What To Do When Your Employee Says #MeToo and other Workplace Discrimination

Practice Areas

By: Jaymen J. Chavda

The new year comes with a focus on key issues that employers should evaluate when reviewing their employee handbooks. While the federal government has yet to fill certain vacancies at the agency level, states are passing legislation to identify their own issues.

Sexual Harassment

This has been a trending topic in all communities over the past year. The recent developments in this context brings an opportunity for employers to review their anti-harassment policies to assure they are in compliance. Current policies should inform the employee about steps they can take in the event they encounter any harassment. There should be multiple outlets for the complainant to report such harassment, such as an anonymous email or a dedicated HR professional, rather than only their manager.

In 2017, many state amended their laws relating to sexual harassment training requirements. For example, California expanded the scope of sexual harassment training to include employers covered by the statute, and to include content on harassment based on gender expression, gender identity and sexual orientation. The training should be held by experts in the area, with real-world examples of the specific forms of discrimination.

Disability

There have been differing views from the U.S. Circuit Court of Appeals and the Equal Employment Opportunity Commission (EEOC) on whether an extended leave of absence beyond time afforded by the Family and Medical Leave Act (FMLA), is a reasonable accommodation. Generally, a reasonable accommodation is change to an employee’s position or workplace that will allow the qualified employee to conduct their normal duties, despite having disability. The Seventh Circuit believes that the extended leave is not adequate for a reasonable accommodation; whereas, the EEOC finds differently. While this trending topic is battled in the courts, employers should maintain the most updated standards in their handbooks.

Parental Leave

With effect from 2018, California based businesses with 20-49 employees must offer baby-bonding leave. The employee’s job status and position are protected during this leave. The new law does not affect larger businesses in California that are covered by FMLA or California statute. Insurance benefits are easier to claim, as California eliminated the one-week waiting period for paid family leave insurance benefits. Certain states without these laws have employers that offer paid family leave as a benefit. For example, New York joined California, New Jersey and Rhode Island in implementing a paid family leave program.

While drafting the handbook, the employer must not differentiate between mothers and fathers with respect to baby-bonding policies. Caretakers can refer to either parent, and the individual policies should adhere to FMLA guidelines.

Employers with multi-state offices do not need to draft a comprehensive handbook to identify each new law, but rather supplement an already existing robust handbook, on a regular basis, to adhere to new laws and regulations. Handbooks should include EEO policies and procedures for initiating a complaint to HR, with legal disclosures to protect the employers.

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