California law requires employers to maintain a written workplace harassment policy. The policy must explain prohibited conduct and provide procedures for reporting and addressing complaints involving supervisors, coworkers and others. These requirements help protect employees while allowing businesses to demonstrate their efforts to prevent and address harassment.
Essential elements of a compliant harassment policy
California’s Fair Employment and Housing Act (FEHA) sets clear rules for what a policy must say. A policy that omits any required element may fail to protect workers or the employer. Each element below serves a different purpose, from defining prohibited conduct to setting up reporting, investigating complaints, and preventing retaliation:
- Protected categories: The policy must list every trait the law covers: race, skin color, ancestry, national origin, religion, sex, gender identity, gender expression, sexual orientation, physical or mental disability, medical condition, genetic information, marital status, reproductive health decisions, age (40 and over) and military or veteran status.
- Clear definitions: The policy must explain harassment in plain language, including quid pro quo harassment and hostile work environments. Quid pro quo harassment occurs when employment benefits or consequences depend on submitting to unwelcome sexual advances. A hostile work environment involves unwelcome conduct that is sufficiently severe or pervasive to create an intimidating, hostile or offensive workplace. The policy should provide examples and explain that these rules apply to supervisors, coworkers and third parties, including clients and vendors.
- Reporting options: Employers must offer workers more than one way to speak up so they do not have to complain to a boss who may be the problem. The policy should name other contacts, such as human resources or a neutral manager outside the chain of command, and include contact details for the California Civil Rights Department.
- Impartial investigations: The policy should describe a prompt, impartial and thorough investigation process that fits the circumstances. Qualified investigators must lead the process and record what they find. When it is appropriate, they should share the results with those involved.
- Privacy limits: The policy must protect privacy as much as possible without promising total secrecy. Investigators must remain free to speak with witnesses and collect evidence.
- Anti retaliation: The rules must strictly ban payback against anyone who reports harassment or helps with an investigation. Violators should face discipline up to and including firing.
- Abusive conduct: The policy must address general workplace bullying. California does not allow a lawsuit for bullying alone, but employers must still cover it in required training and written policies.
Employers must make their harassment policies accessible to workers through legally permitted distribution methods. California also requires translation when at least 10% of employees at a facility or establishment speak a language other than English as their spoken language.
Providing employees with clear instructions on how to access the policy and report complaints helps ensure the document serves its intended purpose.
The value of legal counsel
A written policy works best when the employer distributes, enforces and updates it regularly. Employment law in California changes often, so work with a qualified employment lawyer to keep the document current.