Sexual Harassment Training : ELT, Inc. : AB 1825, Employment Law, Online Harassment, Compliance, and Harassment Training

With the development of new training laws like California’s AB 1825, sexual harassment training has grabbed the headlines and the attention of employers for many months. This week we’ve seen the resolution of two high profile cases that serve as an important reminder for employers planning prevention and education programs -- the world of workplace discrimination is not just about sex.

On Tuesday, Tyson Foods, the nation’s largest meat processor with 114,000 employees, agreed to settle a racial discrimination case for nearly $1 million.  The 13 plaintiffs alleged that a company restroom was locked and accessible only to white workers for about 3 months -- and even featured a “whites only” sign for a brief period of time. To settle the case, the company has also agreed to provide antidiscrimination training to its employees.

One day later, the City of Los Angeles paid $2.7 million to settle a lawsuit from a black firefighter who claims he suffered racial discrimination after coworkers served him spaghetti laced with dog food. According the lawsuit, he suffered retaliation for reporting the incident and verbal slurs, insults and derogatory remarks, including taunting by firefighters "barking like dogs [and] asking him how dog food tasted.” In his claim, the firefighter focused upon how the association of a black man and dog food “resonates with the deep historical roots of slavery and the corresponding dehumanization.”

These cases truly underscore the importance of broad-based training in the workplace. While addressing sexual harassment is critical, educational efforts that focus exclusively on curbing inappropriate sexual conduct are going to leave a gaping hole in an employer’s prevention efforts. An employee who understands that he shouldn’t date or subordinate or forward racy pictures over the Internet, could be the same twisted and misguided employee who thinks its a good idea to serve up dog food to a coworker. 

The worlds of sex and race discrimination intersect, but they are certainly not the same. And as demonstrated in both of these cases, there are explosive issues related to this country’s history with slavery and segregation that make racial discrimination a distinct and unique problem.

When California’s AB 1825 was passed, many compliance companies rushed courses to market that focused exclusively on sexual harassment. They went so far as to suggest that employers could only train on sex harassment. Not only is this assertion patently incorrect (recently released regulations now confirm that training can and should address other kinds of prohibited workplace conduct), but a “sex only” approach is actually damaging to an employer’s training efforts.

The Tyson case is also noteworthy because, in many ways, Tyson was doing the right thing. The company already had in place a 24-page Code of Conduct, including a sizable discussion on the company’s employment policies and affirmation of the company’s commitment to a discrimination-free workplace. The Code’s Statement of Core Values also includes a commitment “to be a company of diverse people working together[.]”  

So why the lawsuit and embarrassing allegations? Tyson likely did not do enough to translate its lofty value statements into effective preventative efforts – like regular, mandatory training.  Now that training has been imposed.

Today, California’s Fair Employment & Housing Commission adopted final regulations for the state’s mandatory sexual harassment training law. The AB 1825 regs were voted in unanimously, and without any changes to the most recent October 2006 draft. 

So what happens next? The FEHC sends the final regulations to the Office of Administrative Law (OAL), the state “watch dog” for rule making. Basically, the OAL vets the FEHC’s work to ensure that the Commission drafted regulations that bear a logical relationship to the bill, and that the Commission appropriately considered public comments. The OAL has 30 days to evaluate the regs.

Considering that the Commission went through four drafts and four intensive public comment periods, the OAL is unlikely to find problems with the regs and will send them to the Secretary of State’s office, where they have 30 days to become effective.

What does that mean in terms of a likely effective date – meaning the date that all supervisor harassment training conducted by California employers must comply with the new regs?  According to Ann Noel, Acting Executive Legal Affairs Secretary for the Commission, we can expect the regulations to be effective some time in February 2007. While she anticipates a “best case of early February,” if the OAL requests some final tweaks and changes to the regs, this could push the effective date out a few weeks.

The practical impact? Get moving.

Employers organizing their 2007 re-training efforts should plan on the AB 1825 regulations becoming effective within the next 90 days – which means purchasing or building training programs that comply with the new, stringent requirements in a relatively short period of time.

On November 30, ELT and Littler Mendelson are hosting a complimentary webcast with the bill’s author, Sarah Reyes, to review the detailed requirements of the new regs, best practices for compliance, and the impact of AB 1825 on harassment training across the country. To register, click here.

It has been a long journey, and I know we are all glad to see final regulations adopted. I look forward to connecting with many of you on November 30!

Michael Richards, famous for his role as “Cosmo Kramer” on the hit TV show “Seinfeld” gave a performance in West Hollywood last Friday that has the whole country reeling.  After being heckled by an African-American man, Richards exploded in anger, hurling vicious racial epithets into the crowd. 

The incident was not short – Richards attack was hateful, extreme, and used the “N” word repeatedly.  Telling the heckler to “shut up,” Richards shouted to the audience that fifty years ago, the man would have been lynched “upside down” and under better control. After the three-minute tirade, the majority of the crowd got up and left in disgust.   (The incident was caught on tape, and can be viewed on YouTube.  CAUTION – the material is graphic, and upsetting.) 

Before leaving the stage, Richards ended his rant by saying “You see? You see, there’s still those words. Those words, those words.”

And he’s right.  Given this country’s violent and disturbing history of slavery and racial segregation, there are words so loaded, and so powerful, that using them even for a few minutes can ruin a career, fracture a work environment and emblazon a race divide that is still far from being healed.

Earlier this year, the US Supreme Court supported this viewpoint, deciding  in Ash v. Tyson Foods that the use of the term “boy” in the workplace, can alone be evidence of discrimination.  Certain words and phrases carry such negative and hurtful connotations, they cannot be tolerated in any way by employers.

Adding to the complication is the fact that some of these racially charged terms – like the “N” word – are sometimes used acceptably within the African American community.  The context in which the language is used is key – and yet subtle and nuanced.  And not everyone shares the same opinion about what’s OK.  What may be playful and harmless to one person, may be deeply insulting to another – regardless of the color of their skin, and whether or not they are the recipient of the comments, or just a bystander.

The Michael Richards incident should remind employers about the volatility of racially charged language.  It’s critical that training and education efforts spell out the rules for acceptable speech in the workplace.  As importantly, training efforts should remind employees that they need to consider the impact their language choices have not just on the intended recipient, but the work environment as a whole.

Richards may not recover from his shocking outburst.  His apology on the David Letterman show on Monday was somewhat confused and awkward, sprinkled with nervous laughter from the audience.  At minimum, Richards recognized the much deeper impact of his actions on the race divide in the US, stating he was concerned about “more hate, more rage and more anger coming through … there is a great deal of disturbance in this country…” 

Employers, take note.