Episode 194: Answering Questions on Displays of Affection, Pronoun Use, Free Speech and More

Welcome to the Workplace, a podcast by Cal Chamber. I'm Bianca Saad, General Counsel of Labor and Employment with the California Chamber of Commerce. Hello listeners. We are mixing things up today and we will have our usual hosts on the other side of the mic. Now let's jump into today's topic. Spring is fully underway and now that everyone is familiar and settled in with our latest employment laws for the year, we figured it's a good time to revisit our training requirements such as sexual harassment prevention training, which California law mandates every two years and within six months of hire or promotion. In fact, Cal Chambers legal team has been busy conducting in person harassment prevention training for employers up and down the state. Now, as a reminder, non supervisory employees need to receive at least one hour of training and supervisors must receive a minimum of two hours. The training must meet certain requirements, including interactive participation. And some of that interactive participation can come in the form of questions from participants to share with us some of the interesting questions we've received from our in person harassment prevention trainings on the road. We have with us two wonderful guests today. First, we welcome Matthew Roberts, Cal Chambers Associate General Counsel of Labor and Employment. And thanks for joining us today, Matt.

Oh, thanks for having me on the other side of the microphone, Bianca. I am super excited for this.

Yes, very excited to have you on that side. Now also joining us today is Vanessa Green, Cal Chambers very own employment law subject matter expert. Vanessa, it's so exciting to have you here with us today. Thanks for joining us.

Yeah, thanks Bianca. I've been a fan of the podcast well before I started working at Cal Chambers, so it's a privilege to be a part of this.

Wonderful. So Matt and Vanessa, the two of you have been very busy for the last several months conducting in person harassment prevention training throughout the state. Along the way I know we fielded some interesting questions and I thought it would be helpful to run through some of those questions to highlight various concepts that are covered throughout the course. Still sound good to the two of you?

Let's roll.

Yep.

Okay, so the first question is for you, Matt. We talk about marital status as a protected class, but what if you have a married couple who works for the same organization and they engage in consensual public displays of affection at the workplace?

Yeah, this is an interesting question that I actually got in back to back training sessions recently that I find interesting because you know, the concept of what we talk about when we're talking about harassment prevention training is often around negative conduct directed at somebody because of one of their protected classes. And so two different attendees asked me, well, what about married couples? Couples, you know, marital status is a protected class, but they're engaging in consensual activities such as hugs, maybe some flirtatious banter back and forth, a kiss in the parking lot. These are various things that have been given to me as examples. And it's important to note, again, as we go through this concept with regards to the conduct, is that it's not necessarily important that the two people engaging in the conduct are okay with it if there's other third parties at the workplace who are not okay with it. So I kind of took this to the largest extreme in the training, and I said, well, what if the married couple was engaging in some kind of sexual activity there at the workplace? And of course, everybody was like, well, that's not okay. Right? That would make everybody kind of uncomfortable and create this hostile work environment. And so we kind of followed that logic through and say, you know, even if two people, whether it's a marital status thing that we're talking about here or, you know, two people are okay telling kind of off color jokes to each other, if third parties there at the workplace who are also employees are experiencing discomfort or it's interfering with their employment or their work, that conduct's not gonna be okay, even though it's centered around, in this case, you know, the marital status protected class.

All right, yeah, that's an excellent point. So it really comes down to comfort in the workplace and being respectful of those boundaries. All right, now let's go to you, Vanessa. A common question you've received is around the use of pronouns. So if using someone's preferred pronouns conflicts with an individual's religious beliefs, are they still required to use them?

Yeah. So this question comes up fairly often, and I think it really illustrates the complexities of the modern workplace, especially in these situations where we're trying to navigate both the legal rights and the personal beliefs of our employees. So, under both federal and California law, employees are entitled to be recognized by their preferred pronouns. And in fact, the EEOC takes the position that intentionally and repeatedly using the wrong pronouns to refer to LGBTQ employees may give rise to an actionable Title VII claim based on gender identity discrimination. But simultaneously, sincerely held religious beliefs are also protected under federal law and under California's Fair Employment and Housing Act. And 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. So 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 towards the other employee based on their gender identity, which we know is a protected class under both federal and state law. So what do we do here in these situations? Well, we know that the law says that employers aren't required to grant an accommodation if doing so results in discrimination or violates other employees civil rights. But does that mean that if employee A comes to me and says they should not be compelled to call employee B by employee B's preferred pronouns because doing so would conflict with their religious beliefs, can I just deny employee A's request on the basis that allowing that request would be discriminatory? And the answer is no, not necessarily. And this is where it gets kind of tricky because there's really not a one size fits all answer in these situations. So employers, what they really need to do here is engage in the interactive process. And that's going to require having 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. And now 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.

