Tag Archives: Department of Fair Employment and Housing

NEW REGULATIONS – California’s New Transgender Regulations Now In Effect

On July 1, 2017, the California Department of Fair Employment and Housing’s (DFEH) regulations concerning transgender employees went into effect.  The new regulations interpret the California Fair Employment and Housing Act’s (FEHA’s) provisions prohibiting discrimination on the basis of “gender identity” and “gender expression.”

New Definitions

The new regulations provide new definitions for the following terms:

  • “Gender expression” means a person’s gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth.
  • “Gender identity” means each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.
  • “Transitioning” is a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.

Clarifying Concepts

Restrooms

The new regulation clarify that employers are required to provide “equal access to comparable, safe, and adequate facilities” to all employees without regard to the sex (which is defined to include gender identity and gender expression) of the employee.  Employers are also expressly required to “permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.”

The regulations also remind employers that if they have “single-occupancy facilities” under their control, they are required to use gender-neutral signage for those facilities, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc.

Finally, the regulations clarify that employers are not permitted to require employees provide proof of any medical treatment or procedure or to provide any identity document to use facilities designated for use by a particular gender.

Dress Codes

While employers are still permitted to impose a dress code, the new regulations clarify that it is unlawful for an employer to impose upon an applicant or employee any “dress code” (i.e. physical appearance, grooming or dress standard) which is inconsistent with an individual’s gender identity or gender expression.  In addition, the dress code must serve a legitimate business purpose and cannot discriminate based on an individual’s sex, including gender, gender identity, or gender expression.

The only exception to this prohibition is if the employer can establish business necessity for the particular dress code restriction.

Preferred Name and Identity

The new regulations add a new requirement that employers comply with an employee’s request to be identified by a certain name or gender identity.  The only exception to this requirement is if the employer is under some other legal obligation to identify the employee by his or her legal name or gender marker.

Employers are also prohibited from inquiring into an employee or applicant’s sex, gender, gender identity or gender expression.  The only exception is if the employer can establish a business necessity for such an inquiry.

Recommendations for Employers

It is recommended that all California employers review the new regulations and verify their employment practices comply with the new regulations.  Specifically, employers should consider the following:

  • Revising existing anti-discrimination policies to include express protections relating to sexual orientation, gender identity and gender expression;
  • For employers with single-user restrooms, verify that the restroom is labelled with the appropriate signage (i.e. the unisex signage);
  • Verify that any dress code policy avoids gender stereotypes and is enforced consistently; and
  • Most importantly, provide training to your managers and supervisors about the new regulations.

Hot Off The Presses — New Workplace Harassment Guidance for California Employers

To accompany the recent changes to the Fair Employment and Housing Act (FEHA) regulations (which, among other things, clarify California employers’ obligation to prevent and correct wrongful behavior), the California’s Department of Fair Employment and Housing (DFEH) recently published a “Workplace Harassment Guide for California Employers.”  This Guide is intended to provide California employers with guidance on how to structure of an effective anti-harassment program.  It also addresses the questions employers are most likely to ask when formulating and enforcing harassment policies.

Identifying the Elements of an Effective Anti-Harassment Program

The Guide first outlines the elements of an “effective anti-harassment program”, which include:

  • A clear and easy to understand written policy that is distributed to employees and discussed at meetings on a regular basis (for example, every six months). The regulations list the required components of an anti-harassment policy at 2 CCR §11023.
  • Buy in from the top. This means that management is a role model of appropriate workplace behavior, understands the policies, walks the walk and talks the talk.
  • Training for supervisors and managers (two-hour training is mandated under two laws commonly referred to as AB 1825 and AB 2053, for more information on this see DFEH training FAQs).
  • Specialized training for complaint handlers.
  • Policies and procedures for responding to and investigating complaints.
  • Prompt, thorough and fair investigations of complaints.
  • Prompt and fair remedial action.

Next the Guide addresses (step-by-step) how employers should handle a complaint of harassment or other wrongful behavior, including:

  • Giving the complaint “top priority”
  • Conducting a fair investigation into the complaint by —
    • Thoroughly interviewing with the complaining party, preferably in person.• Giving the accused party a chance to tell his/her side of the story, preferably in person.• Interviewing relevant witnesses and reviewing relevant documents.• Performing any other work that might be necessary to gather all the facts (e.g.visit the work site, view videotapes, take pictures, etc.).

