California Mandatory Sexual Harassment Training For Supervisors
Chapter 1: Workplace Harassment
When it comes to the workplace, the term “harassment” is most often considered to be “sexual harassment”.
Believe it or not, workplace harassment is far more than sexual.
Harassment also extends to what is referred to as “protected classes”, such as race, religion, color, gender, age, sexual orientation and other recognized groups.
In this chapter, we will review harassment from two perspectives…the first under the Equal Employment Opportunity Commission (EEOC) and second under the California Department of Fair and Equal Housing (DFEH).
As you complete the training, be sure to recognize the similarities and differences between the federal and California perspectives…but when applying in the workplace, the best practice is to follow the strictest of the two.
Sexual Harassment (EEOC)
It is unlawful to harass a person (an applicant or employee) because of that person’s sex.
Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex.
For example, it is illegal to harass a woman by making offensive comments about women in general.
Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
Sexual Harassment (DFEH)
California’s regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature.
This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser.
The Fair Employment and Housing Act (FEHA) defines sexual harassment as harassment based on sex or of a sexual nature; gender harassment; and harassment based on pregnancy, childbirth, or related medical conditions.
The definition of sexual harassment includes many forms of offensive behavior, including harassment of a person of the same gender as the harasser.
The following is a partial list of types of sexual harassment:
- Unwanted sexual advances.
- Offering employment benefits in exchange for sexual favors.
- Actual or threatened retaliation.
- Leering; making sexual gestures.
- Displaying sexually suggestive objects, pictures, cartoons, or posters.
- Making or using derogatory comments, epithets, slurs, or jokes.
- Sexual comments including graphic comments about an individual’s body.
- Sexually degrading words used to describe an individual.
- Suggestive or obscene letters, notes, or invitations.
- Physical touching or assault.
- Blocking movements.
When Harassment Becomes Unlawful
Believe it or not, harassment is not always unlawful.
If a supervisor comes into the office and says that everyone whose name starts with A has to dance and sing on their desk, although obnoxious, unnecessary, unprofessional and not belonging in the workplace…this will often not constitute unlawful harassment.
What does trigger unlawful harassment, though, are when the harassing acts are:
- Discriminatory in nature
In many situations, for a hostile work environment to be unlawful, the actions that create the hostility are pervasive and long-lasting and not limited to one or two remarks.
On the other hand, in extreme situations, severity outranks longevity and one single event is enough to create a hostile environment.
An example of this was demonstrated in Harris vs. Forklift Systems, Inc. (510, US at 23), in which examples behavior including sexual jokes and displaying pornography on the computer over a period of a few months, resulted in the court finding that the jury could find pervasive conduct.
Severity is based upon the actions, behavior, or communications of a person in the workplace seriously disrupting and negatively affecting the employees work.
It may be severe in the sense that it interferes with career progress, by pushing the employee to avoid the workplace, call in sick, or under perform from stress.
Severe is subjective, though, which can make the situation difficult to gauge.
Like all forms of misconduct, inappropriate behavior and harassment, the incident needs to be unwelcome.
When an employee takes the time to reach out to a supervisor or human resources, chances are the element of unwelcome has been met.
Discrimination and Harassment
Under state and federal laws, employees are protected from being discriminated against based on their gender, race, color, national origin, religion and other protected classes.
Discrimination against the “weak” is also illegal, including employees who have a disability, take medical leave, or use workers’ compensation.
Discriminatory comments like these often said casually, with a smile, or played off as a joke.
But being discriminated against creates a hostile atmosphere for the employee, where they feel unsafe and disrespected by their employer.
Types of Workplace Sexual Harassment
In general, there are two types of workplace sexual harassment.
- Hostile Work Environment
- Quid Pro Quo
A third type, a subset of quid pro quo, is known as 3rd party quid pro quo.
Hostile Work Environment Harassment
Hostile work environment harassment, sexual or otherwise, can be committed by co-workers, supervisors, customers, clients, interns, volunteers, and visitors.
In essence, think of it as interactions in the workplace, regardless of whether an employee or not.
Hostile work environment does not refer tho a work environment in which an employee finds generally unpleasant.
Thus, a loud coworker, bad boss, being underpaid or overworked, and bad business decisions do not generally constitute hostile work environment when it comes to harassment.
Hostile Work Environment
It can often be challenging to identify when a hostile environment becomes unlawful since there’s no exact formula that judges use.
In many situations, hostile work environments are extremely subjective and fact-specific.
Another challenge is that there’s rarely a smoking gun (the bully admitting their wrong-doing).
Because there’s no smoking gun, it can often be reduced to word-against-word.
Thus, this triggers the importance of the investigation process to closely examine the overall situation.
Hostile Work Environment Examples
Examples of hostile environment sexual harassment include such acts as:
- unwelcome touching,
- sexually oriented jokes or cartoons,
- sexually oriented comments and epithets, and
- even staring at an employee’s body.
Hostile environment harassment can also occur based on:
- racial or religious jokes,
- ethnic insults,
- offensive emails relating to protected characteristics, and
- similar inappropriate workplace behavior.
Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment is:
- conditioning an employment benefit on sexual favors or activity and
- usually involves a supervisor or boss who is in a position to arrange employment benefits.
