1. Presented By: Lee Patajo 2015 Training
Preventing Workplace Harassment, Discrimination and Retaliation & Disability Laws and Protections
Presented By: Lee Patajo
2015 Training
<Insert Workshop Name>

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

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
The County’s Policy Against Harassment, Discrimination and Retaliation
Ask the audience if they have attended a seminar or training session on the topic of harassment, discrimination retaliation?
For those of who have attended this type of training in the past – they should be familiar with Title VII of the Civil Rights Act, the Fair Employment and Housing Act, the ADEA & the ADA.
Title VII is the federal law that generally prohibits harassment in employment, the ADA is another federal law that prohibits harassment in employment because of an individual’s disability. The ADEA prohibits harassment against individuals who are age 40 or older.
The FEHA is the state law that prohibits harassment in employment and housing. The FEHA has a much broader scope and therefore provides employees greater rights than federal law.
Another “law” that prohibits harassment is the agency’s policy: EEO and Anti-Harassment Policy and Procedure
[direct the class to the purpose portion of the agency’s policy; discuss how the agency’s policy: 1) covers all terms and conditions of employment; and 2) protects employees from a broad scope of potential harassers – co-workers, supervisors, elected officials, contractors]

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
Each of the laws identified on the last slide is administered by a different agency. Since Title VII and the ADA are federal laws, enforcement of these laws is handled by a federal agency – the EEOC. The FEHA is a state law, so its enforcement is handled by a comparable state agency – the DFEH. By extension, complaints involving violations of agency policies are handled internally most commonly by HR/Personnel department.

5. PROTECTED CLASSIFICATIONS
KEY DEFINITIONS
PROTECTED CLASSIFICATIONS
So now that we know the sources of law and who administers them, let discuss some key definitions. A phrase that will be frequently used throughout this presentation is “protected classification.” Having a clear understanding of what is meant by “protected classification” is important in this area because an individual’s “protected classification” is the entire basis for a claim of harassment or discrimination.
In order for an individual to demonstrate that he/she has been subject to harassment or discrimination, the individual must demonstrate that some action was taken “because of” his or her protected classification. This “because of” characteristic is key, without it there can be no violation of the federal or state laws identified.

6. PROTECTED CLASSIFICATIONS
Gender/Gender Identity/Gender Expression
Race/National Origin/Color
Disability/Medical Condition
Genetic Information/Characteristics
Religious Creed
Marital Status
Military and Veteran Status
Age (40 Years of Age and Older)
Sexual Orientation
Opposition to Harassment
Association/Perception
Q– So what kind of harassment, discrimination and retaliation are we talking about?
A– Only harassment, discrimination and retaliation on the basis of the protected classifications listed on this slide.
Although most of these protected classes are covered under both federal and state law, some of these are only covered under California law:
- “Sex” includes pregnancy, childbirth, gender, gender identity, transgender, gender expression, and breastfeeding or a medical condition related to breastfeeding. Effective January 1, 2012, the definition of the term “gender” in several California anti-discrimination laws was amended to expressly include a person’s gender identity and gender expression. The term “gender expression” is defined as “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” Employers may still require employees to adhere to reasonable workplace appearance, grooming, and dress standards as long as the employer allows the employee to appear or dress consistently with the employee’s gender identity or gender expression.
“Marital Status” is only covered under California law – you can’t discriminate/harass someone based on their marital status (e.g. single, divorced, married, etc.)
“Sexual Orientation” includes gay, lesbian, and bisexual individuals and is only explicitly covered under California law. Federal law does not recognize sexual orientation as a protected category under Title VII. However, EEOC has recently announced they will investigate and enforce charges of discrimination based on sexual orientation as violations of Title VII. They do so under a theory that action against someone for failure to conform to gender stereotypes (e.g. men should date women; women should date men) is a form of sex discrimination. (See Veretto v. United States Postal Service, EEOC Doc (Dec. 20, 2011). Similarly, the EEOC will investigate and enforce instances of “gender identity discrimination” under the same theory. (See Macy v. Dept. of Justice, EEOC Appeal No (Apr. 20, 2012).)
Here’s some additional background information on the other protected classifications:
“Age” is only a protected category for individuals who are age 40 or older.
“Disability/Medical Condition” and “Religious Creed” are analyzed under a reasonable accommodation/undue hardship analysis for discrimination purposes.
“Genetic Information”. The FEHA was amended in 2012 to expand the scope of genetic information to include: the individual’s genetic tests; genetic tests of a family member; or the manifestation of a disease or disorder in a family member of the individual. [See next slide for more information about genetic information.]
“Opposition to Harassment” is a protected class to the extent that an individual stands up for another employee who is being subjected to unlawful harassment and is retaliated against for such action.
“Association/Perception” applies when an individual is associated or perceived to be a part of a protected class and is discriminated/harassed against as a result of this association or perception. This is unlawful even if the association/perception is incorrect (e.g. an employee is perceived to be homosexual and is subjected to homophobic comments – even if the employee does not end up being homosexual, the underlying harassing acts are still inappropriate and unlawful).
Preventing Workplace Harassment, Discrimination and Retaliation - STANDARD

