By Shireen Husain, Kristina Launey, and Laura Maechtlen

In 2013, the Legislature made significant changes to California’s Fair Employment and Housing Act, including empowering the Department to file civil actions directly against employers, authorizing the award of attorneys’ fees to the Department, and creating the Fair Employment and Housing Council.

The Council has been feverishly proposing and enacting regulations pursuant to its new authority, including proposed amendments to the Fair Employment and Housing Act (FEHA) regulations.  If enacted, these amendments could mean substantial changes to your sexual harassment and discrimination policies and procedures.

What’s new?

Last Thursday, the Council met to consider amendments.  Currently before the Council is a proposed new section 11023, entitled Harassment and Discrimination Prevention and Correction, which would require employers to develop  written sexual harassment and discrimination policies that:

  • Specifically address the liability of supervisors
  • Create a “confidential” complaint process (although employers should not promise that the investigation will be completely confidential)
  • Provide for complaints through channels other than the complaining employee’s direct supervisor
  • Designate a company representative to receive complaints and facilitate internal resolution of disputes
  • Provide for fair, timely, and thorough investigations of complaints and provides due process to all parties
  • Are provided to all employees with an acknowledgment return form or using a method that ensures employees receive and understand the policies
  • Are provided in every language that is spoken by at least 10% of the workforce

In addition, the amendments include a 2 year record retention requirement for all sexual harassment training materials, including sign in sheets and course materials.  Training must include information regarding potential employer and individual liability in civil actions and highlight supervisors’ obligations to report sexual harassment, discrimination and retaliation.

Important Highlights

While many of the proposed amendments do not substantively change the law, the changes may be an indication of the focus of the Council in 2014 and a good reminder of employer best practices.  Don’t forget:

  • The FEHA allows for personal liability for employees who harass coworkers, regardless of the employer’s knowledge or behavior.
  • Strict liability is imposed for the behavior of supervisors or managers “regardless of whether the employer or other covered entity knew or should have known of the harassment.”
  • Hostile work environment sexual harassment “committed by a supervisor, coworker, or third party” can lead to employer liability.
  • The Department can now bring civil actions seeking non-monetary remedies from employers for failure to take steps to prevent discriminatory conduct even if discriminatory actions did not actually take place.
  • An employer may be liable for sexual harassment even when the harassing conduct was not motivated by sexual desire and the complainant does not need to have sustained a loss of tangible job benefits to establish harassment.

On the Horizon

The Council also reported on pending legislation that concerned discrimination against unpaid interns, extended California Family Rights Act protections for private and public school employees, and the definition of familial status.

And, yesterday, Department Director Phyllis Cheng presented on Department activities from 2013.  She highlighted several cases, beginning with a recent federal district court case, which held that the Department did not need to satisfy class action requirements in pursuing relief on behalf of a group of individuals allegedly discriminated against because of disabilities. Director Cheng also heralded as a model of agency action a case against the City of San Diego for failure to provide sexual harassment training to elected officials in which a 5 year settlement agreement was reached, requiring the City report to the Department every six months.

Do these highlights indicate Department trends for 2014?  Only time will tell.

What Next?

The Council meets again on April 7, 2014 and will take public comments on these proposed amendments.  Seyfarth Shaw will attend these meetings and intends to participate actively by submitting comments on the proposed amendments.  Seyfarth Shaw will be closely monitoring the progress of these proposed amendments and will provide updates regarding possible changes employers should make to existing sexual harassment policies to remain in compliance.

If you have questions about these proposed amendments and their impact on your company, please contact any of the authors, a member of Seyfarth’s Labor and Employment Group, or your Seyfarth attorney.

Edited by Julie Yap