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Harassment &
Discrimination Prevention
for Managers
   California AB 1825
   Government Code 12950.1


   Avoiding, Investigating, and Remedying
   Workplace Discrimination and Harassment

Updated February 2010
Welcome

Today’s Presenter:

Rebecca McDonough, SPHR-CA
Human Resources Account Manager for AlphaStaff
rmcdonough@alphastaff.com
(954) 938-1339
Welcome
• This class will be 2 hours in length

• A requirement of CA AB1825 is for the class to be
  interactive, so we will ask for your input and
  ideas, and we’ll ask review questions to
  participants periodically throughout the
  presentation

• Feel free to ask your own questions throughout
  the training
Welcome
• Be aware of noise levels in the room, particularly if
  you have a group listening via speaker phone.
  Feel free to mute your phones.

• Please do not put your phone on hold during the
  presentation(unless it is muted) or the rest of the
  group may hear music/advertising that will
  disrupt the training.

• Be prepared to un-mute your phones at times to
  answer questions or share your insights.
Welcome

This is a safe environment for questions
• All questions are welcome – there are no “dumb
  questions”
• To ensure confidentiality, either share information
  without naming names or discuss a hypothetical
  situation
• In our examples we refer to hypothetical scenarios
  or actual case law
• You may not agree with everything that is
  discussed, but the objective of this training (and
  your responsibility) is compliance with the law
Introductions

 Is anyone on the call a manager working
 outside of California and managing
 California employees?
Legal Disclaimer

This training is intended to be informative
and efforts have been made to provide
accurate and timely information. However,
the information provided is not intended to
serve as legal advice, instead we will
discuss good HR guidance.
Learning Objectives

1. To assist California employers to change
   or to modify workplace behaviors that
   create or contribute to sexual
   harassment; and

2. To develop, foster and encourage a set
   of values in supervisory employees who
   complete mandated training that will
   assist them to prevent and effectively
   respond to sexual harassment incidents.
Agenda
Part 1 – The Law and the Regulatory Agencies

Part 2 – Harassment

Part 3 – Discrimination

Part 4 – The Policy

Part 5 - The Manager’s Role

Part 6 – The Investigation Process
Part 1
 The Law and the
Regulatory Agencies
Regulatory Agencies
EEOC and DFEH Activities Include:
 • Receipt of claims
 • Investigation into claims
 • No Fault Resolution of claims (mediation for
   EEOC, pre and post accusation mediation by
   DFEH)
 • Litigation of claims
 • Issuance of Right-to-Sue Letters
 • Audits of employer practices
 • Training and outreach activities
Pop Quiz

Anyone know which laws govern equal employment opportunity?
Pop Quiz

Anyone know which laws govern equal employment opportunity?


• Multiple federal laws like Title VII
• State level mostly built into the FEHA
• Government contractors have additional requirements including
  Executive Orders
Equal Employment Opportunity Commission (EEOC)

Federal agency enforcing federal laws that prohibit
harassment, discrimination, and retaliation.

• Equal Pay Act of 1963

• Title VII of the Civil Rights Act of 1964
   •   Pregnancy Discrimination Act (amended)
   •   Lily Ledbetter Fair Pay Act of 2009

• Age Discrimination in Employment Act of 1967

• Americans with Disability Act of 1990

• The Genetic Information Nondiscrimination Act of 2008
Dept of Fair Employment and Housing
(DFEH)
The Department of Fair Employment Housing (DFEH)
is the state agency that enforces, coordinates, and
provides oversight for state equal employment
opportunity regulations. California laws prohibit
harassment, discrimination, and retaliation.
 • Fair Employment and Housing Act
 • California Family Rights Act


     The DFEH is the largest state civil rights agency in the country. It was
     founded 6 years before the first Federal Equal Employment
     Opportunity law was passed.
FEHA vs. Title VII
                FEHA                          Title VII
     Strict liability for          Negligence theory only.
     managers and
     supervisors.
     Affirmative obligation:       Affirmative defense:
         • Employer must take all      • Employer exercised
         reasonable steps to           reasonable care; and,
         prevent harassment
                                       • Employee unreasonably
                                       failed to take advantage of
                                       opportunities to avoid harm.



16
FEHA vs. Title VII

               FEHA                    Title VII
All employers covered, even       ≥15 employees
those employing only one person


Includes independent
contractors
   Persons providing services
   pursuant to a contract
2011 DFEH Complaints Filed by Bases




                                      18
Pop Quiz

Why are the numbers for retaliation so high?
Pop Quiz

Why are the numbers for retaliation so high?


   Separate charge added to any claim of harassment or
   discrimination, can win the harassment or discrimination claim but
   lose the retaliation charge
2011 DFEH Accusations Issued




                               21
Part 2
Harassment
Harassment Defined
To promote advancement and productivity for the benefit of society it is
unlawful for an employer or individual to harass another employee,
applicant or contractor on the basis of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender
expression, age, or sexual orientation. (Gov. Code, §§12920, 12940, subd. (j).)


Harassment can lead to:

•   Absenteeism
•   Poor Morale
•   Loss of Focus on Core Mission
•   Legal Consequences
Harassment Defined
• Harassment does not require the exercise of official power.
  Anyone from an entry level clerk to the CEO can be a harasser.

• Loss of tangible job benefits is NOT required.

• Employee must prove that there was a hostile work environment,
  i.e., that the conduct interfered with a reasonable person’s ability
  to perform his or her job and that the employee was actually
  affected.



Government Code section 12940, subdivision (j).
Roby v. McKesson (2010) 47 Cal.4th 686, 706.
State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th, 1026, 1040-1041.
DFEH v. Lydaan Law Group (Cal. F.E.H.C. 2010) WL 4901731, p. 8.
Pop Quiz

Which conversation points are personable and which are personal?


