Wednesday, May 30, 2012

Workplace Grooming & Dress Standards and Gender Expression

Earlier today, we held a Legal Beagle Bagel Breakfast training workshop at the law firm. (If you would like to participate, email and we will add your name to the email invitation list.)  The workshop was on dress and grooming standards.  As the weather gets warmer, we see employees with more casual clothing, and sometime with less clothing than should be found in a workplace.  We have found it advantageous to address this issue with employees before someone tests the dress code policy. That is good advice for all. 

One of the questions asked at the seminar is how to handle persons of one gender who feels more like the other gender.  In days gone by, we commonly used terms such as transsexual or transvestite.  In today's parlance, the law uses terms such as "gender identity" or "gender expression."The California Fair Employment and Housing Act ("FEHA") prohibits discrimination based on these categories. 

Under FEHA, gender expression means "a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth."  (Government Code, section 12926(q).)  Gender identity is not defined by the law.  Nevertheless, it appears that discrimination is prohibited against a person who has undergone a sex change, is in the process, someone who may be thinking about it, or someone who wants to appear or act like a person of the opposite gender. 

Of course, this can lead to several challenges for HR professionals.  For example, how does the employer discover the sexual identity or expression of a person?  Is proof required?  (I hope not.)  What characteristics are so prominent that one would associate them with the other gender than that of the worker's birth?  And of course, the concern on everyone's mind -- which restroom does the person use? 

I'm not sure what the answers are to each of these, and many other, questions related to gender expression and identity.  However, I do realize that FEHA includes a provision pertaining to workplace appearance and gender expression.  (Government Code section 12949.)  The provision allows an employer to maintain reasonable workplace appearance, grooming, and dress standards that are otherwise lawful.  For example, reasonable grooming standards based on gender are generally legal.  However, under FEHA, "an employer shall allow an employee to appear or dress consistently with the employee's gender identity or gender expression." 

What does this mean?  Generally, an employee is permitted to dress in the attire with his/her gender of choice.  However, the dress or attire must be consistent with the employer's business practices and policies.  thus, if a man dresses like a woman, he will still be required to adhere to the company dress and attire policies for women in the workplace. 

But in reality, handling these issues will be less than simple.  For example, does this mean that a woman who expresses herself as a man is entitled to wear a male swimsuit at the company's family picnic?  As my partner says, "The devil is in the details."  It will be very interesting to see how this body of law develops over time.  And of course, law is often made with the most extreme of facts.  That doesn't always make for the best law! 

Thursday, May 24, 2012

Ignoring a DFEH Complaint -- Not a Good Idea

Earlier today the Department of Fair Employment ("DFEH") issued a press release and emailed thousands of recipients of its Case Alert service about its victory against Fresno's RJL Group, dba Coit Carpet & Draperies and its president, Raymond Lopez.  The DFEH issued an Accusation, and the case was tried before the Fair Employment and Housing Commission ("FEHC").  The FEHC awarded the Complainant, Nora Rose, $35,000.  Another $10,000 was awarded to the DFEH. 

This case provides an excellent case study on what NOT to do when faced with a DFEH complaint. 

Rose worked as a receptionist at the dry cleaner patronized by Lopez.  He offered her the position of office manager with his company. 

The problem has already started.  Since when is a receptionist at a dry cleaner competent to perform the duties of an office manager?  I'm thinking Lopez wasn't thinking with his head at the time.  It reminds me of the lyrics to the Dierks Bentley song, "I know what I was feeling, but what was I thinking?" 

Rose wasn't thinking straight either.  Why would she take a job she obviously knew was beyond her level of competence?  Probably because she was feeling pretty good about this instant improvement in her life. 

Within weeks Rose is promoted from Office Manager to learning how to clean carpets with Lopez.  Really???  Then Lopez loans Rose $8,000 to purchase a car.  Ok, now we all know what Lopez is feeling and thinking. 

After loaning the money to Rose, Lopez tries to kiss her, and asks her on dates.  She rejects his advances.  Thus, the sexual slurs start.  Lopez makes comments about Rose's body features (by the way, Rose is nine inches taller than Lopez), clothing, and other crude comments. 

Rose filed her complaint alleging Lopez sexually harassed.  The DFEH started its investigation.  Lopez makes another less-than-smart move.  He ignores the DFEH.  He does not respond to the complaint.  He does not provide information requested.  He does not respond to the court's order to provide the information requested by the DFEH. 

This is not the way to respond to a DFEH complaint.  The DFEH investigators are professional and competent.  Treat them with respect and you will receive the same professional courtesies.  Moreover, the investigators won't just go away if you ignore them.  They escalate the investigation to the next step. 

So why did Lopez ignore the DFEH?  I suspect it had something to do with money.  During the process, the corporation was suspended.  Usually, that means taxes weren't paid.  And the lawyer, who acted as the agent for service of process, resigned.  I suspect that means he was not getting paid. 

It also appears that substance abuse may have been a factor in the case.  Several references are made to Mr. Lopez drinking. 

The DFEH eventually filed an Accusation with the FEHC.  An Accusation is an administrative complaint.  The matter is then heard by an Administrative Law Judge ("ALJ").  Mr. Lopez does not appear.  Nor is he represented. 

