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Preventing Workplace Harassment, Discrimination and Retaliation & Disability Laws and Protections Presented By: Liebert Cassidy Whitmore 2013 Training.

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Presentation on theme: "Preventing Workplace Harassment, Discrimination and Retaliation & Disability Laws and Protections Presented By: Liebert Cassidy Whitmore 2013 Training."— Presentation transcript:

1 Preventing Workplace Harassment, Discrimination and Retaliation & Disability Laws and Protections Presented By: Liebert Cassidy Whitmore 2013 Training

2 2 AGENDA Overview: –Sources of Law –Administrative Agencies –Key Definitions What is Prohibited Consequences Prevention

3 3 SOURCES OF LAW Title VII of the 1964 Civil Rights Act Americans with Disabilities Act Age Discrimination in Employment Act California Fair Employment and Housing Act Your Agency’s Policy Against Harassment, Discrimination and Retaliation

4 4 ADMINISTRATIVE AGENCIES Title VII and ADA - U.S. Equal Employment Opportunity Commission FEHA - California Department of Fair Employment & Housing Your Agency’s Policy – Human Resources/Personnel

5 5 KEY DEFINITIONS PROTECTED CLASSIFICATIONS

6 6 SEX/GENDER IDENTITY & EXPRESSION RACE/NATIONAL ORIGIN/COLOR DISABILITY/MEDICAL CONDITION GENETIC INFORMATION RELIGIOUS CREED MARITAL STATUS AGE SEXUAL ORIENTATION OPPOSITION TO HARASSMENT ASSOCIATION/PERCEPTION

7 7 WHAT GENETIC INFORMATION IS PROTECTED? Federal and State law protect the following genetic information: –Information about an individual’s genetic tests –Information about the genetic tests of an individual’s family members –Information about the manifestation of a disease or disorder in an individual’s family members

8 8 CASE STUDY Andrea is a sheriff’s deputy who has told everyone she is three months pregnant. The Chief wants to transfer Andrea so that she no longer has patrol duties. Andrea says that she does not want to transfer, and that the Chief did not transfer a male officer when he sought treatment for addiction to pain killers. Is it discrimination for the Chief to transfer Andrea?

9 9 KEY DEFINITIONS “Adverse Action” Any action with material effect on employment taken within course and scope of employment Includes actions which impact: –Job performance –Opportunity for advancement

10 10 KEY DEFINITIONS “SUPERVISOR” Anyone who has any responsibility or discretion to lead others Those with purely clerical or record- keeping responsibility are excluded

11 11 DISCRIMINATION Intentionally treating individuals differently because of: –The individual’s protected classification –A perception that a protected classification is present –An individual’s association with someone with an actual or perceived protected classification

12 12 WHAT WOULD YOU DO? You are the Director of Environmental Health at the County, and in charge of promoting one of the District’s Associate Geologists to Geologist Manager. You have narrowed it down to Michelle and Natalie. During a staff meeting, Natalie mentions that her partner is pregnant. Identify the protected status.

13 13 CASE STUDY Rita, the County Chief Librarian, needs to select the most qualified librarian to attend a conference in San Diego. Nancy is the most qualified candidate, but Rita wants to send Tom because Tom has been struggling financially since his divorce. The librarian who attends will receive a stipend. Rita asks you for advice. What would you tell her?

14 14 HARASSMENT Conduct that is: –Physical –Verbal –Visual Taken “because of” a protected classification Two types: –Quid Pro Quo –Hostile Work Environment

15 15 “QUID PRO QUO” Job benefits promised Explicit or implicit In exchange for sexual favors or denied if sexual favors are not given

16 16 CASE STUDY Pedro frequently uses County vehicles for non-work related purposes. Anika, who is charge of monitoring mileage on City vehicles, never reports him. Anika thinks she is in love with Pedro, and regularly daydreams about having a sexual relationship with him. Did Anika violate the prohibition against quid pro quo harassment? Would your answer be different if….?

17 17 “HOSTILE WORK ENVIRONMENT” Protected Classification Verbal, Visual or Physical Conduct Objectively and Subjectively Offensive (Unwelcome) Severe or Pervasive Unreasonably Interferes with Work No Intent to Harass Necessary

18 18 VERBAL CONDUCT Sexual Comments Jokes Mocking Accent Teasing Slurs

19 19 CASE STUDY Janelle is Mormon and often jokes about her religion. Janelle’s supervisor, Bianca, who is also Mormon, will laugh at these jokes and make jokes of her own about Mormonism. After working together for two years, Janelle files a harassment complaint with Human Resources against Bianca. How should Bianca’s supervisor respond?

