New California FEHA Regulations Effective April 1, 2016 Impose Additional Requirements on Employers

March 28, 2016

Important amendments to California’s Fair Employment and Housing Act (FEHA) are set to go into effect on April 1, 2016. FEHA is the state’s primary law that protects employees against discrimination, retaliation and harassment in employment. FEHA applies to all California employers with five or more full or part-time employees.

While the substantive law concerning employee discrimination, retaliation and harassment has not changed, the amendments contain new and detailed requirements for employer policies, processes, and education, as well as new definitions of terms that were not included in previous versions of the law, including gender identity, gender expression, and transgender. Highlights of the amendments include new or revised:

  • Written anti-discrimination, harassment and retaliation policies;
  • Definitions of protected employee characteristics;
  • Sexual harassment prevention training and record-keeping requirements; and
  • Employer obligations regarding pregnancy disability leave.

New Policy Requirements

Covered employers must establish written anti-discrimination and anti-harassment policies with specific components, including a list of all protected FEHA categories, a complaint process and complaint contact points beyond an employee’s direct supervisor.

The amendments also require dissemination of the new policy and set forth methods by which to do so. If more than 10 percent of workers in a given location primarily speak a language other than English, employers must translate the policy into those languages.

New and Revised Definitions Related to Gender Discrimination

The definition of certain terms related to discrimination are updated, including “sex,” “gender expression,” “gender identity,” and “transgender.”

“Sex stereotyping” (assumptions about a person’s appearance or behavior, or about an individual’s ability or inability to perform certain kinds of work based on myth, social expectation, or generalization about gender) remains illegal.

Sexual Harassment Training and Record-Keeping

Since 2005, FEHA has required employers with fifty or more employees to provide two hours of supervisor harassment training every two years, but until now has been vague about what the training should entail and how records should be kept.

As of April 1, the training must have interactive components to ensure that supervisors are engaged and understand the material; webinars alone will not satisfy the training requirement. The amendments add required substance, including: potential exposure and liability for employers and individuals; supervisors’ obligation to report sexual harassment, discrimination, and retaliation when they become aware; steps for appropriate remedial measures to correct harassing behavior; and a review of the definition of “abusive conduct” (workplace bullying).

Employers must maintain certain information related to the supervisor harassment trainings for a minimum of two years.

Pregnancy Disability Leave (PDL)

The amendments confirm the length of PDL is up to four months, and employees are eligible for the leave and continued benefits per pregnancy, not per year. The new regulations also specify that employers must update their polices as needed and post new notices, beginning April 1, 2016. The regulations include a new suggested notice employers may use, which can be found here and which contains information about employees’ rights and obligations, including:

  • right to request reasonable accommodation, transfer, or pregnancy disability leave;
  • obligation to provide adequate notice to the employer of their need for PDL;
  • obligation to provide medical certification to establish the need for PDL.

Like harassment policies, PDL policies must be translated into every language spoken by at least 10 percent of the workforce.

Employer Action

In light of the amendments, California employers or employers with California operations should re-examine their policies and procedures to ensure compliance. Employers should review and revise policies, distribute and/or post any new or amended policies, and perform any needed training.

Attorneys in Dykema’s California Labor and Employment group, including Laura Worsinger, Jack Schaedel and Jamie Lopez, are available to provide assistance and answer any questions you may have about California employment law.

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