The ALJ issues an decision against Lopez.  She awarded Rose $35,000 for emotional distress damages.  However, the ALJ did not award Rose any back pay because the DFEH did not establish that Lopez fired Rose for resisting his advances.  Ouch!  That wasn't part of the DFEH press release. 

I imagine that with the fact presented, had the case been pursued as a civil lawsuit, the outcome would have been worse for Lopez.  A civil lawyer probably would have provided sufficient evidence that the firing was a result of Rose resisting advances.  And the attorney would have filed a motion for fees after winning the case as well.  The fees would have been substantial.  They always are. 

Now, in either case, collection may be difficult.  The corporation has been suspended.  But who knows whether Lopez has money that can be tapped to pay a judgment. 

My advice to any client who receives a DFEH Complaint -- take it seriously.  Call your lawyer.  Let him/her handle it for you.  Respond appropriately to the Complaint and any requests made of you.  However, vigorously defend your position using all appropriate legal arguments and relevant facts. 

Don't end up a DFEH press release. 

The full FEHC Decision can be viewed at  

Monday, May 21, 2012

Talking & Driving -- The Dreaded Cell Phone Dilemna

We have all experienced it -- the perils of driving on the road while a driver uses a cell phone.  They talk, oblivious to the world outside their car, annoying other drivers, and causing safety hazards.  It gets even worse when a driver is using his/her phone for texting or emails!  Perhaps the driver was you???

We have drafted a policy in Employee Handbooks that instructs employees to obey the law when driving.  This includes the use of a cell phone.  In fact, we even recommend that an employee pull over if the telephone call is distracting him/her from safely driving. 

The debate rages on -- whether someone can use a cell phone and drive safely.  I am confident that we will see more and more legislation restricting cell phone use while driving.  But it is the law now, at least in California, not to drive and use a phone unless it is a hands-free operation.  And how many times do you see drivers ignoring the law. 

My brother recently sent me a story out of Houston describing the aftermath of a vehicular accident due to an employee's cell phone use.  The title should put fear in the heart of every business owner and HR Director -- "Jury Awards $24 M to Woman Hit by Driver on Phone." 

The victim suffered, what the jury estimated, $14 million in actual damages.  The jury then awarded an extra $10 million in punitive damages. 

The driver contends she was using a headset (hands-free) in accordance with company policy.  The victim's lawyer claims the employer did nothing to enforce the policy.  However, he predicts that the company, and other companies that hear about the verdict will re-examine their policies after learning of the verdict. 

I hope that one of the companies that will examine its cell phone policy is yours.  We have drafted a policy that complies with the law.  But we inform business owners that the policy does not provide the most protection possible.  Even with a lawful policy, a company can incur liability.  With the magnitude of injury that could occur, I recommend your management team consider what how to best avoid accidents, risks it is willing to take and what price it will put on safety. 

Monday, May 14, 2012

An Inappropriate Relationship Torpedoed the CEO

It hasn't been a good month for CEOs.  First, Yahoo's CEO resigned after it was discovered he lied on his resume.  Now the Best Buy CEO resigned after he "violated company policy by engaging in an extremely close personal relationship with a female employee that negatively impacted the work environment." 

This is where I become confused. 

Was it an extremely close relationship that caused the resignation?  If so, how close must it be in order to qualify as a violation of company policy?  Is this a euphemism for having sex?  Then why not say so?  And if it was just sex then why even call it a "personal" relationship?  Perhaps it was nothing more than cheap, dirty sex.  If it's not a euphemism for sex, perhaps the company should tell us what constitutes a "close personal relationship."  In fact, shouldn't close and caring relationships be encouraged at work and among people generally? 

Or was it that the employee was female that caused the resignation?  Would it have been OK if the relationship was with a male?  And if so, why?  I just can't figure out why the company referred to the gender of the employee.  Does it matter to the issue of getting rid of the CEO? 

Or was the resignation caused by the negative impact on the work environment?  Would it have been permissible under company policy to have a relationship -- even an extremely close one -- with an employee that does not negatively impact the work environment? 

Best Buy's board of directors said the CEO's conduct "demonstrated extremely poor judgment and a lack of professionalism."  Perhaps he should run for Congress.  That seems to be a collecting pool for men interested in "close personal relationships" with just any attractive woman.  Remember Anthony Weiner, Chris Lee, David Wu, Mark Foley ... the list could go on and on. 

How does Best Buy discipline the CEO?  By giving him $5.39 in severance and stock grants.  That may be just enough to allow his wife to forget all about his cheating days!

Wednesday, May 9, 2012

Predatory ADA Access Lawsuits -- SB 1186

In the recent past 12 different bills have been introduced in the California legislature attempting to stop the lawsuit abuse with ADA access cases.  The Legislature has rejected each of those attempts. 

Now United States Senator Feinstein has entered the fray.  She wrote a letter to Darell Steinberg, Senate President Pro Tem, telling him to exercise leadership and get a law passed that stops the abuse.  If the Legislature did not act to solve the problem, Senator Feinstein threatened action on the national scale. 

