Fair Employment and Housing Act

By: Kristina Launey and Courtney Bohl

On June 11, 2014, Northern District of California Judge Jon S. Tigar ruled that the California Department of Fair Employment and Housing (“DFEH”) has neither standing nor statutory authority to enforce Title I of the Americans with Disabilities Act (“ADA”).  The decision made clear that while the DFEH has had authority—since January 1,
Continue Reading Northern District of California Judge Rules DFEH Does Not Have the Authority to Prosecute Violations of Title I of the Americans With Disabilities Act

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:
Continue Reading New Proposed Amendments to the FEHA: Is your sexual harassment policy in compliance?

Yesterday Governor Brown signed into law SB 292, by Senator Ellen Corbett, which amended the definition of harassment because of sex in the Fair Employment and Housing Act to specify that sexually harassing conduct need not be motivated by sexual desire.

The stated intent of the bill is to overturn the decision in Kelley v. Conco Companies, 196
Continue Reading California Legislature Eliminates “Sexual Desire”