• Any big plans for the weekend?
• Would you like to try out my church on Sunday?
• You’re looking dapper today.
• I like the way the uniform pants fit you.



Which conversation points seem like they are more likely to
contribute to claims of harassment?
Harassment is Considered Personal by the Courts

“’Harassment consists of conduct outside the scope of
necessary job performance, conduct presumably
engaged in for personal gratification, because of
meanness or bigotry, or for other personal motives.’”



Roby v. McKesson (2010) 47 Cal.4th 686, 707, citing Reno v. Baird (1998) 18 Cal.4th
   640, 645-647.
Examples of Harassing Behavior
Unlawful harassment can include, but is not limited to:

• Verbal harassment, e.g., epithets, derogatory comments or slurs.

• Physical harassment, e.g., assault, impeding or blocking
  movement, or any physical interference with normal work or
  movement.

• Visual harassment, e.g., derogatory posters, cartoons, or
  drawings;

• Sexual harassment, e.g., unwanted sexual advances which
  condition an employment benefit upon an exchange of sexual
  favors.



California Code of Regulations, section 7287.6, subdivision (b).
FEHA is not a Civility Code

“[T]he FEHA is not a ‘civility code’ and is not designed to rid the
workplace of vulgarity.”




Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 295.
Case in Point
Plaintiffs, Latinos employed as “drivers” for We Try Harder Rental
Car Company sue for harassment, alleging that their supervisor:

• Routinely called only the Latino drivers “motherf***ers,” racial
  epithets, and other derogatory names.

• Demeaned them on the basis of national origin, race and lack of
  English skills.

• Conducted an investigation regarding a stolen stapler in which he
  identified only the Latino workers as suspects.

• The jury found that the supervisor had committed all the alleged
  acts.

•   Is the supervisor liable for harassment?
•   Is We Try Harder liable for harassment?
•   Can the Court order the employer to ensure that such racial epithets
    are not used in the future?
Case in Point
1.   Yes. Government Code section 12940, subdivision (j).
2.   Yes. Government Code section 12940, subdivision (j).
3.   Yes. The First Amendment permits imposition of civil liability
     under the FEHA for past instances of pure speech that create a
     hostile work environment. (Aguilar v. Avis Rent A Car System, Inc.
     (1999) 21 Cal.4th 121, 140-142.)


NOTE:
     While a single use of a racial epithet, alone, does not create a
     hostile work environment, if a pattern of such use is established
     by the evidence, the trial court can enjoin such speech. (Id. at p.
     147.)
Personal Strict and Vicarious Liability
• Anyone found to have unlawfully harassed a co-worker, applicant
  or contractor is personally liable for the damages caused by the
  harassment.

• If the harasser was a supervisor, the employer is strictly liable
  for those acts; the employer is vicariously liable for harassment by
  employees that the employer knew or should have known about.

• In the case of sexual harassment, if the harasser is a third party, but
  the employer, its agents or supervisors knows of the conduct and
  fails to take immediate and appropriate action, the employer may be
  vicariously liable for those acts.



Government Code section 12940, subdivision (j).
Harassment Prohibited
There are two basic types of harassment:


• Economic / Quid pro Quo
• Environmental / Hostile Work Environment
Types of Harassment - Economic
• Also Referred to as “Quid Pro Quo”

• This form of harassment always involves a
  manager or supervisor abusing supervisory power.

• Occurs when a manager’s harassment or
  retaliatory conduct toward an employee in a
  protected category results in a “tangible
  employment action” – TEA
    A tangible employment action constitutes a significant change in
    employment status such as hiring, firing, failing to promote,
    reassignment with significantly different responsibilities or a decision
    causing a significant change in benefits.
Types of Harassment - Economic
• An employer is strictly liable for economic
  harassment committed by a manager because
  the actions of the manager are considered
  actions of the employer itself.
Types of Harassment - Environmental
• Also known as “Hostile Work Environment”

• Involves behavior which an employee finds
  offensive even though no tangible employment
  action results from the behavior.

• Harassing conduct interferes with an employee’s
  work performance or creates an intimidating,
  hostile, or offensive working environment.
Types of Harassment - Environmental
• Managers and supervisors, co-workers or persons
  who are not even employed by the employer
  can engage in environmental harassment.
  • Customers
  • Vendors
  • Members of the Public
  • Professional Relationships
     •   For example, doctor/patient; attorney/client;
         landlord/tenant; teacher/student

  • Contractors
  • Temporary workers
Pop Quiz

 You are out with your employees after work grabbing a bite to eat
 and drinking a beer. The male employees start discussing a
 specific female coworker who wears clothing that is more
 revealing than most of her peers. There are several comments
 and jokes but even the females at the table appear to be laughing
 and the conversation moves on to another topic fairly quickly.


 Should you do anything? If so, what?
Types of Harassment - Environmental
• Not all conduct aimed at a protected category is
  harassment.


• The behavior must be:
  •   Unwelcome
  •   Offensive to the person complaining
  •   Offensive to a “reasonable person”
  •   Severe or Pervasive*
Invalid Defenses
• Lack of intent
• Everyone had a “right” to express their viewpoint
• The absence of a complaint
• Workplace vs. non-workplace conduct
• We’re a family, It was just a joke!
• Relevance of “victim’s off-duty conduct”
• Office affairs, dating, and flirting
Dealing with Harassment

• A manager or supervisor observes or receives
  complaints of unlawful harassment he or she must
  take immediate, appropriate action.