In other words, it refers to workplace situations in which an employee or job applicant’s submission to or rejections of sexual advances or conduct of a sexual nature is used as the basis for employment decisions affecting that individual.
One very important concept to keep in mind is that even when a supervisor and their direct report are engaged in a sexual relationship AND they both consent to it…it can quickly turn into a matter of quid pro quo when the relationship ends.
Think of it like this…regardless of anything else…the supervisor has the “power” and the direct report doesn’t…thus, it can quickly be turned into a “the direct report engaged the relationship out of fear of loss of job, consequences, etc.”.
Beyond the understanding that quid pro quo harassment is BAD…whether a company allows relationships between supervisors and their direct reports…it is a BAD idea for the supervisor to engage one.
Quid Pro Quo Example
Examples of quid pro quo sexual harassment can include:
- A supervisor requesting sexual favors as a condition for hiring, promotion, advancement, or opportunities.
- A manager threatening to terminate, transfer, demote, or otherwise adversely affect an employee’s work life if sexual favors are not given or continued.
- A supervisor promising or giving an employee a raise or promotion because of real or expected sexual favors.
- A director giving an employee a favorable assignment or a spot at the annual convention in Hawaii, with the expectation that the employee will repay the favorable assignment with sexual favors.
Third Party Quid Pro Quo
Harassment can also extend beyond the harasser and intended victim(s).
This is commonly referred to as “bystander harassment” or “third party harassment”.
Third party sexual harassment occurs when someone witnesses sexual harassment occurring, but is not the victim.
Third party quid pro quo harassment still involves the supervisor (position of authority) and direct report (or person whom the supervisor has the ability to control the employee’s employment).
This type of harassment occurs when the employee who is not harassed loses a job benefit or opportunity to the employee that submitted to the sexual harassment by the supervisor.
Third Party Harassment Example
An example of third party sexual harassment is:
- The manager of a small workgroup had a sexual affair with his subordinate and administrative assistant.
- The manager gave his “girlfriend” extra bonuses, time-off without using leave, flexible schedules, etc., that weren’t available to other administrative assistants in the office.
- Another administrative assistant realized that she was losing out on job opportunities and benefits (she was much more qualified than the paramour for the paramour’s job) because of the affair the boss was having; she realized that unless she slept with the boss, she wasn’t going to get ahead.
- This is a classic form of third-party “quid pro quo” sexual harassment.
Other Types of Workplace Harassment
As noted earlier, sexual harassment is not the only form of harassment recognized in California’s Fair Employment and Housing Act.
The Government Code 12940 GC prohibits non-sexual workplace harassment on any of the following bases:
- National origin;
- Immigration retaliation;
- Physical or mental disability,
- Medical condition or genetic information,
- Marital status,
- Gender identity or gender expression,
- Sexual orientation, or
- Military/veteran status.
Sexual Harassment Examples (from real cases)
Chopourian v. Catholic Healthcare West (2012)
- A federal jury in California awarded Chopourian $168 million, potentially the largest judgment in U.S. history for a single victim of workplace sexual harassment.
- The award capped a trial in which the former physician assistant at Mercy General Hospital in Sacramento alleged she filed multiple complaints to no avail during her two-year tenure.
- Chopourian was subjected to inappropriate remarks, sexual advances, and derogatory comments.
- When she complained about suffering mistreatment at the hands of other male employees, the defendant retaliated against her through defamation, false accusations, and unwarranted discipline.
Sexual Harassment Examples (from real cases
Ashley Alford vs. Aaron’s Rents (2011)
- Alford began working at Aaron’s as a customer service rep.
- Shortly thereafter, a male employee Moore began intentionally and inappropriately touching her, calling her degrading pet names, and making uninvited advances.
- Moore sexually harassed and sexually assaulted her on numerous occasions including an incident in the office restrooms where he pushed her onto the floor pulled her shirt up and masturbated on her.
- She followed company policy and tried to contact a sexual harassment hotline.
- She also spoke to multiple managers but her complaints went unnoticed.
- She was persecuted at work, feared for her safety, and was not given equal opportunities when applying for a promotion.
- She was awarded $40 million.
Sexual Harassment Examples (from real cases)
Carlson v. Ailes (2016)
- Carlson, a former Fox News Anchor filed a lawsuit directly at her former boss and the CEO and Chairman of Fox News for sexual harassment.
- Her claims included retaliation, unfair compensation, sexual harassment, and emotional distress.
- She filed an internal complaint against Steven Doocy for disparate treatment and harassment.
- Ailes retaliated against her by giving her less prestigious assignments and reducing her compensation.
- During this time, he alluded to restoring her status at Fox News in exchange for sex.
- She was awarded $20 million and Fox issued an apology on Mr. Ailes behalf.
- Following the lawsuit, other women came forward alleging Mr. Ailes committed multiple acts of sexual harassment.
Harassment Training Chapter 1 Question
Select one of the following examples and provide your thoughts as to why it may be unlawful workplace harassment:
Example 1: An employee is talking to another employee about how sore their shoulders are. Another coworker hears this, walks over and begins massaging the employee’s shoulders.
Example 2: A supervisor asks their direct report to meet them for a Saturday night dinner, with no other employees invited, to discuss the direct report’s future with the company.
