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Entries in transgender discrimination (3)

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.

Tuesday
Jul212015

Wacky Employee Claims: What Employers Can Learn From Outlandish Situations

Lawyer for EmployerWage and Hour Defense

 

 

by Nicole Kamm
818.907.3235

 

Think you've heard every cautionary workplace tale? Believe it or not, you probably haven't – the real question is, how prepared are you to handle wildly unusual complaints, extreme accommodation requests, and highly awkward situations?

We compiled some of the most interesting recent, real-life scenarios below. Sometimes, the employer acted reasonably, and in other situations, failed miserably. But each case serves as a reminder to employers: When making employment decisions, proceed with caution and advice from counsel. 

 

#4. Religious Discrimination Reeks

Religious discriminationThe Equal Employment Opportunity Commission (EEOC) filed suit against a New York company that forced employees to participate in a religion called "Onionhead." Employees were made to wear Onionhead buttons, dim the lights, join prayer groups and participate in other Onionhead-related activities. Employee resistance was futile, and in three cases led to humiliating treatment and eventual termination.

Employers: Avoid imposing your religious (or non-religious) beliefs on your employees. 

 

#3. Displeasing Prosthetics

An employee who worked for a snack food maker in Pennsylvania was considering gender reassignment surgery. She told a few coworkers about her potential surgery, and also confided that she was wearing a prosthetic penis at work to help her make a decision. The prosthetic was not visible, but one of her coworkers informed management, and the employee was soon fired.

The employee filed a federal civil rights complaint seeking back pay, compensation for suffering and humiliation, and punitive damages.  She claimed a male coworker who underwent hormone treatments and cross-dressed was treated more fairly, and her complaint alleged disparate and discriminatory treatment for being a female, and for being a female who identified as male.

Employers: The EEOC has determined that discrimination based on gender identity is sex discrimination under Title VII of the Civil Rights Act. California also makes it unlawful to discriminate based on gender identity or expression, under the Fair Employment and Housing Act. 

 

#2. Quid Pro Quo Grooming

An employee claimed that her supervisor made several sexual advances to her, and became "biased and angry" when the employee rebuffed those advances. She complained to her supervisor’s supervisor– but during this period the employee herself was written up several times for tardiness and inappropriate dress. Management decided to implement a work performance improvement plan for the employee, and the employee claimed no further discussions regarding her supervisor’s inappropriate behavior took place with upper management.

Then this happened: The supervisor called the employee to his office – the employee assumed it was to have a performance evaluation discussion. However, the supervisor asked the employee to extract an ingrown hair from his chin.  The employee refused. The supervisor then informed the employee that he could have her fired.

Shortly after this incident, the supervisor was instructed to terminate the employee, citing work performance issues observed by members of management.

The employee alleged age discrimination and sexual harassment in her claim brought to a federal court. The district court found that the ingrown hair request was not severe enough to be considered sexual harassment, though an Appellate court disagreed. The case was remanded back to district court.

Employers: Asking employees to perform personal grooming tasks is not appropriate; termination decisions should be based on legitimate business reasons and thoroughly documented. 

 

#1. Popping Positive for GINA Violations

This employer may have flushed over $2M down the sewer.

When management at a grocer's warehouse discovered that someone was defecating in the aisles and on top of canned goods, they immediately became concerned of potential health risks and took drastic action. The company ordered certain employees to submit to cheek swabs so they could identify the DNA of what a district court in Georgia called "The Devious Defecator."

Two employees submitted to the DNA test and were found to not have matching DNA of the defecator.

The employees later filed suit for violations of GINA, the Genetic Information Nondiscrimination Act. The employer contended the cheek swab testing did not provide medical information about the employees, and filed a motion for summary judgment. After losing on summary judgment, a jury awarded the plaintiffs $2.25M ($1.75M in punitive damages).

Employers: GINA clearly states it is "illegal for an employer to request, require, or purchase genetic information" of an employee, even if obtained for arguably reasonable business reasons.

 

What are the lessons learned from the bizarre claims made above? First, employers must be aware of the myriad laws governing the workplace. But more importantly, when these odd situations do come up, know to spot the issue, take proper action, and consult counsel with any questions. You can read more strange employee situations in a previous blog: Wacky Employee Claims.

 

Nicole Kamm is an Employment Defense Attorney. Contact her via email: nkamm@lewitthackman.com or directly by phone: 818-907-3235.

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.

