【鄭博仁律師】職場性騷擾和歧視

Harassment And Discrimination In A Workplace

The California Department of Fair Employment and Housing (DFEH) has released new regulations, effective April 1, 2016, that address pregnancy and sexual harassment under the state Fair Employment and Housing Act (FEHA). 

Background

The FEHA prohibits harassment and discrimination in employment on the basis of certain protected classes, such as race, color, religion, disability, sex (including pregnancy, childbirth, breastfeeding, and related medical conditions). The law generally applies to employers with 5 or more employees; however, the provisions regarding harassment apply to all employers. 

New Provisions 

Highlights of the new regulations include the following:

• In addition to distributing the brochure on sexual harassment (or an alternative writing that complies with Government Code section 12950), a covered employer must develop a harassment, discrimination, and retaliation prevention policy that meets specific requirements.

• New content standards for the abusive conduct component of the required sexual harassment training are included.  

•  An employer must maintain and pay for group health coverage for an eligible female employee who takes pregnancy disability leave for the duration of the leave-not to exceed 4 months over the course of a 12-month period per pregnancy-beginning on the date the pregnancy disability leave begins, at the same level and under the same conditions that coverage would have been provided if the employee had not taken pregnancy disability leave.

• A covered employer must post (and keep posted) notice of rights and obligations regarding pregnancy, childbirth, or related medical conditions on its premises, in conspicuous places where employees are employed. The notice must explain the FEHA's provisions and provide information about how to contact the DFEH to file a complaint and learn more about rights and obligations under the law. 

Your employee handbook that describes reasonable accommodation, transfers, or temporary disability leaves available to its employees, that employer must include a description of reasonable accommodation, transfer, and pregnancy disability leave in the next edition of its handbook that it publishes following adoption of the regulations. In the alternative, the employer may distribute to its employees a copy of its notice (described above) at least annually.

California has released some guidelines regarding Transgender Workers' Rights in the Workplace  

What it was:

People who identify as transgender are protected by the FEHA. The law prohibits harassment and discrimination in employment because of (among other things) sex, gender, gender identity, and gender expression. Gender expression is defined by the law to mean a "person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth." The law generally applies to employers with 5 or more employees; however, the provisions regarding harassment apply to all employers. 

The New Guidelines: 

•Employer Inquiries. Employers may ask about an employee's employment history, and may still ask for personal references, in addition to other nondiscriminatory questions. However, an interviewer should not ask questions designed to detect a person's sexual orientation or gender identity, nor should employers ask questions about a person's body or whether an individual plans to have surgery. 

•Dress Codes and Grooming Standards. California law explicitly prohibits an employer from denying an employee the right to dress in a manner suitable for that employee's gender identity. An employer who requires a dress code must enforce it in a non-discriminatory manner. This means, for instance, that a transgender woman must be allowed to dress in the same manner as non-transgender women, and that her compliance with such a dress code cannot be judged more harshly than non-transgender women.

•Bathrooms, Showers, and Locker Rooms. All employees have a right to safe and appropriate restroom and locker room facilities. This includes the right to use a restroom or locker room that corresponds to the employee's gender identity, regardless of the employee's assigned sex at birth. In addition, where possible, an employer should provide an easily accessible unisex single stall bathroom for use by any employee who desires increased privacy, regardless of the underlying reason. ◦A private restroom of this type can also be used by an employee who does not want to share a restroom with a transgender coworker. Use of a unisex single stall restroom should always be a matter of choice. No employee should be forced to use one, either as a matter of policy or due to continuing harassment in a gender-appropriate facility.

•Level of Protection- A transgender person does not need to complete any particular step in a gender transition in order to be protected by the law. An employer may not condition its treatment or accommodation of a transitioning employee on completion of a particular step in the transition.

Ten Things You Should Know About Office Romance

The thought of romance at work can leave a bitter taste for employers.

In a recent ‘Office Romance Survey’, 50 percent of business professionals surveyed said they participated in an office romance at some point in their careers.

But office “sweethearts” can quickly sour on each other. Although employers should generally avoid asking about an employee’s off-duty activities, particularly if the activities don’t affect the workplace, an employer may rightly be concerned about liability related to workplace romances.

One concern for employers is that if the relationship goes bad — and many will — one of the employees may bring a claim for sexual harassment or sexual discrimination.

Relationships between employees and supervisors pose more problems. Employers are strictly liable for a supervisor's sexual harassment of a subordinate. “Strict liability” means that the employer bears absolute legal responsibility for any harm — the employer does not have to be found careless or negligent to be held liable.

Consider these issues related to office romance.

1. Flirting and other romantic behaviors distract the parties involved in the relationship and the co-workers around them, leading to decreased productivity and morale. The entire department may be affected by the relationship. For instance, co-workers may feel uneasy about the romance and exclude the romantic couple from decision making and other project tasks.

Also, personal problems, fights, gossip and rumors can be disruptive and affect the reputation of the company and the parties involved. The romantic couple may not be seen as professional, credible, focused or committed to their jobs.