      • Reaching a reasonable and fair conclusion based on the information you collected, reviewed and analyzed during the investigation.

  • Imposing limitations on the confidentiality of the investigation
  • Maintaining impartiality during the investigation
  • Using an investigator who is trained and qualified to conduct investigations
  • Making factual conclusions instead of legal conclusions;
  • Documenting evidence;
  • Handling special issues such as anonymous complaints and what to do if the target of harassment asks the employer not to do anything; and
  • Preventing and addressing retaliation.

Take Home for Employers

It is recommended that all California employers review the new guide and verify that their internal procedures for handling employee complaints of this nature align with those recommended in the Guide.

Also, the DFEH  provided a new poster and employee brochure on sexual harassment, so employers should be sure to update these items if used as part of their workplace postings.

DFEH Publishes a Revised Sexual Harassment Brochure For California Employers

On May 2, 2017, the California DFEH announced that it has released a new sexual harassment brochure (entitled “Sexual Harassment: The Facts about Sexual Harassment” [DFEH-185-ENG]), which California employers must distribute to all new hire employees.  In addition to the “trifold brochure”, the DFEH has also published this brochure in poster form (Sexual Harassment: The Facts about Sexual Harassment [DFEH-185P-ENG]).

In addition to these materials, the DFEH also released new brochures relating to the California Family Rights Act [DFEH-E03B-ENG] (which must be distributed to employees when they request CFRA leave) and Pregnancy Leave [DFEH-E02B-ENG] (which must be distributed to an employee when an employer learns that employee is pregnant).

Finally, earlier this year, the DFEH released medical certification forms relating to pregnancy and CFRA leave.

These certifications should be provided to an employee when seeking medical certification relating to pregnancy or an employee’s request for CFRA.

It is recommended that all California employers go to the DFEH website and verify that they are using the most up-to-date brochures,

California Employers — Take Action Now to Comply With New FEHA regulations

Starting April 1, 2016, California’s amended Fair Employment and Housing Act (FEHA) regulations go into effect. Is your organization prepared?

These new regulations make five significant changes to FEHA that impact employers who have employees in California.

  1. Expanded definition of “covered employer.” FEHA applies to employers with 5 or more employees. The new regulations clarify that an employer’s out-of-state employees and employees out on a leave of absence count towards the 5-employee requirement. In other words, a Michigan-based company with a small office of 3-4 employees in California may be sued under FEHA by its California-based employees.
  2. Written anti-discrimination and harassment policies. Employers are required to develop (and distribute) written anti-discrimination and harassment policies that contain certain provisions, including, but not limited to a detailed complaint reporting procedure. To find out more about these requirements, please read our previous blog entitled “California Employers – Do Your Anti-Discrimination/Harassment/Retaliation Policies Meet The New Requirements?.”
  3. New Pregnancy Disability Leave Poster. California employers were already required to post the California Pregnancy Disability Leave notice, but the new regulations have changed the required wording of the notice. To find out more about the new posting requirements, please read our previous blog entitled “New FEHA Regulations Also Require California Employers to Update Their PDL Notices.”
  4. New training requirements. California employers were already required to provide employees with training regarding anti-discrimination and anti-harassment training, but the training must now cover “abusive conduct” (i.e. workplace bullying”) and must address the following:
    1. The negative effects of “abusive conduct,” including reduction in productivity and morale;
    2. The elements of “abusive conduct,” including conduct taken with malice that a reasonable person would find hostile or offensive and that is not related to an employer’s legitimate business interests; and
    3. Emphasize that while a single act ordinarily will not constitute abusive conduct, it could if it is particularly severe or egregious.
  5. Newly defined protected classes. The new regulations provide new definitions for “gender expression,” “gender identity” and “transgender.”
    1. “Gender expression” means a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
    2. “Gender identity” means a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.
    3. “Transgender” is a general term that refers to a person whose gender identity differs from the person’s sex at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as “transsexual.

If you have any questions regarding these new FEHA regulations, please contact an HR Professional.

California Employers – Do Your Anti-Discrimination/Harassment/Retaliation Policies Meet The New Requirements?

Starting April 1, 2016, California’s amended Fair Employment and Housing Act (FEHA) regulations go into effect. Most significantly, these new regulations state that covered California employers (i.e. employers with 5 or more employees worldwide, and at least 1 in California) “have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act” and require employers to make changes to some of their workplace policies – specifically employers’ anti-discrimination/harassment/retaliation policies and complaint reporting procedures.