Monday
Apr132015

Transgender Rights in the Workplace: A Guide for Employers to Protect Against Harassment & Discrimination

Business LitigationEmployer Attorney

by Hannah Sweiss

818.907.3260

 

Employer Discrimination Defense AttorneyLast week, President Obama signed an executive order banning discrimination against gay or transgender federal employees and contractors. On the same day, the first gender-neutral bathroom became available in the White House. The topic of transgender identity may be news to many. However, beyond the spotlight, transgender identity and the struggles surrounding transgender persons are real, particularly in the workplace. 

On March 16, 2015, the United States Commission on Civil Rights held its first ever hearing on workplace discrimination against those in the LGBT community.

According to NPR, the EEOC has helped more than 1,200 lesbian, gay, bisexual and transgender (LGBT) persons bring employment discrimination claims under Title VII since 2013. Some employer defendants have tried to claim Title VII does not protect transgender persons, but both state and federal courts disagreed.

As transgender rights awareness continues to gain momentum, employers need to be prepared to deal with new issues related to gender identity, gender stereotyping, and gender transitioning.

Federal Protections for Transgender Individuals

In 2012, the EEOC issued a landmark decision in Macy v. Holder, which held that discrimination based on transgender status constituted unlawful sex discrimination under Title VII. In December 2014, the Department of Justice issued a memo recognizing that transgender people are protected under Title VII.

In a landmark ruling issued on April 1, 2015, the Equal Employment Opportunity Commission (EEOC) found that the Department of the Army discriminated against a transgender employee who transitioned from male to female, by barring her from using the same restroom as other female employees, and by her supervisors’ continued intentional use of male names and pronouns in referring to the employee after her transition. The EEOC also determined that some of the most common forms of harassment faced by transgender employees constitute unlawful discrimination under Title VII.

The EEOC also recently adopted a strategic enforcement plan for Fiscal Years 2013-16, which specifically addresses "Emerging and Developing Issues," such as protections for LGBT individuals under Title VII of the 1964 Civil Rights Act. One EEOC initiative under the plan includes forming an LGBT work group to advise EEOC litigators, coordinate internal policies and comment on pending legislation. Another initiative has EEOC litigators filing amicus curiae briefs in lawsuits around the country – briefs filed by someone not a party to the litigation, but who have an interest (usually a social concern) in the outcome. 

Gender Discrimination Law

California Protections for Transgender Individuals

The California Fair Employment and Housing Act (FEHA) makes it unlawful for an employer to refuse to hire or employ a person or to discharge a person from employment or to discriminate in compensation or in terms, conditions, or privileges of employment because of the person’s gender identity. California Government Code sections 12940(a) and 12926(p).

Last year, the California Department of Fair Employment and Housing (“DFEH”), brought a lawsuit against a California employer alleging it was sex, gender, gender identity and gender expression discrimination to require a transgender employee to use the female locker room and restroom facilities until the employee’s gender transition to male was “complete” after sex reassignment surgery.

The FEHA broadly protects not only gender identity, but also gender expression (regardless of whether an employee self-identifies as a transgender individual). The expanding gender-identity protections safeguard employees who wish to dress like, act like and use the restroom of the gender they identify with, even if they never undergo surgery to alter their appearance. Employees’ gender identity and gender expression (including presenting in a way that does not comport with traditional gender roles) should not be a basis to treat employees differently.

Employer Takeaway

Failing to properly deal with issues of gender identity and gender expression may lead to employee claims. To help ensure a workplace free from discrimination and harassment for all employees:  

  1. Make tolerance part of the workplace culture by having strong anti-discrimination provisions in personnel policies and awareness of gender identity in proactive diversity training.

  2. Ensure employees know harassment and discrimination will not be tolerated based on sex, gender, sexual orientation, gender identity and/or gender expression.

  3. Employees should be addressed by their names or preferred title by all persons in the workplace.

  4. Implement reasonable workplace appearance, grooming, and dress standards that allow employees to appear or dress consistently with their gender identity.

  5. Consider assigning a gender-neutral restroom or locker room to accommodate ALL employees, whether male, female or transitioning.

  6. Ensure the privacy of gender-transitioning employees.

  7. If an employee requests help as he or she undergoes a gender transition, engage in a dialogue and ask the employee to share any concerns. Then, figure what accommodations are best and/or possible. A change in wardrobe could occur overnight, but a transition involving hormones and surgery might take several years to complete. 

Although employers and HR staff may be aware employees are protected against discrimination based on gender, gender identity and gender expression under California and Federal law, transgender discrimination or harassment claims may arise from others employed in the workplace. 

To help prevent such claims, employers should educate their workforce not only through policies and procedures, but also through training. If this means having employees participate in diversity training, then employers should consider making that investment.

 

Hannah Sweiss is an Employer Defense Attorney at our firm. Contact her via email: hsweiss@lewitthackman.com or by phone: 818.907.3260.

 

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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