• Know your policy and follow it

• Separate the employees and diffuse the tension

• Initiate an investigation

• Communicate up your chain of command or out to HR
Part 3
Discrimination
Definition of Discrimination
California's Definition of Discrimination:


• An employer cannot cause harm to an
  employee
• Because of the person’s status in a protected
  class
• Unless the decision is based on a bona fide
  occupational qualification
Definition of Discrimination:
An employer cannot cause harm to an employee
 • Refuse to hire or employ
 • Refuse to select the person for training
 • Discharge from employment
 • Discriminate in compensation
 • Discriminate against the person in terms, conditions, or
   privileges
Definition of Discrimination:
Because of the person’s status in a protected class
 •   Age (40 and over)
 •   Ancestry
 •   Color
 •   Creed
 •   Denial of family and medical care leave
 •   Disability (mental and physical) including pregnancy, HIV, AIDS
 •   Marital status
 •   Medical condition (cancer and genetic characteristics)
 •   National origin
 •   Race
 •   Religion
 •   Sex
 •   Sexual orientation
Definition of Discrimination:
Unless the decision is based on a bona fide
occupational qualification
Pop Quiz

What’s the difference between harassment and discrimination?
Pop Quiz

What’s the difference between harassment and discrimination?


• Harassment does not require a tangible harm or adverse action


• The company is liable for discrimination, the company and the
  harassers are liable for harassment


• Discrimination is more likely to involve large groups of employees
  or be systemic in nature
Discrimination Prohibited
There are 2 Forms of Discrimination:


• Disparate Impact


• Disparate Treatment
Discrimination Prohibited
Disparate Impact –

•   When a seemingly neutral practice has an unjustified
    adverse impact on members of a protected class


•   Applies to a protected group


•   May or may not be intentional


•   Systemic claims
Discrimination Prohibited
Disparate Treatment –

•   When a person is treated differently from others based on
    one or more of the protected factors


•   Applies to a protected individual vs. a group


•   The treatment is always intentional
FEHA DISABILITY DISCRIMINATION

     FEHA protects:
        Applicants.
        Employees.
        Contractors.


    From disability discrimination in:
        Employment.
        Training program leading to employment.
        Compensation, terms, conditions, privileges of employment.
 (Gov. Code, § 12940, subd. (a).)
FEHA DISABILITY DEFINED

• Physical or mental impairment that “limits” a major life activity;


• Record of such an impairment; or


• Regarded as having or having had such an impairment, or is
  regarded or treated as having an impairment that has no present
  disabling effect but might become a future disability.


(Gov. Code, §§ 12926, subds. (i), (k) & (l), 12926.1, subds. (c) &
(d).)


Definitions of physical and mental disabilities are to be broadly
construed. (Gov. Code, § 12926.1, subd. (b).)

                                                                       52
Pop Quiz

  An employee arrives to work and appears to be inebriated.
  Several employees bring the issue to your attention. You
  approach her and discover that her words are slurred, her eyes
  are red, and she smells of alcohol. As a manager you ask each of
  the witnesses to complete a Reasonable Suspicion Form and
  then you notify the employee that you will be driving her to the
  industrial clinic for a blood alcohol test. The employee tells you
  that she is a recovering alcoholic, she’s fallen off the wagon and
  she needs an accommodation to recover.


Is she protected? What do you do?
WHAT IS NOT A DISABILITY?


 Current illegal drug use.
 History of criminal behavior.
 Compulsive gambling.
 Sexual behavior disorders or a history of sex offenses.
 Kleptomania.
 Pyromania.




                                                            54
Limitation


FEHA requires that the physical or mental condition “limits” one or
  more major life activities, making “the achievement of the major
  life activity “difficult.” (Gov. Code, §§ 12926, subds. (j) & (l),
  12926.1, subd. (d).)




                                                                       55
Regarded as having disability


FEHA still focuses on an employer’s perception. An individual is
  protected if s/he is “regarded or treated as” having or having had
  any physical or mental condition that
   (1) makes achievement of a major life activity difficult; or
   (2) has no present disabling effect but may become a future
    qualifying physical or mental condition. (Gov. Code, § 12926,
    subds. (j)(4)-(5) & (l)(4)-(5).)
There is no durational limit to be a disability in FEHA. Note that
  FEHA provides that when the ADA’s definition of “disability”




                                                                       56
Construction


FEHA provides protections independent of ADA, containing broad
  definitions of what is considered a disability. (Gov. Code, §
  12926.1.)




                                                                  57
Pop Quiz


 A long time IT worker, who had not previously notified her
  employer that she was disabled, informs her supervisor that she
  suffers from carpal tunnel syndrome and needs an
  accommodation to continue working. Her supervisor is surprised
  since she had never reported this “disability” before.

 What should the supervisor do?
Does the employee have a disability under the FEHA?




                                                                    58
Keys to the FEHA’s Broad Disability
  Protections


Interactive Process: An employer is required to engage
   in a good faith, interactive process to determine an
   appropriate reasonable accommodation. Failing to do
   so constitutes an independent FEHA violation.




                                                          59
Reasonable Accommodation
      Discrimination Elements

 Employee’s actual or perceived condition qualifies as a physical
  or mental disability.

 Employee is capable of performing the essential functions of the
  job with or without a reasonable accommodation.

 Reasonable accommodation requirement is triggered. This is the
  notice requirement.

 Adverse action – Reasonable accommodation not provided by
  employer.




                                                                     60
Defenses
 Essential Functions: An employer may, however, refuse to hire
  or may discharge an employee if, even with reasonable
  accommodations the employee, because of his or her disability,
  either is unable to perform the essential duties or cannot perform
  them without endangering the health or safety of the employee or
  others. (Gov. Code, § 12940, subd. (a)(1)-(2).)


 Undue Hardship: The FEHA provides that an employer must
  provide reasonable accommodation for the known physical or
  mental disability of an applicant or employee unless to do so
  would create undue hardship for the employer.




