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Deadline Looming to Train Workers About Sexual Harassment
Acritical deadline is sneaking up on California employers that requires workers to take sexual harassment prevention training before the end of the year. While business owners have a lot on their minds with the holidays approaching and the pandemic raging, it’s important to ensure your workforce is abiding by state law or you could face serious financial consequences.
The state legislature expanded anti-harassment training requirements with the passage of SB 1343. Former Gov. Jerry Brown signed the bill into law in 2018 and current Gov. Gavin Newsom signed SB 788 which gave employers a one-year extension due to Covid-19. Now the January 1, 2021 deadline is right around the corner.
California employers with five or more employees must offer sexual harassment training and education to comply with the law. Employees are required to take a one-hour online course and supervisors must complete two hours of training. If a company has 50 or more employees, they’re required to take a two-hour training course every two years. This includes full-time, part-time, independent contractors, volunteers, managers, and executives. New supervisors must take the course within six months of assuming a supervisor role. The state offers courses in both English and Spanish.
Unwanted, hostile, and harassing behavior is severely damaging to both the employee and the business where the harassment is allowed to occur.
The mandated training and education must provide information and practical guidance about federal and state statutory provisions that involves how to identify and prevent harassment, discrimination, and retaliation in the workplace. The training also covers how to prevent harassment and discrimination based on gender identity, gender expression, and sexual orientation.
Unwanted, hostile, and harassing behavior is severely damaging to both the employee and the business where the harassment is allowed to occur. The impact of sexual harassment on an individual is devastating. It can cause emotional, psychological, and economic pain that can last a lifetime.
Sexual harassment persists in nearly every industry in our economy regardless of whether it’s a male-dominated or female-dominated profession. It’s pervasive and damaging regardless of the job setting or whether the workers are low-wage or high-wage earners. Sexual harassment and gender discrimination are driven by the imbalances of power. Men hold more positions of power in most industries but women can perpetrate sexual harassment as well. Both men and women can be targets for sexual harassment but data shows people of color, especially women are more likely to experience harassment on the job.
Working from home does not prevent sexual harassment. According to the Pew Research Center, more than 40% of workers surveyed reported some form of digital harassment which includes sharing sexually explicit photos without consent, the use of inappropriate emojis and messages, and using sexual or gender-based derogatory terms to describe the victim online.
As a California employer, it’s your responsibility to ensure your organization is compliant with anti-harassment training. You have a legal obligation to provide a safe and secure workplace, even if your staff is working remotely from home. If sexual harassment and retaliation occur under your watch and it’s exposed that your staff was not properly trained as directed by state law, you can be held financially liable in civil court.
California now joins five other states (Connecticut, Delaware, Illinois, Maine and, New York) that require employers to provide sexual harassment training regardless of status or seniority.
There’s no federal law that requires businesses to provide its workers with sexual harassment training but those who have prevention policies in place are in a stronger position if an employee files a sexual harassment lawsuit. There are federal laws such as Title VII of the Civil Rights Act of 1964 that prohibit workplace sexual harassment and discrimination.
It’s also important to keep your employee handbook up-to-date with the company’s current guidelines on anti-harassment guidelines and make sure your employees all have access to the handbook.
Victims of workplace sexual harassment can exhibit a decrease in productivity, morale, and job effectiveness resulting in economic loss to a business. Ignoring complaints or firing the harasser is not an effective way to combat systemic sexual harassment.
By making anti-harassment training mandatory for all businesses we can instill meaningful change in workplace culture and create a corporate structure that fosters a more supportive and inclusive environment for all workers.
As the pandemic continues to spread across our country, many Americans have adapted to a remote work arraignment that involves interacting with co-workers and clients through online platforms. But working from home doesn’t mean an end to workplace sexual harassment. According to a Bloomberg report, since the beginning of quarantine in March, COVID-19 forced companies to shift to a remote workplace, but with it came a new set of challenges, including seeing a rise in complaints of virtual sexual harassment.
