In her recent HCCS, a HealthStream Company webinar, “Preventing Sexual Harassment: The Importance of Workplace Training,” business and employment law attorney Jennifer Kearns, a partner at Duane Morris, addressed how sexual harassment training is essential for every workplace, especially healthcare. Some of the contributing and complicated issues involved included:
Visibility and Awareness
Kearns reminded us that sexual harassment is in the news every day, with new scandals and allegations receiving constant, regular attention. She added that efforts like the #metoo movement are making many people wonder why it has taken so long for harassment to be recognized as a serious, widespread problem that deserves to be addressed.
New State Regulations
Employers need to be aware of changes to state laws that may apply to harassment. According to Kearns, “in some states like California, there are new obligations on the part of employers to avoid discrimination and harassment based on gender expression and gender identity.” With these new state regulations in place, Kearns suggested that organizations should update their anti-harassment policies to specifically make reference to protected classes.
Federal Changes to the IRS Code
At the Federal level, the IRS code was changed so that confidential sexual harassment settlements and attorneys’ fees are now non-deductible as business expenses. Congress passed this law to promote greater transparency about sexual harassment claims and to make judgments and settlements more publicly accessible.
Sensitivity to Gender Issues Like Never Before
Many employers are going to need to focus on workplace practices connected to gender identity and gender expression. Kearns explained that the difference between the two is that “gender identity is the gender with which a person identifies and may be a gender that is other than the sex assigned to them at birth, and gender expression is the gender-related appearance that somebody puts out in public.” She suggested that we revisit our dress codes because traditional dress codes talk about appropriate clothing for men and appropriate clothing for women. A world that needs to accommodate gender fluidity is better served by a more generic statement, such as “Appropriate clothing is business casual. This may include trousers, pants, dresses, or skirts no shorter than X inches above the knee, and no clothing that shows midriff. If shorts are allowed, shorts must be worn X inches above the knee. These are guidelines that can be gender neutral.”
Restroom Issues to Avoid
To accommodate the complications of gender-specific bathrooms for a workforce that is becoming less binary, Kearns advised that organizations revamp their restroom policies. She suggested, “If you have single-stall restrooms that have a locking door and are meant for occupancy by one person, even if it’s not required, you may think about making those all-gender restrooms.”
Guidance from the federal government and regulations related to the anti-discrimination provision of HIPAA make it very clear that if somebody has stated a preference for how they want to be addressed in terms of gendered pronoun and name, you have to honor it. According to Kearns, “To not do so is a factor that could result in a determination that there is a hostile work environment, which is a form of unlawful sex-based harassment.”
Access the full webinar recording here.
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