California Fair Employment and Housing Act (FEHA) Update

The Fair Employment and Housing Act (FEHA), overseen by the California Department of Fair Housing, is California’s primary statute to combat workplace discrimination. It prohibits discrimination based on several protected categories such as race, gender, and many others.

What Are the New FEHA Regulations?

The new FEHA regulations are rules that the Fair Employment and Housing Council (FEHC) has adopted to implement and interpret the provisions of FEHA. The new FEHA regulations cover various topics, such as:

• The definition of employer and who is subject to the FEHA, including the FEHA’s harassment prevention training requirements;
• The prohibition of discrimination and harassment based on religious creed, age, and genetic information, and the requirements for reasonable accommodation and interactive process;
• The procedures for filing, investigating, and resolving complaints of violations of the FEHA and the remedies and penalties that may apply;
• The record retention requirements for employers, housing providers, and other entities covered by the FEHA and the consequences of failing to comply;
• The rights and responsibilities of persons with disabilities and their service animals in employment and housing settings.

The new FEHA regulations apply to all employers, housing providers, and other entities that are covered by the FEHA. The new FEHA regulations aim to clarify and update the existing rules and to align them with the current case law and best practices. The new FEHA regulations also reflect the FEHC’s commitment to protect and promote the civil rights of all Californians.

What Are the New California FEHA Anti-Discrimination and Anti-Harassment Policies?

The new California FEHA anti-discrimination and anti-harassment policies cover the prohibition of discrimination and harassment based on religious creed, age, and genetic information, and the requirements for reasonable accommodation and interactive process.

Employers must have a written policy that:

• Lists all current protected categories covered under the FEHA;
• Indicates that managers, supervisors, coworkers, and third parties are prohibited from engaging in unlawful conduct under the FEHA;
• Creates a complaint process that ensures confidentiality, timely responses, impartial investigations, documentation, remedial actions, and closure;
• Provides a complaint mechanism that allows employees to complain to someone other than their immediate supervisor;
• Assures employees that they will not be retaliated against for reporting or participating in an investigation;
• Instructs supervisors to report complaints to a designated company representative; and
• Indicates that misconduct will result in appropriate discipline.

Employers must disseminate the policy to their employees by:

• Providing a hard copy or an email copy;
• Posting it on a company intranet;
• Discussing it upon hire or during a new hire orientation; or
• Any other way that ensures employees receive and understand the policy.

Employers must translate the policy into every language that is spoken by at least 10% of the workforce at any facility or establishment.

Employers must provide sexual harassment prevention training to all supervisors every two years and to all employees every two years starting January 1, 2020.

The training must include information on:

• The FEHA and its definitions;
• Examples of conduct that constitute harassment;
• Strategies to prevent harassment;
• The employer’s complaint process;
• The legal remedies and complaint process available through the DFEH and the EEOC;
• The negative effects of harassment on the victim, the employer, and the harasser; and
• The limited confidentiality of the complaint process.

Employers must provide reasonable accommodations for the religious beliefs and observances of their employees unless doing so would cause undue hardship. Employers must also engage in a timely, good-faith interactive process with employees who request such accommodations. Employers must not discriminate or retaliate against employees for requesting or using religious accommodations.

Employers must provide reasonable accommodations for the known physical or mental disabilities of their employees unless doing so would cause undue hardship. Employers must also engage in a timely, good-faith interactive process with employees who request such accommodations. Employers must not discriminate or retaliate against employees for requesting or using disability accommodations.

Employers must allow employees to bring their service animals to work unless doing so would cause undue hardship. Employers must also engage in a timely, good-faith interactive process with employees who request to bring their service animals to work. Employers must not discriminate or retaliate against employees for requesting or using service animals.

What Are New and Revised Definitions Related to Gender Discrimination?

With societal understanding of gender becoming more nuanced, the FEHA regulations have evolved accordingly. New definitions related to gender discrimination incorporate non-binary identifications, gender expressions, and gender identity. This includes terms and concepts that might not have been traditionally recognized, providing comprehensive protections that mirror modern understanding of gender.

What Are the Anti-Harassment and Record-Keeping Policies Under the New FEHA Regulations?

Under the new regulations, employers have more strict responsibilities when it comes to anti-harassment training and maintaining records. The new guidelines specify the frequency, nature, and content of training sessions. Additionally, employers must maintain detailed records of these sessions, complaints filed, and their resolutions for a designated period, ensuring transparency and accountability.

What New FEHA Regulations Are Related to Pregnancy Disability Leave (PDL)?

The new regulations clarify that PDL is not for an automatic period of time but for the period of time that the employee is disabled by pregnancy, childbirth, or a related medical condition. The employee’s healthcare provider determines how much time the employee will need.

The new regulations specify that PDL may include, but is not limited to:

• Additional or more frequent breaks;
• Time for prenatal or postnatal medical appointments;
• Doctor-ordered bed rest and covers conditions such as:
  • Severe morning sickness
  • Gestational diabetes;
  • Pregnancy-induced hypertension;
  • Preeclampsia;
  • Recovery from childbirth or loss or end of pregnancy;
  • Postpartum depression.

The new regulations state that PDL does not need to be taken all at once but can be taken on an as-needed basis as required by the employee’s health care provider. This includes intermittent leave or a reduced work schedule.

The new regulations require employers to provide a written guarantee that the employee can return to work in the same or a comparable position if the employee requests a written guarantee.

The new regulations allow employers to require employees to submit written medical certifications from their healthcare provider, substantiating the need for PDL. However, it prohibits the health care provider from disclosing the underlying diagnosis without the consent of the patient.

The new regulations require employers to continue the employee’s group health coverage during PDL at the same level and under the same conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave.

The new regulations provide that an employee’s leave will be paid or unpaid depending on the employer’s policy for other medical leaves. The employee may also be eligible for state disability insurance or Paid Family Leave administered by the California Employment Development Department.

The new regulations allow employees to use any vacation or other paid time off during PDL at their discretion and require employers to allow employees to use any available sick leave during PDL.

The new regulations require employers to retain records of employee applications, personnel files, performance evaluations, disciplinary actions, complaints, investigations, and training for a minimum of two years, or longer if a charge or lawsuit is pending, and to make these records available to the DFEH upon request.

Who Do the New California FEHA Regulations Apply to?

The FEHA regulations primarily apply to employers, labor organizations, employment agencies, apprenticeship programs, and any person or entity involved in the conduct of training programs. This wide net ensures that discrimination and harassment are rooted out from every corner of the employment sector. If you have any questions about whether FEHA applies to you, speak with a California attorney.

Do I Need an Attorney?

If you believe you’ve been discriminated against or if you’re an employer seeking to ensure compliance, it’s time to seek legal counsel. LegalMatch offers an excellent platform to connect with a California employment lawyer who can guide you through the complexities of FEHA.