In a recent high-profile example, The New Yorker recently fired analyst and author Jeffrey Toobin after 27 years following an incident where he exposed his genitals to staffers during a video conference. He claimed he believed he was off-camera, and insisted it was an accident, but whether it was deliberate or not, the incident put him on the long list of men who have harassed coworkers through virtual means.
According to Vice, staff writers at The New Yorker were on a video call prepping for election night coverage. During a pause in the call for breakout discussions, Jeffrey Toobin “unintentionally” exposed his genitals to his co-workers on a Zoom call. Toobin apologized to his coworkers and family after the incident, telling Vice he had made an “embarrassingly stupid mistake”, believing he was off-camera and that no one on the Zoom call would be able to see him. Following Toobin’s suspension, Twitter users went online to share their experiences with workplace harassment using the #MeToobin hashtag. Many argued that although he exposed himself during a virtual meeting, it still happened on the clock and should still be considered workplace sexual harassment as if he did so in the workplace. “Masturbating at work is neither normal nor acceptable—it’s sexual harassment.” As a result of the investigation into the matter, The New Yorker confirmed that Jeffrey Toobin was no longer affiliated with the company.
A study done by the Pew Research Center revealed that almost 41% of adults have been subjected to some form of digital harassment, including extreme forms of virtual sexual harassment. Virtual harassment can include sharing sexually explicit photos without consent, the use of inappropriate emojis and messages, and using sexual or gender-based derogatory terms to describe the victim online. Workplace virtual harassment can include online stalking, insisting on using video calls after hours, and not maintaining dress code during work-related video conferences.
According to Title VII of the federal Civil Rights Act, sexual harassment is a form of illegal gender discrimination, and online sexual harassment is just as much a crime as in-person sexual harassment is. Online sexual harassment doesn’t necessarily have to involve any face-to-face interactions between the perpetrator and the target. Harassing behaviors can appear online on different social media sites and through messaging systems such as text messages and email. Both forms of sexual harassment can be significantly harmful to the victim, and those who are subjected to this form of harassment can suffer from emotional distress.
But why do people engage in virtual sexual harassment? For the abuser, virtual communication provides anonymity that can lead people to act in ways they would not do so and get away with in person. Another factor could be the stressful conditions from the pandemic that have led some working relationships to break down. Because of the sudden onset of COVID-19, many employers have not prepared for a teleworking workforce and, as a result, many have not established teleworking policies or agreements that would help to guide employees in this new remote workplace environment.
Whether in-person or in the remote workplace, employers can be held liable for sexual harassment that occurs in the workplace by its employees. By now, those employers who implemented a remote workplace should have developed effective policies that are responsive to the changing work environment. Employees should then be trained on the new policies and be given different options for reporting sexual harassment.
Employers should make it clear to employees that sexual harassment will not be tolerated over Zoom or any other virtual platform, and they should establish a specific complaint process for employees who have been sexually harassed over remote work tools, and act when an employee alleges virtual or remote sexual harassment. During this time of a pandemic, employers are still responsible for ensuring the health and safety of all workers, and this includes ensuring a work environment free from sexual harassment.
John Winer was recently recognized as a 2020 California Trailblazer by the National Law Journal for his work in representing survivors of sexual abuse and harassment over the last 40 years.
Lawmakers recently introduced legislation that would transform the way the military deals with sexual assault and harassment allegations following a female soldier’s death that shook the country. The proposed changes would also include the creation of offices within the military branches that would investigate sexual misconduct accusations and make recommendations for prosecution. Allegations are currently handled by commanders within units that often include both the victim and perpetrator, which some say creates a lack of trust and a culture of retaliation and pressures victims not to report abuses.
