Tag Archives: harassment

NEW LAW: New Hampshire Adds Gender Identity As Protected Class

On June 8, 2018, New Hampshire Governor Chris Sununu signed HB1319 (An Act Prohibiting Discrimination Based on Gender Identity) into law.  This new law, which goes into effect on July 8, 2018, amends the New Hampshire Law Against Discrimination (NHLAD) to include gender identity to the list of protected classes under the NHLAD.

Under this new law, employers are prohibited from discriminating against an individual based on gender identity with respect to the terms and conditions of employment, including hiring, compensation, employment benefits, advancement, employment training, assignments and termination of employment.  In addition, workplace harassment of an individual because of his/her gender identity is also strictly prohibited.

For purposes of the new law, “gender identity” is defined as “a person’s gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” Continue reading NEW LAW: New Hampshire Adds Gender Identity As Protected Class

Hot Off The Presses — New Workplace Harassment Guidance for California Employers

To accompany the recent changes to the Fair Employment and Housing Act (FEHA) regulations (which, among other things, clarify California employers’ obligation to prevent and correct wrongful behavior), the California’s Department of Fair Employment and Housing (DFEH) recently published a “Workplace Harassment Guide for California Employers.”  This Guide is intended to provide California employers with guidance on how to structure of an effective anti-harassment program.  It also addresses the questions employers are most likely to ask when formulating and enforcing harassment policies.

Identifying the Elements of an Effective Anti-Harassment Program

The Guide first outlines the elements of an “effective anti-harassment program”, which include:

  • A clear and easy to understand written policy that is distributed to employees and discussed at meetings on a regular basis (for example, every six months). The regulations list the required components of an anti-harassment policy at 2 CCR §11023.
  • Buy in from the top. This means that management is a role model of appropriate workplace behavior, understands the policies, walks the walk and talks the talk.
  • Training for supervisors and managers (two-hour training is mandated under two laws commonly referred to as AB 1825 and AB 2053, for more information on this see DFEH training FAQs).
  • Specialized training for complaint handlers.
  • Policies and procedures for responding to and investigating complaints.
  • Prompt, thorough and fair investigations of complaints.
  • Prompt and fair remedial action.

Next the Guide addresses (step-by-step) how employers should handle a complaint of harassment or other wrongful behavior, including:

  • Giving the complaint “top priority”
  • Conducting a fair investigation into the complaint by —
    • Thoroughly interviewing with the complaining party, preferably in person.• Giving the accused party a chance to tell his/her side of the story, preferably in person.• Interviewing relevant witnesses and reviewing relevant documents.• Performing any other work that might be necessary to gather all the facts (e.g.visit the work site, view videotapes, take pictures, etc.).

      • Reaching a reasonable and fair conclusion based on the information you collected, reviewed and analyzed during the investigation.

  • Imposing limitations on the confidentiality of the investigation
  • Maintaining impartiality during the investigation
  • Using an investigator who is trained and qualified to conduct investigations
  • Making factual conclusions instead of legal conclusions;
  • Documenting evidence;
  • Handling special issues such as anonymous complaints and what to do if the target of harassment asks the employer not to do anything; and
  • Preventing and addressing retaliation.

Take Home for Employers

It is recommended that all California employers review the new guide and verify that their internal procedures for handling employee complaints of this nature align with those recommended in the Guide.

Also, the DFEH  provided a new poster and employee brochure on sexual harassment, so employers should be sure to update these items if used as part of their workplace postings.

EEOC Releases New Guidance Materials on Mental Health Conditions in the Workplace

The EEOC recently released new guidance materials relating to mental health conditions.  In its news release regarding these new materials, the EEOC indicated that the new materials were necessary because charges of discrimination based on mental health conditions are on the rise (nearly 5,000 charges of discrimination based on mental health conditions were resolved in 2016), which indicates that employers are not aware of the protections the ADA affords employees with mental health conditions.

The first document, entitled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights” summarizes the rights of individuals with mental health conditions under the ADA.  This documents addresses and provides guidance regarding the following topics:

  • An employee’s right to protection against discrimination and harassment because of a mental health condition,
  • An employee’s right to privacy regarding his/her mental health information, and
  • An employer’s obligation to provide reasonable accommodation in the performance of job functions to an employee whose ability to perform his/her job is effected because of a mental health condition.

The second document, entitled “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work,” provides information intended to help mental health providers understand the documentation necessary for submitting reasonable accommodation requests to an employer.

It is recommended that all employers review these new materials.

California Employers — Take Action Now to Comply With New FEHA regulations

Starting April 1, 2016, California’s amended Fair Employment and Housing Act (FEHA) regulations go into effect. Is your organization prepared?

These new regulations make five significant changes to FEHA that impact employers who have employees in California.