                                                                       61
What Accommodations are Reasonable
             under the FEHA?
•   Job restructuring or re-allocation of duties.
•   Adjustment of work hours.
•   Providing tools, equipment, supplies, etc..
•   Modifying policies.
•   Leave of absence.
•   Reassignment to vacant position. If reassignment is needed, the
    employer must take affirmative steps to determine whether a
    position is available – the employer’s in the best position to know
    this information. (Spitzer v. Good Guys, Inc. (2000) 80
    Cal.App.4th 1376, 1389.)




                                                                          62
Unreasonable Accommodations under
      the FEHA

•   Create a new job.
•   Move another employee.
•   Promote the disabled employee.
•   Violate another employee’s rights.
•   Reassign the disabled employee to a position that is
    not funded and not vacant. (Raine v. City of Burbank
    (2006) 135 Cal.App.4th 1215, 1223.)




                                                           63
The FEHA’s Timely, Good Faith,
    Interactive Process


 Timely: Applies to both the employee and employer, neither can
  delay.

 Good Faith: Direct communication between the employer and
  employee, with a willingness to exchange essential information.

 Interactive: The employer consults with the employee to
  ascertain the precise job-related limitations, and how these
  limitations can be effectively overcome with a reasonable
  accommodation.




                                                                    64
What Would Trigger the FEHA
      Interactive Process?
 An employee directly asking for an accommodation (either orally
  or in writing).

 The employee’s representative asking on the employee’s behalf
  (such as the employee’s doctor, spouse or union rep.)

 Employee states he’s having difficulty getting to work on time
  because of the medical treatment of his health condition.

 Employee’s spouse calls and tells employer that employee has
  had a medical emergency because of his cancer and needs to
  take five weeks off.

 Employee’s doctor sends a letter stating that employee can’t lift
  more than 50 pounds.




                                                                      65
What Would Not Trigger
     the FEHA Interactive Process?

 Employee mentions disability but does not inform employer of any
  specific limitation (and none is readily apparent to employer).

 Employee requests an accommodation but doesn’t mention any
  disability (and employer has no reason to know of the disability) .

 Employee mentions inability to perform specific task, but does not
  request an accommodation or mention that inability is tied to a
  disability.

 Employee makes threats of violence against a supervisor or co-
  worker.




                                                                        66
Common Employer Reasonable
  Accommodation Mistakes


• Assuming worker’s compensation is the exclusive remedy for
  work related injuries. (City of Moorpark v. Superior Court (1998)
  18 Cal.4th 1143.)


• Following a “100%” healthy rule before an employee can return
  to work.


• Failure to consider vacant positions.




                                                                      67
Common Employer Reasonable
  Accommodation Mistakes

• Claiming that an employee cannot perform the
  essential functions of the job when, in fact, the
  employee was performing the job either with or
  without an accommodation.


• Refusal to grant a reasonable accommodation due to
  an inflexible reliance on company rules.




                                                       68
Common Employer Reasonable
     Accommodation Mistakes

• Asserting an essential functions defense based on a
  job description that does not accurately reflect the
  employee’s actual job.


• Asserting an essential functions defense without
  considering the ease of certain accommodations,
  such as assistance from co-workers or tools.




                                                         69
Pop Quiz


 An employee of a Fortune 500 company notifies her supervisor
  that she suffers from a slipped disk in her back, and requests that
  she be provided a special chair to allow her to sit without pain.
  The employer refuses to provide the chair she requests, but tells
  her she can look through the company’s storage and take any
  chair she finds.

 Would this be considered a reasonable accommodation?
Has the employer discriminated based on disability?




                                                                        70
Definition of Retaliation
Definition of Retalition
Retaliation is Prohibited
• Against anyone who seeks advice from the
  California Department of Fair Employment and
  Housing

• Who makes a complaint about discrimination or
  harassment, or

• Who participates or assists in seeking advice, filing
  a complaint, or any investigation of such a
  complaint
Part 4
The Manager’s Role
Preventing Harassment
1. Understand your policy

2. Disseminate the policy

3. Follow the policy

4. Ensure that your employees comply with the
    policy

5. Intervene if inappropriate conduct occurs, even if
   no one complains
When you receive a complaint


      1. Listen actively
            Allow complainant to tell her story.

      2. Keep parties separate
            Never force a confrontation between complaining
             employee and alleged harasser.

      3. Be candid with the parties and witnesses:
            Complaints and interviews not confidential.




76
Review of Your Policy
Zero Tolerance Policy

 Eliminates room
 for error              Policy
                        State
                        Law
                        Federal
                        Law
Contact AlphaStaff For Help
               • Remember that
                 AlphaStaff is always
                 here for you
               • Call your HR Account
                 Manager or Human
                 Resources
                 Department for help
Part 4
The Investigation
    Process
The Importance of the
    Investigation
The Good Faith Defense
• CA Supreme Court has held that when an employer
  terminates an employee based on a good faith
  determination that employee misconduct occurred, there is
  no wrongful discharge claim, even if the employee later
  proves no misconduct actually occurred

•   Cotran v. Rollins Hudig Hall Int., Inc.
The Good Faith Defense
• The DFEH determines sufficiency and reasonableness of the
  investigation by the following factors:

•   The investigator was neutral and had been trained

•   The investigator interviewed the alleged harasser and the victim
    as well as all pertinent witnesses

•   The investigator reviewed all relevant documents

•   The investigator documented the investigation and prepared a
    written report

•   The investigation communicated the findings in a confidential
    manner to the interested parties
Conducting an Investigation
• Explain the limited meaning of confidentiality
    •   Only those with a business need to know will be informed
    •   It is not possible to maintain true confidentiality and still comply with the
        company’s legal obligation to investigate and take corrective action


• Always request a written statement from each person
  interviewed
•   Critical to have a written statement from the accuser to ensure all
    claims are investigated


• Use sample questions from the EEOC where possible to
  ensure the investigation is defensible
Purpose Of An Investigation
Gather the most facts possible so that management
can make a credible, complete, and efficient
determination as to:

1. what happened;

2. how it should be resolved; and,

3. what can be done to prevent future problems.
Group Discussion
Is a full investigation always necessary?



