DFEH Issues New Workplace Harassment Guidance

By Anthony Amendola and Justine Lazarus

Since April 1, 2016, California employers subject to the Fair Employment and Housing Act (“FEHA”) have been required to comply with a number of amendments to the FEHA regulations that were adopted by the California Fair Employment and Housing Council (“FEHC”).  FEHA imposes an affirmative duty on employers to “take all reasonable steps to prevent discrimination and harassment from occurring.”  To effectuate that duty, the amended FEHA regulations expressly require employers to develop a written harassment, discrimination and retaliation prevention policy. More detailed information regarding the 2016 FEHC may be found here.

To aid employers in complying with their obligations under the FEHA and the 2016 FEHC amendments, the California Department of Fair Employment and Housing (“DFEH”) recently released a “Workplace Harassment Guide for California Employers,” which provides recommended practices for preventing and addressing workplace harassment.  The publication is intended to help employers develop effective anti-harassment programs, investigate reports of harassment, and understand what remedial measures they might pursue.  In short, the Guide discusses the following:

  • What is included in an effective anti-harassment program;
  • The basic steps required to conduct a fair investigation;
  • Confidentiality of investigations;
  • Timing of investigations;
  • Recommended practices for conducting workplace investigations, including impartiality, investigator qualifications and training, type of questioning, making credibility determinations, burden of proof, legal conclusions, and documentation;
  • Special issues, such as what to do if the target of harassment asks an employer not to do anything, investigating anonymous complaints, and retaliation; and
  • Implementing effective remedial measures.

The Workplace Harassment Guide for California Employers is available here.

The DFEH also published a revised brochure on sexual harassment. As required by Government Code section 12950, the brochure includes specific information regarding sexual harassment prevention. Employers are not required to use the brochure and may elect to incorporate the information required by section 12950 in its own anti-harassment policy.  However, because one of the requirements of section 12950 is to inform employees how to contact the DFEH, some employers elect to leave this information out of their policies and instead guide employees to internal company contacts.  Employers that do not include all of the information required by section 12950 in their policies should insure that every employee received the DFEH’s brochure, usually at the time of hire. The brochure is available here.

Q: In light of the guidance provided in the “Workplace Harassment Guide for California Employers” and the brochure/poster, should employers update their workplace harassment policies?

A: Yes. Employers should review the DFEH’s Guide and the 2016 FEHC regulations to insure that their policies are up-to-date.

Q: If my company chooses to incorporate the requirements of section 12950 into its policy, what information must be included?

A: Section 12950 states, in relevant part:

“Each employer shall obtain from the [DFEH] its information sheet on sexual harassment, which the department shall make available to employers for reproduction and distribution to employees. . . . Each employer shall distribute this information sheet to its employees, unless the employer provides equivalent information to its employees that contains, at a minimum, components on the following:

  1.  The illegality of sexual harassment.
  2.  The definition of sexual harassment under applicable state and federal law.
  3.  A description of sexual harassment, utilizing examples.
  4.  The internal complaint process of the employer available to the employee.
  5.  The legal remedies and complaint process available through the [DFEH].
  6.  Directions on how to contact the [DFEH].
  7.  The protection against retaliation provided by Title 2 of the California Code of Regulations for opposing the practices prohibited by this article or for filing a complaint with, or otherwise participating in an investigation, proceeding, or hearing conducted by, the department or the council.”

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