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

It’s not illegal to be a jerk.  In fact, our workplaces are full of unpleasant and abusive people who don’t discriminate among their victims.  These so-called “equal opportunity jerks” are just about everywhere today, and run rampant in our workplaces.

Don’t believe it? Consider this. About 45% of American workers have been the target of workplace abuse. Another study by the Workplace Bullying Institute concluded that:

• 80% of the women and 20% of the men surveyed had been bullied in the workplace
• 71% of bullies are bosses
• 64% of Americans believe that victims of bullying should have legal recourse

Got your attention?

With these kind of numbers, it’s not surprising that one of the hottest selling management books right now calls the issue out, in bold and unapologetic fashion.  “The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn’t” by Stanford University Professor, Bob Sutton, is the hip new read.   (Pick it up next time you find yourself in Borders, or stuck waiting for a plane. It’s a great book – and as far as I’m concerned, compulsory reading for any lawyer working in a big firm.)

Bullying and Workplace Harassment

It also shouldn’t surprise you that there’s often a connection between abuse of power and sexual harassment. Bullying is just one form of abuse of power.

Bullies demoralize employees, make their victims sick, drain productivity and generally make the workplace a crappy place to be.  If it were up to most employees, bullies would be kicked off the island in a nano-second, just to make life bearable again.

But employers, for some reason, are not always so quick to act and allow bullies to continue with abusive conduct.   High performers often get a free pass.  Certain industries (law, medicine and banking in particular) seem more tolerant.  And in today’s űber efficient and fast paced culture, lack of basic etiquette and common decency seems to have become an acceptable by-product of our maniacal focus on growth and profit.

The good news…. some employers aren’t keeping bullies around. In early April 2007, Starwood Hotels & Resorts announced that it’s CEO, Steven Heyer, was out. The Board explained that Heyer was “very difficult to deal with,” basically citing the “extreme jerk” explanation for his departure.  And true to the cliché in these sorts of situations involving high powered execs, there were allegations that Heyer had made female employees “uncomfortable,” suggesting that, he’d crossed the line on the harassment front. (The most detailed article was published by WSJ –subscriptions required).

Increasing Legal Risk

When employer action is not quick enough, others tend to step in. A California court recently all but stripped employers of the “equal opportunity jerk” defense in harassment cases (always an embarrassing last resort for a sheepish employer!) if the conduct, although applied equally, impacts one protected class more harshly than another. (This is very common with bullying behavior that is more intimidating to women than it is to men, and can therefore create the foundation for a gender discrimination lawsuit.) In fact, several states have recently or are now considering anti-bullying legislation.

Take Control of Your Bullies!

Because bullying damages your business and can easily lead to harassment claims, it’s important to address this rampant problem. Some simple things you can do:

• Set conduct and behavior expectations.  If your culture contributes to bullying behavior, think about making some changes – even small ones can make a big difference.  (A bank I used to work with had a hard and fast rule that employees should not be “called out” or disciplined in group meetings.) 
• Senior management needs to lead by example.  A well known, high-powered bully needs to be addressed head on. 
• In my experience, comp and rewards drive 99% of behavior in most workplaces.  Don’t reward bullies – in fact, make it cost to be a bully.  (Several clients I work with tie a large component of a manager’s annual bonus to employee feedback from 360 reviews.) 

Training is Key

If you really want to get your message out, training is critical. You don’t need to go overboard on this one though – and you certainly don’t need a stand-alone anti-bullying course.

What you do need is a harassment course that thoughtfully integrates the broader concepts of workplace respect and dignity. While employees need to understand the basics of unlawful harassment prevention, not all undesirable and costly behavior is illegal.  In fact most of that spite and venom falls into the ubiquitous and category of plain “unpleasant.”

And we all know why employees sue.  It’s not because of their in-depth knowledge of case law, statutes or employment law treatises.  Employees sue because they feel wronged and mistreated.  Behind every successful plaintiff, there’s invariably a jerk who went unchecked, and untrained.

If you haven’t noticed yet, I’m a bit of a news and pop culture junkie.  Over the past year, I’ve blogged about some of the more outrageous celebrity and high profile executive misconduct -- and I’ve tried to provide guidance about how to avoid the same problems in your workplace.

