The Fair Employment and Housing Act (the FEHA) provides employees with legal protection from harassment, discrimination and retaliation. The Department of Fair Employment and Housing (DFEH) is the California agency that oversees and enforces the FEHA. As part of its oversight role, DFEH issues guidance to employers to assist in compliance with the FEHA requirements. This blog post summarizes the DFEH guidance and outlines key considerations for employers when creating a FEHA complaint anti-harassment, discrimination, and retaliation policy. To summarize, employers should create their own policy that encourages reporting and clearly communicate the policy to all employees.

Reduced Risk For Legal Action, Increased Chance Of Productivity

Under the FEHA, California employers have a duty to take reasonable steps to prevent and, when necessary, respond to and correct conduct that is discriminatory or harassing. In addition, although some inappropriate behavior will not violate the law because it is not severe or pervasive enough, such behavior is likely still offensive, contributes to an unproductive environment, and may lead to future issues. Prohibiting inappropriate behavior and clearly communicating the prohibition can both protect the employer from legal actions and create a more productive work environment.

What To Include When Creating Your Policy

When creating the policy, employers should avoid simply reciting the law. Although it may seem simple and the most protective, a mere recitation of the law creates risk for the employer. If the policy is simply a recitation of the legal standard, it could be found that the employer admitted that illegal conduct occurred when determining that its policy was violated.

To avoid these potential issues, employers should write their own policy and consider making it a “zero tolerance policy.” A zero tolerance policy prohibits any abusive conduct, harassment, discrimination, or retaliation, regardless of whether the behavior meets the legal threshold of being severe and pervasive. With a zero tolerance policy, employers can take action to investigate identified harassing behavior and correct it if necessary before it becomes a legal issue.

In addition, employers should follow the DFEH guidance when creating their policy. Specifically, the policy should meet the following requirements:

1. Be in writing.
2. List all current protected categories covered under the FEHA. Those categories include race and national origin, religious creed, physical disability, mental disability, medical condition, sex/gender, age (40 and over), sexual orientation, gender identity and expression, genetic information, veteran or military status, opposition to unlawful conduct, or any perception that a person is in one of the defined categories.
3. Indicate that the law prohibits co-workers, third parties, supervisors, and managers from engaging in conduct prohibited under the FEHA.
4. Set forth a complaint process that ensures complaints receive:
   • Employer 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.
5. Provide a complaint process that does not require an employee to complain directly to the employee’s supervisor, by providing additional avenues to lodge complaints, such as:
   1. Direct communication with a designated representative, Human Resources manager, EEO officer, other supervisor, or ombudsperson;
   2. A complaint hotline; and/or
   3. A referral to the EEOC and DFEH.
6. Instruct supervisors to report misconduct or complaints of misconduct to a designated representative or a Human Resources manager. This topic must be in the mandated sexual harassment training provided by the employer.
7. Indicate that upon receipt of allegations of misconduct, the employer will conduct a fair, timely, and thorough investigation that provides all parties with due process and reaches reasonable conclusions based on the evidence collected.
8. State that the employer will keep the complaint and investigation confidential to the extent possible, but not indicate that the investigation will be completely confidential.
9. Indicate that appropriate remedial measures will be taken if, at the end of the investigation, misconduct is found.
10. Make clear that employees will not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
11. Include a link to, or the DFEH’s website address for, the sexual harassment online training courses created by the DFEH.

What To Include In The Policy’s Complaint Process

Once created, the policy is only as strong as its complaint process (described in items four and five above). If the policy includes the outlined items but does not facilitate and encourage reporting of inappropriate behavior, the employer remains at a heightened risk for legal action against it. An employer can increase the accessibility of the policy’s complaint process by incorporating the following considerations into it:

1. The complaint process should encourage reporting by affording employees with multiple reporting outlets, not just the direct supervisor of the employee.
2. Additionally, confidentiality should be maintained to the highest degree possible. The employer should make it clear that complete confidentiality is not guaranteed because investigations and due process may require disclosure of some information, but that disclosure will only be made as needed.
3. The employer should respond when a complaint is received to notify the employee that the employer received the complaint and that any needed action will follow.

What To Include When Communicating The Policy To Employees

Once the employer has completed the policy with an accessible complaint process, translation may be necessary. If ten percent or more of the workforce speaks a language that is not English, the employer must translate the policy into all languages spoken by the employees.

When the necessary translations are complete and the policy is ready for communication to employees, the employer should take at least one of the following actions to ensure employees are aware of the policy:

1. Print and provide a hardcopy of the policy to all employees with an acknowledgment form for the employee to sign and return to the employer.
2. Send the policy via e-mail with an acknowledgment form for the employee to sign and return to the employer.
3. Post the policy on the employer’s intranet with a system to track those employees that read and acknowledge the policy.
4. Provide and discuss the policy with new employees.
5. Any other alternative or additional method that ensures receipt and understanding of the policy.

Employers are also required to post the DFEH-created poster regarding transgender rights in a prominent and accessible location in the workplace.

Completing a comprehensive workplace anti-harassment, discrimination, and retaliation policy requires time and focus, but it is an important part of any agency’s Human Resources work.  Agencies should contact trusted legal counsel with any questions about the process of creating and communicating an anti-harassment, discrimination, and retaliation policy.