How do you know when to conduct an full
investigation and when a less-formal approach is
warranted?
Remedies for
Harassment
Remedies

Lost salary or wages.
Transfer.
Purge of personnel file.
Emotional distress.
Punitive damages.
Court-ordered policy changes and training.




                                  88
Thank you for your
    participation!

 Please relay any questions to
Rebecca McDonough, SPHR-CA
 rmcdonough@alphastaff.com
        954-938-1339
Harassment and Discrimination Prevention for
  Supervisors
  A course designed to assist California employers in changing or modifying workplace behaviors that
  create or contribute to “sexual harassment” as that term is defined in California and federal law and to
  develop, foster, and encourage a set of values in supervisory employees who complete mandated training
  that will assist them in preventing and effectively responding to incidents of sexual harassment.
   I hereby acknowledge completion of the course,
   Harassment and Discrimination Prevention for
   Supervisors, conducted
   on:
   beginning at:
                                                           X
   ending at:                                              Signature                                    Date


   by: Rebecca McDonough, SPHR-CA




Updated February 2010

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Harassment and Discrimination

  • 1. Harassment & Discrimination Prevention for Managers California AB 1825 Government Code 12950.1 Avoiding, Investigating, and Remedying Workplace Discrimination and Harassment Updated February 2010
  • 2. Welcome Today’s Presenter: Rebecca McDonough, SPHR-CA Human Resources Account Manager for AlphaStaff rmcdonough@alphastaff.com (954) 938-1339
  • 3. Welcome • This class will be 2 hours in length • A requirement of CA AB1825 is for the class to be interactive, so we will ask for your input and ideas, and we’ll ask review questions to participants periodically throughout the presentation • Feel free to ask your own questions throughout the training
  • 4. Welcome • Be aware of noise levels in the room, particularly if you have a group listening via speaker phone. Feel free to mute your phones. • Please do not put your phone on hold during the presentation(unless it is muted) or the rest of the group may hear music/advertising that will disrupt the training. • Be prepared to un-mute your phones at times to answer questions or share your insights.
  • 5. Welcome This is a safe environment for questions • All questions are welcome – there are no “dumb questions” • To ensure confidentiality, either share information without naming names or discuss a hypothetical situation • In our examples we refer to hypothetical scenarios or actual case law • You may not agree with everything that is discussed, but the objective of this training (and your responsibility) is compliance with the law
  • 6. Introductions Is anyone on the call a manager working outside of California and managing California employees?
  • 7. Legal Disclaimer This training is intended to be informative and efforts have been made to provide accurate and timely information. However, the information provided is not intended to serve as legal advice, instead we will discuss good HR guidance.
  • 8. Learning Objectives 1. To assist California employers to change or to modify workplace behaviors that create or contribute to sexual harassment; and 2. To develop, foster and encourage a set of values in supervisory employees who complete mandated training that will assist them to prevent and effectively respond to sexual harassment incidents.
  • 9. Agenda Part 1 – The Law and the Regulatory Agencies Part 2 – Harassment Part 3 – Discrimination Part 4 – The Policy Part 5 - The Manager’s Role Part 6 – The Investigation Process
  • 10. Part 1 The Law and the Regulatory Agencies
  • 11. Regulatory Agencies EEOC and DFEH Activities Include: • Receipt of claims • Investigation into claims • No Fault Resolution of claims (mediation for EEOC, pre and post accusation mediation by DFEH) • Litigation of claims • Issuance of Right-to-Sue Letters • Audits of employer practices • Training and outreach activities
  • 12. Pop Quiz Anyone know which laws govern equal employment opportunity?
  • 13. Pop Quiz Anyone know which laws govern equal employment opportunity? • Multiple federal laws like Title VII • State level mostly built into the FEHA • Government contractors have additional requirements including Executive Orders
  • 14. Equal Employment Opportunity Commission (EEOC) Federal agency enforcing federal laws that prohibit harassment, discrimination, and retaliation. • Equal Pay Act of 1963 • Title VII of the Civil Rights Act of 1964 • Pregnancy Discrimination Act (amended) • Lily Ledbetter Fair Pay Act of 2009 • Age Discrimination in Employment Act of 1967 • Americans with Disability Act of 1990 • The Genetic Information Nondiscrimination Act of 2008
  • 15. Dept of Fair Employment and Housing (DFEH) The Department of Fair Employment Housing (DFEH) is the state agency that enforces, coordinates, and provides oversight for state equal employment opportunity regulations. California laws prohibit harassment, discrimination, and retaliation. • Fair Employment and Housing Act • California Family Rights Act The DFEH is the largest state civil rights agency in the country. It was founded 6 years before the first Federal Equal Employment Opportunity law was passed.
  • 16. FEHA vs. Title VII FEHA Title VII Strict liability for Negligence theory only. managers and supervisors. Affirmative obligation: Affirmative defense: • Employer must take all • Employer exercised reasonable steps to reasonable care; and, prevent harassment • Employee unreasonably failed to take advantage of opportunities to avoid harm. 16
  • 17. FEHA vs. Title VII FEHA Title VII All employers covered, even  ≥15 employees those employing only one person Includes independent contractors Persons providing services pursuant to a contract
  • 18. 2011 DFEH Complaints Filed by Bases 18
  • 19. Pop Quiz Why are the numbers for retaliation so high?
  • 20. Pop Quiz Why are the numbers for retaliation so high? Separate charge added to any claim of harassment or discrimination, can win the harassment or discrimination claim but lose the retaliation charge
  • 23. Harassment Defined To promote advancement and productivity for the benefit of society it is unlawful for an employer or individual to harass another employee, applicant or contractor on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation. (Gov. Code, §§12920, 12940, subd. (j).) Harassment can lead to: • Absenteeism • Poor Morale • Loss of Focus on Core Mission • Legal Consequences