Chapter 2: Discrimination in the Workplace
Federal Civil Rights Act of 1964 Title VII
- The Civil Rights Act of 1964 Title VII is a federal law that applies to employers with 15 or more employees, including state and local governments, the federal government, employment agencies, and labor organizations.
- Its purpose is that it established the prohibition of employment discrimination based upon race, color, religion, sex and national origin.
- This led the way to establishing that sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.
Discrimination occurs when an employee or job applicant receives less favorable treatment because of a specific characteristic they have.
Discrimination can take many forms. Common examples include:
- Refusing to hire, refusing to promote, demoting, or firing workers because of their protected characteristic or their membership in a protected group.
- Adopting a company policy that disproportionately affects workers who have a certain protected characteristic.
- Refusing to accommodate the religious or disability-related needs of certain employees.
- Permitting employees to be frequently and severely harassed in the workplace.
The Department of Fair Employment and Housing (DFEH) is responsible for enforcing state laws that make it illegal to discriminate against a job applicant or employee because of the categories listed in the box “Who is Protected?”
These state laws barring discrimination apply to all business practices, including the following:
- Applications, screening, and interviews
- Hiring, transferring, promoting, terminating, or separating employees
- Working conditions, including compensation
- Participation in a training or apprenticeship program, employee organization or union.
California Workplace Protected Classes
California strictly prohibits harassment, discrimination and retaliation based upon the following protected classes.
- Age (40 and over)
- Religious Creed (including religious dress and grooming practices)
- Denial of Family and Medical Care Leave
- Disability (mental and physical) including HIV and AIDS
- Marital Status
- Medical Condition (cancer and genetic characteristics)
- Genetic Information
- Military and Veteran Status
- National Origin (including language use restrictions)
- Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding)
- Gender, Gender Identity, Gender Expression, Transgender
- Sexual Orientation
Gender Expression, Gender Identity, and Transgender
Gender expression refers to a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
Gender identity refers to a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.
Transgender is a general term that refers to a person whose gender identity differs from the person’s sex at birth.
- A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth.
- A transgender person may or may not identify as “transsexual.”
California law expressly extends its anti-discrimination protections to applicants for employment positions.
Specifically, California makes it unlawful for an employer to refuse to hire a person or refuse to select the person for training that might lead to employment based on their protected characteristic (like the color of the skin, their gender, or their sexual orientation).
An applicant is someone who files a written application with an employer.
If the employer does not provide a written application form, then a person is an applicant if they express a specific desire to the employer to be considered for employment.
Under California law, an independent contractor is someone who performs a specific service for a specific price.
The person or business paying the independent contractor can control the result they want, but generally has no authority to control the way the independent contractor achieves the result.
Independent contractors are not employees, since they don’t work under the direct control and supervision of the employer.
Therefore, they are not protected from workplace discrimination.
They are, however, protected against harassment under FEHA.
Temporary employees (sometimes called temps) are generally protected by California’s anti-discrimination and anti-harassment laws.
If the temp was hired by an agency and the agency assigned them to work for a business, the temp may be an employee of both the agency AND the business.
Thus, they can hold both the temp agency and the business responsible for unlawful discrimination.
A temp does not have to be paid directly by a temporary agency or a business to be considered an employee, and the courts will generally look at the amount of control the temp agency or business exercises over the worker.
Unpaid interns work for an employer in exchange for college or school credit or professional experience.
Unpaid interns are generally not considered employees because the employer has not agreed to hire them.
Effective 2015, California law extended protection to unpaid interns from discrimination and harassment to the same extent as employees.
Unpaid interns represent one of the few positions in which a worker will have the right to be free from discrimination despite not being an employee.
A volunteer is a person who offers labor without pay and without expectation of pay.
Volunteers aren’t employees, and therefore not protected from discrimination under California’s anti-discrimination laws.
Volunteers are, however, protected from harassment.
In a few sentences, what impact do you believe workplace discrimination can have on an individual?
Chapter 3: Retaliation in the Workplace
If an employer has punished an employee for engaging in activities that are protected under state and federal law, then they have been subjected to workplace retaliation.
For example, in the state of California, it is unlawful for an employer to punish an employee for filing workplace discrimination or harassment complaints, or willfully participating in workplace investigations.
Types of workplace retaliation include negative actions like an increase in workload, unfair demotions, firings, salary reductions, job or shift reassignments and leaving employees out of growth and mentoring opportunities within the company.
When Workplace Retaliation Becomes Unlawful
Under California law, workplace retaliation is unlawful when an employer punishes an employee for protected activities which include:
- reporting illegal conduct,
- refusing to engage in illegal conduct,
- reporting fraud,
- filing a wage claim with the California Labor Commissioner,
- filing discrimination lawsuits,
- complaining of workplace discrimination or harassment and
- assisting other employees in filing a lawsuit or complaint of illegal activity in the workplace.
Federal law also protects employees from workplace retaliation if they file a discrimination or harassment complaint at work.
Furthermore, employers also cannot lawfully punish an employee for cooperating with EEOC investigations or if they decide to serve as a witness against their employer.
According to the Equal Employment Opportunity Commission (EEOC), it is unlawful to retaliate against job applicants or employees for:
- Filing or being a witness in an equal employment opportunity (EEO) charge, complaint, investigation or lawsuit.
- Discussing employment discrimination with a supervisor or manager.
- Answering questions during an employer investigation of alleged harassment.