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
In 2011, Senate Bill 559 (SB 559) amended the FEHA and the Unruh Civil Rights Act so that both statutes now prohibit discrimination based on genetic information. SB 559 defined “genetic information” as (1) the individual’s genetic tests; (2) the genetic tests of family members of the individual; and (3) the manifestation of a disease or disorder in family members of the individual.
The proponents of SB 559 realized that many genetic disorders are associated with particular racial, social, or ethnic groups. SB 559 will prevent employers from using genetic information to stigmatize or unfairly discriminate against such groups. Although similar to the Genetic Information Nondiscrimination Act (GINA), SB 559 offers broader protections by prohibiting discrimination based on genetic information in the additional areas of housing, business services, emergency medical services, licensing qualifications, life insurance coverage, mortgage lending, and participation in state-funded or state-administered programs.
Not all of the provisions of SB 559 will seem new to California employers. For example, GINA precluded employers from intentionally acquiring genetic information from employees and applicants and the FEHA already prohibited employers from subjecting applicants or employees to genetic testing.  However, under SB 559, genetic information is now an established protected class within the broader framework of California’s civil rights laws.
GINA prohibits: discrimination because of genetic information; retaliation against those who complain about genetic information discrimination; segregating employees based on genetic information; and requesting genetic information for employment or employment benefits purposes. GINA also requires employers to maintain the confidentiality of genetic information.

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?
Yes. California’s Pregnancy Discrimination law (Gov. Code section 12945) allows Andrea, upon her doctor’s orders, to request a transfer to a less strenuous position for the duration of her pregnancy. The Police Chief has no right to initiate the transfer. Discrimination based on sex includes sexual harassment as well as gender harassment, and harassment based on pregnancy, child birth, breastfeeding, or medical conditions relating to pregnancy or child birth. 42 U.S.C Section 2000e(K); Government Code Section 12926(q), 12940(j)(4)(C).
This case study raises a couple of disparate treatment issues.
First, assuming that the police officer work schedule is more favorable, transferring Andrea to a Monday-Friday schedule would result in discrimination on the basis of sex. This is because discrimination on the basis of sex includes pregnancy.
Second, the case study indicates that the Chief is not treating his subordinates equally. It is critically important to avoid favoritism for any employee. Others who are not treated as favorably may claim discrimination.

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
In addition to demonstrating that some action was taken “because of” his/her protected classification, an individual alleging discrimination or retaliation must demonstrate that he/she was subject to an adverse action.
As of March 2013, employees must prove that the employer was “substantially motivated” by the employer’s protected status in order to prevail in a discrimination lawsuit. Prior to March 2013, employees only had to prove that discrimination was a motivating reason for the employer’s adverse action.
The term “adverse action” can include a variety of events such as denial of employment, promotion, transfer, some other employment benefit. Other examples are intimidation, reduction in duties, reduction in pay, and denial of overtime. These are acts that are more commonly taken by a supervisor/manager against a subordinate. However, the term adverse action is defined broadly and can also include actions by co-workers. For example, co-workers take action when they shun or avoid persons who have complained of or have been accused of harassment. In order to ensure that no retaliation occurs, all employees need to follow the basic standards of workplace decorum and allow the investigation and discipline process to address wrongdoing.

