This situation requires sensitivity and care. While the employee's condition at work raises valid safety concerns, her disclosure of medical condition status warrants discretion and consideration for her privacy and dignity. The wisest path is to discuss options respectfully with the goal of an agreeable resolution that protects all parties' well-being and rights.
To Create Your Own Wig Online To Create Your Own Wig Online
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
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
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
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
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
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
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
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
79. Contact AlphaStaff For Help
• Remember that
AlphaStaff is always
here for you
• Call your HR Account
Manager or Human
Resources
Department for help
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