- Refusing to follow directions from a supervisor that would result in discrimination.
- Resisting sexual advances or intervening to protect others.
- Requesting a disability or religious accommodation.
- Asking managers or co-workers about salary information to uncover potentially discriminatory wages.
Chapter 4: Abusive Conduct in the Workplace
In 2015, California introduced AB 2053 to address abusive conduct in the workplace.
While bullying is not yet illegal, it should be against most employer policies, and should lead to discipline for employees who violate those policies.
Bullying is defined as workplace conduct, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests.
The law goes on to say that bullying may include:
- Derogatory remarks, insults, and epithets;
- Verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating;
- The gratuitous sabotage or undermining of a person’s work performance.
Bullies use this malicious conduct to embarrass and humiliate co-workers and to expand their power and influence.
Bullying can occur peer-to-peer or it can be perpetrated by managers or supervisors who take advantage of their positions of power.
Bullying can be physical, verbal, non-verbal or psychological. It can occur face-to-face, on the phone or online and be perpetrated by groups of employees or by individuals.
What Consitutes Abusive Conduct
Engaging in a pattern of one or more of the following behaviors meets the definition of abusive conduct under California law.
- The use of inappropriate language, put-downs, insults and name-calling.
- Taunting, teasing or making jokes about a co-worker when the intent is to embarrass and humiliate.
- Sabotaging another employee’s work or copying, plagiarizing or stealing work from a coworker and passing it off as your own.
- Deliberately isolating or excluding a co-worker from work related activities.
- Yelling, screaming, sarcasm, or other verbal abuse with the intent to threaten, intimidate or humiliate.
- Menacing a co-worker with threatening looks, gestures and body language.
- Hazing or initiations that seek to physically or psychologically embarrass or humiliate a new co-worker. Unreasonably creating conflict or refusing to work with a co-worker.
- Physically threatening, shoving, striking, or touching a co-worker in an intimidating or inappropriate manner.
- Gossiping or spreading rumors about co-workers… …including the planting of false information or using private or confidential information to defame or destroy the reputation of a co-worker.
- Setting unrealistic standards and deadlines which are unachievable or that are arbitrarily changed without notice or reason.
- Giving excessive, unreasonable and unending amounts of work to a subordinate employee.
- Deliberately denying co-workers the resources necessary to do their jobs effectively.
- Ignoring, ridiculing or belittling the contributions of co-workers or deliberately failing to acknowledge their good work.
- Giving unjustly negative performance appraisals or taking unwarranted disciplinary action.
- Singling out or treating a co-worker differently or holding a subordinate employee to different standards than his or her peers.
- Excessive, unneeded and negative micromanagement Workplace bullying has consequences.
Chapter 5: Effects of Harassment, Discrimination, Retaliation and Abusive Conduct
Harassment, discrimination, retaliation and abusive conduct in the workplace can be long lasting and life-altering for the person harassed.
The effects are not limited and they impact employees individually.
The impact may include any or all of the following:
- Short-term effects
- Long-term effects
- Emotional effects
- Psychological effects
- Physical effects
- Financial impact
- Impact on relationships
- Social impact
Short Term Effects
Although the list is long, here are some common examples of potential short-term effects:
- Dissatisfaction with their job
- Decreased productivity
- Decreased efficiency
- Calling in sick or arriving late to work
- Resentment towards management
- Termination of employment
- Detachment or isolation from other employees
- Social withdrawal
Individuals may or may not experience any of these or other effects.
On the other hand, they may experience one or many of them.
Long Term Effects
There are also long-term effects that impact individuals.
As with the short-term effects, they are different for everyone.
Examples of long-term effects include:
- Negative impact on career (loss of job due to distrust, absenteeism, decreased performance, etc.).
- Negative impact on income (loss of job = loss of income)
- Negative impact on finances (loss of job = loss of income = inability to pay)
- Decreased mental health (anxiety, depression, panic attacks, poor sleeping, suicide, etc.)
- Decreased physical health (high blood pressure, headaches, loss of appetite, eating issues, metabolic issues, etc.)
- Causing harm to one’s self or suicide
- Negative impact on relationships (divorce, violence, withdrawal)
Emotional, Psychological and Physical Effects
As with short and long-term effects, individuals may experience a wide array of emotional, psychological and physical effects.
These effects can have profound negative impact upon their employment and personal lives.
Examples of common effects include:
- Sleeping disturbances
- Difficulty concentrating
- Shame and guilt
- Feeling powerless
- Suicidal thoughts and attempts
- Nausea and vomiting
Chapter 6: Preventing Workplace Harassment, Discrimination, Retaliation and Abusive Conduct
Policies prohibiting harassment, discrimination, retaliation and abusive conduct are just words and are simply what the guidance for prevention.
Having effective prevention policies requires more…such as training, communication, and most important…that the company and supervisors ensure that the policies are followed and effective.
The most effective weapon against harassment, discrimination, retaliation and abusive conduct is prevention.
Harassment, discrimination, retaliation and abusive conduct do not disappear on their own.
In fact, it is more likely that when the problem is not addressed, the problem will worsen and become more difficult to remedy as time goes on.
The burden of prevention rests on the employer, but ALL employees, supervisors and non-supervisors, play an important role in the prevention.
