CA Anti-Harassment Policies Will Need to be Updated – Again
When it comes to your California Anti-Harassment policy, be grateful that we have moved past the days of white-out and typewriter correction ribbons – because the changes continue to come fast and furious.
In case you missed it, the California Fair Employment and Housing Council issued a notice of a new addition to the sexual harassment policy requirements, which took effect on February 11, 2021. Specifically, an 11th requirement has been added, stating that the written policy must include “a link to, or the Department’s website address for, the sexual harassment online training courses created by the Department.”
Essentially, this is saying that the regulations now require employers to include a link to the DFEH’s courses, which include supervisory and employee-level on-line trainings in multiple languages. This will very possibly create a challenge for employers that have their own training plans and programs as well as training completion tracking tools.
For an overview of the Anti-Harassment policy requirements and strategies for mitigating the risks that come with making this update in your policy, please continue to our blog.
A Quick History Lesson
Effective April 1, 2016, the Fair Employment and Housing Act was amended to clarify that “California employers with five or more employees have an affirmative duty to take “reasonable” steps to prevent and correct discrimination and harassment.” To accomplish this, employers were given very prescriptive instructions to have in place written anti-discrimination and harassment policies that meet numerous updated and expanded requirements. These regulations required employers to develop and distribute anti-discrimination and harassment policies in English as well as in any additional languages that are spoken by at least 10% of the workforce. The regulations also impose requirements for conducting discrimination and harassment investigations. Additionally, (and this is often forgotten) going forward, employers were required to have the policy read and acknowledged by all employees.
The 2016 FEHA amendments can be found here: CAamendedFEHAregsEmployersFinal.pdf.
Until February of this year, the written policy and the required training operated in separate orbits. California law requires all employers five or more employees to provide one hour of sexual harassment and abusive conduct prevention training to nonsupervisory employees and two hours of sexual harassment and abusive conduct prevention training to supervisors and managers once every two years. The law requires the training to include practical examples of harassment based on gender identity, gender expression, and sexual orientation. Logically, the more it is tied into the written policy, the more effective it will be.
This One Goes to 11 – Updating Your Policy
The 2016 amended FEHA included 10 specific components that must be addressed in the Anti-Harassment policy. As of February 11th, that has gone to 11 with the addition of: “Includes a link to, or the Department’s website address for, the sexual harassment online training courses created by the Department.”
Employers should consider revising their written policy to address this. In doing so, however, it becomes necessary to consider to what extent the employer is comfortable with providing a direct link to training it has likely neither reviewed nor approved.
If this is a concern, and the company is already administering a compliant Harassment Prevention Training program, possible wording on this could be along the lines of: “All employees are required to undergo harassment prevention training as required by applicable law. This training is provided by the Company. For more information about this training requirement, visit https://www.dfeh.ca.gov/shpt/.“ By referencing the company’s training program and not making the link live, it may be easier to avoid confusion that could arise for some employees. This, of course, is something that should be discussed with counsel before making a final determination.
The Big Picture
This is a good time to review your company’s written Anti-Harassment policy. There is very little room for error or exclusion on this. The requirements are very specific. The FEHA pretty much writes the policy for you. Here is the full text of the updated CA Labor Code that includes the new provision:
- 11023. Harassment and Discrimination Prevention and Correction.
(a) Employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct. (Gov. Code, § 12940(k).)
(1) A determination as to whether an employer has complied with Government Code section 12940(k) includes an individualized assessment, depending upon numerous factors sometimes unique to the particular employer including, but not limited to, its workforce size, budget, and nature of its business, as well as upon the facts of a particular case.
(2) There is no stand-alone, private cause of action under Government Code section 12940(k). In order for a private claimant to establish an actionable claim under Government Code section 12940(k), the private claimant must also plead and prevail on the underlying claim of discrimination, harassment, or retaliation.
(3) However, in an exercise of its police powers, the Department may independently seek non-monetary preventative remedies for a violation of Government Code section 12940(k) whether or not the Department prevails on an underlying claim of discrimination, harassment, or retaliation.
(b) Employers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act. In addition to distributing the Department’s publication on sexual harassment or an alternative writing that complies with Government Code section 12950, an employer shall develop and distribute to its employees a harassment, discrimination, and retaliation prevention policy that:
(1) Is in writing;
(2) Lists all current protected categories covered under the Act;
(3) Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act;
(4) Creates a complaint process to ensure that complaints receive:
(A) An employer’s designation of confidentiality, to the extent possible;
(B) A timely response;
(C) Impartial and timely investigations by qualified personnel;
(D) Documentation and tracking for reasonable progress;
(E) Appropriate options for remedial actions and resolutions; and
(F) Timely closures.
(5) Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:
(A) Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
(B) A complaint hotline; and/or
(C) Access to an ombudsperson; and/or
(D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
(6) Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 5 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.
(7) Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
(8) States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.
(9) Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
(10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
(11) Includes a link to, or the Department’s website address for, the sexual harassment online training courses created by the Department.
(c) Dissemination of the policy shall include one or more of the following methods:
(1) Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
(2) Sending the policy via e-mail with an acknowledgment return form;
(3) Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;
(4) Discussing policies upon hire and/or during a new hire orientation session; and/or
(5) Any other way that ensures employees receive and understand the policies.
(d) In addition to the actions described above, every employer shall post a poster developed by the Department regarding transgender rights in a prominent and accessible location in the workplace.
(e) Any employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language shall translate the policy into every language that is spoken by at least 10 percent of the workforce.
Your Anti-Harassment policy is one of your Guiding Principles. It should be carefully written, fully inclusive and updated regularly. It should be placed in a prominent place in your handbook and should have an acknowledgement signed and placed in the employee file. Be sure to very carefully consider who will be the contact people noted in the policy as first contact, second contact and contact for managers.
The new requirement for the policy creates a minor challenge for employers that are comfortable with their current training programs. Be sure to publicize your training and make it an integral component of your on-boarding process for new employees and performance management for your existing employees.