DFEH Issues Workplace Harassment Guide for California Employers

The Department of Fair Employment and Housing (DFEH) has released a new Workplace Harassment Guide to help California employers identify and respond to harassment in the workplace. The Guide provides direction for employers seeking to develop an effective anti-harassment program. The DFEH also updated the required sexual harassment prevention brochure for California employers that details legal protections against sexual harassment and actions employers must take to prevent harassment and correct it when it occurs. The key components in the new Guide and the updated brochure are described below.

With the issuance of the new Workplace Harassment Guide, updated sexual harassment prevention brochure, and anti-discrimination and harassment regulations issued last year from the California Fair Employment and Housing Council (FEHC), it is imperative that employers review and update all anti-harassment, discrimination, and retaliation policies and procedures to comply with these new regulations and requirements.

Workplace Harassment Guide

The Guide addresses all forms of workplace harassment, including harassment based on sex, race, religion, sexual orientation and other protected categories. It provides guidance for human resource professionals, attorneys and others charged with preventing and correcting workplace harassment under Section 12940(k) of the California Government Code. Covered topics include how to conduct fair and defensible investigations into reports of harassment, including complainant and subject interviews, witness interviews, weighing evidence, making credibility determinations, applying burden of proof standards, investigating anonymous complaints and managing confidentiality during the investigative process.

The Workplace Harassment Guide recommends that investigators make factual findings only. It states that some investigations may analyze whether the conduct at issue violated an employer’s anti-harassment policy, but should not provide legal conclusions regarding employee conduct.

The Guide also describes elements of effective anti-harassment programs, which should include:

• Policy: A clear and easy to understand written policy that is distributed to employees and discussed at meetings on a regular basis.
• Executive Buy-In: Management serves as a role model for appropriate workplace behavior, demonstrating an active understanding and compliance with policies.
• Training: Provide specialized training for complaint handlers. Also provide supervisors and managers with required training. AB 1825 and AB 2053 mandate two-hour training in harassment and abusive conduct prevention for supervisors and managers at all private employers. AB 1661 mandates the same training for government officials in similar supervisory and managerial roles.
• Procedures: Develop policies and procedures for responding to and investigating complaints. Assure prompt, thorough and fair investigations.

Sexual Harassment Prevention Brochure

The DFEH also updated the required sexual harassment prevention brochure for California employers. The brochure, publication DFEH-185, defines harassing conduct; discusses the types of harassment (quid pro quo and hostile work environment) prohibited by California law; provides examples of behaviors that may constitute sexual harassment; and specifies the procedures and policies that California employers must develop and follow to prevent and correct sexual harassment. The DFEH also provides this information in poster form. Distributing either the poster or the brochure fulfills an employer’s responsibility to provide employees with an information sheet regarding sexual harassment under Section 12950(b) of the California Government Code.

If you have questions regarding how to update your harassment prevention policies and procedures to comply with the new requirements, please contact us. Attorneys in Meyers Nave’s Workplace Investigations Practice and Labor and Employment Practice are available to assist with matters addressed in this regulatory update.