1. HARASSMENT IN THE WORKPLACE Reconciling Civil Rights, Freedom of Speech, and “Stray Remarks” Department of Fair Employment and Housing Nelson Chan, Associate Chief Counsel July 20, 2011

2. 5 Focused Educational Goals 1.Understanding the public policy and workplace imperatives for eliminating harassment. 2.Learning to distinguish between unlawful harassment, and comments and behaviors that may be offensive but not actionable. 3.Examining the status of the “stray remarks” defense in California. 4.Exploring the balance between harassment and free speech rights. 5.Taking steps to prevent harassment and how to handle the situations that do arise.

3. Public Policy: Workplace Harassment is Unlawful and Unproductive 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, marital status, sex, age, or sexual orientation. (Gov. Code, §§12920, 12940, subd. (j).) Harassment leads to:  Absenteeism  Poor Morale  Loss of Focus on Core Mission  Legal Consequences

4. ANYONE Can be a Harasser  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.  Plaintiff must prove that there was a hostile work environment, i.e., that the conduct involved interfered with a reasonable person’s ability to perform his or her job and that the plaintiff was actually affected. Government Code section 12940, subdivision (j). Roby v. McKesson (2010) 47 Cal.4 th 686, 706. State Dept. of Health Services v. Superior Court (2003) 31 Cal.4 th, 1026, 1040-1041. DFEH v. Lydaan Law Group (Cal. F.E.H.C. 2010) WL 4901731, p. 8.

5. Harassment is Personal “’[H]arassment 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.

6. Examples of Harassing Behavior Unlawful harassment can include, but is not limited to: VVerbal harassment, e.g., epithets, derogatory comments or slurs. PPhysical harassment, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement. VVisual harassment, e.g., derogatory posters, cartoons, or drawings; S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).

7. FEHA is not a Civility Code “[T]he FEHA is not a ‘civility code’ and is not designed to rid the workplace of vulgarity. [Citations omitted.].” Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4 th 264, 295.

8. 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).

9. You be the Judge: Hypothetical 1 Does the environment matter?  Pat works as a production assistant for a popular TV show about a sex therapist from Canada.  Pat is from Winnipeg.  While working, Pat is exposed to bawdy, sexually explicit banter between the writers who also suggest dialogue ending in catch phrase, “that’s that, eh?” The comments are not directed at Pat but hearing them is unavoidable.  Pat is terminated for poor attendance.  Pat sues the employer and the writers claiming to have missed work because to avoid harassment based on sex and national origin.  Will Pat be successful?

10. Answer to Hypothetical 1: No. Pat was not the target of inappropriate language and the nature of her work necessarily exposed her to vulgar language necessary for the creative process of the show. Looking at the totality of the circumstances were there acts or omissions that were severe enough or sufficiently pervasive to create a work environment that was hostile or abusive. Factors:  Frequency  Severity  Physically threatening or humiliating  Mere offensive uttering  Whether it unreasonably interferes with an employee’s work performance. Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4 th 264, 283.

11. You be the Judge: Hypothetical 2 Can the remarks of non-supervisors be used as evidence to prove the company harassed Jane?  Jane, 53,is hired as CFO for Cutting Edge Skateboards.  The Cutting Edge campus has a skateboard park and is very casual and physically active. Jane wears a business suit and prefers to walk.  Jane becomes aware her younger colleagues call her “the Biped,” and “Mrs. Yoda,” “8 track” and other uncharitable names.  Jane’s boss praises her expertise in finance but notes in her performance review that she needs to “embrace our culture.”  Jane is demoted and transferred to a manufacturing facility.  Jane quits and sues, including claims for harassment based on age and sex.  Cutting Edge asserts that Jane should lose because the teasing remarks were uttered by subordinates who had nothing to do with her assignments and were only sporadic, “stray remarks.”  Should Cutting Edge prevail?

12. Answer to Hypothetical 2: No.  The so-called “stray remarks” doctrine has been rejected in California.  The teasing remarks, even if spoken only by non-managerial personnel are indirect evidence of discrimination and harassment by management (as well as direct evidence of harassment by the individuals).  The totality of the circumstances must be considered. Reid v. Google (2010) 50 Cal.4 th 512, 536-546.

13. You be the Judge: Hypothetical 3 What about Freedom of Speech? 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?

14. Answers to Hypothetical 3: Yes/Yes/Yes. 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.)

15. You be the Judge: Hypothetical 4 Do I have to put up with to this?!?  Al is chair of the math department at Valley Community College.  Al frequently sends e-mail to other faculty and administrators using the community board to post his anti-immigrant and anti- Muslim remarks making insulting comments about “backward cultures,” “inscrutable designs on our way of life,” “every Muslim secretly wants to impose their religion on us,” or quoting radio and television personalities who share his views.  Faculty members, of diverse backgrounds including Asians and Muslims complain and ask the trustees to close the community board and reprimand Al.  The trustees decline to do so.  The offended employees sue seeking a court order compelling the trustees to act.  SHOULD THE COURT ORDER THE TRUSTEES TO TAKE ACTON AGAINST AL?

16. Answer to Hypothetical 4: No.  Al’s comments, while hurtful and offensive, are not directed at specific individuals.  The trustees must respect Al’s First Amendment right to free speech and cannot use governmental authority to squelch it. Rodriguez v. Maricopa Community College Board (9 th Cir. 2010) 605 F3d. 703, 711.

17. Distinguishing Aguilar from Rodriguez  In Aguilar there was a jury verdict finding that specific epithets were directed at the Latino workers.  In Rodriguez, the comments were not directed at specific individuals but, instead, expressed general political philosophy.

18. Dealing with Harassment  A manager or supervisor observes or receives complaints of unlawful harassment he or she must take immediate, appropriate action.  Follow internal protocols.  Separate. Diffuse the tension.  Investigate. Conduct a thorough, unbiased investigation.  Respond. Let people know what is going on.

19. Prevention: It’s the Law An employer must take reasonable steps to prevent discrimination from occurring. Government Code section 12940, subdivision (k).

20. Prevention  Develop Written Policies and Procedures.  Train both supervisors and line employees regarding each person’s rights and responsibilities.  Don’t just go through the motions. DFEH v. Lydaan Law Group (2010) FEHC Dec. No. 10-04-P, 2010 WL 4901732 (Cal.F.E.H.C.)

21. Use the Right Tools  If the comments are annoying, maladroit, vulgar or offensive, but don’t rise to the level where a reasonable person would find his or her work environment affected, DON’T accuse or treat the offense as harassment.  Look to the employee handbook or similar document for rules requiring civil behavior.  For state workers and managers, look also to Government Code section 17952, subdivision (m), which prohibits discourteous conduct.

22. Conclusion  A discrimination free workplace includes a harassment free workplace.  Harassment is verbal, visual or physical behavior that is so severe or pervasive that it creates a hostile work environment from the point of view of a reasonable person and the plaintiff. No specific adverse employment action is necessary to show harassment.  The individual harasser is PERSONALLY liable for the damages caused.  The employer is liable for the harassment of non-supervisors only if it fails to take immediate, effective action upon learning of the harassment.  The employer is STRICTLY LIABLE for harassment of a supervisor.  California has rejected the “stray remarks” defense.  Absent a finding of unlawful harassment, the First Amendment protects against restraints under the FEHA. Workplace behavior policies may be a more effective approach.  Reasonable steps to PREVENT unlawful discrimination/harassment is mandatory.

23. THANK YOU FOR YOUR PARTICIPATION For Information on upcoming training and other events: www.dfeh.ca.gov