20 VISUAL CONDUCT Posters Calendars Magazines s Racial or Religious Cartoons Sexual Conduct / Affection between other employees at work Gestures Staring / Leering

21 PHYSICAL CONDUCT Massage Hugs Physical Intimidation

22 22 “GRAY” (BORDERLINE) AREAS “Private” and “consensual” relationships between supervisors and subordinates? (Warning: Not for long!) Invitations to lunch, drinks or dinner References to appearance or dress “Casual” touching of non-intimate parts of the body

23 23 CASE STUDY Tiffany, County IT Director, is in charge of hiring all IT employees. While in line at the coffee cart in the County Administration Building, Francine, a County manager in the Auditor-Controller’s Office, overhears Tiffany tell another County employee that she wants to hire some “young blood.” If you were Francine, what would you do?

24 24 RETALIATION Protected activity – Broad standard –Reporting discrimination or harassment –Participating in an investigation –Refusing to follow order reasonably believed to be discriminatory Adverse action -- Broad standard Causal connection

25 25 CASE STUDY Several employees filed complaints with their supervisors about the Department Head, Cynthia, for making offensive comments and jokes about Native Americans. You are asked to interview Cynthia. During the interview, Cynthia asks you who complained about her. Cynthia says she has a right to know as the subject of the investigation and as the Department Head. What do you tell her?

26 26 CONSEQUENCES – DAMAGES LIABILITY Employers are liable for the conduct of supervisors who harass Employees can be liable for harassment –Employers have no duty to defend for conduct that is outside of the scope of employment Liability can include: –Back pay –Compensatory and punitive damages

27 27 ESSENTIAL ELEMENTS OF A POLICY Prohibit both employees and non- employees discrimination, harassment and retaliation based on any protected status Protect applicants, independent contractors and employees List examples of prohibited conduct Require supervisors to promptly report

28 28 ESSENTIAL ELEMENTS OF A POLICY Provide a thorough, prompt, objective and non-judgmental investigation procedure Provide confidentiality to the greatest extent possible Identify the right to go to the U.S. Equal Employment Opportunity Commission and California Department of Fair Employment and Housing

29 29 SUPERVISOR RESPONSIBILITIES Report Observed/Overheard Conduct Forward Reports to Human Resources Promptly –Third-party complaints –Verbal complaints –Rumors Remember: The word “harassment” need not be used to trigger your duty to act

30 30 SUPERVISOR RESPONSIBILITIES Cooperate in the investigation Prevent further harassment Assure no retaliation

31 31 APPROPRIATE CORRECTIVE ACTION Conduct prompt and thorough investigation Discipline perpetrator appropriately Offer counseling for the target Preventative training to prevent future violations Re­publish/update agency’s policy

32 32 WHAT IF YOU ARE ACCUSED? Refer the accuser to a superior, Human Resources or legal advisor Report the accusation to your supervisor and to Human Resources Refrain from any action that could be interpreted as retaliation Seek constructive counseling from Human Resources Cooperate in the investigation Follow your agency policy

33 33 OPTIONS FOR RESOLUTION Use the Agency’s complaint procedure Report to the U.S. Equal Employment Opportunity Commission (EEOC) Report to the California Department of Fair Employment & Housing (DFEH) Lawsuits

34 Disability Laws and Protections

35 35 Overview Disability Laws What is a Disability? What Information Can/Cannot Be Considered? Fitness for Duty Issues The Interactive Process is Ongoing Ending the Relationship because of Inability to Accommodate

36 36 What are the Relevant Laws? Americans with Disabilities Act (ADA) Family and Medical Leave Act (FMLA) Fair Employment and Housing Act (FEHA) California Family Rights Act (CFRA)

37 37 What is a Disability? Mental, Physical, or Medical Condition Limits a Major Life Activity –Mitigating Measures Not Considered Temporary Conditions are Not Excluded (so assume they are included) Specifically Excluded Conditions FEHA standard more generous than ADA’s

38 38 Individual with a Disability An Employee or Applicant Who: –Has the Prerequisites and Qualifications for the Position  Education, Skill, Licenses, & Job-Related Requirements –Can Perform Essential Functions with or without Reasonable Accommodations

39 39 Focus on the Essential Functions of the Job These are Job Requirements that Cannot Be Compromised Update Job Descriptions to Include All Essential Functions to: –Yield a Better Applicant Pool –Provide Performance Standards

40 40 What are the Essential Functions of the Job? Several Factors to Consider –Does the Position Exist to Perform a Particular Function? –Are Other Employees Available to Perform Function? –Degree of Expertise or Skill Required to Perform Function?

