What a year it has been for harassment claims. The biggest year in the 22 years I have been practicing law. It seems that every day there is a big new headline or rejuvenated social media campaign, and someone else powerful losing their job over harassment allegations.

It is astounding to me that there are so many issues, even after AB 1825 was passed back in 2004 mandating harassment prevention training in California. That statute was expanded to require training on bullying and abusive conduct in 2015 (AB 2053). And now, as of January 1, 2018, it will need to include training on gender identity, gender expression and sexual orientation (SB 396).  With increased protections for transgender employees under California law, training to increase tolerance and understanding surrounding those issues will be particularly important.

Training certainly hasn’t fixed the harassment issue. But since training is mandatory for any business with over 50 employees, it might as well be meaningful. That is why I try to focus my training on real life stories and anecdotes that get people out of their own head (and point of view), and into the head of the victim. One of the main themes is always that harassment is based on perception, not intent; so it is possible to unintentionally harass someone, in fact it happens all of the time. For example, someone may think a compliment, sexual innuendo, or even a direct pass is flattery, but as the millions of “me too” posts reflect, that may not be how such conduct is perceived by the recipient.  Especially when there is a power differential at play.

David Schwimmer’s series of #that’sharassment videos provide realistic (and disturbing) examples of how harassment resonates in workplaces, and how it feels to the recipient.

In my career I have seen many talented and valuable managers lose their jobs due to inappropriate behavior that violated harassment policies. In my training, I tell all managers that doing a great job is not a defense to a harassment claim, and won’t protect them. That message certainly rings true based on recent headlines.

Illustration of a pot boiling overCalifornia employers can expect all of the news about harassment claims to keep bringing even more issues to the surface. The proverbial pot has been stirred.

And as current events have shown, taking prompt action to correct and prevent harassment is critical. There have been enough headlines about harassment in 2017, don’t let the next one be about your company.  Let’s put an end to the me too’s.

California has long been at the forefront of prohibiting discrimination based on gender identity and gender expression. Last week, California’s Department of Fair Employment and Housing issued a new brochure titled “Transgender Rights in the Workplace.” Here are the key takeaways:

Copyright: karenr / 123RF Stock Photo
Copyright: karenr / 123RF Stock Photo
  • There are social transitions and physical transitions. The former can involve changes in name and pronoun, bathroom usage, and activities. Physical transitions involve medical treatments. An employee doesn’t have to take any particular steps in a gender transition to be protected.
  • “Employers should not ask questions about a person’s body or whether they plan to have surgery ….”
  • If you have a dress code, it must be non-discriminatory. If an employee identifies as female, she gets to dress in the same manner as other female employees.
  • An employee gets to use the restroom or locker room that corresponds to his or her gender identity. Where possible employers should provide a unisex single-stall bathroom for any employee who wants more privacy. However, no employee can be required to use the single-stall bathroom.

There are no big surprises here since many of the same issues were addressed in the Department of Labor’s “A Guide to Restroom Access for Transgender Workers.” Rumor has it that that publication may soon be adapted for a feature-length Hollywood movie.

 

Sex discrimination has been illegal in this country since the 1960s.  But apparently we’re still struggling to understand what "sex" means in that context.

This week, Governor Brown signed into law AB 887.  The bill adds language to several anti-discrimination statutes, including sections of the Fair Employment and Housing Act, to define the term "sex."

"Sex" includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. "Sex" also includes, but is not limited to, a person’s gender. "Gender" means sex, and includes a person’s gender identity and gender expression.  "Gender expression" means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.

Thank goodness we got that cleared up!