And there’s always plenty to write about.  Just yesterday, HBO Chairman and Chief Executive Chris Albrecht was granted a leave of absence following his arrest over the weekend for allegedly assaulting his girlfriend.  In an e-mail message yesterday to all HBO employees, Albrecht said he was “deeply sorry for what occurred in Las Vegas this weekend” and that it represented “a wake-up call to me of a weakness I thought I had overcome long ago.”

When it comes to EEO trends, I think it’s also important to understand how changing demographics, and new forms of technology are impacting your workplaces. (Speaking of technology, did you hear that last week, the US Supreme Court joined the Internet age and included digital access to videotaped evidence with an opinion?  It’s a move that’s long overdue, but sure to catch on considering how key evidence in so many cases simply cannot translate properly in print.)

So why should you care about pop culture, hot news stories and the never-ending tech “revolution”?  It’s simple. I firmly believe that employers have to stay up on trends if they want to stay ahead of emerging employment law risks.

Employers today are trying to function in an entirely new environment – technology has transformed how we work, how people communicate, and how quickly we can access and share information. And the face of our workplaces is shifting. The boomers are aging, and Gen Y and Gen Next are starting to make their mark on our workplaces.  By all measures, these generations are dramatically different.

And to a large degree, all of these shifts are impacting what people feel empowered to say to others, and how quickly those communications can be shared and circulated. Don’t believe it? Just consider how quickly Alec Baldwin’s recent tirade against his daughter circulated the Internet in a nano-second. (Thank you TMZ.)  While your employees’ misconduct may not garner the same interest as a celeb like Baldwin, the potential damage caused by the widespread broadcast of inappropriate, offensive or hateful conduct is immeasurable. 

All of these trends are happening so quickly, it’s hard for employers to keep up. And I’m not talking about case law or lawyerly theories. I am talking about the stuff that really impacts our workplaces on a day-to-day basis, such as:

• Blogging, YouTube, social networking sites and the latest in handheld technology.
• Our celebrity and politics obsessed culture. (Guess where people are debating the latest news on race, immigration and the war on terror?  Your workplace.)
• The evolving profile of sex and gender discrimination, including gender stereotyping, gender identity and sexual favoritism claims
• The new standard for retaliation. (Do your managers even really understand what unlawful retaliation is?)
• New EEOC initiatives (like E-RACE) and recent consent decree trends

Because understanding and addressing these issues is so important, I’ve put together a complimentary 1-hour webcast on these critical EEO trends. If you’re interested in learning more, as well as what you can do to stay ahead of the trends, I invite you to register via the ELT website.  I hope you can make it!

Gender identity discrimination statutes are on the rise, and employment and HR professionals need to get up to speed on this emerging trend.

But first things first.  What is “gender identity”?

Gender identity is a term that refers to a person’s belief about whether they’re male or female – it’s not related to how someone appears physically.   It’s also not about a person’s sexual orientation.  Rather, some people do not believe that their real gender identity corresponds to their biological sex – for example, someone may appear to be male, but they believe they’re female.  These individuals are commonly referred to as “transsexual.”

For those of you in states like California, Minnesota, Rhode Island, and New Mexico, these growing protections for gender identity may seem long overdue. But change takes time and in some cases (and states), it just takes a little longer.

Many states already prohibit sexual orientation discrimination.  Last count, there were about 20 states and the District of Columbia, and about 100 or so cities/municipalities. But gender identity discrimination is different, and the protections have expanded at a much slower pace.

But the tide seems to be shifting. Since Democrats took control of Congress, the ENDA (Employment Nondiscrimination Act) has resurfaced. This federal law would prohibit sexual orientation and gender identity discrimination in employment. We’ll see how much momentum it gains in the next few years …

Number of State Statutes Nearly Doubles in Last 6 Months

More notable, however, is the number of states that have adopted or amended laws prohibiting gender identity discrimination in employment – and in just the past 6 months.

The list below is by no means authoritative. Check with your lawyer to confirm state law – some states have case law or other executive rulings that apply to gender identity discrimination.

