The California Department of Fair Employment and Housing recently published a model Equal Opportunity Policy.
Under California law, employers are required to “take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.” A part of this obligation includes a requirement that employers develop a harassment, discrimination, and retaliation prevention policy that:
- Is in writing;
- Lists all current protected categories covered under the Act;
- Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act;
- Creates a complaint process to ensure that complaints receive:
- An employer’s designation of confidentiality, to the extent possible;
- A timely response;
- Impartial and timely investigations by qualified personnel;
- Documentation and tracking for reasonable progress;
- Appropriate options for remedial actions and resolutions; and
- Timely closures.
- Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:
- Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
- A complaint hotline; and/or
- Access to an ombudsperson; and/or
- Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
- Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.
- Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
- States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.
- Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
- Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
By publishing this policy, the DFEH is giving California employers an idea of what the DFEH is looking for when it conducts audits and investigations of employers’ policies relating to discrimination, harassment and retaliation.
It is recommended that California employers review their existing discrimination, harassment and retaliation policies and verify those policies comply with California law. To the extent they do not, the language in the model policy can be used to help update an existing policy.