  • 24. Harassment Defined • Harassment does not require the exercise of official power. Anyone from an entry level clerk to the CEO can be a harasser. • Loss of tangible job benefits is NOT required. • Employee must prove that there was a hostile work environment, i.e., that the conduct interfered with a reasonable person’s ability to perform his or her job and that the employee was actually affected. Government Code section 12940, subdivision (j). Roby v. McKesson (2010) 47 Cal.4th 686, 706. State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th, 1026, 1040-1041. DFEH v. Lydaan Law Group (Cal. F.E.H.C. 2010) WL 4901731, p. 8.
  • 25. Pop Quiz Which conversation points are personable and which are personal? • Any big plans for the weekend? • Would you like to try out my church on Sunday? • You’re looking dapper today. • I like the way the uniform pants fit you. Which conversation points seem like they are more likely to contribute to claims of harassment?
  • 26. Harassment is Considered Personal by the Courts “’Harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.’” Roby v. McKesson (2010) 47 Cal.4th 686, 707, citing Reno v. Baird (1998) 18 Cal.4th 640, 645-647.
  • 27. Examples of Harassing Behavior Unlawful harassment can include, but is not limited to: • Verbal harassment, e.g., epithets, derogatory comments or slurs. • Physical harassment, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement. • Visual harassment, e.g., derogatory posters, cartoons, or drawings; • Sexual harassment, e.g., unwanted sexual advances which condition an employment benefit upon an exchange of sexual favors. California Code of Regulations, section 7287.6, subdivision (b).
  • 28. FEHA is not a Civility Code “[T]he FEHA is not a ‘civility code’ and is not designed to rid the workplace of vulgarity.” Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 295.
  • 29. Case in Point Plaintiffs, Latinos employed as “drivers” for We Try Harder Rental Car Company sue for harassment, alleging that their supervisor: • Routinely called only the Latino drivers “motherf***ers,” racial epithets, and other derogatory names. • Demeaned them on the basis of national origin, race and lack of English skills. • Conducted an investigation regarding a stolen stapler in which he identified only the Latino workers as suspects. • The jury found that the supervisor had committed all the alleged acts. • Is the supervisor liable for harassment? • Is We Try Harder liable for harassment? • Can the Court order the employer to ensure that such racial epithets are not used in the future?
  • 30. Case in Point 1. Yes. Government Code section 12940, subdivision (j). 2. Yes. Government Code section 12940, subdivision (j). 3. Yes. The First Amendment permits imposition of civil liability under the FEHA for past instances of pure speech that create a hostile work environment. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 140-142.) NOTE: While a single use of a racial epithet, alone, does not create a hostile work environment, if a pattern of such use is established by the evidence, the trial court can enjoin such speech. (Id. at p. 147.)
  • 31. Personal Strict and Vicarious Liability • Anyone found to have unlawfully harassed a co-worker, applicant or contractor is personally liable for the damages caused by the harassment. • If the harasser was a supervisor, the employer is strictly liable for those acts; the employer is vicariously liable for harassment by employees that the employer knew or should have known about. • In the case of sexual harassment, if the harasser is a third party, but the employer, its agents or supervisors knows of the conduct and fails to take immediate and appropriate action, the employer may be vicariously liable for those acts. Government Code section 12940, subdivision (j).
  • 32. Harassment Prohibited There are two basic types of harassment: • Economic / Quid pro Quo • Environmental / Hostile Work Environment
  • 33. Types of Harassment - Economic • Also Referred to as “Quid Pro Quo” • This form of harassment always involves a manager or supervisor abusing supervisory power. • Occurs when a manager’s harassment or retaliatory conduct toward an employee in a protected category results in a “tangible employment action” – TEA A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.
  • 34. Types of Harassment - Economic • An employer is strictly liable for economic harassment committed by a manager because the actions of the manager are considered actions of the employer itself.
  • 35. Types of Harassment - Environmental • Also known as “Hostile Work Environment” • Involves behavior which an employee finds offensive even though no tangible employment action results from the behavior. • Harassing conduct interferes with an employee’s work performance or creates an intimidating, hostile, or offensive working environment.
  • 36. Types of Harassment - Environmental • Managers and supervisors, co-workers or persons who are not even employed by the employer can engage in environmental harassment. • Customers • Vendors • Members of the Public • Professional Relationships • For example, doctor/patient; attorney/client; landlord/tenant; teacher/student • Contractors • Temporary workers
  • 37. Pop Quiz You are out with your employees after work grabbing a bite to eat and drinking a beer. The male employees start discussing a specific female coworker who wears clothing that is more revealing than most of her peers. There are several comments and jokes but even the females at the table appear to be laughing and the conversation moves on to another topic fairly quickly. Should you do anything? If so, what?
  • 38. Types of Harassment - Environmental • Not all conduct aimed at a protected category is harassment. • The behavior must be: • Unwelcome • Offensive to the person complaining • Offensive to a “reasonable person” • Severe or Pervasive*
  • 39. Invalid Defenses • Lack of intent • Everyone had a “right” to express their viewpoint • The absence of a complaint • Workplace vs. non-workplace conduct • We’re a family, It was just a joke! • Relevance of “victim’s off-duty conduct” • Office affairs, dating, and flirting
  • 40. Dealing with Harassment • A manager or supervisor observes or receives complaints of unlawful harassment he or she must take immediate, appropriate action. • Know your policy and follow it • Separate the employees and diffuse the tension • Initiate an investigation • Communicate up your chain of command or out to HR
  • 42. Definition of Discrimination California's Definition of Discrimination: • An employer cannot cause harm to an employee • Because of the person’s status in a protected class • Unless the decision is based on a bona fide occupational qualification
