I remember back in 2004 when AB 1825 passed, requiring all California businesses with over 50 employees to train all managers and supervisors on harassment prevention.  It was one of the first significant employment laws signed by Arnold Schwarzenegger when he became California governor (and yes, that is ironic given the allegations against him).

Uncomfortable employee
Copyright: bbtreesubmission / 123RF Stock Photo

For the past 13 years, I have been conducting harassment prevention training for clients.  I have probably done that training 150 times.  And each year when I update my materials, there are always plenty of new and juicy stories from my cases, and the news, to refer to.

I always start each training by asking – why are we doing this?  Is it still needed?  Well, apparently, it is.  Especially in the tech industry.  Have you been following the stories last week about Uber?  Can it be that such stuff still happens in work places in California?

For those of you who haven’t been following, here are the highlights.

  • The issues started on February 19th when Susan Fowler wrote a very compelling blog post detailing her experiences as a female engineer at Uber.
  • Her account is very troubling from an HR standpoint, including overt sexual overtures from management, and reports to HR that were incredibly mishandled.
  • Fowler contends that Human Resources essentially sided with management, protected the serial harasser, and lied to her and others about it; in legal terms that is called ratifying bad behavior.
  • By February 21st, Uber had retained former US Attorney Eric Holder to lead an independent review into Fowler’s claims.
  • Board member Arianna Huffington and the company’s Head of HR were also tapped to assist.
  • Then on February 22nd, the New York Times wrote an article titled “Inside Uber’s Aggressive, Unrestrained Workplace Culture.”  Indeed, that article brought to my mind images of the excesses portrayed by Leonard DiCaprio in The Wolf of Wall Street before the stock crash.
  • Then on February 23rd, Uber’s CEO met with over 100 of the company’s female engineers (the “Lady Eng Group“), who told him that the company has a “systemic problem” with sexism.

Wow.  How can this be?  13 years after AB 1825?  Haven’t businesses learned that harassment costs money?  Public embarrassment?  How much money does a company have to lose to take such claims seriously?  How many good (and typically female) employees need to exit?

After defending such claims for employers for over 20 years now, I know that not all harassment allegations are true, and that there are two sides to every story.  I also know that sometimes well-meaning Human Resources professionals are thwarted by management.  But I also know that company culture starts at the top, and if management doesn’t live the stated company values, the employees don’t either.  And if management endorses an aggressive bro-centric abusive environment, then its employees will too.

Or as one of my favorite hospitality clients likes to say “fish rots from the head.”

Fingers crossed for Uber that they get it right, and fix whatever issues are festering and detracting from their mission.  Or in the reported words of Ariana Huffington, stop hiring “brilliant jerks.”

I have been conducting harassment prevention training for California clients since AB 1825 became effective back in 2005. After presenting what must be hundreds of sessions in the last decade, I am always on the look-out for new topics to discuss, and new hypotheticals to present, and sometimes the universe just cooperates with me. Watching the second Presidential debate last weekend was one of those experiences.

Young businessman arguing with sad stressed coworker
Copyright: vadymvdrobot / 123RF Stock Photo

Since 2015 (AB 2053), California law has required employers to train management on abusive conduct (also known as “bullying”). While bullying is not yet illegal, it should be against most employer policies, and should lead to discipline for employees who violate those policies.

Bullying is defined as workplace conduct, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests. The law goes on to say that bullying may include:

  • Derogatory remarks, insults, and epithets;
  • Verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating;
  • The gratuitous sabotage or undermining of a person’s work performance.

So let’s consider the following hypothetical:

A group of managers is in a team meeting where each person is supposed to present on their enumerated topics to a group of colleagues. When one manager is talking, the other one (who is physically larger) is pacing behind, making faces, and making noises (something between a snort and a grunt). The hands are gesturing and fingers pointing. The manager pacing also repeatedly interrupts the colleague, either with snide comments, jokes (which get laughs or cheers), or insults. Is this bullying?