10. KEY DEFINITIONS “SUPERVISOR”
Anyone who has any responsibility or discretion to lead others
Those with purely clerical or record-keeping responsibility are excluded
It is important to know who we mean when we refer to supervisors during this presentation. Supervisors are those employees who have a responsibility to prevent harassment, discrimination, and retaliation.
The FEHA (Gov. Code section 12926(s)) defines “supervisor” as: “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
This FEHA definition of “supervisor” is broad and includes a variety of employees – including employees who are not commonly viewed as being “supervisors,” such as lead workers or journeyman level workers.
ALTHOUGH NOT MENTIONED ON THIS SLIDE, On June 24, 2013, in Vance v. Ball State University, the Supreme Court held that for the purposes of vicarious liability under Title VII, an employee is a “supervisor” if he or she is empowered by the employer to take tangible employment actions against the victim  It held that “an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.”  The Supreme Court went on to say that tangible employment actions “effect 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.”  In so holding, the Supreme Court explicitly rejected the broad definition of “supervisor” adopted by some circuits and the EEOC that made the employer vicariously liable for the actions of employees that oversee and direct the work of other employees even where they lack the authority to take tangible employment actions.  Since the FEHA standard is broader, it’s probably not necessary to mention this but, depending on the sophistication level of the audience or whether a lawyer asks about this case, be prepared.

11. Discrimination
What is discrimination? It’s an adverse employment action taken based on a protected category status.
Unlawful discrimination occurs when an adverse employment action is taken against an employee/job applicant based on an employee’s protected category status (e.g. race, national origin, gender, disability, religion, age, etc.)
There is no individual supervisor liability for unlawful discrimination. Only the employer is liable for unlawful discrimination. The public policy rationale is that no one would want to be in a supervisory position if every employment decision made held the threat of a discrimination allegation.
Contrast this with unlawful harassment. Ask participants what the difference is between unlawful employment discrimination and unlawful harassment – unlawful harassment has nothing to do with the course and scope of employment.
Preventing Workplace Harassment, Discrimination and Retaliation - STANDARD

12. WHAT WOULD YOU DO?
You are the Director of Environmental Health at the County, and in charge of promoting one of the County’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.
The protected classification is sex (pregnancy). Remember, treating someone differently due to his or her association with someone with a protected classification is discrimination.
Employees may offer personal details that cannot be considered when determining if the employee should be promoted, receive a raise, have their schedule change, etc. Here, Natalie has volunteered that her partner is pregnant, which is a protected under state anti-discrimination laws. Not promoting Natalie based on the assumption that Natalie will need time off to take care of her partner and when her baby is born is discrimination on the basis of Natalie’s association with her partner.

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?
Deciding who attends the paid conference relates to terms and conditions of employment. These forms of decisions must be made on legitimate and non-discriminatory job-related criteria. A decision based on feeling bad for someone, and not qualifications is not defensible and could be viewed as sex discrimination in this situation.

14. HARASSMENT Conduct that is:
Physical
Verbal
Visual
Taken “because of” a protected classification
Two types:
Quid Pro Quo
Hostile Work Environment
In order to prove harassment, an individual has to demonstrate that some type of conduct occurred because of the individual’s protected classification. There are two categories of harassment. The first is by demonstrating a “quid pro quo” harassment situation. The second is to demonstrate that the individual was subject to a hostile work environment. We will talk about each type of harassment in detail.

15. “QUID PRO QUO” Job benefits promised Explicit or implicit
In exchange for sexual favors or denied if sexual favors are not given
Both the law and your agency’s policy prohibit this type of harassment.
Q: What does “quid pro quo” mean? A: It is Latin for “this for that.”
Q: What is quid pro quo harassment? A: This slide answers that question
Let’s run through the key terms.
“Job benefits promised” Very broad; could be anything, including a raise; good evaluation; better office. The person making the promise has to have the authority to deliver or influence the delivery of the promise.
“Implicitly or explicitly” -- the requestor’s intent to influence an exchange is enough

16. CASE STUDY
Pedro frequently uses County vehicles for non-work related purposes. Anika, who is in charge of monitoring mileage on County 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….?
No. She did not engage in quid pro quo harassment based on this set of facts. This is because she did not do this in exchange for sexual favors.
Let’s tweak the facts slightly – what if Ankia starts asking Pedro out? What if Anika threatens to tell Pedro’s supervisor if he does not go out with her? This would be considered quid pro quo harassment.
What if Anika has asked Pedro out in the past and he has said “no” before? Does this seem more or less like there is a possible link between the never reporting Pedro and going out with Anika? To avoid an uncomfortable situation or possible harassment claims – a good rule to remember is the Rule of Two Nos. If an individual has declined an invitation to go out twice – then do not ask a third time – stop at 2 nos.