Prevention Steps for Employers and Supervisors
The following are steps a company can take to increase the chances of preventing harassment, discrimination, retaliation and abusive conduct in the workplace.
- Make it clear that the company has a workplace where harassment, discrimination, retaliation and abusive conduct will not be tolerated.
- Provide education and information about harassment, discrimination, retaliation and abusive conduct to all staff on a regular basis.
- The circulation of information, open communication and guidance is of particular importance in removing the taboo of silence which often surrounds harassment, discrimination, retaliation and abusive conduct.
- Information sessions, personnel meetings, office meetings, group discussion and problem-solving groups can prove very effective in this respect.
- Staff should also be informed of the best way of coping with aggression by means of guidelines and staff development programs on harassment, discrimination, retaliation and abusive conduct at work.
- Develop anti-harassment, discrimination, retaliation and abusive conduct policies together with employees, managers, and union representatives.
- Communicate the policy to all employees.
- Make sure that all managers and supervisors understand their responsibility to provide a harassment-free work environment.
- Ensure that all employees understand the policy and procedures for dealing with harassment, discrimination, retaliation and abusive conduct, new and long-term employees alike, which involves training, information and education.
- Show that the company stands by their policy by ensuring that it applies to everyone, including managers and supervisors.
- Promptly investigate and deal with all complaints of harassment, discrimination, retaliation and abusive conduct.
- Appropriately discipline employees who harass, discriminate, retaliate or abuse other employees.
- Provide protection and support for the employees who feel they are being harassed, discriminated, retaliated against or abused.
- Take action to eliminate discriminatory jokes, posters, graffiti, e-mails and photos at the work site.
- Monitor and revise the policy and education/information programs on a regular basis to ensure that it is still effective for the workplace.
Prevention Steps for Discrimination in the Workplace
The following are steps that can decrease the chances of discriminatory acts in the workplace.
- Respect differences in the workplace.
- Be professional in conduct and speech.
- Refuse to initiate, participate, or condone discrimination.
- Avoid offensive humor or pranks. When in doubt, leave it outside the workplace.
- Familiarize yourself with the company’s workplace policies and act responsibly.
- Be pro-active. Report incidents of inappropriate, discriminatory, harassing or abusive behavior to your supervisor, Human Resources department, or management.
Preventing Abusive Conduct in the Workplace
How can you stop abusive conduct in the workplace…it’s simple.
- Treat co-workers with respect;
- Treat co-workers fairly and equally;
- Speak up when you witness bullying.
- Any witness or victim of workplace bullying should report the abusive conduct to management or human resources.
The best way to ensure that you don’t engage in abusive conduct is to remember the “Golden Rule”…which is to treat co-workers exactly like you would like to be treated…with dignity, respect, fairness and equality.
EVERYONE deserves a workplace free of fear and full of respect.
Responsibilities of ALL Employees
In addition to the employer’s responsibility to provide a workplace free from harassment, discrimination, retaliation and abusive conduct, atmosphere, employees must also assume an active role in prevention.
Strategies include understanding, observing, examining, resolving and supporting.
Obtain and become familiar with the company’s policies related to harassment, discrimination, retaliation and abusive conduct.
Examine personal feelings, attitudes, and behaviors in relation to harassment, discrimination, retaliation and abusive conduct.
Ensure that your behavior corresponds with the expectations and behavioral requirements of the company’s policies related to harassment, discrimination, retaliation and abusive conduct.
Be aware of engaging in potential sexual-harassment behaviors or incidents at work.
Watch for and discourage sexual behaviors that negatively affect work.
Be sensitive to others who may be offended by the behaviors you present.
Be aware of subtle forms of sexual harassment…the ones that may not be so obvious.
Pay attention to the response of others in order to avoid unintended offensive behaviors.
Don’t assume that others enjoy or want to hear your jokes or sexually oriented comments about their appearance, be touched, stared at, flirted with, or propositioned for dates or sexual favors.
Ask yourself if your verbal or non-verbal behaviors might have a negative impact on other’s attitudes toward work.
Examine your own behaviors, gestures, and comments.
Do not take sexual harassment lightly. If you think you are being sexually harassed, do not accept it as a joke.
If you have been injured or feel that you are in danger, call 911.
Contact your supervisor, human resources, or other member of management as soon as possible.
Document as much as you can recall…such as the date(s), time(s), location(s), harasser(s), others involved, and witnesses.
If your company has a policy to address procedures for harassment, discrimination, retaliation and abusive conduct, be sure to follow it.
If you know someone who is being harassed, give him or her your support.
Encourage the victim to let their supervisor, other member of management, or human resources know about it ASAP!
If you are aware of someone filing a complaint, if possible, support him or her throughout the complaint process.
Maintain confidentiality of what you know…thus don’t go around talking about the situation with others who are not involved or part of the process to correct the issue.
Chapter 6: Let’s get your thoughts…
Do you agree that supervisors should be required to prevent workplace harassment, discrimination, retaliation and abusive conduct in the workplace? Provide your reasoning.
Chapter 7: Responding to Harassment, Discrimination, Retaliation and Abusive Conduct
Receiving a Complaint
The company should give it top priority and determine whether the report involves behavior that is serious enough that warrants the need to conduct a formal investigation.
If it is not so serious (for example, an employee’s discomfort with an offhand compliment), then the issue might be able to be resolved by counseling the individual.
