5 Changes to California FEHA Regulations Effective April 1, 2016
Important amendments to California’s Fair Employment and Housing Act (FEHA), California’s primary equal employment law, are effective on April 1, 2016. Although the substantive law concerning employee discrimination has not changed, these amendments include new and detailed policy and record-keeping requirements that all employers must be aware of to comply with the law.
Highlighted below are five key amendments to the FEHA regulations. For the text of all of the changes, visit the Fair Employment and Housing Council website.
1. Coverage to Employers with Five or More Employees
FEHA’s anti-discrimination provisions apply to all employers with five or more employees. The new regulations clarify that to reach the “five or more” threshold, employees working outside of California count. Thus, FEHA applies to employers with five or more individuals regardless of whether the employees work in or outside California, as long as the wrongful conduct was in California. Part-time employees and those on leave are counted as well. And FEHA’s anti-harassment provision applies to all employers with at least one employee.
2. Written Anti-Discrimination and Anti-Harassment Policies
The amended regulations state that covered employers must have written anti-discrimination and anti-harassment policies. The regulations provide a detailed list of the specific components that must be included in these written policies. For example, compliant policies must list all of the protected FEHA categories, outline the employer’s complaint procedures in detail, and reassure employees that complaints will be kept as confidential as possible. If 10% or more of the workforce speak a language other than English, employers must translate the policies into each such language.
3. New and Revised Definitions Related to Gender Discrimination
The amendments add detailed definitions for certain terms related to sex discrimination and clarify that FEHA’s ban against sex-discrimination is not aimed solely at discrimination faced by women, but all discrimination based on any person’s, sex, gender identity, or gender expression. “Gender Expression” is defined as a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth. “Gender Identity” is a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender, and “transgender” is a general term that refers to a person whose gender identity differs from the person’s sex at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth.
4. Harassment Training and Record-Keeping
Existing Law requires that employers with fifty or more employees must provide supervisors with harassment training every two years. The amendments detail how the training should be conducted and how records should be kept. Trainings must be interactive. Non-interactive webinars are insufficient. The substance of trainings must touch on potential exposure and liability for individuals; the obligation of supervisors to report harassment, discrimination, and retaliation; the employer’s process for stopping harassing behavior; and a discussion about workplace bullying and abusive conduct. Records of training materials must be kept for two years, including sign-in sheets and course materials, such as questions and written answers exchanged in connection with training done by webinar.
5. Pregnancy Disability Leave (PDL)
The amendments confirm the length of PDL is up to four months, and employees are entitled to leave per pregnancy, not per year. Employers must post new PDL policy notices beginning April 1, 2016 and the amendments have new suggested policy language employers may use for their notices. Also, like policies prohibiting harassment and discrimination, PDL policies must be translated into every language spoken by at least 10% of the workforce.
Next Steps for Employers
The FEHA amended regulations require California employers to put additional time and resources towards compliance. Employers should re-examine their policies and procedures to identify any existing compliance gaps. From there, they should make appropriate revisions to existing handbooks, revamp training procedures, and distribute and post any new or amended policies. These additional efforts will add an extra layer of risk reduction and provide for stronger legal defenses.