February 6, 2023

Volume XIII, Number 37


February 06, 2023

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February 03, 2023

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Mission Possible: Revamp and Reeducate for Prevention of Workplace Discrimination, Harassment and Retaliation

As States “reopen” and employees “return to work,” employers are presented with a fresh opportunity to revisit their pre-pandemic policies. McKinsey reported in the fall of 2020 that women, LGBTQ and people of color were more likely to report acute challenges in the pandemic. The Pew Research Center found that Black and Asian Americans reported increased discrimination during the COVID 19 pandemic.  While employees return to the workplace it’s a great opportunity for employers to revamp, re-educate and revitalize their protocols to protect their workforce from discrimination and harassment.

Companies have long included workplace discrimination, harassment and retaliation prevention policies in their handbooks as a matter of practice. But now is the time to re-examine and update those policies.  Some things to keep in mind:

  • If your policy was created at the time your company was established, it may need updating. Make sure your policy lists all current protected categories covered under both federal and state laws.

  • Policies should state that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee interacts from engaging in conduct prohibited by federal and state laws.

  • Provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor. Consider designating a company representative, such as a human resources manager and/or an anonymous complaint hotline.

  • Indicate that when the company receives allegations of misconduct, it will conduct a reasonable and appropriate, timely, and thorough investigation that provides all parties fair treatment and reaches objective conclusions based on the evidence collected, as well as appropriate remedial measures if misconduct is found.

  • Make clear that employees will not be exposed to retaliation as a result of lodging a good faith complaint or participating in good faith in any workplace investigation. See Cal. Code Regs. tit. 2, § 11023 (b) (1)-(3) (2021).As employees return to the workplace, redistribute those workplace discrimination, harassment and retaliation prevention policies. It serves as a reminder to employees of what the company expects in terms conduct and reinforces to employees the company’s commitment to provide a workplace free of discrimination, harassment and retaliation. Also, companies should consider training supervisors and managers to build a culture of tolerance and cooperation.  Encourage supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can respond appropriately. Last, companies should consider whether they are prepared to handle a complaint. The time to ensure you have an appropriate investigation process is place is before you receive a complaint. When creating an investigation process, companies should consider implementing measures to ensure that complaints receive:

    • An employer’s designation of confidentiality, to the extent possible;

    • A timely response;

    • Impartial and timely investigations by qualified personnel;

    • Documentation and tracking for reasonable progress;

    • Appropriate options for remedial actions and resolutions; and

    • Timely closures.

    See Cal. Code Regs. tit. 2, § 11023(b) (4) (2021).

    Companies should take advantage of this opportunity created by the pandemic to improve and focus on promoting and rebuilding diversity and inclusion in the workplace, as well as early warning and conflict prevention.

©2023 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 176

About this Author

Charles O. Thompson Employment Attorney with Greenberg Traurig, San Francisco, California

Charles Thompson focuses his practice on employment litigation and counseling representing clients through all phases of Class Actions and Single Plaintiff cases. Charles has wide-ranging experience litigating employment-related issues for public and private companies, having handled over 1,000 employment matters for clients ranging from Fortune 500 companies to Silicon Valley startups. He has tried employment, commercial, and professional liability cases to verdict and directed verdict, and has litigated and appealed cases from California State Courts to the...

Rowena Santos Business Litigation Attorney Greenberg Traurig Orange County, CA

Rowena Santos represents clients facing a diverse range of business and commercial disputes in state and federal courts across California, including arbitrations, as well as provides day-to-day counseling to employers on a variety of human resource matters, such as exempt/non-exempt classification, sexual harassment, leave of absence, and employee hiring, discipline and termination. As a litigator with more than 17 years of experience, Rowena develops and executes individualized litigation strategies. She has broad litigation experience in the defense of employers in litigation matters...