AB 1825 Sex Harassment Trainer

Here's one for employees:

In California, the agency that handles complaints of workplace harassment and discrimination is the Department of Fair Employment and Housing (DFEH).

If you want to complain, the DFEH is the place to go. You can even start a DFEH complaint online. You've got to be prepared to answer a bunch of questions.

You've got only one year after a bad event to complain to the DFEH. So, contact them as soon as possible.

Your harassment trainer should not be your lawyer.

I don't mean that harassment trainers shouldn't be lawyers. In fact, under AB 1825, they probably need to have legal training. However, your company's lawyers, be they in-house counsel or an external lawfirm, should not be involved in the business of your company's management of its employees (specifically, providing workplace training on corporate conduct and anti-harassment policies).

Because training is mandated by law, an employee's training may be at issue in a future lawsuit. If so, a company's trainer may be called on to testify to the fact of the training, the content and interactivity of the program, the experience of the trainer, the time spent, and other issues of compliance under AB 1825.

This might make you think that it would be a good idea to have your lawyer also be your trainer. However, it's never a good idea to have a lawyer who you might need to be a witness. That's because:

• it may waive or destroy the attorney/client privilege (if anything is disclosed in the training, such as an incident of sexual harassment, the trainer is not serving in the role of an attorney but as a teacher, and the training is not litigation-directed, so the disclosure is not a confidential client/attorney communication nor privileged work-product);
• it creates a conflict of interest (a trainer/witness is supposedly a neutral expert; your lawyer is known to be your advocate and solely serving your interests);
• it may result in the disqualification of the attorney (an employee can ask a court to prohibit a company's trainer/lawyer, or the trainer's entire law firm, from later representing the company in a lawsuit).

To be safe, it's best to keep your trainers and lawyers separate. The former focus on providing effective educational experiences and make no money if the training fails to prevent an incident. The latter focus on representing clients in litigation and make no money if the training succeeds in preventing an incident.

Most managers who get in trouble dating a subordinate meet up with their problematic paramour in their mutual workplace. Still, not all.

For example, Richard Soulam was a manager at the US Treasury Department in San Francisco when he got in trouble for sexually harassing a subordinate, Susan Peacher. However, Soulam and Peacher had another professional relationship prior to their official him-supervisor/her-subordinate workaday world in the US government.

Previously, she was his dominatrix and he was her boot-licking client. link

Despite her leaving the leather whips behind at home, Soulam repeatedly sought "sessions" from his former master. After complaining about her supervisor's unwelcome attempts at submission, Peacher claims she was retaliated against. She sued and recently settled with her employer for $60,000, a transfer, and other benefits.

So, this isn't only a "why managers shouldn't date subordinates" (WMSDS) case, it's also a fine example of a rarely seen "why managers shouldn't ask subordinates for sessions" (WMSASFS) case.

Interesting footnote in the history of gender (dis)integration in the American workplace from the Bureau of Labor Statistics (BLS). link

The BLS studied participation by gender in various occupations traditionally dominated by one gender and the change in that participation between 1983 and 2002. For example, during this period:

• the number of male dressmakers increased by 277%
• the number of female auto repair workers increased by 369%

I'm reminded of an interview I heard with Tina Weymouth, the bassist of the Talking Heads, telling a story about her son being asked whether he too might play the bass. The story is the young boy immediately rejects the idea, saying with distain, "bass is a girl's instrument."

Yesterday, the California Labor Commissioner amended its recently proposed regulations about the state meal break rules. link

The amendments nicely clarify the basic law (employers must permit a 30-minute meal break for any shift over five hours, and two meal breaks for shifts over ten hours) and remove some potentially confusing text about getting employees to sign an acknowledgment, letting employees pick their meal break starting time, etc.

Unfortunately, I see a problem in proposed §13700(a)(4), which gives a conflicting definition of "work period." The first sentence implies a "work period" does not include meal breaks (by saying it only includes time employees are subject to an employer's control). The second sentence implies a "work period" does include meal breaks (by saying the work period only ends at the end of the workday). I think the second sentence is an incorrect statement and needs to be fixed.

The Labor Commissioner is taking comments on the amendments to the proposed regulation, so I faxed them a letter pointing out the problem and suggesting new text to substitute.

I found a couple of good quotes encouraging training.