2. Social media usage among co-workers can lead to a more casual, laid-back environment where employees interact after hours (by posting, tweeting, or viewing and “liking” each other’s posts on social media platforms) and share more private information than they typically do in a 9 - 5 work environment. The nature of social media makes it easier to make comments that an employee might never feel comfortable saying in a face-to-face conversation.

Don’t make the mistake of thinking that because it happened after hours or on a private phone or computer, you can ignore it. A worker who goes home at night to find sexually suggestive posts about her from a co-worker is not going to feel comfortable coming to work the next day.

Treat it just as you would any other harassment complaint. Train your workers to understand that online harassment of a co-worker after hours violates company policy.

3. Don’t ignore what may appear to be consensual relationships in the workplace. A relationship between a supervisor and a subordinate may not be truly consensual or “welcome.” There could be ‘Quid Pro Quo’ happening. Again, it’s important to remember that employers are absolutely liable for supervisor/subordinate harassment.

4. What may seem like innocent flirting with non-employees, such as the vendor that delivers your packages, can lead to problems. California’s Fair Employment and Housing Act (FEHA) prohibits harassment of employees and harassment of applicants, interns, volunteers and people “providing services pursuant to a contract,” such as independent contractors.

If a vendor or a customer keeps coming into your workplace and harassing employees, you are going to have to deal with that situation, too, because it is your duty to prevent harassment in the workplace and to take corrective action when it does occur. In one recent case, a federal district court allowed a case against a big box store to proceed to trial where the employer allegedly failed to stop a male customer from stalking and harassing a female employee. In fact, when the employee complained, management allegedly yelled at her and told her to be “friendly” with the customer.

Make sure that your employees are aware of these rules.

5. The appearance of favoritism can negatively affect the work environment and may lead to liability. In one case, a boss showed favoritism to female employees who were in relationships with him. The California Supreme Court noted that extensive sexual favoritism in a workplace can create a hostile work environment in which female employees believe that management views them as “sexual playthings” or that women must engage in sexual conduct with their supervisors to receive favorable treatment. (Miller v. California Department of Corrections).

6. One of the parties might not stop pursuing the other even after the relationship is over — causing a hostile work environment. For instance, a warehouse clerk and her supervisor began a consensual sexual relationship, which went on for a couple of months. The employer was hit with a lawsuit after the supervisor got upset that the clerk wouldn’t continue their once-consensual affair. Among his alleged actions after the breakup: criticizing her work, verbally reprimanding her and threatening to “make her life at work difficult” (Walker v. Mac Frugals Bargains, Closeouts, Inc.).

Even when both parties are OK with the breakup, work may still become uncomfortable when the relationship is over. The end of the relationship affects the employees’ ability to collaborate on projects together. Motives in any future work interactions may be questioned.

7. Putting blinders on can only lead to problems. For instance, in one case, a female court officer had a consensual sexual encounter on one occasion with a male co-worker (not a supervisor) but then told him she didn’t want to pursue any further relationship with him. The co-worker proceeded to harass her for several months with unwanted physical contact, sexually graphic language and physical gestures. The court officer eventually quit, but not before she told her supervisor, in an emotional conversation, that something had happened and she did not want to work alone with the co-worker anymore. When she said she didn’t want to talk about it; her supervisor said “good” because he didn’t want to know what happened. The court found that the supervisor knew or should have known of the co-worker harassment and should have taken action (Duch v. Jakubek).

8. Sexually harassing conduct does not need to be motivated by sexual desire to be unlawful. In other words, Jamie doesn’t really have to want to sleep with Bob in order to harass him. If she repeatedly makes sexually offensive or gender based comments to him, that may be considered harassment.

9. An ex-lover can sabotage your career. For instance, in one case an office manager was awarded nearly $760,000 after an office romance ended badly. The manager was pursued by the doctor she worked for and eventually entered into a one-year consensual relationship with him. The relationship ended because the doctor began a relationship with another employee. The doctor’s new girlfriend wanted the ex fired so the doctor began a campaign of making his ex’s work environment intolerable, including changing office procedures, restructuring her duties, reprimanding her and demoting her (Green v. Administrators of Tulane Educational Fund).

10. Just because it’s a he said/she said situation doesn’t mean you can ignore it. Regardless of the situation, you have an obligation to take steps to prevent and correct harassment in the workplace; a good faith investigation is required. Focus on gathering information, examining the objective evidence and assessing credibility. In the end, is it more likely than not that the harassing conduct occurred?

Best Practices

• Develop a zero tolerance policy prohibiting sexual harassment. Create an environment where maintaining professional boundaries and respect for other employees are part of your core values.

• Educate employees about the dangers of unlawful harassment in the workplace.

•  Maintain open communication in the workplace.

• Examine your conflict of interest policy and consider whether a particular romantic work relationship (such as a supervisor/subordinate relationship) creates an actual conflict of interest for your company.

•  Proactively respond to complaints. No matter how minor the conduct may seem, directly addressing problems early on can prevent escalation to a lawsuit.