41 41 When a Disability-Related Inquiry is Allowed of an Employee Employee Generated Request / Doctor’s Note; or Observed Difficulty Performing Essential Functions of the Job; and –Other Good Cause, Such as Excessive Absenteeism, Poor Productivity, etc. Inquiry Must Be Job Related and Consistent with Business Necessity Rebuttal Information Accepted & Considered

42 42 Fitness-for-Duty Exam Provide Doctor with: –Detailed Job Description –List of Essential Functions Seek Functional Limitations and Potential Accommodations Only –Do Not Request Medical History, Diagnosis, or Treatment Plan

43 43 What Information is Employer Entitled to Receive? Whether Employee Has a FEHA Disability Whether Employee Can Perform Essential Functions of Job –Not Underlying Mental, Physical, Genetic or Medical Condition Functional Limitations Potential Accommodations

44 44 What Do You Do If? An employee being disciplined says that his disability made him do it. An employee goes out on stress leave when discipline is pending. An employee responds to a performance evaluation with information on his/her disability.

45 45 Question: Can an adverse employment action (discipline, termination, etc.) be based on misconduct that is caused by the disability?

46 46 Answer: Generally No, but YES if the misconduct consists of threatening behavior.

47 47 Reasonable Accommodations Employer’s Duty to Identify and Implement Unless a Defense Applies –Modifying Workplace Policy –Make Facilities Accessible –Job Restructuring –Modified Work Schedules –Reassignment to a vacant position  Preferential consideration unless seniority system –Paid or Unpaid Leaves of Limited Duration

48 48 Interactive Process Means for Determining Whether Employee Can Be Reasonably Accommodated Steps –Analyze Job Functions and Essential Functions –Identify Limitations of the Position –Identify Possible Reasonable Accommodations Be Creative – Process Counts!

49 49 What Triggers the Interactive Process? Request for Reasonable Accommodation from: –An employee or applicant Doctor’s Note Describing Limitations ER or 3rd Party Observation that: –An accommodation is needed –Existing accommodation is not effective Periodic Check-in Regarding Temporary Accommodations EE has Exhausted Workers’ Comp or Family Leaves

50 50 Interactive Process Guidelines –Allow Employee’s Representative to Attend –Schedule at Convenient Time  Consider Meeting by Phone if Employee Unable to Meet in Person –Create Detailed Record  Consider Tape Recording  Take Notes  Prepare Written Summary to Document Your Agency’s Good Faith

51 51 Interactive Process Guidelines –Consider  Preferences of Employee  Recommendations of Doctors  Input of Family Members and Other Representatives –Decision Whether to Grant or Deny Accommodation Must Be Supported by Specific, Legitimate Reasons

52 52 Interactive Process Both Parties Must Demonstrate Good Faith –Consider Everything –Be Flexible –Meet More Than Once, as Necessary  Continuing Obligation; Don’t Drop the Ball  Condition May Change –Employer Has Ultimate Discretion to Select Appropriate Accommodation

53 53 Interactive Process If Employee Cannot Be Reasonably Accommodated –Termination – Follow Due Process Procedures –Disability Retirement  Determination Required Prior to Termination if Employee Has Five or More Years of Service

54 54 Defenses Direct Threat to Self or Others –Factors  Duration of the Risk  Nature and Severity of the Potential Harm –Must Be “Significant”  Likelihood That Potential Harm Will Occur  Imminence of Potential Harm Rely on Objective Facts

55 55 Defenses Undue Hardship Very Difficult Burden for Public Employers Factors –Nature and Cost of Accommodation –Overall Financial Resources of Employer –Number of Employees Impacted by Accommodation –Terms of Collective Bargaining Agreement

56 56 Critical Points Inadvertent Employer Mistakes That Lead to Failure to Accommodate Will Not Be Acceptable to Judge/Jury Make Sure Your Agency Never Leaves the Ball in Its Court –Act Promptly to Pass the Ball Back to the Employee or Applicant –Follow Up Always


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