The protections afforded to lesbian, gay, bisexual, transgender and gender non-conforming individuals are increasing both at the state and federal level. In October 2017, Governor Brown signed SB 396, which requires California employers to include training on gender identity, gender expression and sexual orientation as part of its legally-mandated harassment prevention training. On November 16, 2017, the Equal Employment Opportunity Commission (“EEOC”) won its first sexual orientation discrimination lawsuit when a federal judge awarded $55,500 in damages and other relief to an individual who claimed he was discriminated because he is gay. On November 16, 2017, the Department of Fair Employment and Housing (“DFEH”) issued a new poster that California employers must post along with other mandatory workplace notices by January 1, 2018.
SB 396 Additional Training
SB 396 requires California employers with 50 or more employees to include additional components to the training already mandated for supervisors. The Fair Employment and Housing Act (“FEHA”) requires employers to provide at least 2 hours of training and education regarding sexual harassment to all supervisory employees within 6 months of assuming a supervisory role and once every 2 years. Effective January 1, 2018, the sexual harassment prevention training content must include practical examples of harassment based on gender identity, gender expression, and sexual orientation.
New Mandatory California Poster on Transgender Rights
SB 396 also requires California employers to post a poster about transgender rights in a prominent and accessible location in the workplace. The DFEH published this new poster on Transgender Rights For California Workplaces on November 16, 2017. The poster addresses key topics such as the right of employees to use restrooms, locker rooms, and other similar facilities corresponding to their gender identity and to dress in accord with their gender identity and expression. The poster also defines certain terms such as “transgender,” “social transition,” and “physical transition”:
- “Transgender” is a term used to describe people whose gender identity defers from the sex they were assigned at birth.
- “Gender expression” is defined by the law to mean a “person’s gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth.”
- “Social transition” involves a process of socially aligning one’s gender with the internal sense of self (g., changes in name and pronoun, bathroom facility usage, participation in activities like sports teams).
- “Physical transition” refers to medical treatments an individual may undergo to physically align their body with internal sense of self (g., hormone therapies or surgical procedures).
EEOC Wins Sexual Orientation Bias Lawsuit
In 2016, the EEOC filed two lawsuits alleging sex discrimination based on sexual orientation. One of those cases is U.S. EEOC v. Scott Medical Health Center (Case 2:16-cv-00225-CB) that was filed in the U.S. District Court for the Western District of Pennsylvania in Pittsburgh. The EEOC alleged that the medical center subjected a gay male employee to harassment because of his sexual orientation, gay male. The employee was forced to quit his job rather than endure further harassment. On November 16, 2017, a federal judge issued a ruling on the damages portion of the case in favor of the gay male employee for back pay, compensatory and punitive damages, and injunctive relief.
According to the federal judge’s findings of fact, the male employee’s manager subjected him to sex-based harassment in the form of anti-gay slurs and made the employee endure offensive questioning about his sex life and relationships. The judge found the company not only failed to take corrective action in response to the employee’s complaint of a sexually hostile work environment, but actually ratified the harasser’s conduct and intentionally permitted the harassment to persist, resulting in the employee’s constructive discharge.
The federal judge awarded the employee back pay in the amount of $5,500.43. The judge found the employee sustained significant emotional distress caused by the harassment and loss of employment, including depression, anxiety, social isolation, changes to his sleeping patterns, and significant weight gain. The judge opined that $75,000 was the appropriate punitive damages award in this case and $50,000 for compensatory damages. However, the law states that the aggregated amount awarded for compensatory and punitive damages combined cannot exceed $50,000.00, which limited the judge’s ability to enter an order for an amount greater than the statutory limit.
Unlike FEHA, Title VII prohibits only sex discrimination. However, the EEOC has interpreted and enforced Title VII’s prohibition of sex discrimination as prohibiting any employment discrimination based on gender identity or sexual orientation. Therefore, this ruling is important because a federal court has recognized that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.
Recommendations for Employers
- California employers should download and print the new mandatory poster here.
- California employers should revise AB 1825 training materials to include training and practical examples on the prevention of harassment based on gender identity, gender expression, and sexual orientation.
- California employers should review and revise policies and make sure they are compliant with AB 396.
- California employers should read our blog on the DFEH’s New Guidance on Workplace Harassment for California Employers here.
- California employers should download and read the following:
- Workplace Harassment Guide here.
- DFEH 2017 Sexual Harassment Brochure
- All employers should read Federal EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors that can be found here.
- All employers should read the EEOC’s “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers” here. Pay particular attention to the “Resources” section.
- All employers should read the EEOC’s “Preventing Employment Discrimination Against Lesbian, Gay, Bisexual or Transgender Workers” here.
- Sign up for SHLC upcoming webinars including:
- December 6, 2017 – New Year Employment Law Update for Nevada Employers
- December 7, 2017 – New Year Employment Law Update for California Employers
- March 7, 2018 – Sexual Harassment and Bullying Prevention Training for California and Nevada Managers
- March 1, 2018 – Presented in Spanish Language: Sexual Harassment and Bullying Prevention Training for California Managers
For more information and registration, visit: https://suttonhague.com/events.