March 11, 2016
On April 1, 2016, new amended regulations promulgated under the California Fair Employment and Housing Act (FEHA) will take effect, and they cover a range of topics. Some of the key provisions include:
New Policy Requirements
The new FEHA regulations mandate that every California employer employing five or more total employees (regardless of location) must develop detailed written discrimination, harassment and retaliation prevention policies that:
New Gender-Related Definitions
The new FEHA regulations define several new employee characteristics protected under the Act and/or revise the definition of existing terms, including “Gender Expression,” “Gender Identity,” “Sex Stereotype,” and “Transgender.”
Expanded National-Origin Protections
The new FEHA regulations also prohibit discrimination against a non-citizen applicant or employee who holds a driver’s license issued under Section 12801.9 of the California Vehicle Code. Specifically, the regulations now allow employers to require an applicant or employee to hold or present a driver’s license as part of employment only if to do so is required by: (a) state or federal law, or (b) the employer’s policies for a legitimate business purpose (and permitted by applicable law). Inconsistent application of or lack of a legitimate business purpose for an employer’s policy may be deemed a violation of FEHA.
New Non-Monetary Preventative Remedies
The amended FEHA regulations will permit the DFEH to independently seek “non-monetary preventative remedies” against an employer for failure to prevent and correct discriminatory, harassing and retaliatory conduct, notably without having to prove any underlying prohibited act. This could include enjoining certain prohibited conduct or requiring specific actions to comply with the FEHA regulations.
Given the broad range of topics covered by the amendments and the rapidly approaching compliance deadline, California employers should consult with counsel to ensure that their company policies and practices are in compliance with the new regulations and are appropriately distributed to covered employees. For further information or questions about the information contained in this legal alert, please contact the authors, your McGuireWoods contact or a member of the firm’s labor and employment group.