  1. Expanded definition of “covered employer.” FEHA applies to employers with 5 or more employees. The new regulations clarify that an employer’s out-of-state employees and employees out on a leave of absence count towards the 5-employee requirement. In other words, a Michigan-based company with a small office of 3-4 employees in California may be sued under FEHA by its California-based employees.
  2. Written anti-discrimination and harassment policies. Employers are required to develop (and distribute) written anti-discrimination and harassment policies that contain certain provisions, including, but not limited to a detailed complaint reporting procedure. To find out more about these requirements, please read our previous blog entitled “California Employers – Do Your Anti-Discrimination/Harassment/Retaliation Policies Meet The New Requirements?.”
  3. New Pregnancy Disability Leave Poster. California employers were already required to post the California Pregnancy Disability Leave notice, but the new regulations have changed the required wording of the notice. To find out more about the new posting requirements, please read our previous blog entitled “New FEHA Regulations Also Require California Employers to Update Their PDL Notices.”
  4. New training requirements. California employers were already required to provide employees with training regarding anti-discrimination and anti-harassment training, but the training must now cover “abusive conduct” (i.e. workplace bullying”) and must address the following:
    1. The negative effects of “abusive conduct,” including reduction in productivity and morale;
    2. The elements of “abusive conduct,” including conduct taken with malice that a reasonable person would find hostile or offensive and that is not related to an employer’s legitimate business interests; and
    3. Emphasize that while a single act ordinarily will not constitute abusive conduct, it could if it is particularly severe or egregious.
  5. Newly defined protected classes. The new regulations provide new definitions for “gender expression,” “gender identity” and “transgender.”
    1. “Gender expression” means a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
    2. “Gender identity” means a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.
    3. “Transgender” is 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.

If you have any questions regarding these new FEHA regulations, please contact an HR Professional.

California Employers – Do Your Anti-Discrimination/Harassment/Retaliation Policies Meet The New Requirements?

Starting April 1, 2016, California’s amended Fair Employment and Housing Act (FEHA) regulations go into effect. Most significantly, these new regulations state that covered California employers (i.e. employers with 5 or more employees worldwide, and at least 1 in California) “have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act” and require employers to make changes to some of their workplace policies – specifically employers’ anti-discrimination/harassment/retaliation policies and complaint reporting procedures.

Under the new regulations, California employers are now required to have a written policy against unlawful harassment, discrimination, and retaliation in the workplace. While most California employers likely already have this type of policy in their handbooks, the regulations also list certain provisions that must be included in these written policies. Specifically, employers are required to develop a written harassment, discrimination, and retaliation prevention policy that:

  • Lists all current protected categories (protected classes) covered under FEHA;
  • Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited under FEHA;
  • Creates a complaint process to ensure that complaints receive:
    • An employer’s designation of confidentiality, to the extent possible;
    • A timely response;
    • Impartial and timely investigations by qualified personnel;
    • Documentation and tracking for reasonable progress;
    • Appropriate options for remedial actions and resolutions; and
    • Timely closures.
  • Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:
    • Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor;
    • A complaint hotline;
    • Access to an ombudsperson; and/or
    • Identification of the DFEH and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
  • Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.
  • Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
  • States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.
  • Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
  • Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Once the policy is developed, employers are required to distribute both the policy and the DFEH’s brochure entitled “Sexual Harassment: The Facts about Sexual Harassment” [Form DFEH-185] (Spanish version –Acosa Sexual: La Realidad Acerca del Acoso Sexual” [Form DFEH-185s]) to all employees in one (or more) of the following methods:

  • Providing each employee with a written copy of the policy and an acknowledgment form for the employee to sign and return;
  • Sending the policy via e-mail with an acknowledgment return form;
  • Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;
  • Discussing policies upon hire and/or during a new hire orientation session; and/or
  • Any other way that ensures employees receive and understand the policies.

While we recommend that employers continue to include these policies in the employee handbook, California employers should also take steps to separately distribute these policies to employees and retain a separate acknowledgement of receipt of these policies.

In addition, under the new regulations, if an employer’s workforce contains 10% or more of employees who speak a language other than English, the employer must translate the policy into every language that is spoken by at least 10% of the workforce.

What should California employers do?

California employers need to review their existing policies (anti-discrimination/harassment/retaliation policies and complaint reporting procedures) and verify that these policies contain all of the required provisions. To the extent that required provisions are missing, employers should update these policies before April 1, 2016.

In addition, all California employers should distribute these policies and DFEH Form 185 to all of their California employees in one or more of the approved methods listed above.

Finally, California employers should verify that proper complaint and investigation procedures are in place and that employees are aware of these procedures. This includes not only educating employees about the existence of the complaint procedures, but also training supervisory employees on how to handle such complaints and training human resource professionals on how to properly address and investigate these complaints.

Individual Liability For Violations Of New Hampshire’s Law Against Discrimination

In a recent case (EEOC v. Fred Fuller Oil Company, Inc.) the New Hampshire Supreme Court found that individual employees can be held personally liable for violations of New Hampshire’s Law Against Discrimination. This means that individual employees (employees, supervisors, and managerial employees) can face individual liability for aiding and abetting unlawful discrimination or harassment, or for retaliating against coworkers for opposing such conduct. This exposes individuals to personal damages including, but not limited to attorneys’ fees, compensatory damages, back pay, and/or administrative fines.