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
This is the second type of harassment – hostile work environment harassment. Like quid pro quo harassment, both the law and your agency’s policies prohibit this type of harassment.
The phrase “hostile work environment” is one of the most commonly misused phrases. This phrase is a term of art, and as with everything that we’ve discussed so far, is only triggered when some action is taken “because of” an individual’s protected classification.
This slide lists what it takes to violate the state or federal law.
Notice what is not on this list. Intent. You do NOT need to intend to harass to be liable for harassment
The thresholds that must be met for a violation of the law versus a policy violation are likely different. There is a big difference between what it takes to violate the law and what it takes to violate the agency’s policy. The big difference is the fourth bullet point. One really severe act OR several less severe instances will violate the law. In contrast, your agency’s policy is a no tolerance policy. Conduct does not have to rise to the level of being severe or pervasive in order to violate the agency’s policy. Depending upon the circumstances, a single act can violate the agency’s policy. This distinction is important when investigating claims of a “hostile work environment” under the agency’s policy, as there is no need to conduct a severe or pervasive analysis since a single or minor incident is sufficient for a finding of a violation. For these same reasons, it is also much easier to follow and implement a no tolerance policy.

18. VERBAL CONDUCT Sexual Comments Jokes Mocking Accent Teasing Slurs
Let’s discuss some of the most common behaviors which give rise to a harassment complaint. These behaviors fall within the broad categories of physical conduct, verbal conduct, and visual conduct. This is often the most common type of conduct which forms the basis of a harassment complaint.
Both the law and the agency’s policy prohibit verbal harassment.
This slide details some of the common forms of verbal harassment. [Discuss the agency’s policy and examples of verbal harassment.] What is often difficult with type of harassment is that it may be unclear that others feel uncomfortable by it.
*** NOTE - Save talking about jokes in detail for the next slide – which will be a case study on jokes. ***
Again, remember that verbal harassment is prohibited if it is directed at any protected characteristic. For example, jokes regarding political issues (the war, presidential campaigns, the housing market) or sports teams (the giants vs. the dodgers) may not necessarily constitute harassment because political preference or sports team affinity is not a protected classification.

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?
Is this harassment under the law?
Well, the complaint satisfies the “because of” standard – Janelle has alleged that Bianca is joking about age because of Janelle’s religion.
There is also evidence that the jokes are frequent or pervasive.
But what about the objective – subjective standard? In this case, let’s assume the jokes are objectively offensive – does the mere fact that Janelle has told some jokes of her own preclude her from being subjectively offended? NO!
It may sometimes be difficult to determine if an individual is offended by something that he/she has heard. This is especially true with jokes because people will often laugh along for a variety of reasons that have nothing to do with whether they found the joke to be funny. Employees may laugh along with a joke or join in the joke telling out of nervousness, fear, uncertainty, anxiety, or humor. Whether an employee is laughing along and participating out of fear may be a very real factor when two employees are in a supervisor/subordinate role. Remember that subordinates or co-workers may be laughing at your jokes for many reasons other than humor.
If you were Bianca’s supervisor, what would you do if the investigation showed that Janelle’s complaint is true? Does it matter that Bianca was joking about herself? (Take remedial action by evaluating the appropriate level of discipline for Bianca; train all staff not to joke about even their own protected statuses)