The “I am Vanessa Guillén Act”, in honor of Army Spc. Vanessa Guillén would change how sexual assault and harassment claims from U.S. service members are reported and handled in the military. According to the Washington Post, the bill would make sexual harassment a crime within the Uniform Code of Military Justice and move prosecution decisions of sexual assault and harassment cases out of the military chain of command. In the military judicial system, the commanding officers review the criminal investigation’s results and decide whether to convene a court-martial to prosecute the charges. The bill would also require an independent prosecutor’s determination as to whether a case moves forward and provide an opportunity for victims to file claims with the Department of Defense for compensation. It would also launch an external review by the U.S. Government Accountability Office of the military’s sexual harassment response program and its protocols for missing persons.
The bill comes as a response to the disappearance and death of Vanessa Guillén, who was a 20-year-old Army Specialist stationed at Fort Hood, an Army base located in Killeen, Texas. In April, she was reported missing from the army post, having been last seen in the parking lot of her squadron’s headquarters on April 22. Before her disappearance, her family claimed she had told them that she was being sexually harassed by a fellow soldier and was scared of reporting the incident because of potential retaliation. Protesters and mourners across the nation took to the streets as remains found near the army post were confirmed to belong to the missing soldier.
Many criticized the speed of the investigation into her disappearance while others called for the military to reform its investigations into sexual assault allegations. Following her death, a fellow Army Specialist, whom police had identified as the main suspect in Guillén’s case, died by suicide. Her family believed Guillén had been planning to file a sexual-harassment complaint against him, which may have motivated him to commit his actions. Following her death, Army Secretary Ryan McCarthy spent time at Fort Hood, listening to concerns from service members and the surrounding community about changes that could be made. He found that the base had some of the highest numbers of sexual assault, harassment, and killings in the U.S. Army.
According to the Military Times, some are referring to this as the military’s “Me Too” moment and say lawmakers should take full advantage to amplify it and cause the kinds of changes that should take place. According to a Pentagon report released earlier this year, rates of sexual assault and harassment reports in the military increased since 2019. The Defense Department’s fiscal year 2019 report on sexual assault in the military revealed that there were close to 8,000 sexual assault reports involving service members as victims or subjects. It also indicated that the military received more than a thousand formal sexual harassment complaints, a 10% increase from 2018. According to the report, most military sexual assaults happen between service members who work or live nearby, and “when unit climates are tolerant of other forms of misconduct, risk of sexual assault increases.” For active-duty women, those who experience sexual harassment had a three times greater risk of sexual assault than those who did not, and often experienced retaliation when reporting any incidents of harassment or assault.
The “I am Vanessa Guillén Act”, is a step in the right direction in addressing the violence that occurs in the military and can save lives and help keep our women and men of the Armed Services safe. Earlier this month, Nancy Pelosi, speaker of the U.S. House of Representatives, explained that the bill would come to the House floor for a vote soon. “Justice is needed for Vanessa, and for the many service members facing an epidemic of sexual harassment and assault in our armed forces, too often in the shadows,” she said. “Congress will not stop until we have finally, fully ended this epidemic – in the military, in the workplace, and all places.”
If you or a loved one need help or legal assistance because someone you love has been involved in sexual abuse, reach out to our Woodland Hills molestation attorney today.
As the new school year begins for millions of students across the country, there are new rules in place that impact how educators handle claims of sexual assault and harassment. The U.S. Department of Education recently set out new rules on how K-12 schools, colleges, and universities must respond to reports of sexual harassment and assault under Title IX, which protects people from discrimination based on sex in education programs. But school regulators, advocacy groups, past victims, and even politicians expressed concern over the fact that the new rules, which went into effect earlier this month, would also bolster protections for accused students and employees, as well as roll back progress made against sexual violence on school campuses.
In 2018, the Trump administration proposed new rules to govern the way schools handled sexual harassment and assault, which led to an outcry among survivors and advocates. It was announced that the proposed rules would allow direct cross-examination of people who report sexual assault, and there were fears that the changes would stop survivors from ever coming forward. In May, the long-awaited changes were announced, and the fear of many came true. The ruling requires colleges to hold live hearings and allow cross-examination when adjudicating sexual-misconduct complaints.