What does this mean for employers?

With the expansion of parties that can be held liable for violations of New Hampshire’s Law Against Discrimination, New Hampshire employers should take steps to ensure their anti-discrimination policies are legally compliant.

In addition, New Hampshire employers should also consider enhancing their anti-discrimination training programs to educate all employees of the requirements under New Hampshire’s Law Against Discrimination. Supervisory and managerial employees should also be educated on how to properly handle discrimination/harassment/retaliation in the workplace because, under the new standard, even a “passive” participant (e.g. a supervisor who fails to address a discrimination complaint) can be held personally liable for the violation.

Finally, New Hampshire employers should review their EPL insurance policies and determine whether they have adequate coverage for discrimination and harassment claims. In performing this review, employers should also determine whether their insurance policies provide any coverage for the defense of claims made against individual employees. Employers should also consider adopting policies addressing the circumstances in which the employer will or will not defend and/or indemnify employees who are named defendants in discrimination/harassment cases.

 

New Regulations Provide Protections for Transgender Employees in New York

The New York State Division of Human Rights recently enacted regulations (Section 466.13 entitled “Discrimination on the Basis of Gender Identity”) relating to the New York State Human Rights Law that expressly provide transgender individuals with protection against discrimination and harassment in employment.

These new regulations clarify that the protections provided under the New York State Human Rights Law extend to gender identity and transgender individuals. In other words, harassment and/or discrimination on the basis of gender identity or transgender status is also prohibited under the New York State Human Rights Law.

Under the new regulations, “gender identity” is defined as “having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self- image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth,” and a “transgender person” is defined as “an individual who has a gender identity different from the sex assigned to him or her at birth.”

In addition, the new regulations also extend disability discrimination protections to transgender individuals. Specifically, the regulations include a prohibition against discrimination or harassment on the basis of an individual’s gender dysphoria, which is defined as “a recognized medical condition related to an individual having a gender identity different from the sex assigned to him or her at birth.” In addition, the regulations extend an employer’s obligation to provide a reasonable accommodation for a disability to include reasonable accommodations for persons with gender dysphoria, when such accommodations are requested, are necessary, and are otherwise in accordance with the regulations concerning reasonable accommodations under the New York State Human Rights Law.

Impact on New York Employers

In light of these new regulations, New York employers should review their anti-discrimination/anti-harassment and reasonable accommodation policies and ensure that they include provisions relating to transgender individuals. In addition, New York employers should provide training to all employees to educate them about the legal protections afforded to transgender employees.

One Egregious Act Can Amount to Hostile Work Environment Sexual Harassment

In a recent case (Tiffany Jones vs. Family Health Centers of Baltimore), a Maryland federal court found that one incident of an unwanted touching was enough to state a viable hostile work environment claim.

In this case, the employee claimed she had been sexually harassed by the CFO of her employer on multiple occasions. Specifically, she claimed that the CFO had, on one occasion, made an inappropriate comment to her at a staff meeting. She claimed that there was another occasion where he blocked her path in the office hallway and refused to let her pass. She further claimed that he lurked around her work area and made her uncomfortable. Finally, she claimed that there was one occasion where the CFO came up behind her, put his hand on her waist, and she felt his genitals on her buttocks.

The Court found that the majority of the instances about which the employee complained (namely the unwelcome comment, the hallway incident, and the lurking) did not amount to unlawful sexual harassment because the conduct did not meet the severe or pervasive standard necessary to prove hostile work environment harassment.

However, the final incident, the unwanted touching, was an entirely different matter. Even though the touching occurred on only one occasion, the Court found that due to the nature of that particular touching, it met the severe or pervasive standard – even though it only occurred one time.

This case serves as a warning for all employers. Even one isolated incident of harassment can amount to unlawful sexual harassment if the conduct is particularly egregious.

New Laws Taking Effect In October

Many states have passed laws that take effect in October of 2015. Check the list below to see what laws effect your state …

State New Law Effective Date
Connecticut Public Act 15-6 regarding social media privacy.   This law prohibits an employer from requiring access to an employee’s personal social media accounts. October 1, 2015
Public Act 15-56 protects interns from harassment and discrimination in the workplace October 1, 2015
Maine An Act To Promote Privacy in Social Media.   This law prohibits an employer from requiring access to an employee’s personal social media accounts. October 15, 2015
Maryland Senate Bill 604 protects interns from harassment and discrimination in the workplace October 1, 2015
Montana Veteran Hiring Preference Act for Private Employers. This law allows employers to adopt a policy that gives preference in hiring to veterans and their spouses. October 1, 2015

EEOC Alleges Racial Harassment and Retaliation

On January 9, 2015, the EEOC filed a lawsuit against DHD Ventures in South Carolina, alleging that the company had subjected two black employees to hostile work environment.  According to the EEOC, the employees’ co-workers used racial slurs on a regular basis.  The two employees had complained on multiple occasions but the harassment continued.  The EEOC alleges that the employees were terminated for making the complaints.