20. VISUAL CONDUCT Posters Calendars Magazines Emails
Racial or Religious Cartoons
Gestures
The second general category of harassing conduct is visual conduct – no words need to be said for this type of harassment.
Again, both the law and the agency’s policy prohibit verbal harassment. For additional examples of visual harassment, refer to the agency’s policy.
Most of the above are self-explanatory. But, let’s talk about workplace relationships for a moment. Many employers discourage relationships between co-workers. This is done to avoid not only harassment claims by the employees in the event the relationship takes a negative turn, but to protect against harassment complaints by third parties who may view or be affected by these relationships. The impact of such relationships may be of particular importance when there is a supervisor – subordinate relationship. The California Supreme Court has decided that wide-spread supervisor favoritism toward select subordinates creates a hostile work environment. Miller v. Department of Corrections (2005) 36 Cal.4th 446 [30 Cal.Rptr.3d 797]. The Cal. Supreme Court decided that favoritism between supervisors and some subordinates communicates the message that the only way to advance is to have close friendships or sex with supervisors.
So here are some principles for supervisors to live by: Treat all subordinates equally according to their circumstance. Apply policies evenly to all. No favorites. Be aware of your actions at all times. You should be cautious in what you say and jokes you make; do not make jokes that might possibly be offensive to others. Don’t tell your subordinates personal stories you would not want your boss to hear.
Sexual Conduct / Affection between other employees at work
Staring / Leering

21. Physical Intimidation
PHYSICAL CONDUCT
Massage
Hugs
Physical Intimidation
The third category of harassing conduct is physical conduct. Physical conduct means just that - some physical act is conduct which constitutes harassment.
Physical conduct is often the most serious form of conduct, particularly because it can also constitute a criminal act. Conduct such as unwelcome touching or groping can give rise to assault/battery charges if the police become involved.
Physical conduct does not require actual contact between two individuals – contact can be achieved through some intermediary source – such as throwing balls of paper or throwing paperclips at another individual. Physical conduct can also include threats of physical conduct or intimidating conduct (e.g., “getting in another employee’s face”.)
Examples of physical conduct which may constitute harassment are contained in an your agency’s harassment policy. [Reference the agency’s definition and examples on physical harassment]
A good rule to remember to avoid situations where conduct may be viewed as or perceived to be physical or physically aggressive is to be cognizant of personal space. We all have that area of several feet around us that we think of as our personal space – when it is invaded, we become uncomfortable – avoid entering into another person’s personal space.

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
It is often difficult to define when plain old offensive conduct becomes harassment.
Picture a large ruler. On one end of the ruler is perfectly acceptable conduct. On the other end of the ruler is perfectly awful harassment. The problem is that there is no way of knowing the precise point on the ruler when you will have stepped into harassment.
Because you do not know when conduct will cross the borderline and become harassment….
The best approach to take is – when in doubt, DON’T!
Let’s talk about “consensual” relationships between supervisors and subordinates. Dating a subordinate is like wearing a target on your chest that says “Sue me.” The employer has an interest in any supervisor/ subordinate relationship that has an impact upon work. There is no right to privacy in a relationship between a supervisor or subordinate that has a negative impact on the workplace.
Q – Why?
A– Because you will never know when consent has ended and the relationship is over – just like the ruler we talked about before. When was the last time you were in a relationship and you were surprised (and crushed) to learn that the other party was through?
With regard to invitations to lunch, drinks, or dinner, remember the Rule of 2 we discussed above. Even well-intentioned conduct can be taken the wrong way. No references to figure/ physique. Even references to clothing can be misunderstood. Casual touching can also be misinterpreted as an assertion of dominance, particularly if the touching occurs near erogenous zones! (e.g., thighs, breasts, tummy, buttocks)
Avoid the gray areas to avoid liability!

23. CASE STUDY If you were Francine, what would you do?
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?
Report the comments to the HR Department. The employer should investigate to determine the meaning of Tiffany’s comment. The comment is ambiguous – is Tiffany referring to people that are young in age or just novices? The employer may rely on Tiffany’s comment to initiate the investigation because she does not have a reasonable expectation of privacy while in a common area at work.

