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Entries in employee protections (2)

Wednesday
Mar082017

The Customer Is (Not) Always Right: An Employer's Duty to Protect

Discrimination Claims Prevention 

by Amy I. Huberman

818-907-3014

 

Everyone is entitled to their opinion, and in this political climate, it seems as though more people are comfortable voicing those opinions, even if they may offend someone.

Although free speech is a primary pillar of our democratic heritage, in the employment law context, that particular right may cause liability for the employer.

For example: 

Shortly after the November election, an airline passenger was permanently banned from flying Delta Airlines, for his expletive-ridden pro-Trump/anti-Clinton rant before takeoff. Though the flight crew allowed the passenger to continue on his journey, corporate saw the viral video shot by a fellow passenger and clipped the disruptive passenger’s wings:

We must stay true to Delta’s core values and treat one another with dignity and respect. We also must remain committed more than ever to the safety of our customers and our crew members. We will not tolerate anything less.

In another instance, a Michael’s retail customer went on a tirade and claimed she was discriminated against by African American employees when asked if she wanted to purchase a shopping bag. Like Delta Airlines, the retailer’s corporate office also released an official statement:

At Michaels, we do not tolerate discrimination or racism of any kind against our team members or customers. We regret that our customers and team members were affected by this unfortunate incident and are grateful for the leadership of our store team in working to resolve it without further escalation.

Even more recently, a Walmart customer in Texas said to a store employee, “I know you ain’t leaving. I know you’re here to stay. Y’all should go to your own countries and fix up your own countries.” A fellow Walmart employee filmed the incident. The employee being berated by the customer responded that she didn’t want to hear anymore, and then had her supervisor take over. That employee later expressed concern for her job, should she share the video with the media. Walmart has yet to respond officially.

Thus far, xenophobic incidents (in the employment context) in California aren’t as rampant. But if, and when, something similar does occur, here’s what employers should know:

California Employees Protected Under FEHA

The California Fair Employment and Housing Act protects employees from discrimination, retaliation, harassment and bullying. In 2016, several FEHA amendments expanded protections for job applicants and employees. The amendments require employers to implement a complaint procedure where employees can safely report harassment, discrimination or bullying behavior without fear of retaliation. 

FEHA also mandates that employers must take steps to protect its employees from third parties – including patients, clients and customers; vendors; delivery personnel; or others. Employers cannot turn a blind eye when an employee in the workplace is subjected to harassing, discriminatory or disrespectful conduct based on the following real or perceived characteristics: 

  • Race
  • Color
  • Age (over 40)
  • Gender (identity, expression)
  • Sexual orientation
  • National origin, ancestry or citizenship
  • Religion
  • Marital status, domestic partner status
  • Military or veteran status
  • Sex, pregnancy, childbirth, breastfeeding, related medical conditions
  • Physical or mental disability or conditions
  • Genetic information

FEHA requires employers notify its employees of complaint procedures. In addition, when a complaint by an employee is submitted, that complaint must be: 

  • Responded to in a timely manner
  • Kept as confidential as possible
  • Investigated impartially and as soon as possible

Employers should also:

  • Document and track the investigation’s progress
  • Provide options for remedial actions and resolutions
  • Conclude the investigation in a timely manner 

Although the “customer is always right,” a customer harassing and discriminating against an employee is wrong. Employers should update all policies and procedures to ensure the actions of third parties, such as the conduct described above, does not lead to costly and unnecessary litigation. 

Amy I. Huberman is an Employment Defense Attorney.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Mar232016

Amended FEHA Regulations: Employers Required to Update Harassment & Discrimination Policies

Lawyer for EmployerEmployment Defense

 

 

by Nicole Kamm

818.907.3235

 

 

 

The California Fair Employment and Housing Act’s (FEHA) proposed amendments have been approved and go into effect April 1, 2016. All employers should review the regulations and update their policies.

In large part, the amended regulations incorporate and adopt recent changes in the law.  However, the amendments also add a lengthy new section (California Code of Regulations Section 11023) that imposes additional substantive requirements related to harassment and discrimination prevention and correction.

