Another Friday – another Friday’s Five. November 2017, a great time to have a refresher course on five obligations employers have under California law to prevent and correct any potential harassment and discrimination in the workplace:
1. Duty to prevent harassment
The Fair Employment and Housing Act (FEHA) requires employers to take “all reasonable steps necessary to prevent discrimination and harassment from occurring.” Gov. Code section 12940(k). As part of this requirement, employers should have policies setting out a definition of sexual harassment, who employees should complain to regarding harassment, explain the types of discipline that may be used in harassment cases, that the complaint will be kept confidential to the extent possible, prohibit retaliation from employees who complain, and be distributed to employees with receipt acknowledged by the employee.
2. Duty to distribute California’s harassment pamphlet
California employers should develop a new hire packet. One required document in this new hire packet is the California Department of Fair Employment and Housing’s information sheet. It is required to be provided to employees “in a manner that ensure distribution to each employee.” This requirement applies to all California employers, regardless of their size.
The DFEH provides the pamphlet (DFEH-185) online for employers to download here.
3. Duty to have written an anti- harassment, discrimination, and retaliation policy
Regulations issued by California’s Fair Employment and Housing Council took effect on April 1, 2016 set forth a requirement that employers adopt a written discrimination, harassment, and retaliation prevention policy that meet certain conditions.
The regulations provide that employers “have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act.” The regulations set forth that in addition to providing employees the Department’s DFEH-185 brochure on sexual harassment, or an alternative writing that complies with Government Code section 12950, employers are required to develop a harassment, discrimination, and retaliation policy that meets certain requirements, including the employer’s complaint procedure, instruct supervisors to report any complaints, and confirm that the employer will conduct a fair and timely investigation, among other items. Most notably, the new regulations require employers to obtain employees’ acknowledgment of receipt of the written policy.
4. Duty to train supervisors
California employers with 50 or more employees are required to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position. All covered employers must provide sexual harassment training and education to each supervisory employee once every two years. In 2015, California requires that a portion of the training also address “abusive conduct.” More information about what topics must be covered in the training, who qualifies to provide the training, as well as other requirements about the training can be found here.
5. Duty to investigate complaints
California Government Code section 12940(j) provides that it is “unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” The law also provides that employers are liable if they “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Gov. Code section 12940(k). If the employer fails to take the preventative measures, they can be held liable for the harassment between co-workers. If the harassment occurs by a manager, the company is strictly liable for the harassment. If the harassment occurred by a non-management employee, the employer is only liable if it does not take immediate and appropriate corrective action to stop the harassment once it learns about the harassment. Investigations must follow certain parameters in order to be deemed adequate under the law. Click here for more information about conducting adequate investigations.