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New discrimination regulations coming to California

March 23, 2016

Lost-in-Literature-8-Big-Books-for-2015-MainPhotCalifornia’s anti-discrimination laws just got a bit more complicated for employers. The Fair Employment and Housing Commission, the ultimate guardians of FEHA’s galaxy of laws, recently promulgated new regulations you need to be aware of. (Just in case: FEHA = California’s Fair Employment and Housing Act.) And since the new regs are effective April 1, 2016 (no fooling), you need to act fast.

Here’s what you need to know.

More companies are covered under FEHA.

Five employees is the legal standard, and that didn’t change – employers with fewer than five employees are exempt from FEHA. But the regs did implement a new rule that includes non-California-based employees in the company count. So if you have one person in a satellite office in Oakland and four more in your Phoenix branch, congratulations, you are officially playing with the big boys.

Things are changing a bit with gender.

The regulations provide new definitions for gender identity, gender expression, and transgender. In general, “gender expression” refers to appearance and behavior; “gender identity” is how a person identifies him/herself; and “transgender” means someone whose gender identity differs from the person’s sex at birth. They are all protected under FEHA.

More nit-picky rules for handbooks.

The new regulations are extremely detailed with respect to what your written anti-discrimination policy needs to say and how it needs to say it. (You don’t have a written anti-discrimination policy? Time for a heart-to-heart with your favorite employment lawyer.)

For instance:

  • It needs to be in writing (duh).
  • It needs to list each one of the protected classes referenced in FEHA – depending on how you count, that’s north of 30 different categories.
  • It needs to specify that harassment, discrimination, and retaliation are no-nos whether done by a manager, a supervisor, a co-worker, a contractor, a client, a vendor, or pretty much anyone else employees are likely to meet in a workplace setting.
  • It must include an explicit and legally adequate complaint procedure to ensure any complaints (1) get a timely response; (2) are kept confidential to the extent possible; (3) can be reported somewhere outside the chain of command; (4) get investigated quickly, by competent and impartial personnel; (5) are tracked and documented; and (6) lead to discipline if the facts warrant.
  • It must prohibit retaliation of any kind. This means in the real world, as well as written policy land.
  • The policy needs to be disseminated to employees before April 1, 2016, in hard copy, on an intranet site, and/or through new hire training. Does more than 10% of your workforce speak a language other than English? Well then, translate and disseminate into all such languages.

Make sure you’re training your people to avoid conduct that isn’t even illegal yet.

Yes, you read that right. Stick with me here.

Employers big enough to require biennial discrimination and harassment training under California law (50 employees or more), must also tweak your training program. Specifically, the training has to include matters relating to “abusive conduct” in the workplace, including

  • Its negative effects, like reduced productivity and bad workplace morale.
  • What it is, generally conduct taken with malice that a reasonable person would find hostile or offensive and that is not related to an employer’s legitimate business interests.
  • That a single really egregious act can trigger, uhh, well, something that will make your teacher very disappointed (see next paragraph). Although most instances of abusive conduct require more frequent occurrences.

Interestingly, abusive workplace conduct isn’t technically illegal in California – at least not yet – although in many cases it’ll get you sued for harassment or other bad employer behavior. But maybe you can read the tea leaves about where this is going.

Consider yourselves up to date (for now — gotta love California, there’s always more coming). And make sure to get these new items incorporated into your manuals and procedures, and avoid a love note from the DFEH in your Easter basket.

Thanks for reading – and please let me know if we can make these updates more useful (or at least more entertaining).

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