These ADA lawsuits have been abusive.  Not too long ago, Tanya Moore filed hundreds of lawsuits up and down the Highway 99 corridor against small businesses. 

These ADA access lawsuits shake-down business owners, landlords and tenants for $4,000 per violation plus attorneys' fees for any minor violation of the ADA accessibility rules.  A mirror might hang one inch too high from the floor, a disabled parking plaque might be the wrong color, and voila, the defendants are facing $8,000 in fines.  Of course, fighting it is not worth the battle.  In the end, the defendants lose and end up paying attorneys' fees as well. 

Currently, the Legislature is considering SB 1186.  It can be found here:  It requires plaintiffs to provide a 30-day fix-it notice to defendants before initiating a lawsuit.  This should stem much of the lawsuit abuse.  Most employers would readily fix a technical violation if it was brought to their attention.  However, this won't fix those situations where the cost of improvements might be so substantial that upgrades are not "readily achievable." 

It's also nice to see Senator Feinstein call the almighty Steinberg on the carpet.  If you want to see her letter, here's the link:

Tuesday, May 8, 2012

I'm Sorry ... I Got Caught: Resume Fraud

I have been following the story about Scott Thompson, Yahoo's CEO.  He claimed on his resume to have a degree in accounting and computer science from Stonehill College.  (Where the heck is Stonehill College???)  However, as it turns out, he has a degree in accounting only.  And an influential and activist shareholder group discovered the "inadvertent error." 

What is Mr. Thompson's response?  He regrets how the issue has negatively affected the company and its employees.  Seriously?  Is that all you have Mr. Thompson? 

Shouldn't the apology read something like this:  I apologize that I falsified my resume.  It was wrong of me.  I don't know why I did it.  I was stupid.  You can count on me to tell the truth from this day forward, even if it doesn't reflect well on me. 

Of course, I suggested this apology in jest.  What CEO ... or any other job applicant ... would fall on his/her sword with a statement of personal responsibility?  And of course, how many employers, or co-workers, would accept the apology and trust the applicant to tell the truth in the future? 

The best indication of future behavior is past behavior.  And little things -- like resume fraud -- do matter.  It shows you who that person really is and how (s)he will likely behave in a similar situation. 

My advice for Mr. Thompson?  Quit.  Move on.  Get another job ... perhaps working for yourself.  Spend some time living honestly and showing people that you have turned the corner in your life.  Give them a reason to believe you changed and now can be trusted. 

Thursday, May 3, 2012

Asking Applicants for Facebook Passwords -- AB 1844

There is a push in the California legislature to enact legislation making it unlawful for an employer to ask an applicant for his/her social media passwords.  Frankly, I don't object to that legislation.  I don't think that a person should be required to disclose a password.  In fact, doing so may violate the terms of use of the particular social media. 

However, I do not believe that it is good law to prevent an employer from viewing social media sites, or asking the employee to show his/her web pages.  Don't we all want to hire the best candidate?  Wouldn't an applicant's writings show a more accurate picture of the applicant?  Of course.  So why would we prevent an employer from viewing social media sites? 

What is also interesting is the text of the legislation, which currently reads: 



INTRODUCED BY   Assembly Member Campos
   (Coauthors: Assembly Members Roger Hernández, Hueso, Portantino,
and Wieckowski)

                        FEBRUARY 22, 2012

   An act to add Chapter 2.5 (commencing with Section 980) to Part 3
of Division 2 of the Labor Code, relating to employment.


   AB 1844, as amended, Campos. Employer use of social media.
   Existing law generally regulates the conduct of employers in the
   This bill would prohibit an employer from requiring an employee or
prospective employee to disclose a user name or account password to
access a personal social media account that is exclusively used by
the employee or prospective employee. 
   Existing law imposes various duties on employers. Under existing
common law, an employer has a duty to exercise reasonable care in
employing a person and is required to use reasonable care to discover
whether a potential employee is unfit or incompetent. 

   This bill would state that an employer does not have a duty to
search or monitor social media before hiring an employee. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


  SECTION 1.  Chapter 2.5 (commencing with Section 980) is added to
Part 3 of Division 2 of the Labor Code, to read:

   980.  As used in this chapter, "social media" includes any
electronic medium where users may create, share, and view
user-generated content, including uploading or downloading videos or
still photographs, blogs, video blogs, podcasts, instant messages, or
online social networking content.
   981.  An employer shall not require an employee or prospective
employee to disclose a user name or account password to access a
personal social media account that is exclusively used by the
employee or prospective employee. 
   982.  An employer does not have a duty to search or monitor social
media before hiring an employee.  

Notice the stricken language.  It eliminates the language pertaining to 
an employer's duty to conduct a reasonable background check.  The 
statute itself eliminates the language that an employer does not have a
duty to conduct a social media search.  Does this mean that the Legislature
contends that it is an employer's responsibility to conduct such a 
search?  And if so, why is the Legislature taking a tool away from an 
employer who attempts to do so. 
Expect this bill to sail through the Legislature.  I also expect Gov. 
Brown to sign it.  Let's just hope this is the end and that employers 
can conduct meaningful background checks without more governmental