New California FEHA Regulations Impose Additional Anti-Harassment and Non-Discrimination Requirements on Employers

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 requirements for the content and dissemination of mandatory discrimination, harassment and retaliation prevention policies and complaint reporting processes;
• new or revised definitions of employee characteristics protected under FEHA;
• expanded national origin protections; and
• a new rule allowing the California Department of Fair Employment and Housing (DFEH) to obtain “non-monetary preventative remedies” against an employer for failure to prevent and correct discriminatory and harassing conduct.

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:

• list all current protected characteristics under FEHA;
• specify that FEHA’s protections apply to unlawful conduct by supervisors, co-workers and third parties;
• instruct supervisors to report complaints of misconduct to designated personnel;
• contain complaint reporting procedures that, among other things, provide a mechanism for employees to report complaints to someone other than a direct supervisor and ensures timely investigations and responses for all complaints;
• provide for confidentiality throughout the investigation process to the extent possible;
• indicate that remedial measures will be taken following an investigation, if appropriate;
• specify that retaliation for making a complaint or participating in an investigation is prohibited.
• are disseminated to all employees through various approved methods and translated into other languages if the “spoken language” of at least 10 percent of the workforce is a language other than English.

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.