The California Fair Employment and Housing Act (“FEHA”) imposes an affirmative duty on employers to take all reasonable steps to prevent and correct discriminatory and harassing conduct in the workplace. FEHA regulations were amended effective April 1, 2016 that changed and added certain employer obligations.
Last month, the California Department of Fair Employment and Housing (“DFEH”) released a “Workplace Harassment Guide for California Employers” (“the Guide”) to assist in compliance with the FEHA regulation amendments. The Guide informs employers what an effective anti-harassment program includes and provides steps to conduct a fair workplace investigation.
According to the DFEH, an effective anti-harassment program starts with a clear written policy distributed to all employees and discussed on a regular basis, e.g. annually. The written policy must include an explanation of prohibited conduct by supervisors, managers, co-workers and even third parties. The policy must extend to all persons involved in or related to the business operation (including unpaid interns, volunteers and independent contractors) and a complete list of all current protected classes must be provided. This includes: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age for individuals over forty years of age, military and veteran status, and sexual orientation. (2 C.C.R. § 11006)
The Guide provides that an effective anti-harassment program must be enforced from the “top.” This means that management must be a role model for workplace behavior, attend all required trainings and thoroughly understand all policies.
Additionally, employers need to know how to handle a complaint of harassment or other wrongful behavior. The Guide informs that any report of harassment or wrongful behavior should be given top priority to determine if a formal investigation should be conducted. The Guide states:
If a complaint is not so serious (for example, an employee’s discomfort with an offhand compliment), then you might be able to resolve the issue by counseling the individual. However if there are allegations of conduct, that if true, would violate your rules or expectations, you will need to investigate the matter to make a factual determination about what happened.
How do employers conduct a fair workplace investigation for serious complaint?
The Guide starts by informing employers that due process, i.e. fairness, must be provided to all parties during an investigation. An employer should first interview the complainant and then meet with the accused to allow the accused a chance to tell his or her side of the story. The accused is entitled to know the allegations made, but it may not be necessary to disclose the complaining party’s identity (employers can only promise limited confidentiality and an effective anti-harassment policy must state that the investigation will be kept as confidential as possible but that complete confidentiality is not promised). Relevant witnesses should then be interviewed and a reasonable and fair conclusion should be made based on the information collected.
Investigations should be started, conducted, and concluded as quickly as possible while insuring that the process is fair to all parties. Everything should be documented, the investigation should be impartial and findings must be based on an un-biased assessment of all acquired evidence. FEHA makes it clear that an employer must take appropriate remedial measures when there is proof of misconduct and the DFEH explains that these measures may include: training, verbal counseling, one-on-one counseling, “last chance” agreements, demotions, salary reductions, rescinding of a bonus, terminations, or anything else that will put a stop to wrongful behavior.
Further guidance on who is qualified to conduct an investigation, the types of questions that should be asked, and how to make credibility determinations are provided in the Guide.
Advice to Employers
- California employers should review their policies and make sure they are compliant with the new Guidelines.
- The Workplace Harassment Guide can be found here.
- The full text of the amended FEHA regulations can be found here.
- The Federal EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors can be found here.
- The DFEH 2017 Sexual Harassment Brochure was recently revised and can be found here.
- Employers are required to provide employees with the DFEH Brochure on Sexual Harassment, or an equivalent document. We recommend using the DFEH form for this purpose.
- California employers should make sure they are fully compliant with the state-required harassment prevention training for managers.
- SHLC’s next Sexual Harassment and Bullying Prevention Training for California Managers will be held via live interactive webinar on September 7, 2017 from 9:00am to 12:00pm (PT).
- For more information and registration for the event, visit:https://suttonhague.com/events/