Large workplaces to include transgender concerns in sexual harassment training

California is already an outlier in requiring sexual harassment workplace training, and, starting Jan. 1, that training will expand.

Gov. Jerry Brown signed legislation in October to include training to prevent harassment based on “gender identity, gender expression and sexual orientation.”

The legislation written by Sen. Ricardo Lara, D-Bell Gardens, is a testament to the expanding influence of gay, lesbian, bisexual, and transgender lobbyists in Sacramento, and lawyers who identify as transgender or queer.

“Transgender workers are extremely vulnerable to discrimination, and I have heard stories of extreme sexual abuse and mistreatment,” Lara said, citing studies from the Williams Institute on Sexual Orientation Law and Public Policy among others, that transgender workers are frequently discriminated against in hiring and promotion.

While excited about the legislative change, some lawyers focused on transgender rights question who will do the training, how they will do it, and what workers count under the definition of “gender identity, gender expression and sexual orientation.”

“Until I see what the training looks like, I don’t know whether it’s going to be helpful,” said Sarah A. Scott, a lawyer at Sarah Scott Law, who focuses on transgender rights.

Scott, who is transgender, advocates that people with her life experience are not passed over for jobs, bullied, are called the correct pronoun and use the bathroom that conforms with their gender identity.

Scott acknowledged that, among other issues, “There is a huge controversy within the transgender community,” as to whether the transgender umbrella includes those who continually switch their gender identity, or see themselves as neither male nor female.

Asked whether gender identity training and transgender workplace protections include those who do not conform to a fixed male or female self-identity, Lara spokesman Michael Soller referred questions to the Department of Fair Employment and Housing, which draws up workplace anti-discrimination regulations.

Kevin Kish, director of the employment and housing agency, said that department regulations regarding gender identity in theory protect all types of gender identity — including gender non-identity — because the guidelines say nothing about self-identifying with a fixed male or female identity.

Kish added that, to his knowledge, the agency has yet to take a case specifically addressing that issue.

California is one of three states — with Connecticut and Maine — that require sexual harassment training by private employers. The state has had a law since 2005 requiring managers at companies with 50 or more workers have at least two hours of sexual harassment training every two years, and within the first year of becoming a manager.

The law was expanded in 2015 to include training to prevent bullying.

What sexual harassment training looks like, and how effective it is, varies, according to Chloe Hollett-Billingsley, a transgender rights-focused lawyer who helped shepherd the new training legislation through the Legislature.

Hollett-Billingsley said there is evidence that training is less effective when it is done strictly via a computer software program or webinar. The manager becomes abundantly aware “it is the fulfillment of some sort of regulatory obligation,” she said.

Training can run into pitfalls, Hollett-Billingsley said, when an in-person trainer does not know their audience, either dumbing down the presentation, not clearly stating what the law is, or gratuitously inflaming passions with clumsy hypothetical situations.

There is no training for the trainers.

Trainers under the current law are employment defense lawyers, law professors, or human resources professionals who can demonstrate a certain level of harassment training experience, said Pooja S. Nair, an associate at TroyGould PC who counsels employers on sexual harassment training compliance.

The new law, Nair noted, stipulates individuals must have “knowledge and expertise” in preventing harassment based on gender identity, gender expression, and sexual orientation, and that the Department of Fair Employment and Housing “would have to specify what that knowledge and expertise actually means.”

Kish said that his agency would expand the statute on training to add this new language, but is not sure what, if any, additional changes the department will make.

According to Kish, the state gets minimal complaints about sexual harassment training. Sometimes, though, a company’s training is investigated as part of the department’s probe into a sexual harassment complaint.