However, if there are allegations of conduct that, if true, would violate laws OR company rules, there is a need to investigate the matter to make a factual determination about what happened.
Once the investigation is complete, the company should act based on factual findings.
An investigation involves several steps and needs to consider a variety of issues before it begins.
A phrase that you might see related to investigations is “due process.”
Due process is simply a formal way of saying “fairness” – employers should be fair to all parties during an investigation.
From a practical perspective, this means:
- Conduct a thorough interview with the complaining party, preferably in person. Whenever possible, the investigation should start with this step.
- Give the accused party a chance to tell his/her side of the story, preferably in person. The accused party is entitled to know the allegations being made against him/her, however it is good investigatory process to reveal the allegations during the interview rather than before the interview takes place. It may not be necessary to disclose the identity of the complaining party in some cases. Due process does not require showing the accused party a written complaint. Rather, it means making the allegations clear and getting a clear response.
- Relevant witnesses should be interviewed and relevant documents should be reviewed. This does not mean an investigator must interview every witness or document suggested by the complainant or accused party. Rather, the investigator should exercise discretion but interview any witness whose information could impact the findings of the investigation and attempt to gather any documents that could reasonably confirm or undermine the allegations or the response to the allegations.
- Do other work that might be necessary to get all the facts (perhaps needing to visit the work site, view videotapes, take pictures, etc.).
- The investigator should reach a reasonable and fair conclusion based on the information collected, reviewed and analyzed during the investigation.
Confidentiality and the Complaint Process
The investigator will need to look at confidentiality from two sides – the investigator’s and the employees’.
- The first question is how confidential the investigator (internal or external) will keep the information obtained.
- The second is whether an employer can require that employees keep information confidential.
Employers can only promise limited confidentiality…that the information will be limited to those who “need to know.”
An investigator cannot promise complete confidentiality because it may be necessary to disclose information obtained during the investigation in order to complete the investigation and take appropriate action.
It is not possible to promise that a complaint can be kept entirely “confidential” for several reasons:
- If the complaint is of potential violation of law or policy, the employer will need to investigate, and in the process of investigating it is likely that people will know or assume details about the allegations, including the identity of the person who complained. This is true even when the name of the complainant is kept confidential since allegations are often clear enough for people to figure out who complained about what.
- The individual receiving the complaint will usually have to consult with someone else at the company about what steps to take and to collect information about whether there have been past complaints involving the same employee, etc. That means the complaint will be discussed with others within the organization.
- The company may need to take disciplinary action. Again, while the identity of the person who brought the complaint may in some cases be kept confidential, the complaint itself cannot be.
Managers can, and should, be told to keep the investigation confidential.
However, there have been court rulings that say it is inappropriate for an employer to require that employees keep the information secret, since employees have the right to talk about their work conditions.
There are exceptions to this.
If you want to require confidentiality, you might want to check with an attorney about when it is appropriate and how to do so.
A prompt investigation assists in stopping harassing behavior, sends a message that the employer takes the complaint seriously, helps ensure the preservation of evidence (including physical evidence such as emails and videos, and witnesses’ memories), and allows the employer to fairly address the issues in a manner that will minimize disruption to the workplace and individuals involved.
The investigation should be started and conducted promptly, as soon as is feasible.
Once begun, it should proceed and conclude quickly.
However, investigators also must take the time to make sure the investigation is fair to all parties and is thorough.
Some companies set up specific timelines for responding to complaints depending on how serious the allegations are (for example, if they involve claims of physical harassment or a threat of violence, act the same day as the complaint is received).
If the allegation is not urgent, many companies make it a point to contact the complaining party within a day or two and strive to finish the investigation in a few weeks (although that depends on several factors, including the availability of witnesses).
The investigator should be knowledgeable about standard investigatory practices.
This includes knowledge of laws and policies relating to harassment, investigative technique relating to questioning witnesses, documenting interviews and analyzing information.
He or she should have sufficient communication skills to conduct the interviews and deliver the findings in the written or verbal form.
For more complex and serious allegations it is also important for the investigator to have prior experience conducting such investigations.
The investigation should be impartial.
Findings should be based on objective weighing of the evidence collected.
It is important for the person conducting the investigation to assess whether they have any biases that would interfere with coming to a fair and impartial finding and, if the investigator cannot be neutral, to find someone else to conduct the investigation.
Even if investigators determine they can be neutral and impartial, they must evaluate whether their involvement will create the perception of bias.
A perception of bias by the investigator will discourage open dialogue with all involved parties.
For example, in a case in which the investigator has a friendship with the complainant or accused, either actual or perceived, the investigator may need to recuse him- or herself to avoid the appearance of impropriety.
It is generally a bad idea to have someone investigate a situation where either the complainant or accused party has more authority in the organization than the investigator.
Type of Questioning
Investigations should not be interrogations.
Neither the complainant nor the accused party should feel they are being cross-examined.
Studies have shown that open-ended questions are better at eliciting information while not causing people to feel attacked.
Investigators should ask open-ended questions on all areas relevant to the complaint to get complete information from the parties and witnesses.
Making a Determination
If there is no substantial disagreement about the factual allegations it may not be necessary to make a credibility determination.
However, many investigations require a credibility determination, including the classic “he said/she said” situation, and it is up to the investigator to make this determination.