The new regulations also narrow the scope of complaints that colleges are required to investigate. During the Obama administration, sexual harassment was defined as “unwelcome conduct of a sexual nature”, but it was recently redefined as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” The Department of Education claimed the changes were needed in order to safeguard all students, including those who are falsely accused of sexual misconduct.
According to CNN, Secretary of Education Betsy DeVos claimed the new regulations would help secure due process rights for students who report sexual misconduct and for those accused of it, by requiring colleges to provide live hearings and allowing students’ advisers to cross-examine parties and witnesses involved. Under the new rules, institutions must presume that those accused of sexual misconduct are innocent prior to the investigative and decision-making process. In 2017, Betsy DeVos had announced that she was planning to rescind the Obama-era guidance, claiming it caused colleges to over to enforce campus sexual misconduct and led to students being unjustly removed from campuses for false accusations. Ms. DeVos claimed she would give schools, from kindergarten to college, regulations, with the force of law, that balanced those rights.
In response, a number of women’s advocacy groups, victims, and leading Democrats, including House Speaker Nancy Pelosi and former Vice President Joe Biden, condemned the new rulings. According to the New York Times, students, women’s rights, and education groups joined a lawsuit filed against the Education Department, outlining how the new rules, which bolster the rights of the accused and relieve schools of some liability, stand to derail their cases or deter them from pursuing them altogether. The head of a sexual assault survivor advocacy group also argued that many of the updated policies were “severely limited” in their scope and that the changes would not cover instances of assault that could occur on study abroad trips, at off-campus events or at unofficial fraternity houses. “Students will have to go through repeated and escalating instances of sexual harassment in order for the school to respond, and it would have to impact their education to the point that they are either starting to fail or need to drop out.”
Although college officials had been anticipating the new rules, there are fears that the new mandates could stop sexual assault victims from coming forward. Without a doubt, these new changes can be devastating to victims of sexual misconduct because the new ruling ensures that any survivor who wants their case to move forward will have to undergo live cross-examination, no matter how traumatic it can be for them. Title IX serves as an important remedy to combat sexual violence for students on college campuses, but the new ruling would leave students with reduced protections against predatory behavior. In light of recent events involving sexual misconduct across universities including USC and Stanford, a better option would have been to implement changes to address the ongoing issue that is sexual harassment on college campuses.
WB&S’s John Winer talked to the Sacramento Bee about our firm’s workplace sexual harassment lawsuit involving a female prison employee who is suing the California Department of Corrections and Rehabilitation for workplace sexual harassment, retaliation and gender discrimination.
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#MeToo Ushered in Radical Change for Survivors of Sexual Abuse
Decades before #MeToo became a global movement, attorney John D. Winer fought on the frontlines in a battle to convince California jurors that sexual abuse allegations had merit. Winer recalls facing a much more skeptical audience when he litigated church abuse cases in the 1980s.
“At the time, clergy abuse cases were a lot more difficult than they are now,” said Winer, the senior and managing partner of Winer Burritt & Scott. “The jurors were not always sophisticated enough, particularly in smaller counties, to understand the effects of sexual abuse and psychological injury.”
The Oakland-based attorney has spent the past 40 years advocating for victims by giving a voice to those who want to speak out about suffering from severe psychological injuries associated with childhood sexual abuse and workplace sexual harassment. Winer sees his chosen career path as a calling. “I felt I could really help people effectuate change in the world and make the workplace a safer place,” he said.
Growing up in New Haven, Conn., Winer recognized injustice and inequality at a young age. As a teenager, Winer remembers witnessing civil unrest while rallying outside the courthouse during the New Haven Black Panther Trials. The historic event inspired him to pursue law school and eventually represent plaintiffs seeking justice. Winer got his first job working for the legendary San Francisco trial lawyer Marvin E. Lewis, who is a pioneer of the legal concept of “psychic injury”.
