Sexual Harassment Updates

Under the California Fair Employment and Housing Act (“FEHA”), an employer who knew or should have known of harassment among its employees must take expeditious and appropriate corrective action as well as any reasonable steps to prevent future harassment.

Assembly bill 76 expands the employer’s liability to include harassment by non-employees. As a result, employers are now responsible for the discriminatory or harassing conduct of clients, vendors, and other non-employees who frequent the workplace so long as the employer knew or should have known of the harassing conduct and failed to take expeditious and appropriate corrective action. While the courts do take “the extent of the employer’s control” into consideration, the guidelines of this provision are not clear. Removing or transferring an employee from a job with exposure to the harassing third party is not an appropriate corrective action. The employer must take steps to resolve previous harassment and especially to prevent future instances which could jeopardize other employees.

Assembly bill 196 updates the definition of sex discrimination as set form in California’s FEHA to include “gender.” Section 422.76 of the Penal Code defines "gender" as "the victim's actual sex or the defendant's perception of the victim's sex, and includes the defendant's perception of the victim's identity, appearance, or behavior, whether or not that identity, appearance, or behavior is different from that traditionally associated with the victim's sex at birth." Under AB 196 employers can require employees to comply with reasonable grooming, dress code, and workplace appearance standards consistent with state and federal law. However, employees must be permitted to dress in accordance with their “gender identity,” which may include cross dressing. Gender-based discrimination including an employer’s decision to fire, to not hire, or to not promote those employees perceived to be effeminate males or masculine females is prohibited under AB 196. Also prohibited is gender-based harassment including repeated failure to address the employee by proper name and pronoun, refusal to permit the employee use of the appropriate bathroom and persistent questions regarding the employee’s medical history. These changes present new challenges to managers.

Employers should add gender identity to the list of protected categories in their employee handbooks.

For any questions surrounding this post or employment law questions in general, please contact Richard E. Quintilone II, Esq. at worklaw.cc.