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2016 California FEHA Changes

Regulations Updated as of April 1, 2016

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By William H. Truesdell, SPHR, SHRM-SCP
© 2016 The Management Advantage, Inc.

As of April 1, 2016, California’s Fair Employment and Housing Act (FEHA) and its implementing regulations from the California Department of Fair Employment and Housing will add some new definitions to its covered individuals. Here are some things to be aware of that may mean you are covered when you have not previously been required to comply. [See Footnote #1]

“Employee” means: Any individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written. Five or more includes all people for each working day in any twenty consecutive calendar weeks in the current calendar year or preceding calendar year. Even people working outside California are included in calculating the number of employees. (People outside California may not be covered by the protections of the FEHA.) People considered employees include full-time, part-time, people on paid or unpaid leave, including CFRA leave, leave of absence, disciplinary suspension, or other leave, are all counted. Any person or individual acting as an agent of an employer, directly or indirectly is counted as an employee. An individual compensated by a temporary service agency for work to be performed for an employer contracting with the temporary service agency is an employee of that employer for such terms, conditions and privileges of employment under the control of that employer. Such an individual also is an employee of the temporary service agency with regard to such terms, conditions and privileges of employment under the control of the temporary service agency. Any individual under the direction and control of an employer is an employee. Independent contractors are excluded.

“Employer” means: Any person or individual engaged in any business or enterprise regularly employing five or more individuals, including individuals performing any service under any appointment, contract of hire or apprenticeship, express or implied, oral or written. Religious organizations are generally excluded.

California’s Protected Categories
The FEHA specifies that employment decisions such as hiring, discipline, training, compensation and other employment actions may not be influenced by an employee’s or job applicant’s membership in any of the following categories:

  • Age (over 40)
  • Ancestry
  • Color
  • Religious Creed
  • Denial of Family and Medical Care Leave
  • Disability (mental and physical) including HIV and AIDS
  • Marital Status
  • Medical Condition (Cancer and genetic characteristics)
  • Genetic Information
  • Military and Veteran Status
  • National Origin (including language use restrictions) (Also includes undocumented immigrants who hold special “AB 60” driver’s licenses)
  • Race
  • Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding)
  • Gender, Gender Identity, and Gender Expression
  • Sexual Orientation

Considering any of these categories when making employment decisions is considered illegal employment discrimination under the FEHA.

Prohibited Employment Practices
California has long had a list of protected categories that was longer than the federal list. What they add up to is a list of prohibited employment practices, including:

  • Considering protected categories in employment decisions.
  • Harassment of employees or applicants (requires employers to take all reasonable steps to prevent harassment from reoccurring).
  • Unions may not discriminate in membership or employment referrals.
  • Retaliation against anyone who files a complaint with the Department of Fair Employment and Housing or participates in any Department investigation.

Employers Must Do These Things
In addition to the list or prohibited actions, the FEHA provides that employers must do these things:

  • Reasonably accommodate employees and job applicants with disabilities if requested in order to enable them to perform the essential functions of the job.
  • Provide information to all employees describing the forms of sexual harassment, its illegality, the internal and external complaint processes and legal remedies.
  • Provide leaves of up to four months to employees disabled because of pregnancy or childbirth.
  • Provide reasonable accommodation requested by an employee, with the recommendation of the employee’s health care provider, related to her pregnancy, childbirth, or related medical conditions.
  • Employers of 50 or more people in a 75 mile radius must allow employees to take up to 12 weeks in a 12-month period for the birth of a child, the placement of a child for adoption or foster care, for an employee’s own serious health condition, or to care for a parent, spouse, or child with a serious health condition.
  • Employers must post a notice to all employees informing them of their family and medical leave rights.
  • All employment agencies must serve all applicants equally, refuse discriminatory job orders, refrain from prohibited pre-employment inquiries or advertising.

Remedies for Violations of the FEHA
When an employer is found to have violated the Fair Employment and Housing Act (FEHA) the employee may receive any or all of the following as remedies:

  • A job offer
  • Back pay
  • Promotion
  • Reinstatement
  • Damages for emotional distress
  • Reasonable attorney fees and costs
  • Expert witness fees
  • Administrative fines and court ordered punitive damages
  • Cease and desist orders

    Harassment Policies and Training on Prevention
    The FEHA protects everyone against harassment based on any protected class. It requires employers to publish a non-harassment policy that clearly says supervisors, co-workers and third parties (office machine repair technicians, delivery personnel, etc.) are prohibited from harassing any employee. The policy should direct supervisors to report all complaints to a designated company coordinator (often the HR Manager). There must be a complaint process offered so employees can report problem behavior to any manager or supervisor, not just their immediate boss. It must make clear that disciplinary action will be taken against anyone found to have harassed another. It must also clearly tell employees that the company will not retaliate against them for filing a complaint or participating in an investigation of a complaint someone else has filed. The policy must also outline the process of filing a complaint, inside the company or with an external enforcement agency.

    The policy must be distributed to employees through email, by U.S. mail, by posting on the company Intranet, including it in the employee handbook or policy manual, or any other method that assures each person receives a copy. There must also be a method of having the employee sign an acknowledgement that the policy has been received.

    California requires employers with 50 or more workers provide training on sexual harassment prevention every two years. All supervisors with direct reports must participate in the interactive training which must be interactive. A minimum of two hours is required for such a program. Delivery of training can be done in classroom format, e-learning or webinar. Training must include information about federal and state sexual harassment law, the impact of harassing behavior, tools supervisors can use to respond to harassing behavior, a description of the remedies available to victims and the requirement for supervisors to report complaints or observations of harassment to a central official who will conduct an investigation.

    New 2016 Rules
    Some new definitions have been added to the FEHA and its regulations.

    • Gender Expression: Gender-related appearance or behavior, whether or not it matches with a person’s sex at birth.
    • Gender Identity: Identification as male, female, or transgender whether or not it matches with a person’s sex at birth.
    • Sex Stereotype: Assumptions about an individual based on appearance or behavior, myths or social expectations.
    • Transgender: Someone who’s gender identity is different from the person’s sex at birth.




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