Beginning April 1, 2016, new California regulations (§11023 specifically) will require all California employers with more than five employees to have written policies regarding harassment, discrimination, and retaliation.  For some employers, this may mean drafting a specific policy for the first time; for others, it may require some tinkering with an existing policy.  Below we address the new regulations.

Why is this Happening?

California Government Code section 12940(k) makes it an unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.  Based on that provision, the Department of Fair Employment and Housing has concluded that in addition to distributing a DFEH-185 brochure or a similar writing on harassment that complies with Government Code §12950, an employer must now also “develop a harassment, discrimination, and retaliation policy” that fulfills specific requirements.

What Must Be Included in the Policy?

Specifically, all non-harassment, discrimination, and retaliation policies must be in writing and include:

• A list all of the protected classes under California law:

  • Race

  • Religion

  • Color

  • National origin

  • Ancestry

  • Physical and/or mental disability

  • Medical condition

  • Genetic information

  • Marital status

  • Sex, gender, gender identity, gender expression

  • Age

  • Sexual orientation

  • Military and/or veteran status.

• A clear statement that not only employees, but also independent contractors, interns, and volunteers are protected by the policy.

• A clear statement that harassment, discrimination, and retaliation by supervisors, managers, co-workers, and third parties such as suppliers or customers are prohibited.

• A description of the company’s internal complaint process, which provides 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; (iv) appropriate options for remedial actions and resolutions; and (v) timely closures. Further, it must include language promising the employer will conduct “a fair, timely and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected,” and that if misconduct is found, “appropriate remedial actions will be taken.”

• A clear statement that an individual may complain about improper conduct either to their manager or through a neutral party. The regulations include possible options such as a designated company representative, human resource manager, EEO officer, another supervisor, a complaint hotline, access to an ombudsperson, and/or an appropriate government agency.

• A clear statement obligating all supervisory personnel to report complaints of “misconduct” to a designated company representative.

• A clear statement that an individual will not be subject to retaliation for lodging a complaint or participating in a workplace investigation.

How Must I Disseminate the Policy?

The regulations provide employers with five options from which to select to disseminate the policy.  They can do it the old-fashioned way by distributing hard copies and having employees sign acknowledgment forms, or they can pursue the electronic route by emailing it along with an acknowledgement return form, or, better yet, employers can make it available via the intranet with a tracking system that ensures each employee has reviewed it.  Employers may also discuss the policies upon hire at an orientation session or disseminate it in any “other way that ensures employees receive and understand” the policy.  The regulations also require employers to translate the policy into another language that is primarily spoken by at least 10% of their workforce.

Consequences of Failing to Have a Compliant Policy

Although the failure to create a new or revise an existing policy generally means that an employer has failed to fulfill its affirmative §12940(k) duty to create a workplace environment free from discrimination, harassment, and retaliation, the regulations also make clear that an individual cannot assert a “stand-alone, private cause of action” to remedy such a violation.  Instead, to prevail on an actionable § 12940(k) claim, the individual must also first plead and prevail on an underlying claim of discrimination, harassment, or retaliation.  The story is a little different for the government – as it can assert a stand-alone claim and seek non-monetary preventative remedies against an employer for failing to draft and implement a policy.

Action Items:

• Employers who do not have an anti-discrimination/harassment policy should draft one immediately. And those who do have one should update it accordingly.

• The policy should include the language and concepts identified in the new regulations.

• Employers should also make sure to disseminate the new policy in a manner permitted by the regulations.

• Complaint and investigation procedures and mechanisms should match the policy’s language so there is no disconnect.

• Lastly, employers should train their staff, especially managers, on how to comply with the updated policy.