Employers Required to Maintain Written Harassment, Discrimination, and Retaliation Policy

by Michelle R. Ferber and Ben McDonald

Beginning April 1, 2016, the California Fair Employment and Housing Act (FEHA) will require employers with five employees or more to develop and maintain a written discrimination, harassment, and retaliation policy.  While FEHA has always prohibited this conduct in the workplace, the Department of Fair Employment and Housing (DFEH) has never before required employers to compose and promulgate a written policy specifically addressing discrimination, harassment, and retaliation.  

California Code Regulations § 11023 requires that this written policy list the categories protected under FEHA and state that California law prohibits coworkers, supervisors, managers, and third parties from engaging in conduct prohibited by FEHA.  These categories include but are not limited to race, religion, color, national origin, disability, gender and gender identity, age, and sexual orientation.  The complaint policy must then provide for (i) an employer’s designation of confidentiality, to the extent possible; (ii) a timely response; (iii) impartial and timely investigations by qualified personnel; (iv) documentation and tracking for reasonable progress; (v) appropriate options for remedial actions and resolutions; and (vi) timely closures.

The new law also requires that employers provide employees alternative means of complaining outside of the employee’s immediate chain of command.  The policy must notify employees that they may complain to a designated company representative, complaint hotline, the DFEH, or the United States Equal Employment Opportunity Commission (EEOC).  The employer must also instruct supervisors to report complaints so that any alleged violations can hopefully be resolved internally.  The policy must also state that employees will not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.  Furthermore, employers with 50 or more employees who already have to provide sexual harassment training must also provide training geared toward the prevention of workplace discrimination, harassment, and retaliation.

Employers may choose any method of dissemination of this newly required policy so long as the employer receives a confirmation that the employee has received and understands the policy.  For example, employers may provide a printed copy, email, or any other means as long as the employee is also provided with an acknowledgment form that the employee must return to the employer.  If at least 10% of the employer’s workforce speaks a language other than English as their spoken language, the employer must translate the policy into every language that is spoken by at least 10% of the workforce.

For an employee to prevail on a claim that an employer did not maintain a written policy as required by this new law, the employee must prevail on his or her underlying claim of discrimination, harassment, or retaliation.  However, the DFEH may independently seek non-monetary preventative remedies for violations regardless of whether or not the DFEH prevails on underlying claims.  In determining whether an employer has complied with the new written policy requirement, the DFEH will conduct an individualized assessment based on the specific circumstances of the alleged violation and an analysis of the employer’s business.

Employers must give immediate attention to either the updating of an existing written policy, or the composition of one. 

Should you need assistance or have any questions, please contact Michelle R. Ferber at mferber@danvillelaw.com.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.