Question: Will the April 1, 2016 amendments to the Fair Employment and Housing Act regulations require me to make any changes to my company’s existing harassment and discrimination policy?
Answer: California’s Fair Employment & Housing Act (“FEHA”) protects employees and applicants against unlawful discrimination and harassment based on the following protected categories: race, religion, color, national origin, ancestry, citizenship, physical disability, mental disability, legally protected medical condition, genetic information, marital status, registered domestic partner status, sex, gender, gender identity, gender expression, sexual orientation, age, or military or veteran status.  The discrimination provisions of the FEHA cover employers with five or more employees, and the harassment provisions of the FEHA cover employers with one or more employees.
California’s Fair Employment & Housing Counsel (“FEHC”) issues regulations to implement the anti-discrimination and harassment laws contained in the FEHA.  The FEHC recently issued amendments to the FEHA regulations which took effect on April 1, 2016.  The amendments reaffirm existing law, and provide new guidance on employer requirements to prevent harassment, discrimination, and retaliation in the workplace.
Pursuant to the amendments, employers are now required to develop a written harassment, discrimination, and retaliation prevention policy.  The policy must do all of the following:

  • list all protected categories;
  • state that the law prohibits coworkers, supervisors and third parties from engaging in conduct prohibited by the FEHA;
  • create a complaint process that ensures that complaints (1) are treated confidentially to the extent possible, (2) receive a timely response, (3) receive an impartial, timely, investigation by a qualified individual, (4) are properly documented and tracked for progress, (5) receive appropriate options for remedial actions and resolutions, and (6) are timely closed;
  • provide a complaint mechanism that does not require the employee to complain directly to his or her supervisor;
  • instruct supervisors to report complaints to a designated company representative;
  • state that allegations of misconduct will be investigated in a fair, timely, and thorough manner;
  • state that confidentiality will be kept to the extent possible, but not state that the investigation will be completely confidential;
  • state that appropriate remedial measures will be taken if misconduct is found to have occurred; and
  • state that employees will not be subjected to retaliation for making a complaint or participating in an investigation.

Employers must provide the written policy to employees in a manner than ensures employees receive and understand the policy.  Employers should have employees acknowledge receipt of the policy in writing.  If 10% or more of the workforce at any facility or establishment speaks a language other than English, the employer must translate the policy into every language spoken by at least 10% of the workforce.
Employers should review their existing written harassment, discrimination, and retaliation prevention policies to ensure compliance with the FEHA regulation amendments.  If you do not have a written harassment, discrimination and retaliation prevention policy, you should develop a policy that complies with the new requirements.  In addition to the changes above that will directly affect employers’ written harassment, discrimination and retaliation prevention policies, the FEHA amendments cover other areas, including definitional changes, expanded supervisor training requirements, pregnancy disability leave policies, and a new mandatory poster for pregnancy disability leave.
For more information on the FEHA regulation amendments visit: