By Gage C. Dungy and Joshua Goodman

The Department of Fair Employment and Housing (“DFEH”) has released amendments to a number of its regulations that will become effective on April 1, 2016.  In general, many of the updates bring the regulations into conformity with recent changes to the law and court decisions interpreting the Fair Employment and Housing Act (“FEHA”).

Below is a summary of the most significant updates to the regulations with the corresponding citations to the new regulations in parenthesis.

Protections for Unpaid Interns and Volunteers

The regulations now incorporate the FEHA protections against discrimination and harassment provided to unpaid interns and volunteers under AB 1443, that went into effect previously on January 1, 2015, as follows:

• Defined unpaid interns and volunteers as “any individual (often a student or trainee) who works without pay for an employer or other covered entity, in any unpaid internship or another limited duration program to provide unpaid work experience, or as a volunteer. Unpaid interns and volunteers may or may not be employees.”  (2 C.C.R. 11008(k)).
• Makes it unlawful for an employer to discriminate against unpaid interns in the selection, termination, training, or other terms or treatment of those individuals on any basis protected by FEHA. (2 C.C.R. 11009(e)).
• Makes it unlawful for unpaid interns, volunteers, and persons providing services pursuant to a contract to be subjected to unlawful harassment in the workplaces on any basis protected by FEHA. (2 C.C.R. 11019(b)(1)).

Legal Standard to Establish Unlawful Discrimination

The amended regulations also update the legal standard to establish unlawful discrimination to conform with the California Supreme Court’s decision in Harris v. City of Santa Monica (2013) 56 Cal. 4th 203, which interpreted that standard under FEHA as follows:

• To support a claim for unlawful discrimination or retaliation under FEHA, an employee must prove by a preponderance of the evidence that a protected category was a substantial motivating factor in the denial of an employment benefit. (2 C.C.R. 11009(c)).
• However the regulations clarify that this legal standard for employment discrimination does not necessarily apply to other unlawful practices under FEHA, including harassment, denial of reasonable accommodation, failure to engage in the interactive process, and failure to provide certain leaves of absence. (2 C.C.R. 11009(c)).

Personal Liability for Unlawful Harassment

The regulations also now incorporate a long-standing provision of FEHA dating back to 2001, which provided that any employee who engages in unlawful harassment of a co-employee is personally liable for harassment, regardless of whether the employer knew or should have known of the conduct and/or failed to take corrective action.  (2 C.C.R. sec. 11019(b)(6)).

Employer’s Duty to Prevent and Correct Discriminatory and Harassing Conduct

The amendments to the regulations also clarify an employer’s affirmative duty to take reasonable steps to prevent and correct discriminatory and harassing conduct in the workplace and the penalties for failing to do so as follows:

• The amendments clarify that there is no stand-alone, private cause of action against an employer for failing to prevent harassment or discriminatory conduct. Rather, a private claimant must also plead and prevail on an underlying claim of discrimination, harassment, or retaliation in order to successfully bring a claim against an employer for failing to take reasonable steps to prevent and correct discrimination or harassment.  (2 C.C.R. 11023(a)(2)).
• However, the DFEH may seek non-monetary preventive remedies against an employer for failing to prevent harassment or discriminatory conduct even if it does not prevail on the underlying claim of unlawful harassment, discrimination, or retaliation under FEHA. (2 C.C.R. 11023(a)(3)).
• In order to maintain workplaces free of harassment, discrimination, and retaliation, employers are required to develop harassment, discrimination, and retaliation prevention policies that must contain specific information on what conduct is prohibited and provide a proper complaint procedure. In addition, employers are also obligated to show that they have properly provided such policies to employees and confirm receipt of the policy.  (2 C.C.R. 11023(b)).
• If 10% or more of the workforce at any employer facility speak a language other than English as their spoken language, employers must translate the prevention policies into each relevant language. (2 C.C.R. 11023(d)).

Compliance with AB 1825 Supervisor Sexual Harassment Training Requirements

The regulations now provide further details regarding the proper training methods and recordkeeping of required supervisor sexual harassment trainings.  The required training went into effect back in 2005 and generally requires two hours of supervisor harassment training every two years (commonly referred to as “AB 1825 supervisor harassment training”).  The regulations now provide the following:

• Employers must maintain the following information related to the supervisor harassment trainings for a minimum of two years:
  1. Names of the supervisory employees trained,
  2. Date of training,
  3. Sign in sheet,
  4. Copy of all certificates of attendance or completion issued,
  5. Type of training,
  6. Copy of all written or recorded materials that comprise the training, and
  7. Name of the training provider. (2 C.C.R. 11024(b)(2)).
• For any interactive electronic trainings (g., e-learning or webinar training), the trainer must also maintain copies of all materials, employee questions, and written responses to employee questions for two years after the training. (2 C.C.R. sec. 11024(a)(2)).
• Clarifies that while the use of audio, video, or computer technology can be used in conjunction with classroom, webinar, or e-learning training, the use of such supplemental tools by themselves cannot fulfill the supervisor training requirements. (2 C.C.R. 11024(a)(2)).
• Outlines examples of interactive measures that can be used in the training to satisfy the requirements to assess a supervisor’s understanding of content and to ensure that the supervisor remains engaged in the training. (2 C.C.R. 11024(a)(2)).
• Requires that the supervisor harassment training also cover:
  1. Potential exposure and liability for employers and individuals,
  2. Supervisors’ obligation to report sexual harassment, discrimination, and retaliation when they become aware,
  3. Steps necessary to take appropriate remedial measures to correct harassing behavior; and
  4. Review “abusive conduct” (in compliance with AB 2053 requirements that went into effect on January 1, 2015). (2 C.C.R. 11024(c)).