Under the new regulations, California employers are now required to have a written policy against unlawful harassment, discrimination, and retaliation in the workplace. While most California employers likely already have this type of policy in their handbooks, the regulations also list certain provisions that must be included in these written policies. Specifically, employers are required to develop a written harassment, discrimination, and retaliation prevention policy that:

  • Lists all current protected categories (protected classes) covered under FEHA;
  • 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 under FEHA;
  • 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;
    • A complaint hotline;
    • Access to an ombudsperson; and/or
    • Identification of the DFEH 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.

Once the policy is developed, employers are required to distribute both the policy and the DFEH’s brochure entitled “Sexual Harassment: The Facts about Sexual Harassment” [Form DFEH-185] (Spanish version –Acosa Sexual: La Realidad Acerca del Acoso Sexual” [Form DFEH-185s]) to all employees in one (or more) of the following methods:

  • Providing each employee with a written copy of the policy and an acknowledgment form for the employee to sign and return;
  • Sending the policy via e-mail with an acknowledgment return form;
  • Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;
  • Discussing policies upon hire and/or during a new hire orientation session; and/or
  • Any other way that ensures employees receive and understand the policies.

While we recommend that employers continue to include these policies in the employee handbook, California employers should also take steps to separately distribute these policies to employees and retain a separate acknowledgement of receipt of these policies.

In addition, under the new regulations, if an employer’s workforce contains 10% or more of employees who speak a language other than English, the employer must translate the policy into every language that is spoken by at least 10% of the workforce.

What should California employers do?

California employers need to review their existing policies (anti-discrimination/harassment/retaliation policies and complaint reporting procedures) and verify that these policies contain all of the required provisions. To the extent that required provisions are missing, employers should update these policies before April 1, 2016.

In addition, all California employers should distribute these policies and DFEH Form 185 to all of their California employees in one or more of the approved methods listed above.

Finally, California employers should verify that proper complaint and investigation procedures are in place and that employees are aware of these procedures. This includes not only educating employees about the existence of the complaint procedures, but also training supervisory employees on how to handle such complaints and training human resource professionals on how to properly address and investigate these complaints.

Guidance Issued by DFEH regarding Handling Transgender Issues in the Workplace

On February 17, 2016, the California Department of Fair Employment and Housing (“DFEH”) issued guidance on how to handle transgender rights in the workplace. This one-page flyer is intended to provide employers with guidance on how to properly handle transgender issues that commonly arise in the workplace.

Why was this guidance issued?

Transgender individuals are protected from discrimination/harassment in the workplace under the Fair Employment and Housing Act (FEHA). FEHA’s protections were extended to transgender individuals (i.e. gender identity and gender expression) with the 2012 FEHA amendments.

What is included in the guidance materials?

The one-page guidance materials address four main concepts:

  1. What is “transgender.” The guidance materials clarify that a transgender individual does not need to complete gender transition (either social and/or physical) to be protected under FEHA.
  2. Prohibited inquiries regarding gender identity/gender expression. California employers are prohibited from asking questions that are designed to detect a person’s sexual orientation or gender identity. This includes asking questions about marital status and/or names of persons in the applicant/employee’s household. In addition, an employer should never ask a transgender applicant/employee whether he/she intends to have gender reassignment surgery.
  3. Dress code and grooming. California employers are prohibited from forbidding an employee to dress in a manner that conforms with the employee’s gender identity. In other words, an employee who self-identifies as a female must be allowed to dress in the same manner as a non-transgender female. In addition, any employer dress code must be enforced in a non-discriminatory manner for all employees.
  4. Bathrooms/locker rooms/showers. This is probably the most controversial topic. California employers are required to allow employees to use facilities that corresponds with each employee’s gender identity – even if the employee does not self-identify with his/her biological gender. In addition, where possible, employers are encouraged to provide a unisex, single stall bathroom that any employee can choose to use for increased privacy. No employee (including a transgender employee) maybe required to use a unisex bathroom.

Importance for California employers

While the DFEH’s guidance materials are not binding on California employers, these materials are helpful in assisting California employers in addressing issues that may arise relating to their transgender employees. Therefore, it is recommended that all California employers review this new guidance.