An investigator can still reach a reasonable conclusion even if there is no independent witness to an event.
In most cases, if the investigator gathers and analyzes all relevant information, it is possible to come to a sensible conclusion.
It is not uncommon for there to be no direct witnesses to harassment.
Yet there may be other evidence that would tend to support or detract from the claim.
For example, a complainant who complains about harassment may have been seen to be upset shortly after the event, or may have told someone right after the event.
This would tend to bolster his or her credibility.
On the other hand, it would tend to bolster the accused party’s credibility if the investigator learned that the complainant complained many months after sexual joking with a supervisor, was just given a negative performance review, and told a co-worker that he or she could use the joking against the supervisor in the future.
In other cases documents such as emails or texts might bolster or reduce a witness’s credibility.
Even if there is no evidence other than the complainant’s and accused party’s respective statements, the investigator should weigh the credibility of those statements and make a finding as to who is more credible.
Burden of Proof
Investigators should make findings based on a “preponderance of the evidence” standard.
This is the standard that civil courts use in discrimination and harassment cases.
This standard is also called “more likely than not” – the investigator is making a finding that it more likely than not that the conduct alleged occurred, or more likely than not that it did not occur.
Some workplace investigators make the mistake of applying a higher burden of proof, such as a “clear and convincing” standard or a “beyond a reasonable doubt” standard.
Beyond a reasonable doubt is the standard used in criminal law, where a defendant is considered innocent until proven guilty and the consequence of guilt is a loss of freedom.
Applying such a standard in a workplace investigation creates an unrealistic expectation about the level of proof needed to make a decision.
Complainants and/or those who cooperate in an investigation must be protected from retaliation.
Employers should tell complainants and witnesses that retaliation violates the law and their policies, should counsel all parties and witnesses not to retaliate, and should be alert to signs of retaliation.
Retaliation can take many forms.
In addition to the obvious, such as terminations or demotions, retaliation could take the form of changes in assignments, failing to communicate, being ostracized or the subject of gossip, etc.
Retaliation can occur at any time, not only right after an incident is reported or an investigation is started.
It is good practice to check back with a complainant after an investigation is completed to ensure that the employee is not experiencing retaliation, no matter whether the allegations were determined to be correct.
Effective Remedial Measures
The DFEH regulations make it clear that an employer must take appropriate remedial steps when there is proof of misconduct, the behavior does not need to rise to the level of a policy violation or the law to warrant a remedy.
Remember, an employer’s legal obligation is to take reasonable steps to prevent and correct unlawful behavior.
In order to meet this obligation, an employer should:
- Stop behavior before it rises to the level of unlawful conduct, which is why steps should be taken even when the behavior is not yet serious enough to violate the law;
- Impose remedial action commensurate with the level of misconduct and that discourages or eliminates recurrence; and
- Look at what the company has done in the past in similar situations, to avoid claims of unfair (possibly discriminatory) remedial measures.
Remedial measures can include training, verbal counseling, one-on-one counseling/executive training, “last chance” agreements, demotions, salary reductions, rescinding of a bonus, terminations, or anything else that will put a stop to wrongful behavior.
Remedies for Victims
According to Black’s Law Dictionary, a Legal Remedy is, ”The way a right is enforced by a court of law when injury, harm, or a wrongful act is imposed upon another individual. The laws of remedies will be based on the extent of relief the plaintiff is entitled to receive after appropriate court procedures were followed and the plaintiff proved with sufficient evidence they were wronged by the defendant.”
In other words, remedies are what a victim may be entitled to receive for a wrong against them…for purposes of this training, possibly for workplace harassment, discrimination or retaliation.
California law provides a variety of remedies for victims of workplace harassment, including:
- Back pay (past lost earnings).
- Front pay (future lost earnings).
- Out-of-pocket losses.
- Attorney fees.
- Court costs.
- Injunctive relief, such as an order that the employer provide harassment training or adopt a complaint and investigation policy.
- Damages for pain and suffering.
- Punitive damages, intended to punish the employer.
California law provides a variety of remedies for victims of employment discrimination, including:
- Back pay (past lost earnings).
- Front pay (future lost earnings).
- Hiring / Reinstatement.
- Out-of-pocket expenses.
- Policy changes.
- Reasonable accommodation(s).
- Damages for emotional distress.
- Punitive damages.
- Attorney’s fees and costs.
California law provides a variety of remedies for victims of employment retaliation, including:
- Back pay (past lost earnings)
- Front pay (future lost earnings)
- Hiring / Reinstatement
- Out-of-pocket expenses
- Damages for emotional distress
- Punitive damages
- Attorney’s fees and costs
Investigators should carefully and objectively document witness interviews, the findings made and the steps taken to investigate the matter.
Investigators have different methods of documenting interviews, including taking notes (handwritten or on a computer), drafting statements for witnesses to sign, obtaining witness statements (written by the witness), or audio recording.
There are pros and cons to each method and any can be acceptable so long as the information gathered is reliable and thoroughly documented and the documentation is not altered.
It is also advisable to be consistent in the way you decide to document your interviews (unless there is a good reason to change your usual practice). It is considered a recommended practice to retain all documentation.
Some investigators type up handwritten notes so they are legible.
However, the handwritten notes should also be retained.