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
So far, we have covered 2 of the 3 main topics of discussion – discrimination and harassment. Now it is time to turn to retaliation.
In order for an act to be considered retaliatory, there are 3 factors that must be satisfied: (1) the individual must have taken some protected activity; (2) the employee must received some form of adverse action; and (3) there must be a causal connection between the two – usually a proximity in time.
So let’s discuss the “protected activity” factor in more detail. The reason for protecting the activity of making a harassment or discrimination complaint is to encourage persons to come forward so that potential problems can be stopped before they become entrenched. The agency’s complaint procedure is an important means to prevent harassment and discrimination for a couple of reasons. First, the fact that the agency has a complaint procedure shows that the agency is ready to invest time into enforcing the policy standards it has set. Second, the complaint procedure is important because it provides a mechanism for individuals to be heard and to be instructed as to appropriate workplace conduct. Given those lofty goals, all individuals who invoke or participate in the complaint procedure are protected from adverse action BECAUSE of their participation in the procedure. All that is required is that the employee reasonably believe that harassment or discrimination has occurred. It is still retaliation even if the employee was incorrect about whether harassment occurred.
Once it is established that an individual engaged in a protected activity, we then must determine if the employee was subject to an adverse action. Remember from when were discussing key definitions in this matter – the definition of an adverse action is very broad and can include a wide variety of things – from negative performance evaluations to discipline.
Finally, the “Causal Connection” element requires that the adverse action was taken because of the protected activity. As stated, the most common method by which this causal connection is established is through timing. The adverse action took place immediately after the employee engaged in the protected activity. However, timing alone may not be enough, especially if the individual who took the adverse action did not have any knowledge of the protected activity.
When investigating a complaint, it is important to remind all of the participants in the investigation (including the victim, the accused, and any witnesses) that retaliation is prohibited. Employees should be told to report any retaliatory conduct and HR should take immediate action to stop and address retaliatory conduct.

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?
You should not tell her. Generally speaking, you should not disclose the identities, except to the extent necessary to continue to the investigation. You should advise Cynthia that she is prohibited from retaliating against any employee she suspects made a complaint against her. She is also prohibited from retaliating against any employee she suspects participated in the investigation.

26. Abusive Conduct
Preventing Workplace Harassment, Discrimination and Retaliation - STANDARD

27. “ABUSIVE CONDUCT” Malicious conduct
Definition of “Abusive Conduct”:
Malicious conduct
Objectively and Subjectively Hostile or Offensive
Unrelated to employer’s legitimate business interests
That being said, abusive conduct it is something that supervisors must be trained on, to identify it and know how to prevent it – so that it does not turn in to a potentially bigger issue.
So what is abusive conduct?
Abusive Conduct is defined by the California Legislature as malicious conduct of an employee or employer, which a reasonable person would find hostile or offensive, and that is unrelated to the employer’s legitimate business interests. So let’s unpack that:
Malicious Conduct - Malicious for purposes of abusive conduct is not defined by the Legislature. But generally malice is a legal term meaning having a wrongful intent. So we may assume that the Legislature meant that abusive conduct is conduct that the abuser intends to be hostile or offensive against the abused.
Objectively and Subjectively Hostile or Offensive – The conduct must be such that the abused finds it hostile or offensive in some way, and that a reasonable person would also find it hostile or offensive. The Legislature has determined that this includes a very broad list of conduct. We will see on the next page some specific examples listed.
Unrelated to Employer’s Legitimate Business Interests – That the conduct has no relation to the business interest of the employer. For example, a supervisor requiring that a police recruit do jumping jacks in the rain would not be abusive conduct, because the supervisor has a legitimate interest in training his recruits to be physically strong in different conditions. But that same supervisor repeatedly ordering a data analyst do jumping jacks might be abusive conduct.
Abusive conduct is NOT Harassment – As we looked at, harassment is based on the protected classification of the victim, and is protected by law. Employees and employers can be liable for conduct that constitutes harassment. Abusive Conduct is NOT a legal claim, and refers to conduct toward other co-workers, NOT on the basis of any protected classification, but just to be malicious.
Preventing Workplace Harassment, Discrimination and Retaliation - STANDARD

