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Posted by: Jennifer Rubin on Sep 17, 2019

We cannot make people be nice, but we can certainly ask people to be accountable for trying to do better. If we make that commitment, we will make our workplaces better. These are the principles underlying the San Diego Lawyers Club Workplace Equity & Civility Initiative (“WE & CI”).

It occurred to me, early on in the WE & CI’s development, that we were simply asking employees and employers to follow the law. But naturally, it is more than that. The WE & CI is
an important step in rejecting the alarming but growing trend of normalizing bad behavior. The WE & CI provides a path to state, in positive and affirmative terms, that we will try to do better and hold ourselves and all employers accountable for our collective efforts to make our workplaces better.

The WE & CI has two simple components: First, pledge to do one’s best as an employer (and as an employee) to commit to better behavior in the workplace by adopting and enforcing certain policies that will naturally result in a more equitable workplace. The adoption of the WE & CI Commitment is an easy first step in this process. Second, commit to having at least half of an employer’s workforce attend National Conflict Resolution Center-developed training that promotes learning about civility in the workplace.

As an employment lawyer, I am frequently asked to advise clients about the legal implications of bad behavior in the workplace. The concept of “bad behavior” in the bullying, boorish and ill-mannered sense generally carries no legal consequences because “actionable” bad behavior must be grounded in a legal violation. In other words, a nasty supervisor who equally bullies people without regard to gender, race, sexual orientation or any other protected category, does not necessarily create legal risk for the employer. (Though, frequently they do create risk because of the natural insensitivity that accompanies those behaviors.) Bad behavior clearly impacts morale and productivity, but being a jerk does not always carry legal implications.

With that said, state and federal law unambiguously prohibit workplace discrimination (of which sexual harassment is only a subset). Here in California, beginning in 2020, employers of at least five or more employees must provide training – including anti-bullying training –to supervisors and non-supervisory employees. This robust training mandate does not create additional legal liability for engaging in offensive behavior nor does it insulate an employer from liability for such behavior.

We hope that accountability, together with formal group introspection and education, will lead to changes that elude legislation. Peer pressure motivates people to change their behavior. If business leaders set an example and make it clear that they will hold themselves and their employees accountable, then real change will transpire. It is our aim to promote full participation in the WE & CI from our regional employers with the  natural outcome of a civil, productive workplace. That workplace will lead to natural equity without legislation. Or, as we might say, a nicer workplace.

Jen Rubin is an employment partner with Mintz, and co-Chairs the San Diego Lawyers Club Workplace Equity & Civility Initiative with immediate past president of Lawyers Club Danna Cotman.


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