  • 43. Definition of Discrimination: An employer cannot cause harm to an employee • Refuse to hire or employ • Refuse to select the person for training • Discharge from employment • Discriminate in compensation • Discriminate against the person in terms, conditions, or privileges
  • 44. Definition of Discrimination: Because of the person’s status in a protected class • Age (40 and over) • Ancestry • Color • Creed • Denial of family and medical care leave • Disability (mental and physical) including pregnancy, HIV, AIDS • Marital status • Medical condition (cancer and genetic characteristics) • National origin • Race • Religion • Sex • Sexual orientation
  • 45. Definition of Discrimination: Unless the decision is based on a bona fide occupational qualification
  • 46. Pop Quiz What’s the difference between harassment and discrimination?
  • 47. Pop Quiz What’s the difference between harassment and discrimination? • Harassment does not require a tangible harm or adverse action • The company is liable for discrimination, the company and the harassers are liable for harassment • Discrimination is more likely to involve large groups of employees or be systemic in nature
  • 48. Discrimination Prohibited There are 2 Forms of Discrimination: • Disparate Impact • Disparate Treatment
  • 49. Discrimination Prohibited Disparate Impact – • When a seemingly neutral practice has an unjustified adverse impact on members of a protected class • Applies to a protected group • May or may not be intentional • Systemic claims
  • 50. Discrimination Prohibited Disparate Treatment – • When a person is treated differently from others based on one or more of the protected factors • Applies to a protected individual vs. a group • The treatment is always intentional
  • 51. FEHA DISABILITY DISCRIMINATION FEHA protects:  Applicants.  Employees.  Contractors.  From disability discrimination in:  Employment.  Training program leading to employment.  Compensation, terms, conditions, privileges of employment. (Gov. Code, § 12940, subd. (a).)
  • 52. FEHA DISABILITY DEFINED • Physical or mental impairment that “limits” a major life activity; • Record of such an impairment; or • Regarded as having or having had such an impairment, or is regarded or treated as having an impairment that has no present disabling effect but might become a future disability. (Gov. Code, §§ 12926, subds. (i), (k) & (l), 12926.1, subds. (c) & (d).) Definitions of physical and mental disabilities are to be broadly construed. (Gov. Code, § 12926.1, subd. (b).) 52
  • 53. Pop Quiz An employee arrives to work and appears to be inebriated. Several employees bring the issue to your attention. You approach her and discover that her words are slurred, her eyes are red, and she smells of alcohol. As a manager you ask each of the witnesses to complete a Reasonable Suspicion Form and then you notify the employee that you will be driving her to the industrial clinic for a blood alcohol test. The employee tells you that she is a recovering alcoholic, she’s fallen off the wagon and she needs an accommodation to recover. Is she protected? What do you do?
  • 54. WHAT IS NOT A DISABILITY?  Current illegal drug use.  History of criminal behavior.  Compulsive gambling.  Sexual behavior disorders or a history of sex offenses.  Kleptomania.  Pyromania. 54
  • 55. Limitation FEHA requires that the physical or mental condition “limits” one or more major life activities, making “the achievement of the major life activity “difficult.” (Gov. Code, §§ 12926, subds. (j) & (l), 12926.1, subd. (d).) 55
  • 56. Regarded as having disability FEHA still focuses on an employer’s perception. An individual is protected if s/he is “regarded or treated as” having or having had any physical or mental condition that  (1) makes achievement of a major life activity difficult; or  (2) has no present disabling effect but may become a future qualifying physical or mental condition. (Gov. Code, § 12926, subds. (j)(4)-(5) & (l)(4)-(5).) There is no durational limit to be a disability in FEHA. Note that FEHA provides that when the ADA’s definition of “disability” 56
  • 57. Construction FEHA provides protections independent of ADA, containing broad definitions of what is considered a disability. (Gov. Code, § 12926.1.) 57
  • 58. Pop Quiz  A long time IT worker, who had not previously notified her employer that she was disabled, informs her supervisor that she suffers from carpal tunnel syndrome and needs an accommodation to continue working. Her supervisor is surprised since she had never reported this “disability” before.  What should the supervisor do? Does the employee have a disability under the FEHA? 58
  • 59. Keys to the FEHA’s Broad Disability Protections Interactive Process: An employer is required to engage in a good faith, interactive process to determine an appropriate reasonable accommodation. Failing to do so constitutes an independent FEHA violation. 59
  • 60. Reasonable Accommodation Discrimination Elements  Employee’s actual or perceived condition qualifies as a physical or mental disability.  Employee is capable of performing the essential functions of the job with or without a reasonable accommodation.  Reasonable accommodation requirement is triggered. This is the notice requirement.  Adverse action – Reasonable accommodation not provided by employer. 60
  • 61. Defenses  Essential Functions: An employer may, however, refuse to hire or may discharge an employee if, even with reasonable accommodations the employee, because of his or her disability, either is unable to perform the essential duties or cannot perform them without endangering the health or safety of the employee or others. (Gov. Code, § 12940, subd. (a)(1)-(2).)  Undue Hardship: The FEHA provides that an employer must provide reasonable accommodation for the known physical or mental disability of an applicant or employee unless to do so would create undue hardship for the employer. 61
  • 62. What Accommodations are Reasonable under the FEHA? • Job restructuring or re-allocation of duties. • Adjustment of work hours. • Providing tools, equipment, supplies, etc.. • Modifying policies. • Leave of absence. • Reassignment to vacant position. If reassignment is needed, the employer must take affirmative steps to determine whether a position is available – the employer’s in the best position to know this information. (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389.) 62
  • 63. Unreasonable Accommodations under the FEHA • Create a new job. • Move another employee. • Promote the disabled employee. • Violate another employee’s rights. • Reassign the disabled employee to a position that is not funded and not vacant. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223.) 63