There are extensive changes to the law.  In this blog, we’ll take a look at three primary areas: 

  1. New harassment and discrimination prevention policy requirements
  2. New definitions concerning transgender applicants and employees
  3. Expanded national origin protections for applicants and employees 

Harassment & Discrimination: Mandated Policies & Procedures

FEHA now expressly states, “Employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct”, §11023(a). Employers further “have an affirmative duty to create a workplace that is free from employment practices prohibited by the Act,” §11023(b).

In addition to distributing the DFEH-185 brochure, employers must develop written policies to prevent and correct harassment, discrimination and retaliation in the workplace.  Among other things, such policies must: 

  • List all current protected categories covered under FEHA;

  • Indicate that the law prohibits coworkers, third parties, supervisors and managers from engaging in prohibited conduct with the employee;

  • Create an employee complaint process to ensure complaints receive:
    • Confidentiality, to the extent possible
    • A timely response
    • Impartial and timely investigations by qualified personnel
    • Documentation and tracking for reasonable progress
    • Options for remedial actions and resolutions
    • Timely closures
    • Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor

  • Instruct supervisors to report complaints to designated company representatives;

  • Indicate that fair, timely and thorough investigations giving all parties appropriate due process will be conducted, and that reasonable conclusions based on evidence will be reached;

  • State that confidentiality will be kept to the extent possible, but not that the investigation will be completely confidential;

  • Indicate that remedies will be made should misconduct be found in the investigation; and

  • Make clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Employers are further required to ensure employees are aware of these new or updated policies, either by providing printed copies to all employees with an acknowledgment form, sending the policy via email with an acknowledgment return form, posting the policies on a company intranet with a tracking system ensuring employees have read and acknowledged receipt, discussing the policies upon hire, and/or some other method that ensures employees receive and understand the policies.

Further, in any facility or establishment where 10 percent or more of persons speak a language other than English as their spoken language, employers shall translate the policy into every language spoken by at least 10 percent of the workforce.

Defining Terms: Gender-Related Characteristics

Gender Discrimination

While already a protected category, the amended FEHA regulations include definitions for “gender expression,” “gender identity,” and “transgender”: 

  1. Gender Expression: Gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.

  2. Gender Identity: A person’s identification as male, female, or a gender different from the person’s sex at birth, or transgender.

  3. Sex: Expanded to have the same definition as provided in Government Code §12926, which includes pregnancy, childbirth, medical conditions related to pregnancy, childbirth or breast feeding, gender identity and gender expression.

  4. Sex Stereotypes: Definition now includes an assumption about a person’s appearance or behavior, or ability or inability to perform certain kinds of work based on myth, social expectation or generalization about the individual’s sex.

  5. Transgender: A general term that refers to a person whose gender identity differs from the person’s sex at birth.  A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth.  A transgender person may or may not identify as “transsexual.”

The amendments include reference to the fact that sexual harassment need not be motivated by sexual desire and “eligible female employees” under the pregnancy disability regulations include transgender employees who are disabled by pregnancy.

Employers should ensure they display an updated poster regarding pregnancy disability leave before April 1st. (See also the new DFEH Transgender FAQ Sheet.)

Expanded National Origin Protections for Applicants & Employees

The FEHA amendments incorporate sections of the California Vehicle Code to expand national origin protections.

Generally, it is unlawful for an employer to discriminate against an applicant or employee who holds or presents a driver’s licenses issued under §12801.9 of the Vehicle Code. 

Additionally, employers may require an applicant or employee to hold or present a driver’s license under the Vehicle Code only if

  1. Possession is required by state or federal law, or
  2. Possession of a driver’s license is required by the employer or other covered entity and is otherwise permitted by law.  

A policy requiring applicants or employees to present or hold a driver’s license may be evidence of a FEHA violation if the policy is not uniformly applied or is inconsistent with legitimate business reasons (i.e., a driver’s license is not needed to perform an essential function of the job).

Employer Takeaway

There is a lot to absorb – the amended Act runs nearly 90 pages with numerous edits and revisions. The key things to remember are these: 

  1. Update your harassment and discrimination policies as soon as possible (you must be compliant by April 1, 2016).
  2. Be aware of the new protections regarding national origin and gender.
  3. Make sure critical policies are in writing, employees read, understand and acknowledge receipt, and supervisors are trained on changes in the law and increasing employer obligations. 

Nicole Kamm is an Employment Defense Attorney

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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