Would a reasonable person find this conduct to be hostile? Offensive? Unrelated to an employer’s legitimate business interests? Is this verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating? Absolutely.

In fact, many employment attorneys and HR professionals I know were physically uncomfortable while watching the debate, at least in part because we were witnessing conduct that no reasonable employer could tolerate. While we certainly cannot require free speech to be polite or politically correct, we certainly can and should agree that this type of bullying would not be okay in any workplace.

Bridgeport Continuing Education will be hosting a seminar titled: “Wrongful Termination, Harassment and Discrimination Claims” on July 29, 2016 in San Francisco. I will be speaking about Litigating and Defending Discrimination Claims, along with Jocelyn Burton. The program offers 5 hours of Mandatory Continuing Legal Education. You can get details and register here.

I hope to see you there!

Copyright: carlosphotos / 123RF Stock Photo
Copyright: carlosphotos / 123RF Stock Photo

Last month, the Select Task Force on the Study of Harassment in the Workplace issued a report. Among other things, it identified risk factors that can lead to harassment. They are:

  1. Homogeneous workforces – In other words, those that lack diversity.
  2. Workplaces where some workers don’t conform to workplace norms – This would include, for example, a man who’s perceived as overly feminine or a woman perceived as overly masculine.
  3. Workplaces with cultural and language differences – So too much homogeneity can be a problem, but so can too much diversity. Got it!
  4. “Coarsened Social Discourse Outside of the Workplace” – If people are crude outside of work, it’s more likely to spill over to the work environment.
  5. Workplaces with many young workers – According to the EEOC, young people are less aware of the laws and workplace norms. This makes them more likely to cross the line themselves and more likely to accept behavior that older workers know is over the line.

    Copyright: ocusfocus / 123RF Stock Photo
    Copyright: ocusfocus / 123RF Stock Photo
  6. Workplaces with large power disparities – The workers with less power are more vulnerable and the higher power ones “may feel emboldened to exploit them.”
  7. Workplaces that rely on customer service or client satisfaction – The key here is whether compensation is tied to customer satisfaction. If so, employees may be willing to put up with inappropriate conduct since it costs them money to object.
  8. Places where the work is monotonous or easy – “Idle hands …”, you know?
  9. Isolated workplaces – Fewer people around means fewer witnesses.
  10. Workplace cultures that tolerate or encourage alcohol consumption – Let’s all drink to that!
  11. Decentralized workplaces – If senior management is far away, lower levels of management may feel less accountable.

So the answer is simple. To minimize the risk of harassment claims you need to make sure that your workforce is diverse, but not too diverse; that everyone conforms to the same norms; that people behave appropriately even when they’re not at work; that you don’t hire those pesky young people; that you eliminate hierarchies; that you stop paying attention to customer service; that you make all the work interesting; that you have everyone work at one location; and that you discourage drinking.

If you’re not able to run your business that way, we’ve identified 6 questions employers should ask before receiving a harassment complaint.

As we’ve discussed before, new regulations from California’s Fair Employment & Housing Council take effect April 1, 2016. To be compliant, your company’s policy prohibiting harassment, discrimination, and retaliation needs to do the following:

  1. List all the categories currently protected under the Fair Employment and Housing Act, i.e., race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military or veteran status.

    Copyright: bialasiewicz / 123RF Stock Photo
    Copyright: bialasiewicz / 123RF Stock Photo
  2. State that the policy prohibits harassment by co-workers, supervisors, managers, and third parties with whom the employee comes into contact. (That’s basically everyone, isn’t it?)
  3. Provide  confidentiality, to the extent possible, for complaints.
  4. Promise timeliness. This is a point of emphasis. The regulations require “a timely response,” “timely investigations,” and “timely closures.”
  5. State that investigations will be impartial and conducted by qualified personnel.
  6. State that investigations will be documented and tracked for reasonable progress.
  7. Provide “appropriate options for remedial actions and resolutions.”
  8. Designate personnel to receive complaints, while stating that employees are not required to complain to their immediate supervisors.
  9. Instruct supervisors whom to complain to.
  10. Indicate that the employer will conduct a fair, timely (there’s that word again!), and thorough investigation that provides all parties with appropriate due process and reaches a reasonable conclusion based on the evidence.
  11. Indicate that, if misconduct is found, the employer will take appropriate remedial measures.
  12. Prohibit retaliation.

