By Michael J. Nader (Ogletree Deakins, Sacramento)
On October 15, 2017, Governor Brown signed Senate Bill 396, a new law that requires employers in California with 50 or more employees to provide training on policies that prohibit harassment based on gender identity, gender expression, and sexual orientation. Beginning on January 1, 2018, the two-hour harassment training must include components on harassment based on gender identity, gender expression, and sexual orientation. The training must include specific examples of such harassment. This portion of the training must be presented by trainers with knowledge and expertise in these areas.
This training is to be provided as a component of the already-required two-hour sexual harassment training provided to supervisory employees once every two years and within six months of an employee's assumption of a supervisory position. This article will examine the new law and provide best practices for complying with the law.
Gender Identity, Gender Expression, and Sexual Orientation
The California Fair Employment and Housing Council defines "sex," "gender," "gender identity," "gender expression," and "transgender" as follows:
-An individual's "gender" is one's sex assigned at birth.
-"Gender identity" is a person's internal understanding of and identification with gender, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person's sex assigned at birth, or transgender.
-"Gender expression" is a person's gender-related appearance or behavior. It is how individuals present their gender to the world.
-"Transgender" is "a general term that refers to a person whose gender identity differs from the person's sex assigned at birth."
Sex, gender, gender identity, and gender expression are considered independent of the others. For example, the same person may have (a) the sex of male, which was assigned at birth, (b) the gender identity of female, and (c) the gender expression of masculine with variations like butch, femme, transgender, genderqueer, or nonconforming queer. A transgender person "may or may not have a gender expression that is different from the social expectations of the sex assigned at birth."
An additional, separate aspect of the same person is sexual orientation. Staying with our example, one can have the assigned sex at birth of male; the gender identity of female; a masculine gender expression; and an orientation of gay, lesbian, or heterosexual. In addition, one may change or transition one's gender, gender identity, gender expression, and sexual orientation throughout life.
The purpose of the new law is to highlight these protected characteristics in anti-harassment training to help improve the prevention of workplace harassment of lesbian, gay, bisexual, and transgender (LGBT) employees, and employers should ensure full compliance. But training on these complex and controversial topics can be a challenge. The presentation may get sidetracked into discussions about the variations of gender identity and expression or the complexities of gender transitions. Do supervisors need to know the many types of nonconforming or beyond-binary gender identities? Trainers will want to ensure that they keep the training on track and spend a sufficient amount of time on the other qualities of the company's overall harassment prevention program, including the program's reporting, investigation, and non-retaliation policies and practices. There are ways an employer can ensure full compliance with the new law while also ensuring that all characteristics and topics for the training are covered adequately.
1. Explain how the law and company policies require that LGBT employees be treated with equal respect.
The purpose of California's required harassment training is to ensure a respectful workplace. California law recognizes 17 different protected characteristics: race, color, national origin, sex, sexual orientation, gender, gender identity, gender expression, religious creed, marital status, genetic characteristics, ancestry, mental disability, physical disability, medical condition, military/veteran status, and age. Everyone has at least 12 of these characteristics. For example, everyone has a race, color, ancestry, gender, gender expression, gender identity, and sexual orientation. Since many characteristics apply to everyone, a single characteristicâ€”or a select number of characteristicsâ€”cannot define a person. Employers can use the training as an opportunity to remind supervisors of the law's intent to promote a respectful working environment and not to reduce any person to one's characteristics.
2. Explain that work performance should be the foremost criteria for evaluating employees.
In a 1998 decision, the Supreme Court of California explained that harassment is "conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives." Employers may want to highlight that supervisors' focus should be the work performance of their direct reports and other employees in the organization and not an employee's gender identity, gender expression or sexual orientation (or any other protected characteristic), other than for the purpose of preventing harassment or discrimination.
Training is also a good time to remind supervisors that if an employee is doing a good job, then the employee is furthering the goals of the company, and equal respect is due to them, regardless of one's gender identity or expression, or sexual orientation, or any other characteristic.
3. Explain that supervisors' compliance with these policies is required.
In a recent U.S. Equal Employment Opportunity Commission report on harassment in the workplace, the Commission emphasized that "[Compliance training] is not training to change your mind. It's training to keep your job." This statement recognizes the limits of anti-harassment training. If, for example, a supervisor simply refuses to call transgender employees by their preferred names or refuses to refer to them by their preferred pronouns, a two-hour mandatory training seminar is not likely to change that supervisor's mind about transgender people. The training goal is to ensure that supervisors are fully informed of the standards of conduct required in the workplace and the disciplinary consequences when those standards are not met.
Guidance on Promoting a Respectful Workplace
Harassment training should also include practical guidance that supports a respectful work environment for LGBT employees, such as the following:
Employers can ensure that the company has updated policies that expressly prohibit harassment, discrimination, and retaliation on the bases of all protected characteristics, including gender identity, gender expression and sexual orientation. Employers may want to review those policy provisions in the training.
Employers can instruct supervisors to refrain from gossip, rumors, or other discussions or speculations about employees' sexual orientations or gender identities.
Employers can also instruct supervisors that company policy prohibits employees from engaging in any discriminatory conduct directed at employees because they associate with organizations that advocate LGBT causes.
Employers can emphasize that employees should be addressed by their preferred name. Employers can also explain that when an employee refers to a person, the employee should use the name and pronoun consistent with the person's gender identity and expression.
Employers should display the required poster developed by the Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location at the workplace.
An employer can designate human resources professionals to assist transitioning employees to ensure their legal access to facilities, accommodate dress code issues, and help ensure respectful and proper communications with other employees about the transition process.