28. EXAMPLES of “ABUSIVE CONDUCT”
Repeated verbal abuse
Threatening, intimidating, or humiliating verbal or physical conduct
Gratuitous sabotage or undermining of person’s work
The Legislature lists in its definition of “abusive conduct” several examples of what that conduct includes, and these are things supervisors should watch for. The law also states that a single act of any of these will NOT constitute abusive conduct, unless the act is “especially severe and egregious.” Thus, generally abusive conduct will be repeated acts over time – more akin to bullying in the workplace.
Repeated verbal abuse - Includes the use of derogatory remarks, insults, or epithets. Or might be constantly putting a co-worker down, discounting their ideas in front of others, or regularly yelling, screaming, using a threatening tone towards another.
Threatening, intimidating, or humiliating verbal or physical conduct - Might include directly threatening another co-worker, repeatedly calling someone a humiliating nick-name, or even glaring at a co-worker to intimidate them.
Gratuitous sabotage or undermining or person’s work – It is unclear exactly what would constitute as ‘gratuitous sabotage’, but this might include intentionally and repeatedly discrediting another’s work in front of supervisors for ones own gain, or even stealing credit from a co-worker on a repeated basis in order to sabotage them.
You can see that abusive conduct is an extremely broad term for bad behavior supervisors should watch for, and address appropriately as managers. But the moment this kind of conduct is directed toward someone’s membership in a protected classification – it becomes harassment, not just abusive conduct. In which case the supervisor needs to be very careful to address the conduct as we have discussed treating harassment ,throughout this presentation.
Preventing Workplace Harassment, Discrimination and Retaliation - STANDARD

29. WHAT is NOT “ABUSIVE CONDUCT”
A supervisor holding a subordinate accountable for his/her performance
An isolated incident of inappropriate behavior
While the list of what constitutes abusive conduct is expansive, there is of course conduct that is not necessarily abusive within the workplace.
Supervisors Holding Subordinates Accountable - Discussing a subordinate’s performance with the subordinate is not abusive conduct. This is just a necessary part of supervisory duties. But it’s important to be a transparent and fair so that subordinates know what to expect. When they are surprised by their performance, that’s when they complain about their supervisor.
Isolated Incidents - Keep in mind that an isolated on its own generally does not constitute abusive conduct. However, if a the act is “severe or egregious” --- it may be abusive conduct and call for discipline.
(Point out if you think applicable to the group)
Union-Related Activities – Union related activities are also generally not abusive conduct. I say this with a caution, because of recent case law. As recently as 2007, there have been federal National Relations Labor Act cases in which employers have responded to union-member speech appearing to be verbally abusive conduct toward other co-workers, by forbidding it. This kind of a rule or discipline against union members for speaking out was said to have a “chilling effect on the right to organize or join a union” and was struck down. (International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. NLRB (2007 2nd Cir.) 520 F.3d 192.)
So my point is here to be very careful before disciplining conduct as abusive, to identify whether the speech or conduct was union-related or motivated, rather than motivated by plain malice.
Preventing Workplace Harassment, Discrimination and Retaliation - STANDARD

30. ABUSIVE CONDUCT v. ILLEGAL HARASSMENT
Harassing conduct is directed at someone’s membership in a protected classification
Harassment is illegal
“Abusive Conduct” is NOT directed at someone’s membership in a protected classification
NOT illegal, but should be addressed internally
Just to repeat, both Illegal harassment and abusive conduct consist of offensive conduct that is either pervasive or severe, and thus goes beyond mere incivility...
But be on the lookout, abusive conduct and harassment oftentimes go hand in hand. There are a lot of cases involving straight bullying whereby the victim alleges that he/she has been bullied due to being in a protected class in order to be able to file a lawsuit against the employer. Although the evidence ends up vindicating the employer – do you really want to be in a lawsuit? Of course not. So watch for and address the abusive conduct early.
Preventing Workplace Harassment, Discrimination and Retaliation - STANDARD

31. 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
Now that we all know what harassment, discrimination, and retaliation are – what are the consequences of this prohibited conduct?
There are some very serious consequences for engaging in harassing, discriminatory, or retaliatory conduct or for failing to take action in response to harassing, discriminatory or retaliatory conduct. These consequences are not just to the employer, but also to individual employees. These consequences are more than just possible disciplinary action for violating your agency’s policy. These consequences are financial.
Let’s begin with the consequences to the employer:
Employers are liable for the conduct of supervisors who engaged in harassment. Employers can also be liable for preventing harassment in the workplace. This is why it is so important that supervisors be aware of their actions and that they report possible harassment to Human Resources immediately. Employers can be liable for back pay or compensatory damages.
What about the consequences to employees:
Employees can also be liable for engaging in harassment. This means that if you violate your agency’s policy and you are sued, you could be ordered to pay damages to the victims. Employees can be liable for punitive damages.
Q– Won’t my employer pay court judgments against me?
A– Not if you were acting outside the scope of your job duties. Your employer ONLY has the duty to defend you for conduct that you take that is within your job description.