The first comes from William Anthony, professor of management at Florida State University (and an expert witness on workplace harassment — which is what I want to be when I grow up). He's commenting on a story I noted in an earlier post, about a law firm that promoted a partner a short time after an investigation revealed that he'd sexually harassed female subordinates. link

Regarding the law firm's cluelessness-in-action, Anthony writes, "I'm sure they have a good sexual harassment policy, but how was it promulgated?" He opines, "The key is training and how policies are communicated." His primary question: "How were people trained?" link

The second quote is a warning from the Jackson Lewis law firm: train them now or train them later. Commenting on Morgan Stanley’s $54 million settlement with the EEOC, out of which $2 million was set aside for training link, the firm writes:

"Workplace training continues to play an increasingly prominent role in the resolution of employment litigation and in the decisions of the courts on the liability of employers for harassment and other forms of discrimination and unlawful workplace conduct. The verdict seems to be clear: either proactively conduct workforce training to educate managers, supervisors and employees about the principles and practice of equal employment opportunity and prevent disputes, OR, reactively defend allegations of discriminatory treatment and absorb the resulting costs including the court mandated training of managers and employees."

I mentioned in an earlier post a case about a transgendered officer who'd suffered discrimination based on sexual stereotyping from senior police department officials. In that case, Philecia (nee Phillip) won $875,000 for the intentional discrimination and harassment.

Of course, not all employers are overtly hostile to gender-benders. Some want to be accommodating. But they still wonder about the "potty" question.

You know, where will Philecia/Phillip go when she/he has to?

Here's an interesting recent article on the potty issue. link

One solution is, of course, gender-neutral bathrooms. link

This is a hot topic at my alma mater. My former English teacher (later Yale's Dean) said, "I have spent far more of my life than I ever would have dreamed answering questions about shared sex bathrooms at Yale. My sense is that this is not the matter of easy and casual comfort for everybody that people like to pretend it is." link

The kids are comfortable with it but the authorities are less so. A bathroom exclusion based on birth-gender was recently upheld in New York. link

My experience? It's not a problem. Almost without exception people (including transgendered people) go into a bathroom to go to the bathroom. People should be able to choose the bathroom they go into. They go, you go. It makes some people nervous when they first realize it. But nothing ever happens.

Other than AB 1825 training in California, are employers required to provide anti-harassment training in other states?

One answer is "Yes, if..." and another answer is "No, but...."

The basic federal rule is that employers must take "all reasonable steps" to prevent harassment. In 1998, the US Supreme Court decided two cases (Ellereth and Faragher) that established rules for harassment liability and that offer legal protections to employers if they train employees (i.e., the "affirmative defense" under Title VII). link The California Supreme Court followed with a similar benefit to employers-that-train, allowing them to take advantage of the "avoidable consequences" doctrine. link

Similarly, in the EEOC's guide on an employer's vicarious liability for supervisors' harassment, the EEOC says employers should "affirmatively raise" the topic with (i.e., train) supervisors and employees. link

Training is currently required by statute in California, Connecticut, and Maine, and by case law in New Jersey. Both CA and CT have a "2 hour" requirement.

This suggests a growing consensus that it is probably "reasonable" to provide 2 hours of training (at least) on sexual harassment (at least). After all, CA and CT employers are required to do so, and they're still in business, so that can't be unreasonable, right?

Thus, is anti-harassment training mandatory for all US employers?

• No, but it is required in some states and provides legal benefits across the US.
• Yes, if you're in some states or want to take advantage of the "affirmative defense" under federal law, but it's not explicitly required by federal statute or regulation.

Why Managers Shouldn’t Date Subordinates (WMSDS) #1: Harry Stonecipher, 68, called out of retirement to be CEO of Boeing and restore a little ethical backbone, gets hoisted on his own petard (affair and erotic emails with a 48-year-old Boeing subordinate) and loses (1) his job and (2) his wife. link

In the Philippines, “blue jokes” are “green jokes.” So, playing blue or off-color here qualifies as green there. link

A big national law firm decides to promote a partner to a top executive position despite having recently found him harassing younger female colleagues. link The guy apparently liked to ask women to “feel his pipes.” link Initially, the firm lamented that the publicity “recklessly and unfairly impugns the reputation of one of the firm's finest partners who cannot defend himself.” link Then it notices no one's buying the "pity-the-poor-harasser" story, so it retracts the guy's promotion. link

A court awards $875,000 against a police department for sexual stereotyping a transgendered cop. Apparently the senior officers questioned the “command presence” of the 18-year veteran officer, who “was living off-duty as a woman, had a French manicure, had arched eyebrows and came to work with makeup or lipstick on his face on some occasions.” link