NEW ANTI-DISCRIMINATION REGULATIONS

Expansive New Anti-Discrimination

Regulations for California Employers Effective
April 1
On April 1, 2016 new regulations for Californias
Fair Employment and Housing Act (FEHA) go
into effect. These changes will impact most
California employers and are intended to
conform the regulations to recent court
decisions.
Employers must comply with
numerous new requirements affecting the
provisions of a compliant anti-discrimination,
harassment and retaliation policy, distributing
the policy to all employees, and meeting the
new mandated training requirements.
We have revised our model handbook policy to
comply with these new regulations. Please
contact Jeff Dinkin or Nicole Zajack to request a
copy or discuss these new regulations. Contact
information is at the end of this Alert.

employers policy
requirements.

March 22, 2016

satisfies

FEHAs

In addition to the current requirement that

employers distribute the Department of Fair
Employment and Housing (DFEH) Form DFEH185 pamphlet on sexual harassment or include
the same information in their anti-harassment
policy, employers must have an antidiscrimination, harassment and retaliation
written policy that includes the following:

New Anti-Discrimination, Harassment and

Retaliation Policy Requirements
Under FEHA, covered employers had an
affirmative duty to take reasonable steps to
prevent and promptly correct discriminatory
and harassing conduct in the workplace. The
new regulations no longer give employers broad
discretion in this area. Instead, the regulations
provide for clear mandates that are required in
all policies. Despite objections by the public
during the comment period, the Fair
Employment and Housing Counsel (FEHC)
adopted these regulations, which the FEHC
considers user-friendly best practices that
eliminate any question as to whether an

fully

Lists all current protected categories

under FEHA (regulations also redefine
gender
identity,
gender
expression, and transgender);
Indicates that co-workers, third
parties, supervisors, and managers
may not engage in prohibited conduct
under FEHA;
Creates a complaint process to ensure
that complaints receive: an employer
designation of confidentiality to the
extent possible; a timely response;
impartial and timely investigation by
qualified personnel; documentation
and tracking for reasonable progress;
appropriate options for remedial
actions and resolutions; and timely
closure;
Provides for a mechanism whereby
employees are permitted to complain
to someone other than their
immediate supervisor (e.g., human
resources manager, EEO officer, other
supervisor, complaint hotline);
Instructs supervisors to report any
complaints to designated company

NEW ANTI-DISCRIMINATION REGULATIONS

representative (e.g., human resources

manager) in order to try to resolve
claim internally;
Indicates that upon receiving a
complaint, the employer will conduct a
fair, timely, and thorough investigation
and that if misconduct is found,
appropriate remedial measures will be
taken;
Makes clear that employees will not be
subjected
to
retaliation
for
complaining or participating in any
workplace investigation; and
Makes clear that unpaid interns and
persons serving in any other limitedduration program to provide unpaid
work
experience
cannot
be
discriminated against on any basis
protected by the FEHA, and unpaid
interns, volunteers, and persons
providing service pursuant to a
contact are protected against
unlawful harassment.

The compliant policy must be distributed

to all employees by one or more of the
following methods: (1) providing a printed
copy to all employees with an
acknowledgement form for employees to
sign and return; e-mailing employees the
policy
via
e-mail
with
and
acknowledgement and return form;
posting the policy on a company intranet
site and use tracking to ensure all
employees have read and acknowledged
receipt of the policy; discussing the policy
upon hire or during new hire orientation
March 22, 2016

session; or, any other way that ensures

employees receive and understand the
policy.
Employee handbooks should be revised to
include the revised policy. Handbooks
should
include
an
employee
acknowledgment form, and it is
recommended that the form specifically
acknowledge employees will read and
comply with the terms of the antidiscrimination, harassment, and retaliation
policy.
Lastly, employers must translate the policy
into every language that is spoken by ten
(10) percent of its workforce at any facility
or establishment.
New Definition of Employer under FEHA
Historically, employers with fewer than
five (5) employees in California were not
generally subject to FEHA or its
regulations. The new regulations require
the employees located outside of
California be counted in determining
whether the five (5) employee threshold
has been reached. However, employees
located outside of California are not
themselves covered by the protections of
FEHA
so
long
as
the wrongful conduct did not occur in
California and it was not ratified by
decision makers or participants located in
California. As a result of this expanded
definition of employer, many additional
companies with small operations in

NEW ANTI-DISCRIMINATION REGULATIONS

California will be required to comply with
FEHA and its regulations.
New Training Requirements
Since 2004, AB 1825 has required
employers with 50 or more employees to
provide supervisors with unlawful
harassment prevention training every two
years and upon hire. In addition to
imposing
new
record-keeping
requirements, the training must now
cover, among other things, supervisors
obligation
to
report
harassing,
discriminatory or retaliatory behavior
when they become aware of it, the
negative effects of abusive conduct in
the workplace, and steps necessary to take
appropriate remedial measure to correct
harassing behavior.

March 22, 2016

Compliance Assistance
For more information or assistance in
reviewing your existing policy or
establishing
a
compliant
antidiscrimination, harassment and retaliation
policy, please contact:

Jeffrey Dinkin
(805) 730-6820
(949) 725-4098
(424) 214-7016
jdinkin@sycr.com
Nicole Zajack
(424) 214-7017
nzajack@sycr.com
In addition, Stradling Labor and
Employment Team will be conducting an
update presentation in May which will
include a discussion on these new
regulations and how they will impact
California employers. Dates and locations
will be announced soon.
In the
meantime, please contact your Stradling
attorney for more information.