Unlawful Discrimination Based on an Undocumented Person’s Driver’s License

The regulations were also updated to comply with AB 1660 (effective January 1, 2015), which made it unlawful for an employer to discriminate against an applicant or employee who has a driver’s license that can be issued to undocumented persons.  (2 C.C.R. sec. 11028(e)).

Sex Discrimination and Harassment

The regulations were amended to incorporate legislative changes and case law interpretations regarding sex discrimination and harassment as follows:

• Provide definitions for “gender identity,” “gender expression,” and “transgender” persons in conformance with AB 887 (effective January 1, 2012). (2 C.C.R. 11030(e)).
• Pursuant to AB 292 (2013), clarify that it is not a defense to a complaint of harassment based on sex that the alleged harassing conduct was not motivated by sexual desire. (2 C.C.R. 11031(d)).
• Incorporate existing FEHA statutory law that an individual alleging sexual harassment is not required to sustain a loss of tangible job benefits in order to establish harassment. (2 C.C.R. 11034(f)).
• The regulations have also been updated to include explanations of “quid pro quo” and “hostile work environment” sexual harassment. (2 C.C.R. 11034(f)).

Pregnancy Discrimination

The regulations on pregnancy discrimination were amended as follows:

• Expanded the definition of “eligible female employee” to include a transgender employee who is disabled by pregnancy. (2 C.C.R. 11035(f) and (g)).
• Clarify that unlawful harassment because of pregnancy also includes harassing an employee or applicant because of childbirth, breastfeeding, or any related medical conditions. (2 C.C.R. 11036).

Pregnancy Disability Leave (“PDL”)

The PDL regulations were significantly amended back in December 2012, with a number of new provisions.  The amended regulations further clarify an employer’s PDL obligations as follows:

• Simplify the requirement to provide and post a PDL notice into one unified notice that combines the relevant information, including the following:
  1. The notice must now include information about the Act’s provisions and contain information about how to contact DFEH to file a complaint.
  2. The poster containing the PDL notice must be large enough to be easily read.
  3. The poster can still be posted electronically, so long as it is put in a place or places where employees would tend to view it in the workplace.
  4. The notice must be translated into every language spoken by at least 10 percent of the workforce. (2 C.C.R. 11049 and 2 C.C.R. sec. 11051).
• Clarify that PDL need not to be taken in one continuous period of time. (2 C.C.R. 11042(a)).
• Clarify that eligible employees are permitted to take four months of PDL per pregnancy, not per year. (2 C.C.R. 11042(a)(1)).

Religious Discrimination

The amended regulations expand the definition of religious discrimination based on statutory changes and case law interpretations as follows:

• The definition of “religious creed” was revised to encompass all aspects of religious belief, observance, and practice, including religious dress and grooming to bring it in accordance with AB 1964 (effective January 1, 2013). (2 C.C.R. 11060).
• Refusing to hire an applicant or terminating an employee to avoid the need to accommodate a religious practice constitutes religious creed discrimination, as held by the United States Supreme Court in EEOC v. Abercrombie & Fitch Stores, Inc. (2015) 135 S.Ct. 2028. (2 C.C.R. 11062).
• An employer cannot require segregation of an employee from customers or the general public in order to accommodate an employee’s religious practice unless expressly requested by an employee in accordance with AB 1964 (effective January 1, 2013). (2 C.C.R. 11062(a)).
• Clarify that it is unlawful for an employer to discriminate or retaliate against a person who requests a reasonable accommodation based on religion, regardless of whether the employer grants the request in accordance with AB 987 (effective January 1, 2016). (2 C.C.R. 11062(d)).
• Provide covered apprentices and unpaid interns protections from unlawful discrimination based on religion and religious accommodations in accordance with AB 1443 (effective January 1, 2015). (2 C.C.R. 11059(d)).

Disability Discrimination

The amended regulations also clarified an employer’s obligations regarding disability accommodations as follows:

• Makes it unlawful for an employer to retaliate or discriminate against a person for requesting an accommodation for his or her disability, regardless of whether the accommodation was granted, in accordance with AB 987 (effective January 1, 2016). (2 C.C.R. 11068(k)).
• Clarifies that a “support animal” may constitute a reasonable accommodation in certain circumstances. A “support animal” is defined as “one that provides emotional, cognitive, or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression.”  However, the regulation points out that whether a support animal “constitutes a reasonable accommodation requires an individualized analysis reached through the interactive process.”  In other words, an employee’s requested accommodation to bring a support animal to work does not always have to be granted and will depend on the outcome of the disability interactive process to determine if that is a reasonable accommodation.  (2 C.C.R. 11065(a)(3)).

State Contractor Nondiscrimination and Compliance

Finally, the amended regulations modified discrimination protections required of state contractors and in the awarding of state contracts as follows:

• Broaden the categories of individuals that are protected from discrimination in the awarding of government contracts, and eliminates reference to specific minorities who are afforded such protection. (2 C.C.R. 11100(n); 2 C.C.R. sec. 11104(a)).
• In conformance with prior legislation, the regulations also eliminate affirmative action policies designed to establish goals and timetables to remedy underutilization of minorities and/or women. (2 C.C.R. 11103; 2 C.C.R. sec. 11104).
• The new regulations expand the protected classes that must be included in the contract and subcontract non-discrimination language. (2 C.C.R. 11105).
• With regard to recruitment, the regulations have replaced language about recruiting women and minorities with updated language containing a general statement that good faith outreach efforts that do not discriminate against any group protected by the Act should not be deterred. (2 C.C.R. 11113)).

As discussed above, most of the revisions to the DFEH regulations were aimed at bringing the regulations into compliance with recent statutory changes and case law interpretations that have already been in place.  However, employers should review their policies and procedures to ensure compliance with these new DFEH regulations.

If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.