After a lengthy period of public comment and several revisions, California's Fair Employment and Housing Council finally adopted amendments to the California Fair Employment and Housing Act (FEHA) regulations. The amendments, which went into effect on April 1, 2016, generally reinforce existing law but also impose several new and detailed requirements for employers.
Under the new regulations, employees can be held personally liable for unlawful harassment of coworkers, regardless of whether an employer "knew of or should have known" of the harassment. In addition, the FEHA regulations now expressly state that employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct in the workplace, and while an employer may want to encourage written complaints, an employer cannot require them. Employees must be free to complain either in writing or verbally, which could create a significant problem for employers who seek to defend against a harassment case by maintaining that the employee never actually complained of harassment.
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