Shortly after Winer joined Lewis & Lewis, he started handling psychological injury cases that involved sexual misconduct committed by doctors, therapists, and social workers. These cases often involve what’s known as “transference phenomenon”, which happens when an individual redirects emotions and feelings, often unconsciously, from one person to another. Patients are manipulated into highly unethical and inappropriate relationships with their care provider, inflicting long term emotional scars.
Care providers hold significant power in the patient-doctor treatment dynamic. A patient cannot give consent to sexual behavior with their psychotherapist. According to statistics from the California Board of Psychology, between the years of 2008 and 2014, the Board received an average of 700 complaints of therapist abuse per year.
After starting his own law practice, Winer started seeing the first wave of workplace sexual harassment cases following the 1986 landmark U.S. Supreme Court decision in Meritor Savings Bank v. Vinson. The Court recognized that plaintiffs could establish violations of the Civil Rights Act “by proving that discrimination based on sex has created a hostile or abusive work environment.”
“A lot of people don’t realize that sexual harassment in employment cases are civil rights cases,” added Winer, who considers these actions the most rewarding of his career. One that had the most impact involved a $4.2 million jury verdict in San Jose in a sexual harassment case against FedEx. It remains one of the highest sexual harassment judgments in Santa Clara County. “I believe that FedEx learned its lesson and changed its policies as a result of that verdict,” said Winer.
In the wake of #MeToo, companies across the country became acutely aware of the risks associated with fostering a toxic work environment and turning a blind eye to sexual harassment. High profile allegations involving Hollywood stars, network journalists, and industry leaders exposed how non-disclosure settlement agreements (NDAs) are used as weapons to silence victims.
Corporations frequently deployed non-disclosure agreements as a tool to keep workplace sexual harassment under wraps. NDAs are designed to protect high profile executives from embarrassing publicity surrounding an accusation of sexual misconduct while providing victims compensation for their suffering. After signing the deal, the accusers are prohibited from telling their story publicly or risk harsh penalties.
Since the rise of #MeToo, the public has become more aware of these settlements which allowed sexual predators to stay in their jobs, essentially emboldening them to continue the harassment. The company could wash its hands of the situation and ignore future complaints of mistreatment.
States like California recently implemented new laws to stop secret settlement agreements involving sexual assault, sexual harassment, discrimination, or retaliation. Employers are now prohibited from using NDAs to hide claims in an administrative or civil lawsuit for sexual harassment under California Civil Code section 51.9, as well as employment-related harassment, gender discrimination, or retaliation for reporting incidents of sexual harassment or discrimination. The law will now allow victims to talk about what happened to them, while still keeping the settlement amounts confidential.
The shift towards transparency has compelled more people to come forward with complaints. “Before #MeToo, 80% of the cases that came into our firm involved women. Now I’m seeing a shift to about 60% men, 40% women who are filing these cases,” said Winer.
The same can be said about the clergy abuse crisis that has rocked the Catholic Church. It took an avalanche of lawsuits against Dioceses across the nation before the public recognized the full scope of the damage inflicted by childhood sexual abuse. “You could still win against a church in the ’80s, but it was hard. It was ‘he said/ he said’. But that has changed radically to a point where we can win those types of ‘he said/he said’ cases almost all the time,” added Winer.
A new California law gives victims of childhood sexual assault more time to report allegations of abuse and file a lawsuit against their abuser. Previously, the state allowed victims to file claims until the age of 26. The new law, known as AB218, extends that limit to age 40, or within five years of the time it is discovered that they suffered damages as a result of the assault, whichever comes later.
Survivors of childhood sexual assault are often not prepared to come forward and report allegations against their abusers until they are in their 40s or 50s. Historically, this has caused many victims’ claims to be time-barred, because the statute of limitations to file a claim against a perpetrator passed years, or even decades, before. The new law which took effect in January 2020, has a three-year window for victims of childhood sexual assault to file a civil lawsuit against an abuser. It holds perpetrators more accountable, especially leaders within the Roman Catholic Church (priests, nuns, and others) and the Boy Scouts of America.