The most recent state legislative activity includes:

• New Jersey (late 2006): passed a law that will be effective June 17, 2007.
• Oregon (April 19, 2007): law expected to be signed by the governor and be effective January 1, 2008.
• Iowa (April 25, 2007): law expected to be signed by the governor and be effective July 1, 2007.
• Vermont (May 3, 2007): law expected to be signed by the governor and be effective July 1, 2007.
• Colorado (May 4, 2007): law expected to be signed by the governor and be effective August 2007.
  

A handful of other states are considering legislation right now, but have not yet passed laws. These states include: Connecticut, Indiana, Michigan, Massachusetts, Montana, New York, and Pennsylvania.

Full-blown statutory protections mean that your employees can sue if they are victims of harassment or discrimination based on gender identity. Even if your state or local city has no law, some courts (even federal courts) allow gender discrimination claims based on failure to conform to gender norms. (For example, a male employee being teased because he is too “effeminate.”) So in some sense, most employers are already touched by this emerging legal trend.

Employers Need To Get The Word Out

It is estimated that 2-5% of the population are transgender. By those numbers alone, some of your employees are members of this group.

And those employees who are not in the 2-5% group rarely understand the issues and needs of transgender employees – and some can be down right cruel. Don’t underestimate what employees are capable of saying or doing. Just consider the horrible experience that Largo City, Florida Mayor, Steve Stanton had when he announced his desire to have a sex change – he was insulted and FIRED (after 14 years on the job).

Without a doubt, this is an area that screams out for employee education.  Few people understand gender identity, or how to respectfully integrate transgender employees into the workplace. And my experience is that many employees feel free to speak their minds (regardless of how disrespectful they may be) when it comes to this issue.

If your employee’s don’t understand the basic issues, you shouldn’t be surprised when they don’t understand how to act properly at work. So for the sake of your organization, and your employees, tackle this emerging trend head-on.

• Update your prohibited harassment policy if it doesn’t already include gender identity discrimination. (check out the organizations that prohibit gender identity discrimination by policy).
• Train your managers and employees. Give them facts and information, and remind them that the organization’s values of respect and inclusion extend to transgender employees.
• Make sure that HR understands how to help integrate transgender employees into the workplace smoothly. Some of their needs and concerns are unique – such as restroom use.
• Hold all employees accountable for disrespectful conduct.
  

Stay tuned for more news on gender identity protections … This is a trend that is only going to continue to gain momentum.

This week, the U.S. Supreme Court made it much more difficult for plaintiffs to file pay discrimination claims under Title VII. In a 5-4 decision (Ledbetter v. Goodyear Tire and Rubber Co.), the Court ruled that a plaintiff filing suit for pay discrimination under Title VII has 180 days to do so – and the 180-day clock starts to tick on the day the pay decision is made, and is not restarted when a new paycheck gets issued. If you’re interested in more details, you check out some good articles at Law.com, Washingtopost.com and NYTimes.com.

While this decision gives employers some breathing room and a defense against stale pay discrimination claims, it has Justice Ruth Bader Ginsberg and many women’s rights groups (including NOW and National Women’s Law Center) up in arms. Pay discrimination is often difficult to detect, and is generally not apparent on its face. It can take years to reveal itself.  Ginsberg, in her dissent, made a call for legislative action “to note and correct the Court’s parsimonious reading of Title VII.”

But what does this all mean for you?

Well, first things first.  The decision should not change your current pay practices, which should never be defined by a statute of limitations period.  Rather, your pay practices should be driven by a desire and legal obligation (keep in mind that plaintiffs have Title VII, the Equal Pay Act and state law) to treat employees fairly and without regard to protected category status.

The reality is that pay disparities between men and women and whites and minorities persist, and that employers need to take a serious look at what’s going on inside their organizations. This recent decision shouldn’t change adherence to some critical best practices: 

• Review your pay structure regularly for equity and fairness.

• Ensure that current pay practices are non-discriminatory.

• Review and fix pay inequities that are not justified.

• Review manager decisions, including pay and promotion decisions, to ensure that they are made with without regard to race or gender, or any other protected category.

• Train managers on EEO basics.

Treat your employees fairly and with respect and you’ll reap the rewards – higher retention, productivity, and engagement.

And remember, at the end of the day, we all have jobs to earn a pay check.  When discriminatory conduct hits employees directly in the wallet, the results can be explosive.