Chapter 8: Essential Elements of an Anti-Harassment Policy
On April 1, 2016, California employers became subject to new anti-discrimination and anti-harassment regulations, as amended by the California Fair Employment and Housing Council (“FEHC”).
Although the amendments were intended to conform the existing regulations to recent court decisions, the most notable addition was the requirement that covered California employers develop and distribute anti-harassment and discrimination policies with certain required elements and create formal internal complaint processes to address employee concerns.
Covered California employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.
The revised law requires that a covered California employer must have a harassment, discrimination, and retaliation policy that:
- Is in writing;
- Lists all current protected categories covered under the FEHA;
- Indicates that managers, supervisors, coworkers and third parties with whom employees come into contact are prohibited from engaging in unlawful conduct under the FEHA;
- Creates a complaint process to ensure that complaints receive: (a) a designation of confidentiality, to the extent possible; (b) timely responses; (c) impartial and timely investigations by qualified personnel; (d) documentation and tracking for reasonable progress; (e) appropriate options for remedial actions and resolutions; and (f) timely closure;
- Provides a complaint mechanism that permits employees to complain to someone other than his or her immediate supervisor, such as a designated company representative (including a human resources manager, EEO officer, or other supervisor), a complaint hotline, an ombudsperson, or identification of the California Department of Fair Employment and Housing (“DFEH”) and the U.S. Equal Employment Opportunity Commission as additional avenues for employees to lodge complaints;
- Assures employees that if the employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation in a manner that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected;
- States that confidentiality will be kept by the employer to the extent possible, but not that an investigation will be completely confidential;
- Instructs supervisors to report complaints of misconduct to a designated company representative, such as a human resources manager;
- Indicates that if misconduct is found after investigation, appropriate remedial measures shall be taken; and
- Confirms that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
Policy Dissemination Requirements
Employers must disseminate this written policy to employees by one or more of the following methods:
- providing a printed copy to all employees with an acknowledgement form for the employee to sign and return;
- sending the policy via email to all employees with an acknowledgement return form;
- posting the current versions of the policies on a company intranet with a tracking system to ensure that all employees have read and acknowledged receipt of the policies;
- discussing the policy upon hire and/or during a new hire orientation session; and/or
- any other way that ensures employees receive and understand the policy.
Employers must translate the written policy into every language that is used as the “spoken language” by at least 10 percent of the workforce at any facility or establishment.
These dissemination requirements are in addition to employers’ continuing obligation to distribute to employees the DFEH’s brochure on sexual harassment (DFEH-185), or an alternative writing compliant with the FEHA.
Chapter 9: Resources for Victims of Unlawful Harassment, Discrimination, Retaliation and Abusive Conduct
If you or someone you know has been subjected to unlawful harassment, discrimination, retaliation, or abusive conduct in the workplace, first and foremost, safety is the most important thing to consider.
If you are the individual are in danger or have been injured, it is important to call 911.
For non-life threatening and non-injury/safety scenarios, there are multiple steps you can take.
- Review your company policy related to making complaints of harassment, discrimination, retaliation and abusive conduct. Follow the steps.
- If the steps do or may require you to address the issues with the person that is the one engaging the harassing, discriminatory, retaliatory or abusive conduct behaviors, contact another member or management.
- If this is not possible, then you can contact the Department of Fair Employment and Housing.
If the contact information is not available in your policy, you can contact the DFEH and find out more information using the following:
- Toll Free Number: 800-884-1684
- TTY: 800-700-2320
- Website: www.dfeh.ca.gov
- Email: [email protected]
There are times when individuals need other assistance, help and guidance when experiencing workplace harassment, discrimination, retaliation and abusive conduct.
For individuals experiencing such symptoms as stress, anxiety, depression, panic, and withdrawal, try contacting a counselor, psychologist, psychiatrist or other mental health professional.
Individuals experiencing physical symptoms (pain, nausea, vomiting, headaches, etc.) try contacting a physician (family or internal medicine). These professionals are more likely to be able to assist with these symptoms. Also, they may recommend also visiting a mental health professional, as some physical symptoms can be a byproduct of emotions and mental health.
For stress relief, visiting a local massage therapist or engaging meditation can be helpful.
Many areas have groups that meet to work through negative experiences. Reach out to your local city government or mental health services to see if there are any groups working through the same or similar circumstances.
Regardless of the resources and path you select, the most important thing is to ensure that you find a way to work through any negative effects or impact.
Some Final Thoughts
Today you learned quite a bit about workplace harassment, discrimination, retaliation and abusive conduct.
The fundamental elements to remember are that:
- Workplace harassment, discrimination, retaliation, and abusive conduct are wrong and don’t belong in the workplace.
- Employers and managers have a duty to prevent and appropriately respond to harassment, discrimination, retaliation and abusive conduct.
- The impact of these behaviors can have lifelong negative effects on those who are subjected to them.
- The best way to reduce workplace harassment, discrimination, retaliation and abusive conduct is to have a strong and effective policy, to educate all employees, and to lead by example.
Congratulations! You have almost completed the AB 1825/2053 California Mandatory Sexual Harassment and Abusive Conduct Prevention Training for Supervisors course.
After this slide, you will have one more thing to do…take the final quiz. If you need to go back to review the materials, please don’t hesitate to do so.