In this episode of The Workplace podcast, CalChamber Labor and Employment General Counsel Bianca Saad, CalChamber Associate General Counsel Matthew Roberts and CalChamber Employment Law Subject Matter Expert Vanessa Greene discuss some of the issues HR training attendees have been asking about recently.
Roberts and Greene have been traveling throughout the state, conducting CalChamber harassment prevention trainings. Below are some of the issues employers have been asking about:
Displays of Affection
Marital status is a protected class, but what if married employees work in the same workplace and engage in consensual public displays of affection at the workplace, Saad asks Roberts?
This is a question that has been asked in back-to-back sessions recently, Roberts says.
Ultimately what it comes down to is the comfort in the workplace and being respectful of other employees, Saad points out.
Even though marital status is a protected class, if the public displays of affection are making others uncomfortable, it creates a hostile work environment, Roberts explains. When employees or third parties at the workplace are experiencing discomfort, it is going to interfere with their employment at work.
“That conduct is not going to be OK, even though it’s centered around, in this case, the marital status protected class,” he says.
Preferred Pronouns
Another question that has been raised is whether someone is required to use another person’s preferred pronouns if it conflicts with their religious beliefs.
Greene says she is asked this question frequently and the issue illustrates the complexities of the modern workplace, especially where employers are trying to navigate both the legal rights and the personal beliefs of employees.
Under both federal and California law, employees are entitled to be recognized by their preferred pronouns, Greene explains. The U.S. Equal Employment Opportunity Commission (EEOC) takes the position that intentionally and repeatedly using the wrong pronouns to refer to an LGBTQ+ employee may give rise to an actionable Title VII claim based on gender identity discrimination (Title VII of the Civil Rights Act of 1964). But simultaneously, sincerely held religious beliefs are also protected under federal law and under California’s Fair Employment and Housing Act.
Employers generally are going to have to grant religious accommodation requests in the workplace unless doing so would create an undue hardship on the employer.
“We have this situation where balancing both of these rights can get a bit tricky. When one employee objects to using another’s preferred pronouns due to religious beliefs, accommodating that employee’s request could arguably create a hostile work environment for another employee. It could also be seen as discriminatory toward the other employee based on their gender identity, which we know is a protected class under both federal and state law,” Greene says.
The law also states that employers aren’t required to grant an accommodation if doing so results in discrimination or violates other employees’ civil rights. So the answer is tricky, because there is no one-size-fits-all answer in these situations, she says.
Employers should engage in the interactive process and have a discussion with the employee making the request to really see if there’s a way they can balance both of the employees’ rights without violating the law, she says.
“It’s possible that after going through this interactive process, an employer might end up denying the request. But employers really need to understand that the law requires that they go through this process first before just denying a request. So really, the takeaway here is that each situation needs to be considered on an individual basis. And I think ultimately, the goal should really be about trying to foster an inclusive workplace where everyone feels respected and valued,” Greene says.
Free Speech
Another question employers often ask is whether an employee can get disciplined under harassment prevention rules for speech they engage in away from the workplace and after hours?
Roberts says that it’s not where you are with regards to your conduct, but it’s who you’re with—who is the audience, who is receiving or observing or witnessing this conduct that’s going on?
There is free speech in America, and employees have the right to go to political demonstrations, political rallies, and protests. But the workplace is a different place, he says.
If an employee engages in speech outside of the workplace that is negatively directed toward someone and is motivated by a protected class (for example, race, sex, religious belief), and this conduct is observed/heard by a co-worker, then that is conduct that will harm and have a negative impact on their interactions at the workplace.
Roberts says that these conduct and harassment issues should be judged on whether they unreasonably interfere with an employee’s work. Is it creating a hostile or intimidating work environment? Ultimately, employers are obligated to take action to prevent harassment in the workplace.
Confidentiality Requests
Saad asks Greene what actions a manager can legally take if an employee reports harassment, but demands confidentiality and says they don’t want a formal complaint?
There are numerous reasons why an employee would approach their supervisor with a discrimination or harassment issue and express the desire to not file a formal complaint, Greene says.
The employee may fear retaliation or may be conflict averse. Regardless of the reason for the employee’s reluctance, supervisors have a legal duty to report and address the issues they become aware of, she stresses. California’s Fair Employment and Housing Act states that employers are required to investigate allegations of harassment promptly and thoroughly, even if the reported incident happened after work hours.
This also includes incidents that could be relayed by third parties to the supervisor or even things that the supervisor observes directly without anybody coming to them and making an actual complaint.
“Ultimately, supervisors really need to understand that there’s no such thing as an ‘off the record’ complaint in the eyes of the law, and every harassment or discrimination issue must be taken seriously and reported up the chain,” she says.
