California Amends Anti-Discrimination Regulations
On April 1, 2016, California’s amended anti-discrimination regulations went into effect. The new amendments were created by California’s Fair Employment and Housing Council (“FEHC”), the regulatory body which promulgates and implements California’s employment and housing anti-discrimination laws known.
The amended regulations state that employers “have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act,” and contain new and detailed requirements for employer policies, processes, and education, as well as the definitions of several terms, including gender identity, gender expression, and transgender.
Below are some highlights.
Written Employment Policies
Employers of 5 or more employees in California are required to have a written policy against unlawful harassment, discrimination and retaliation in the workplace, and the written policy must: (a) be in writing, (b) list all current protected categories under the Fair Employment & Housing Act, (c) specify that employees are protected from illegal conduct from any workplace source, including third parties who are in the workplace, (d) create a confidential complaint process that ensures a timely response, impartial investigation by qualified personnel, documentation and tracking, appropriate remedial actions and resolutions, and timely closure, (e) inform employees about several avenues of complaint other than to a direct supervisor, (f) require supervisors to report any complaints of misconduct to a designated company representative, and (g) make clear that employees will not be exposed to retaliation as a result of making a complaint or participating in any workplace investigation.
Expanded definition of “covered employer”
Employers with fewer than 5 employees are generally not subject to the Fair Employment and Housing Act (“FEHA”) or, by extension, the new FEHC regulations. However, the new regulations redefine what it means to have 5 employees. The new regulations provide that out of state employees count toward the 5-employee requirement. This means that, under the new FEHC regulations, an Arizona-based company with a small office of 3-4 employees in California may be sued under new FEHA regulations. Additionally, employees who are out on leave (such as medical leave) now count toward the 5-employee requirement as well.
“Non-monetary preventative remedies” against an employer, even in the absence of underlying discrimination or harassment
In Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307, Sheppard Mullin successfully argued that under the new FEHA regulations there cannot be a standalone, private cause of action for failure to prevent discrimination or harassment if there was no actionable discrimination or harassment. The new regulations attempt to limit the holding in Dickson. While acknowledging that a private plaintiff may not pursue a “failure to prevent” claim in the absence of actionable discrimination or harassment, the new regulations nonetheless provide that the DFEH may elect to pursue “non-monetary preventative remedies” for failure to prevent discrimination or harassment regardless of whether the DFEH prevails on an underlying claim of discrimination or harassment. At this point, it is unclear what “non-monetary preventative remedies” means, but it will almost certainly be interpreted in the broadest manner possible.