Q1 What is recognised as 'transgressive behaviour' in the US – and is it in line with global 'standards'?
Transgressive behaviour, more commonly known in California and the United States as inappropriate workplace conduct, includes unlawful harassment, discrimination and retaliation towards individuals based on characteristics protected by law. Federal law protects employees against inappropriate conduct at work on the basis of seven protected classifications (race, sex, age, religion, disability, national origin, and genetic information).
California law additionally protects against transgressive behaviour based on many more protected classifications including sexual orientation, gender identity, medical conditions including AIDS/HIV, ancestry, marital status, ethnicity, plus more. The state most recently added as protected characteristics transgender and transitioning status (as part of gender expression), reproductive health decisionmaking, and cannabis use off the job and away from the workplace. California law also prohibits employees from engaging in workplace bullying that need not be based on any protected classification. California's protections against transgressive behaviours are most consistent with standards of the European Union, while the US in general is more in line with overall global standards. In terms of legally regulated conduct, it may be fairly said that California pushes the envelope of what behaviour is considered transgressive at work. Sometimes other jurisdictions, primarily the more progressive states and urban areas in the US, follow California in recognising what may be included as transgressive behaviours.
Q2 How does legislation around transgressive behaviour compare to cultural perspectives?
Legislation around transgressive behaviour in California is consistent with the state's overall cultural perspectives. New protected classifications are often added as legislators tune in to concerns within the culture at large about ways in which people may be treated unfairly. The general attitude on the West Coast, and especially in California, places a value on rugged individualism and the rights of self-expression and personal determination. That cultural perspective underlies a good deal of the workplace protections that the state enacts.
In contrast, US federal legislative standards around transgressive behaviour reflect the lowest common denominator on which political representatives from most states can agree. Even though bills are regularly introduced in Congress to expand protections against various types of transgressive behaviour at work, those proposals face fierce opposition. Partisan politics among legislators doesn't help. As a result, the laws concerning transgressive behaviour rarely change on the federal level. Any changes generally occur as the federal courts expand the definition or understanding of a traditional category of protection. An example of this is the fairly recent expansion of a workplace protection based on "sex" to include pregnancy, sexual orientation, and gender identity.
As a result, legislation at the federal level mirrors the cultural perspectives of the more conservative states in the union. That is the reason, I believe, that much legislative activity impacting employment takes place on the state and local levels to fill a void on the federal level.
Q3 How do employers in your jurisdiction balance inclusion and cultural sensitivity with protecting company ethos?
It is an ever-changing challenge to balance inclusion and cultural sensitivity with company ethos. In my experience working with employers, some do it better than others. Company ethos tends to track the values or personality of upper management. If there is a generational difference between upper management and non-management personnel, this can create internal insensitivity about what matters. In the case of a younger workforce, cultural sensitivity and inclusion may be at odds with upper management's focus on productivity and profitability. This difference in perspectives and values can lead to conflict and dissonance that negatively impacts one's enjoyment of work and the overall work environment. It also can lead to damaging public commentary about a company on social media channels and in the press that may impact its ability to attract and retain the best talent.
A workplace culture that appreciates and encourages an openness to learn from others and expects employees to respect their colleagues' points of view can help turn those challenging differences into growth opportunities that will enhance teamwork and job satisfaction.
Q4 What changes do you feel corporations have to make to challenge transgressive behaviour – and meet changing expectations from employees?
From my perspective, attitudes about transgressive behaviours largely reflect a generational divide. Many younger people express their individualism in ways that previously were not socially displayed. They may have internalised an appreciation for differences and a vision of personal freedom and possess an expectation to set a course for their own lives, including in the workplace. This vision of personal expression was not common when older workers entered the workforce. In my opinion, the expectations of a younger society drive the expansion of legislation against transgressive behaviours in the workplace.
Living through the #MeToo and Black Lives Matter movements and other social protest initiatives throughout the United States has freed many people to speak up about behavior and attitudes they consider unacceptable. Employers need to offer open doors and indicate a willingness to listen to concerns that are raised. Not every raised concern will become an action item, yet an openness to hear what others care to share and to provide a safe place to convey input should be a priority. The fear of retaliation in one form or another is a very real thing, and no one wants to be a martyr for their job.
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