California issues new requirements for discrimination, harassment and retaliation policies and complaint procedures effective April 1



March 09, 2016

Employment Law Alert

Author(s): Marjorie S. Fochtman

The California Department of Fair Employment and Housing recently adopted a regulation that requires employers with California employees to develop, distribute and implement a harassment, retaliation and discrimination prevention policy and to implement certain procedures for processing such complaints by April 1, 2016. The new regulation, set forth in Title 2 of the California Code of Regulations at section 11023, contains many specifics that employers may not currently include in their handbook policies on discrimination, harassment and retaliation.

California law provides that employers have an affirmative duty to prevent and promptly correct discriminatory and harassing conduct. (Gov’t Code § 12940(k)) The new regulation details the elements of a policy and a complaint process that will evidence an employer’s commitment to preventing and correcting such misconduct. Under the new regulation, the policy must:

  • Be in writing;
  • List all current protected categories covered under the Act (note that California’s protected categories go beyond federal law and also protect ancestry, family and medical leave status, marital status, medical condition, military/veteran status, pregnancy, breastfeeding and related disabilities, gender, gender identity and gender expression, and sexual orientation);
  • Indicate that the law prohibits co-workers, supervisors, managers and third parties with whom the employee comes into contact from engaging in conduct prohibited by the Fair Employment and Housing Act;
  • Include a complaint process that ensures that complaints receive:
    • an employer's designation of confidentiality, to the extent possible,
    • a timely response,
    • impartial and timely investigations by qualified personnel,
    • documentation and tracking for reasonable progress,
    • appropriate options for remedial actions and resolutions, and
    • timely closures.
  • Provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, but instead allows an employee to complain to:
    • a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
    • a complaint hotline; and/or
    • access to an ombudsperson; and/or
    • the Department of Fair Employment and Housing and the U.S. Equal Employment Opportunity Commission (EEOC).
  • Instruct supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally.
  • Indicate that when an 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 the investigation misconduct is found, appropriate remedial measures shall be taken.
  • Make clear that employees will not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Moreover, the regulation specifies that this requirement is “in addition to” the requirement to distribute the DFEH-185 brochure on sexual harassment or an alternative writing that complies with Government Code section 12950. Consequently, an employer may no longer rely on the DFEH brochure and may need to develop and distribute an additional policy meeting the requirements of section 11023.

Employers are required to disseminate the policy to employees through print, e-mail or posting, and obtain acknowledgments from employees. Employers must also translate the policy into every language that is spoken by at least 10% of their employees.

Employers should take time now to review their current policies on harassment, discrimination and retaliation and determine if changes are needed to comply with the new regulation.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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