“One thing that has become easier to prove is that the Church should have known. It’s not whether they knew or not. They should have known what’s going on and they haven’t taken successful steps to prevent sexual abuse.”
The average age of the clergy abuse victims who seek Winer’s help is 60. “And in some cases, an attorney at my firm might be the first person the victim has ever told about their abuse,” added Winer, who believes that in most cases, anyone who has suffered sexual abuse, harassment, or discrimination will benefit from speaking out and fighting back.
Winer says he frequently thinks about what he would advise his daughters – ages 15, 26, and 30 – to do if faced with the choice to come forward or stay silent. “If you will be financially and emotionally better off, it’s worth the effort to stand up for yourself and demand accountability.”
As the COVID-19 health crisis began to escalate, thousands of small businesses across the country faced many financial challenges. Recent data indicates that while there were more than 140,000 small business closures, some businesses were lucky enough to receive much needed financial help by securing a loan from the federal Paycheck Protection Program (PPP), a $659 billion fund created to help smaller businesses and nonprofit groups keep their employees on the payroll. But many were shocked and angered to learn that between those who were seeking financial help were more than 12,000 Catholic churches in the U.S. who also applied for PPP loans and received more than $3.5 million in funds.
The PPP is a federal funding program provided through the Small Business Administration (SBA) that administers forgivable loans to small businesses to keep their employees on staff. Funds can also be used to pay interest on mortgages, rent, and utilities. According to guidelines set by the SBA, faith-based organizations, including houses of worship, were eligible to receive SBA loans under the PPP, regardless of whether they provide secular social services.
Forbes reported that faith-based organizations are typically prohibited from lobbying for federal funds distributed by the SBA however, Congress allowed churches and other nonprofits to apply for loans via the Paycheck Protection Program, as long as they abided by the SBA’s “affiliation rule,” which dictates that only entities with fewer than 500 employees are eligible. As a result, the AP reported that at least 3,500 Catholic organizations qualified for loans worth at least $1.4 billion — and as much as $3.5 billion, with much of the money going to dioceses that have paid huge settlements or sought bankruptcy protection because of clergy sexual abuse cover-ups.
Even before the health crisis began, the Catholic Church had been facing financial pressure due to the lawsuits filed over clergy sex abuse. According to a report by The Washington Post, the number of allegations of Catholic clergy sex abuse of minors more than quadrupled in 2019 compared to the average in the previous five years, and U.S. church officials reported that the majority of the lawsuits were in part the result of new church-run compensation programs for victims as well as survivors were driven to come forward by several major clerical abuse scandals. An AP report found that around 40 dioceses were approved for a PPP loan of $200 million after suffering financial stress due to large payments to clergy abuse victims.
The COVID-19 pandemic brought along many financial hardships for businesses across the nation, and many expressed frustrations upon hearing the news that church organizations received federal help, despite being tax-exempt. Some groups including the Freedom from Religion released a statement condemning the loan, claiming it was an “unconstitutional, possibly corrupt handout of taxpayer funds to churches, including churches run by some of the government’s closest allies, under the Paycheck Protection Program.” Advocacy groups claim that churches who received this payout should ultimately do the right thing and use the money to pay sexual abuse victims and are seeking more information about the loan recipients in order to raise awareness of religious involvement in the stimulus program.
The head of the labor and employment practice at Los Angeles-based law firm Ivie McNeill Wyatt Purcell & Diggs APLC is facing allegations he engaged in an extended campaign of “creepy” behavior toward an associate that peaked with a “nightmarish” incident during a work trip overseas. Read the Full Article here:
California Law Firm Ivie McNeill, Partner Sued for Sex Harassment- Bloomberg Law
LA Labor Partner Accused Of Sexually Harassing Associate – Law360
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