Harassment claims have been in the news a lot lately. The first line of defense is having a compliant policy in place. Not allowing your employees to ever interact with anyone may also be effective, but that doesn’t seem to work for many businesses.

 

As I wrote in January, the EEOC issued new guidance called: “Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern.” The EEOC said that it issued the guidance in response to the “attacks in Paris and San Bernardino, California, in late 2015 and other recent world events….”

Perhaps unsure it got the message across, the EEOC has now issued an announcement titled: “What You Should Know About Religious and National Origin Discrimination Against Those Who Are or Are Perceived to Be, Muslim or Middle Eastern.” This latest announcement touts some of the Commission’s victories on behalf of Muslim workers and notes (in a sentence) that they bring claims on behalf of members of other religions, too.

Copyright: bigevil600 / 123RF Stock Photo
Copyright: bigevil600 / 123RF Stock Photo

Since less than 4% of EEOC complaints allege religious discrimination, is this overkill? Are the people who write EEOC announcements overwhelmed by the relentless pressure of having to come up with new ideas to write about (I know, I know)? Or do employees still not realize that discriminating against and harassing Muslim, Middle Eastern, and South Asian workers is just as unacceptable as any other type of discrimination or harassment?

Who knows. But if you manage a workforce, be aware that this is a priority for the EEOC and make sure your employees behave themselves accordingly. Also, rest assured that if the EEOC next issues: “We Really, Really Mean It This Time: More Guidance on Religious and National Origin Discrimination Against Those Who Are or Are Perceived to Be, Muslim or Middle Eastern” you can read about it here.

With minimal public commentary, the Department of Fair Employment and Housing has passed new regulations broadening and strengthening the Fair Employment and Housing Act.  While it’s too late to (officially) complain about them, here’s why you should care:

A) The new regulations significantly expand who is protected under FEHA.

First, the definition of “employer” is expanded so that smaller employers with fewer than five employees who utilize outside contractors, interns or even unpaid volunteers must comply with the Act. Second, it formalizes protection under the Act for non-employees in the workplace such as unpaid interns and volunteers. Third, it expands pregnancy-related protections to transgender individuals by eliminating the word “woman” from the rules.

B) The new regulations impose stricter requirements for sexual harassment training.

Existing regulations limit employer recording keeping to basics like the name and date of the training.  However, now employers need to keep copies of all materials utilized by the trainer including written slides, materials, attendance sheets, questions submitted during the seminar or webinar, and responses given by the trainer.  All records must be kept for two years.

C) The new regulations enhance employer notice requirements.

Though the regulations stop one step short of requiring employers to actually accompany an employee to the DFEH to file a claim, they place extra burdens on employers to notify employees of their rights. In addition to handing out pamphlet DFEH-185 on sexual harassment, employers need to proactively provide a copy of their anti-harassment policy via hard copy, e-mail or intranet.  Further employers must ensure employees understand and affirmatively acknowledge receipt of such policies. Employers must also translate such policies into all languages that are spoken by 10 percent or more of their workforce.

D) The new regulations require more from employer policies. Specifically, employers must develop a harassment, discrimination, and retaliation prevention policy that:

(1) Is in writing.

(2) Lists all current protected categories covered under the Act.

(3) Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act.

(4) Creates a complaint process to ensure that complaints receive: confidentiality to the extent possible; a timely response; impartial and timely investigations by qualified personnel; documentation and tracking for reasonable progress; appropriate options for remedial actions and resolutions; and timely closures.

