint with his employer.
- Require supervisors to report any complaints of discrimination to a designated employee, such as a human resources employee.
- Advise employees that their employer will conduct a fair, timely, and thorough investigation of their complaint based on the evidence available.
- State that the employer will maintain confidentiality as much as is possible.
- State that remedial actions will be taken if there is a finding of misconduct.
- Provide that an employee will not be retaliated against for making a complaint or for being involved in an investigation of a complaint.
Under the new regulations, the requirements for a complaint process are detailed as well. The complaint process must include the following:
- Ensure employee complaints remain confidential to the extent possible.
- Ensure complaints are handled in a timely manner.
- Provide for an impartial and timely investigation by qualified personnel.
- Provide a mechanism for documenting and tracking reasonable progress in the investigation.
- Provide appropriate options for remedial actions to stop the illegal practices.
- Ensure that investigations into complaints are closed in a timely fashion.
The employer must provide current and future employees with a copy of this written policy through one of the approved means. An employer can distribute the policy in one of these ways:
- Provide employees with a copy that includes an acknowledgement return form
- Send it to employees via email and include an acknowledgement return form
- Post the current version of the policy on the Internet with a tracking system
- Discuss the policies with newly hired employees at orientation
- Utilizing other means to ensure employees understand the employer’s policy
If 10 percent or more of the employees at a given location speak a language other than English, the employer must have a translated version of the policy in this language to provide to these workers.
The FEHA was amended because employment discrimination in the workplace still goes on even though it is illegal. Were you discriminated against at your job? You need an experienced employment discrimination attorney to advise you on your rights under these complex federal and California laws. We urge you to start an online chat or call us today at 949-679-9909 to schedule a free, no-obligation consultation.