#MeToo 2.0: A Guide to Help Navigate New Workplace Harassment Laws
J. Scott Tiedemann is a managing partner of the law firm Liebert Cassidy Whitmore and can be reached at firstname.lastname@example.org. Alison Kalinski is an associate at Liebert Cassidy Whitmore and can be reached at email@example.com.
The #MeToo movement exposed the prevalence of sexual harassment in the workplace. As a result, society is changing how it views and responds to allegations of sexual harassment — and the California Legislature enacted important changes to the law on sexual harassment and discrimination that took effect this year. The #MeToo movement has made everyone more aware of sexual harassment in the workplace. Employers want to ensure that they have a harassment-free, healthy, collegial workplace for their employees and also want to be sure they implement policies to lessen liability when allegations of harassment surface.
This article highlights some of the major legislative changes affecting employees in the workplace and suggests best practices to protect your agency and create a harassment-free workplace.
Legislative Changes to the Fair Employment and Housing Act
California’s Fair Employment and Housing Act (FEHA) prohibits harassment, discrimination, and retaliation in employment based on an employee’s protected classification, such as race, gender, sex, national origin, disability or sexual orientation, among others. In response to the #MeToo movement, the Legislature enacted several amendments to FEHA that took effect Jan. 1, 2019. The amendments:
- Make it easier for employees to litigate and win harassment and discrimination cases;
- Restrict settlement agreements between employees and employers that concern allegations of sexual harassment; and
- Impose new mandatory training requirements.
Updated Standards for Harassment Claims
FEHA now includes updated standards for evaluating harassment claims and rejects the old “severe or pervasive” threshold for what is legally actionable harassment; it clarifies that one incident of harassing conduct can be sufficient to create a hostile work environment. FEHA also now provides that an employee need not prove that their productivity declined in order to bring a harassment claim; rather, it is sufficient if the employee can show that a reasonable person subject to the harassment would find that the harassment altered the working conditions and made it more difficult to work.
In addition, the amendments provide that a discriminatory remark may be relevant evidence of discrimination, even if made by a non-decisionmaker and outside the presence of the complaining employee. This will make it easier for employees to show an employer’s discriminatory motivation if they can bring in other remarks made by co-workers.
The amendments provide that sexual harassment standards do not vary by type of workplace and are rarely appropriate for disposition on summary judgment; that is to say, a science lab is not different from a city yard under FEHA.
Limitations on Agreements
The amendments to FEHA also limit agreements between employers and employees if the employee’s allegations include sexual harassment. Employers can no longer require employees to sign a nondisparagement agreement, confidentiality agreement or any other document denying employees the right to disclose information about unlawful acts in the workplace, including sexual harassment.
In addition, employers cannot require employees to waive their rights under FEHA in exchange for a bonus, raise or other condition of employment unless it is in conjunction with a voluntary settlement agreement filed in court, alternative dispute resolution forum, administrative agency or the employer’s internal complaint process.
Furthermore, confidentiality clauses in settlement agreements are prohibited if they limit the disclosure of facts related to sexual assault, harassment or discrimination. Likewise, settlement agreements cannot prohibit employees from testifying in any administrative, legislative or judicial proceedings about sexual harassment.
Mandatory Training Requirements
The FEHA amendments updated and heightened mandatory training requirements. All employers with five or more employees must provide two hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to nonsupervisory employees by Jan. 1, 2021. In addition, starting in January 2020, employers must train all seasonal and temporary employees within 30 calendar days of starting work or 100 hours worked, whichever comes first.
Navigating the Workplace in Response to #MeToo and the FEHA Amendments
Because the FEHA amendments make it easier for employees to prevail in harassment and discrimination cases and make it more difficult for employers to dismiss these claims before trial, it is now more important than ever that employers proactively prevent such misconduct and address any allegations immediately.
“Rebooting” Workplace Culture
Employers should strive to create a culture of intolerance toward any harassment. No agency or employer is immune, and employers should take a hard look inside their agency to see what is happening “on the ground floor” with all employees. Employers should encourage transparency and open dialogue, so management can understand the workplace culture — and any communication gaps — that could be fostering a culture of harassment or an environment where employees are afraid to speak up about harassment and discrimination. Employees should be encouraged not to turn a blind eye when they observe harassment. Managerial employees in particular should speak out when they hear inappropriate remarks or witness harassing conduct; this sends a message to all employees that the policy is not just a boilerplate statement and that the employer will not tolerate harassment.
At a minimum, employers need to:
- Ensure their anti-harassment and discrimination policies are up to date; and
- Train employees on the policies in accordance with the FEHA amendments.
The message to employees should be that harassment and discrimination are intolerable in the workplace. Employers need to create a culture in which employees believe their employer takes their complaints seriously, promptly investigates and does not retaliate against employees for coming forward.
Employers must investigate all harassment and discrimination complaints immediately and keep employees informed of the status of their complaints. Investigations can be exhausting and expensive, but employers should brace against investigation fatigue. An employer that lets down its guard will regret that decision in the litigation that will inevitably follow.
Finally, employers should understand that with the prevalence of the #MeToo movement, most or all of their employees are likely thinking about these issues. Employees may have a heightened awareness of their interactions with colleagues and be fearful of doing something inappropriate or being accused of harassment. While employers need to be vigilant about harassment training and implementing a zero tolerance policy, they should also explore positive reinforcement to help create a healthy workplace that is free of unnecessary stress. Encouraging open communication and open-door policies, building trust among employees and management, and fostering an inclusive and collegial culture are just a few ways to do this. Employers should be open to having conversations with employees that, while they may be uncomfortable at times, encourage employees to candidly and honestly share information. Such conversations enable employers to address concerns in the post-#MeToo workplace.
Get More Details at the Annual Conference Session
All of these issues, as well as the law on harassment, discrimination and retaliation, will be discussed in more detail at the League of California Cities 2019 Annual Conference & Expo. The session, “#MeToo2.0: A Guide to Help Navigate New Workplace Harassment Laws,” will be held Thursday, Oct. 17, from 2:45–4:00 p.m. For location details, see the conference brochure or the League’s mobile app.
This article appears in the October 2019 issue of Western City
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