Amended Harassment and Discrimination Rules Are Here – Starting with California

California-based employers with five or more employees must now comply with amended anti-discrimination regulations regarding the Fair Employment and Housing Act (FEHA) that went into effect on April 1, 2016. These regulations could usher in a wave of tightened discrimination laws around the nation.

The Department of Justice, Occupational Safety and Health Administration, the U.S. Office of Personnel Management and the Equal Employment Opportunity Commission (EEOC) have all recently issued guidance regarding transgender employees in the workplace. In fact, the EEOC recently updated their fact sheet to clarify that discrimination by employers based on transgender status is considered sex discrimination in violation of Title VII of the Civil Rights Act.

The amended FEHA regulations continue this trend by bringing a few changes to existing discrimination laws, including:

• Adding more requirements to procedures and preventative measures to prevent harassment and discrimination.
• Definitions regarding gender discrimination.
• Requiring that these procedures and policies be presented in writing to all employees in California.
  

How to know if you’re required to comply with the new regulations

Any company with five or more employees that has at least one employee in California will need to comply with FEHA regulations for their California employees. This includes all California employees who are full-time, part-time, currently on leave or on suspension.

Be aware of additional protected classes

Protected classes under the FEHA regulations are groups of individuals who must not be discriminated against. Categories of protected classes include:

• Age (40 and over)
• Ancestry
• Color
• Religious creed (including religious dress and grooming practices)
• Denial of leave under the Family and Medical Leave Act
• Disability (mental and physical), including HIV and AIDS
• Marital Status
• Medical Condition (including cancer and genetic characteristics)
• Genetic information
• Military and veteran status
• National origin (including language use restrictions)
• Race
• Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding)

The amended regulations define the following key terms related to gender discrimination:

• Gender expression
• Gender identity
• Transgender
• Sex stereotyping
  

All new regulations must be in writing

Companies to whom the law applies are required to create detailed written policies for preventing harassment, discrimination and retaliation. They are also required to distribute them to all employees, interns and volunteers. Previously, only anti-harassment policies needed to be in writing. The specific requirements of what must be included in the written policies are:

• List of all protected categories under the FEHA.
• Allowing employees to report to someone other than a direct supervisor.
• Instructing supervisors to report all complaints.
• Assurance that all complaints will be investigated fairly, completely and timely.
• Stating that the employer will maintain confidentiality to the extent possible.
• Stating that remedial action will be taken if any misconduct is found.
• Assurance that employees will not be retaliated against for complaining of or participating in an investigation.
• A warning that all employees and third-parties must not engage in unlawful behavior under the FEHA.
  

Specific training rules for larger companies

For companies with 50 or more employees, all supervisors must take part in a minimum two-hour training on these regulations. This training needs to take place every two years and within six months of promotion to supervisor. The training can be done by webinar, e-learning or in-person and must be conducted by an attorney, HR professional or other qualified instructor. The supervisor harassment training includes specific requirements that must be met. Documentation of the training must be kept for a minimum of two years with specific information requirements. TriNet provides leadership training to help clients stay compliant with these regulations.

What employers need to do to be compliant

Understand whether or not your company falls under the expanded definition of which California employers must comply with these new regulations:

1. Determine if the additional regulations expands the scope of your employees who are now protected under the FEHA.
2. If you don’t have one already, create a complaint and resolution procedure for discrimination, harassment and retaliation reporting.
3. Review and update your discrimination, harassment and retaliation policies, as well as your employee handbook, so that these regulations are in writing, as described above.
4. Send out your discrimination, harassment and retaliation policies to everyone who is covered under these regulations and get signatures acknowledging that they have read and understand the policies.
5. If you have 50 or more employees, make sure you have a regular training program on discrimination and harassment for supervisory employees, as explained above.
6. Properly document all associated training and policy signatures and keep them in each employee’s file for at least two years.
   

For a more in-depth analysis of your business HR needs within California, contact Jon Siders at TriNet. Jon.Siders@Trinet.com (858) 333-7509

This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance. 

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