(5) Provides a complaint mechanism that doesn’t require an employee to complain directly to his or her immediate supervisor, including an alternate reporting structure, a complaint hotline, or access to an ombudsperson.

(6) Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally.

(7) Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.

(8) States that the employer will keep the investigation confidential to the extent possible, but does not promise complete confidentiality.

(9) Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.

(10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

As a result of these new obligations, employers should review their harassment, retaliation and training policies to ensure compliance with the regulations.  As always, my colleagues and I are available to answer any questions.

Just before Christmas, the EEOC issued new guidance with the catchy title: “Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern.” The EEOC says that it issued the guidance in response to the “attacks in Paris and San Bernardino, California, in late 2015 and other recent world events….”

The guidance, which you can access here, discusses how the law deals with situations where a manager worries about customers’ reactions to an employee wearing a hijab (she gets to wear it), where employees refer to an Arab American co-worker as a terrorist (obviously, not allowed), and where Muslim workers ask their employer to use a conference room for daily prayers (this requires an undue hardship analysis). It also explains that companies cannot make applicants with backgrounds in the Middle East undergo additional security clearances, unless otherwise required by law.

Copyright: ferli / 123RF Stock Photo
Copyright: ferli / 123RF Stock Photo

While the guidance may be new, the principles are not. But, as we’ve written before, discrimination and harassment claims brought by Muslim, Middle Eastern, and South Asian workers have been on the rise for years. The problem extends also to people perceived as being Muslim or Arab, such as typified by a recent vicious attack on a 68-year-old Sikh man in Fresno. (Do people really discriminate so indiscriminately?) This is as good a time as any to make sure that your workers know that discrimination against or harassment of those employees is just as unacceptable as any other type of discrimination or harassment.

 

While some people view hugs as a way to “spread the love,” in the workplace, they can be a way to spread the liability. So here are some things that lawyers who defend sexual harassment claims would like you to know about hugging in the workplace.

  1. All hugs are not created equal. They differ in terms of duration, force, hand placement, and extent of body contact. If you must hug, consider a side hug, where your physical contact is limited to an arm around the person’s upper back and shoulders.
  2. Not everyone likes to be touched.
  3. Some people who like to be touched don’t like to be touched by their boss or co-workers.

    Copyright: neilld / 123RF Stock Photo
    Copyright: neilld / 123RF Stock Photo
  4. Understand the subtle and not-so-subtle cues that someone may not want a hug. These include:
    • They make a point of having a pile of folders in their arms whenever they encounter you.
    • They not only don’t hug you back, but look panic stricken when you approach.
    • When you wrap them in a comforting embrace they become rigid, sob uncontrollably, or attempt to escape.
    • They scream: “Get your dirty paws off me!”
  5. Make sure it’s consensual. Implied consent – they’ve hugged you before or they’re standing there with their arms open – is probably fine. Oral consent – they’ve said they’d like a hug – is better. Written, notarized consent is the gold standard.
  6. If in doubt, keep your hands to yourself.

Remember, under California law, employers with 50 or more employees must train their California supervisors on sexual harassment every 2 years. Is your company current?

A lawsuit filed this week against an LA personal injury lawyer accuses him of calling his pregnant legal assistant “flubber belly.” I obviously have no idea whether he said it or not. But we spend a lot of time on this blog talking about the intricacies of California employment law. So it seems only fair that we give equal time to issues that aren’t as nuanced.

Copyright: subbotina / 123RF Stock Photo
Copyright: subbotina / 123RF Stock Photo

Therefore, if you were wondering whether “flubber belly” is an appropriate term to use to refer to a pregnant employee, it’s not.

Takeaways:

  1. Don’t call pregnant employees “flubber belly.”
  2. Seriously, don’t.

Thanks to Daniel Siegal at Law360 (subscription) for noticing this complicated and fascinating case.