By Deborah Petito |

California’s Department of Fair Employment and Housing (“DFEH”) has finalized changes to regulations which will be effective April 1, 2016.  These regulations further define and revise provisions of the Fair Employment and Housing Act (the “FEHA”).  The FEHA prohibits discrimination, harassment and retaliation against California employees.  Many employers may not realize that regulations impose employer obligations in addition to those required by statute.

The final regulations reflect recent modifications in the law and court decisions including the following:

  1. Employers Must Count Out of State Employees to Determine If They Are Covered under the FEHA. The FEHA only applies to employers who “regularly employ” five or more employees.  The final regulations define “regularly employ” to include any employer who has five or more employees regardless of whether or not those employees all work in California.  For example, if an employer has 12 employees working out of state and two employees working in California, that employer will be covered by the FEHA.  However, only the two California employees who actually work in California can file complaints under the FEHA.
  1. Unpaid Interns Are Protected. Unpaid interns are now included as a protected class under the FEHA.  Therefore, employers hiring interns should make sure they receive the employer’s policies required under the FEHA.
  1. Requirements of Notice to Employees. The final regulations also modified the notice requirements to employees regarding discrimination, harassment and retaliation.  Employers will now be required to distribute California’s DFEH brochure on sexual harassment or have a written policy that provides the same information to employees AND have a discrimination, retaliation and harassment policy which:
  • is in writing;
  • lists all current protected categories covered under the FEHA;
  • indicates that discrimination, retaliation and harassment is prohibited;
  • has a complaint process which does not require the employee to report the complaint directly to his or her supervisor and includes:
  • an employer’s designation of confidentiality, to the extent possible,
  • a timely employer response to the complaint,
  • impartial and timely investigations by qualified personnel,
  • documentation and tracking for reasonable progress,
  • appropriate options for remedial action and resolution, and
  • timely closure.
  • instructs supervisors to report any complaints to a designated representative;
  • indicates the employer will conduct a fair, timely and thorough investigation;
  • states that confidentiality will be maintained to the extent possible;
  • indicates that if misconduct is found, appropriate measures or discipline will be taken; and
  • states there will be no retaliation against employees for complaining or participating in any workplace investigation.

The regulations also require that the employer’s policy be given or made available to employees and affords five methods for doing so, including providing a copy of the employee handbook which includes the  policy.

  1. Expanded Statement of the Purpose of Prohibiting Sex Discrimination and Harassment. The Statement of Purpose of prohibiting sex discrimination and harassment has been expanded to state:  “The purpose of the laws against discrimination and harassment in employment because of sex is to eliminate the means by which individuals, by virtue of their sex, gender identity, or gender expression, are treated differently, paid less, treated adversely based on stereotyping, subjected to conduct of a sexual nature, subjected to hostile work environments, or made to suffer other forms of adverse action, and to guarantee that in the future equal employment benefits will be afforded regardless of the individual’s sex.”   [Italicized bold words were added.]
  1. Inclusion of Transgender Individuals as Covered under Pregnancy Disability. The regulations were also revised to include protection for a transgender individual who is disabled by pregnancy and expanded the definition of harassment based upon childbirth, breastfeeding or any medical condition related to pregnancy.  California’s DFEH also revised the notice required to be given to employees regarding the rights and obligations of pregnant employees.
  1. Other Changes. The regulations include other changes to mirror new law or court decisions that revise or expand the FEHA.

As a result of the final regulations, effective immediately, employers should, at a minimum, do the following:

  1. Replace the Notice they provide to employees regarding pregnancy discrimination.
  2. Review their discrimination, harassment and retaliation policies to make sure they comply with the new regulations.  Failure to do so may leave the employer open to being sued for failing to prevent discrimination, harassment and/or retaliation.

Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions regarding the final changes to California’s DFEH regulations, or any other employment issue you should certainly consult legal counsel of your choice when considering this .  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Debbie Petito dpetito@clarktrev.com or Leonard Brazil lbrazil@clarktrev.com by email at or telephonically by calling the author at (213) 629-5700.

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