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Written Harassment, Discrimination, Retaliation Policies Required by New FEHC Rule

Bryan Little, Farm Employers Labor Service

Updated 5/2/16

California employers will be required to have written policies to address workplace harassment, discrimination and retaliation under new Fair Employment and Housing Council regulations originally proposed in 2014 and becoming effective April 1, 2016. These regulations require employers with five or more employees to have written policies against unlawful harassment, discrimination, and retaliation in the workplace meeting certain requirements.

Protected Categories
To comply with the new regulation, and employer’s written policy must list all of the protected categories under the Fair Employment and Housing Act: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and veteran status.

Conduct
Employer’s written policies will be required to prohibit unlawful harassment, discrimination, and retaliation by supervisors, managers, coworkers, and third parties such as vendors or customers. Conduct policies protect contractors, unpaid interns, and volunteers.

Complaint Procedure
Employer’s written policies required by the new regulation must describe a complaint procedure that:

  • Guarantees confidentiality to the extent possible,
  • Provides timely complaint response, 
  •  Provides timely and impartial investigation by a qualified person,
  •  Requires documentation and tracking for reasonable progress, 
  • Appropriate due process with a requirement for a reasonable conclusion based on the evidence collected, 
  • Appropriate options for remedial actions and resolutions, and;
  • Timely closure of the complaint.

 The complaint process may not require employees to complain to immediate supervisors. The policy must provide a means for employees to complain to Human Resources or other neutral manager, to a hotline, to a designated ombudsperson, or to the Department of Fair Employment and Housing or the Equal Employment Opportunity Commission.

 

Employers’ policies must also direct supervisors to report any complaints of violations to Human Resources or another appropriate person in your company so that a prompt internal investigation may occur.

Zero Tolerance For Retaliation
The compliant written policy must also specify that employees and others who complain of violations of the policy shall not be subjected to retaliation for bringing a complaint or participating in an investigation.

Distribution to employees
Employees must be provided a copy of the written policy. You can provide it to them in a written document with an acknowledgement for them to sign and return, or via email with an acknowledgement return form. It may also be posted on your intranet site with a tracking system to ensure your employees read and acknowledge it, and it may be presented to and discussed with new hires.
 

If 10 percent or more of your workforce speaks a language other than English, the policy must be translated.

While the new regulation makes no provision for additional penalties for non-compliance.  However, failure to comply may subject to additional damages if you lose a claim of harassment, discrimination, or retaliation before a court or enforcement agency.
 

FELS Custom Handbooks and Standard Form Employee Handbook will meet the requirements of the new FEHC rules.  We have also made available on our website a complaint Harassment and Discrimination handbook policy in English and Spanish.