For many years, the law has imposed a duty on employers to take all reasonable steps to prevent discrimination, harassment and retaliation from occurring in the workplace. (Gov’t Code § 12940 (j) (1)) The failure to satisfy this duty can provide an independent basis for liability in a lawsuit from an employee under the Fair Employment and Housing Act (FEHA) if the underlying harassment, discrimination, or retaliation is established. (Gov’t Code § 12940 (k))
Historically, the details of what employers are “required” to do to “take all reasonable steps to prevent discrimination, harassment and retaliation from occurring” were not set out in statute or regulation. Instead, the specifics were left to the courts to decide. For example, one court held that a “Prompt investigation of a discrimination claim is a necessary step by which an employer meets its obligation to ensure a discrimination-free work environment.” (Northrop Grumman Corp. v. WCAB (2002) 103 Cal.App.4th 1021, 1031 [Emphasis added.])
In early 2016, the Department of Fair Employment and Housing (DFEH) issued new regulations amending several aspects of prior regulations. (A link to the DFEH’s summary of these changes can be found here.) Of particular importance is the assertion of the Department’s “police powers” and the mandate of the content for employer’s anti-discrimination, harassment and retaliation policies.
The regulations specifically state “in an exercise of its police powers, the [DFEH] may independently seek non-monetary preventative remedies for a violation of Government Code section 12940(k) whether or not the [DFEH] prevails on an underlying claim of discrimination, harassment, or retaliation.” In other words, if the DFEH thinks that an employer has not done all that it should do to prevent harassment, discrimination or retaliation, it can seek “non-monetary preventative remedies” (i.e., administrative or court orders), even if the employer has not been found to have engaged in harassment, discrimination or retaliation.
The regulations also state that if an employer’s policy fails to contain the specifically mandated information required by the regulations, the DFEH is empowered to determine that the employer has failed to take reasonable steps to prevent harassment, discrimination and/or retaliation, even if no harassment, discrimination or retaliation has occurred. Thus, to satisfy their duty to “take all reasonable steps to prevent discrimination, harassment and retaliation from occurring” and to protect themselves from non-monetary action by the DFEH, the anti-harassment/discrimination policies of employers in California must satisfy the content requirements set forth in the regulations.
In May 2017, the DFEH issued a Workplace Harassment Guide for California Employers. This document was issued to assist employers in fulfilling “their obligation to take reasonable steps to prevent and correct workplace harassment.” The Guide “is aimed at helping employers develop an effective anti-harassment program; know what to do and how to investigate reports of harassment; and understand what remedial measures they might pursue.” A copy of the guide can be found here.
The Guide, like the regulations, sets forth detailed standards which the DFEH expects employers to comply. For example, the Guide sets forth the “basic steps” for conducting a workplace investigation.
Government regulation is not only becoming more voluminous, it is becoming more specific, demanding and intrusive. There are three potential responses to such actions: 1) seek to change the laws/regulations; 2) refuse to comply and be willing to accept the consequences; and 3) comply. It is highly unlikely that the laws/regulations will be amended to be less restrictive. Therefore, until that occurs, I recommend that you comply. While compliance with ever changing governmental regulation may seem like a moving target, ultimately compliance helps employers minimize the risk of liability and provide a workplace free of unlawful harassment.
If you have any questions about the new regulations or Guide or need any assistance in drafting new policies, please give me a call and we can discuss your needs.
by Dan Rowley