California’s Fair Employment and Housing Act (“FEHA”) prohibits harassment and discrimination in the workplace that is based on one or more of the categories commonly protected by local, state and federal discrimination laws. On April 1, 2016, new regulations interpreting and expanding upon the statutory language go into effect. Below, we provide a summary of some of the more notable updates to the regulations.
Counting Employees to Determine Whether an Employer Is Covered
The FEHA covers “[a]ny person or individual engaged in any business or enterprise regularly employing five or more individuals, including individuals performing any service under any appointment, contract of hire or apprenticeship, express or implied, oral or written.”
The regulations explain that employers must count individuals performing work both inside and outside of California. Although individuals who encounter potential discrimination or harassment outside the state of California are not protected themselves, they are counted for the purpose of assessing whether the employer is covered under the statute. Employers must also count all individuals on paid or unpaid leave, even those who are on administrative leave because of disciplinary suspension. No individual on a leave of absence of any kind should be excluded.
A claimant may prove discrimination claims under the FEHA if a preponderance of the evidence shows that his/ her protected status was a substantial motivating factor in denial of an employment benefit. Notably, this standard does not apply to other unlawful practices, including harassment, denial of reasonable accommodation, failure to engage in the interactive process, and failure to provide leaves.
Rights of Unpaid Interns and Volunteers
An unpaid intern or volunteer is any individual, such as a student or trainee, who works without pay in any unpaid internship or another limited duration program to provide unpaid work experience, or as a volunteer. Unpaid interns and volunteers may or may not be employees. The regulations clarify that an “employment benefit” includes the actual selection or training for an unpaid internship or other limited duration program to provide unpaid work experience. In addition, “employees” protected from unlawful harassment under the FEHA include unpaid interns, volunteers, and persons providing services pursuant to a contract.
Standards for Establishing Harassment
The regulations clarify that an employer may be liable for sexual harassment even when the harassing conduct was not motivated by sexual desire, and a person alleging sexual harassment is not required to sustain a loss of tangible job benefits in order to establish harassment. Notably, an employee who harasses a co-worker is personally liable for the harassment, regardless of whether the employer knew or should have known of the conduct and/or failed to take corrective action.
Employers’ Responsibilities in Preventing and Correcting Harassment and Discrimination and Sexual Harassment Prevention Training
Would your company be able to articulate a strong defense that it took every effort outlined in the regulations to prevent and correct harassment and discrimination in the workplace?
Here is a checklist that highlights the key points identified in the regulations:
- Distribute the Department’s DFEH-185 brochure on sexual harassment or an alternative writing that complies with the Act
- Develop a harassment, discrimination, and retaliation prevention policy that:
- Is in writing in any language(s) spoken by at least 10 percent of the workforce
- Lists all current protected categories covered under the FEHA
- Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, from engaging in conduct prohibited by the FEHA
- Creates a complaint process to ensure that complaints receive: (1) an employer’s designation of confidentiality, to the extent possible; (2) a timely response; (3) impartial and timely investigations by qualified personnel, such as attorneys, human resources professionals, harassment-prevention consultants, and/or professors/instructors with the requisite credentials; (4) documentation and tracking for reasonable progress; (5) appropriate options for remedial actions and resolutions; and (6) timely closures.
- Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, such as access to an EEO officer or other supervisor, a complaint hotline, and/or an ombudsperson; and/or identification of the EEOC and DFEH as other avenues to lodge complaints.
- Instruct supervisors to report any complaints of misconduct to a designated company representative
- Indicate that when the 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
- State that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential
- Indicate that if at the end of an investigation misconduct is found, appropriate remedial measures shall be taken, and
- Make clear that employees shall not be exposed to retaliation for either making a complaint or participating in an investigation
Sexual harassment trainings must contain a review of the definition of “abusive conduct,” which includes conduct undertaken with malice that a reasonable person would find hostile or offensive, and that is not related to an employer’s legitimate business interests (including performance standards). The training should emphasize that a single act shall not constitute abusive conduct, unless the act is especially severe or egregious. Moreover, the training must cover the negative effects that abusive conduct has on the victim of the conduct, as well as others in the workplace, and the detrimental consequences of this conduct on employers.
Pregnancy Discrimination and Pregnancy Disability Leave
Employees are not required to take pregnancy disability leave in one continuous period. Employees are eligible for up to four months of leave per pregnancy, not per year. Moreover, unlawful harassment because of pregnancy also includes harassing an employee or applicant because of childbirth, breastfeeding, or any related medical conditions.
Retaliation for Requesting Reasonable Accommodations
The regulations clarify that it is unlawful to discriminate or retaliate against a person for requesting reasonable accommodation based on religion or a physical or mental disability, regardless of whether the employer granted the request.
National Origin Protection and Driver’s Licenses
Finally, it is unlawful for an employer or other covered entity to discriminate against an applicant or employee because he or she holds or presents a driver’s license issued under section 12801.9 of the California Vehicle Code. This section of the Vehicle Code applies to persons who are unable to submit satisfactory proof that their presence in the United States is authorized under federal law, but otherwise meet all other qualifications for a California driver’s license, and provide satisfactory proof of identity and California residency.
In sum, the detailed regulations require careful review. All California individuals and/or entities employing workers should conduct an internal audit to ensure that policies and practices are in compliance with the law, and seek legal counsel as needed.