Yeah, those are excellent points. And I think the key takeaway there about it not being a one size fits all or a one and done right, we have to really have that discussion. Okay, Matt, back to you now. This is an interesting question around free speech. So we've seen people get disciplined or fired for speech on social media or in public, but America has free speech rights. So how can an employee get disciplined under harassment prevention rules for speech they engage in away from the workplace and after hours?

Yeah. Also really kind of contentious question around, you know, what am I free to do away from the workplace when I'm supposed to be outside of the control of the employer? And one of the mantras that I like to talk about in our harassment prevention programs is that really it's not where you are with regards to your conduct, but it's who you're with that is who's the audience, who's Receiving or observing or witnessing this conduct that's going on. So yes, of course we have free speech rights, America. We have the ability to go to political demonstrations, political rallies, protest, do what we want do under our First Amendment rights. But the workplace is a different place. I like to call it kind of sacrosanct in terms of a separate set of rules that we all have to abide by because the workplace is just different than being out in the public square. So for example, if you engage in speech outside of the workplace and that speech is negatively directed towards somebody and motivated by a protected class, for example, someone's race, someone's sex, someone's religious beliefs, and, and you engage this kind of conduct that is observed or heard by a coworker, somebody who you're going to end up going to work with the next day or the next week after that political speech event, it's going to negatively harm and impact their interactions there at the workplace. And again, we're always judging these conduct issues and harassment around. Is this unreasonably interfering with somebody's work? Is it creating a hostile or intimidating work environment? And so just because you are away from work and off hours and engaging in something that you know the government can't prosecute you for, does not mean that your workplace is still not obligated to take action to prevent harassment in the workplace because your speech was witnessed or presented to another co worker who now has to come work with you. It's a really complex concept in regards to what an employer can and can't do with somebody's speech outside of the workplace. So we do have to be careful as employers if we're going to deal in these issues where we have to prevent harassing conduct, but we also have to be respectful of somebody's actual lawful ability to do things away from the workplace. So people can still engage in political speech, they can still engage in free speech away from the workplace. What we're really looking at is what's the nature of that speech? Is it really negatively describing a particular protected class or calling for harm or violence towards a protected class or otherwise just really negatively motivated because of a protected class. Not so much because of a political issue or because of working conditions or other things that are actually protected speech in the workplace. So again, really not where you are, who you're with in terms of what we're looking at with harassment prevention issues. And so this is how we saw a lot of employees who may have engaged and crossed the line a little bit with their social media or their Political demonstrations and actually utilizing language that was really negatively directed towards somebody's protected class.

All right, wonderful points jumping back to you, Vanessa. If an employee reports harassment but demands confidentiality and says they don't want a formal complaint, what actions can a manager legally take?

Yeah, I think this is great to discuss because this is a really common question and there seems to be this common misunderstanding that there's an idea of like an off the record complaint. Sometimes employees will approach their supervisor with some kind of harassment or discrimination issue or other workplace issue and express a desire that they not file a formal complaint. And there's numerous reasons why this could happen. Right. The employee might fear retaliation. You might just be really adverse to conflict and not want anything to be said outside of that conversation with their supervisor. However, regardless of the reason for the employee's reluctance, supervisors have a legal duty to report and address these issues that they become aware of. And California's Fair Employment and Housing act in particular says that employers are required to investigate allegations of harassment promptly and thoroughly, even if the reported incident happened after work hours, let's say, or away from the workplace, just like Matt was talking about in the other situation. So if a supervisor hears about or is told about harassment or discrimination, whether that happened inside the workplace, outside the workplace, during work hours, after work hours, or whether that employee who's bringing it to their attention wants it kept confidential or not, the supervisor has an obligation to report it. And this includes incidents that could be relayed by third parties to the supervisor or even things that the supervisor observes during without anybody coming to them and making an actual complaint. So 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.

Wonderful. Yeah. That is a really important reminder for managers and supervisors. Matt and Vanessa, thank you so much for sharing some of your common and interesting harassment questions with us. There are some really great takeaways for our listeners today.

It was great to be on. Bianca, thanks for having me on this side.

Yeah, thanks, Bianca.

And thank you listeners for joining this discussion on the workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.