  • 64. The FEHA’s Timely, Good Faith, Interactive Process  Timely: Applies to both the employee and employer, neither can delay.  Good Faith: Direct communication between the employer and employee, with a willingness to exchange essential information.  Interactive: The employer consults with the employee to ascertain the precise job-related limitations, and how these limitations can be effectively overcome with a reasonable accommodation. 64
  • 65. What Would Trigger the FEHA Interactive Process?  An employee directly asking for an accommodation (either orally or in writing).  The employee’s representative asking on the employee’s behalf (such as the employee’s doctor, spouse or union rep.)  Employee states he’s having difficulty getting to work on time because of the medical treatment of his health condition.  Employee’s spouse calls and tells employer that employee has had a medical emergency because of his cancer and needs to take five weeks off.  Employee’s doctor sends a letter stating that employee can’t lift more than 50 pounds. 65
  • 66. What Would Not Trigger the FEHA Interactive Process?  Employee mentions disability but does not inform employer of any specific limitation (and none is readily apparent to employer).  Employee requests an accommodation but doesn’t mention any disability (and employer has no reason to know of the disability) .  Employee mentions inability to perform specific task, but does not request an accommodation or mention that inability is tied to a disability.  Employee makes threats of violence against a supervisor or co- worker. 66
  • 67. Common Employer Reasonable Accommodation Mistakes • Assuming worker’s compensation is the exclusive remedy for work related injuries. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143.) • Following a “100%” healthy rule before an employee can return to work. • Failure to consider vacant positions. 67
  • 68. Common Employer Reasonable Accommodation Mistakes • Claiming that an employee cannot perform the essential functions of the job when, in fact, the employee was performing the job either with or without an accommodation. • Refusal to grant a reasonable accommodation due to an inflexible reliance on company rules. 68
  • 69. Common Employer Reasonable Accommodation Mistakes • Asserting an essential functions defense based on a job description that does not accurately reflect the employee’s actual job. • Asserting an essential functions defense without considering the ease of certain accommodations, such as assistance from co-workers or tools. 69
  • 70. Pop Quiz  An employee of a Fortune 500 company notifies her supervisor that she suffers from a slipped disk in her back, and requests that she be provided a special chair to allow her to sit without pain. The employer refuses to provide the chair she requests, but tells her she can look through the company’s storage and take any chair she finds.  Would this be considered a reasonable accommodation? Has the employer discriminated based on disability? 70
  • 73. Retaliation is Prohibited • Against anyone who seeks advice from the California Department of Fair Employment and Housing • Who makes a complaint about discrimination or harassment, or • Who participates or assists in seeking advice, filing a complaint, or any investigation of such a complaint
  • 75. Preventing Harassment 1. Understand your policy 2. Disseminate the policy 3. Follow the policy 4. Ensure that your employees comply with the policy 5. Intervene if inappropriate conduct occurs, even if no one complains
  • 76. When you receive a complaint 1. Listen actively  Allow complainant to tell her story. 2. Keep parties separate  Never force a confrontation between complaining employee and alleged harasser. 3. Be candid with the parties and witnesses:  Complaints and interviews not confidential. 76
  • 77. Review of Your Policy
  • 78. Zero Tolerance Policy Eliminates room for error Policy State Law Federal Law
  • 79. Contact AlphaStaff For Help • Remember that AlphaStaff is always here for you • Call your HR Account Manager or Human Resources Department for help
  • 81. The Importance of the Investigation
  • 82. The Good Faith Defense • CA Supreme Court has held that when an employer terminates an employee based on a good faith determination that employee misconduct occurred, there is no wrongful discharge claim, even if the employee later proves no misconduct actually occurred • Cotran v. Rollins Hudig Hall Int., Inc.
  • 83. The Good Faith Defense • The DFEH determines sufficiency and reasonableness of the investigation by the following factors: • The investigator was neutral and had been trained • The investigator interviewed the alleged harasser and the victim as well as all pertinent witnesses • The investigator reviewed all relevant documents • The investigator documented the investigation and prepared a written report • The investigation communicated the findings in a confidential manner to the interested parties
  • 84. Conducting an Investigation • Explain the limited meaning of confidentiality • Only those with a business need to know will be informed • It is not possible to maintain true confidentiality and still comply with the company’s legal obligation to investigate and take corrective action • Always request a written statement from each person interviewed • Critical to have a written statement from the accuser to ensure all claims are investigated • Use sample questions from the EEOC where possible to ensure the investigation is defensible
  • 85. Purpose Of An Investigation Gather the most facts possible so that management can make a credible, complete, and efficient determination as to: 1. what happened; 2. how it should be resolved; and, 3. what can be done to prevent future problems.
  • 86. Group Discussion Is a full investigation always necessary? How do you know when to conduct an full investigation and when a less-formal approach is warranted?
  • 88. Remedies Lost salary or wages. Transfer. Purge of personnel file. Emotional distress. Punitive damages. Court-ordered policy changes and training. 88
  • 89. Thank you for your participation! Please relay any questions to Rebecca McDonough, SPHR-CA rmcdonough@alphastaff.com 954-938-1339
  • 90. Harassment and Discrimination Prevention for Supervisors A course designed to assist California employers in changing or modifying workplace behaviors that create or contribute to “sexual harassment” as that term is defined in California and federal law and to develop, foster, and encourage a set of values in supervisory employees who complete mandated training that will assist them in preventing and effectively responding to incidents of sexual harassment. I hereby acknowledge completion of the course, Harassment and Discrimination Prevention for Supervisors, conducted on: beginning at: X ending at: Signature Date by: Rebecca McDonough, SPHR-CA Updated February 2010