32. 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
A policy is only as good as those who administer it. The next step in prevention is partly why we are all here – to be sure the know what harassment, discrimination and retaliation are and to take immediate steps to address it. This step requires that supervisors be familiar with and perform those tasks that are required of them when they learn of a potentially harassing, discriminatory, or retaliatory situation.
Remember that definition of supervisor that we discussed at the beginning – it is a broad definition. Anyone who constitutes a supervisor is tasked with certain duties/responsibilities. These duties/responsibilities include reporting any conduct that is observed or overheard that may constitute harassment, discrimination or retaliation. If you observe or overhear conduct, then you should take the following actions:
Advise the personnel involved of your observations
Request confirmation of the accuracy of your observations
Firmly and unequivocally express strong disapproval
Contact Human Resources
Most of the time you will NOT actually observe harassment – you will only hear about it. There are 3 common ways in which a supervisor learns of potentially harassing, discriminating, or retaliatory conduct: (1) from complaints by those who witnessed this conduct; (2) in the form of a verbal complaint from a victim; or (3) through rumors. Under all three of these scenarios, supervisors should report the conduct to human resources. [Refer to agency policy – duties of supervisors and complaint procedure].
What if the victim or the person reporting the conduct begs you not to take any action? Inform the reporter that you are required to take action. Then document the complaint and discuss it immediately with Human Resources.
What if the person complaining does not use the word “harassment”? Note that the Cal Supreme Court says that an employee need not use the word “harassment” to trigger the duty to initiate the complaint and investigation process.
Q – Why is it so important to take action?
A -- California law requires employers to take all reasonable steps to prevent harassment from occurring. Investigating all reports of harassment will go a long way toward fulfilling this legal requirement.
Q – Why does investigating promptly help prevent harassment?
A – Demonstrates your agency’s commitment; there is no sweeping under the rug in your agency. You address these issues head-on.
[Discuss agency’s investigation/complaint procedure. Make sure that you have read the procedure and know the steps in the complaint process]

33. SUPERVISOR RESPONSIBILITIES
Cooperate in the investigation
Prevent further harassment
Assure no retaliation
A supervisor’s duties do not end once they report the issue to management or human resources. Their responsibilities are greater than just reporting. Supervisors are the eyes and ears of the employer. Supervisors have the opportunity to take a leadership role and to stop harassment before the work environment becomes hostile.
Not only do supervises need to inform management/HR of possible policy violations, they may be called upon to cooperate in the investigation.
Cooperating in the employer’s investigation includes:
providing candid and complete responses to investigation questions;
maintaining the confidentiality of investigation questions and responses;
trusting the investigation process; and
treating all participants in the investigation as innocent until proven guilty.
Upon learning of an issue, supervisors are required to take steps to ensure that no further harassment or discrimination occurs. Supervisors are also required to ensure that no retaliation occurs.

34. 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
Upon learning of an issue, an employer has an immediate obligation to take appropriate corrective action.
Upon learning of an issue, management is required to promptly and thoroughly investigate the allegations.
If the investigation finds that harassment, discrimination, or retaliation occurred, then the perpetrator must be disciplined at a level appropriate to the misconduct.
If you have a repeat offender, then the level of the discipline must increase. Courts have found that the agency does not complete its duty to prevent harassment if it fails to increase the penalty with repeat offenders.
A critical remedial action is to provide the victim access to counseling. The agency cannot interfere with the victim’s personal decisions regarding medical treatment, but the agency can refer the employee to the agency’s EAP provider.
A very effective corrective action technique is to provide small group or individual training in the prevention of harassment, discrimination or retaliation.
Finally, update and reissue the Agency’s policy at least once every two years. As a supervisor, make time during staff meetings, tailgate meetings and the like to reiterate the importance of preventing harassment, discrimination and retaliation. Make sure that your subordinates know what your agency’s policy says and what they need to do to report harassment.

35. 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
What should you do if someone accuses YOU of harassment?
Step one is to remain calm.
Step two is to follow the bullet points in this slide.
[Discuss your agency’s policy and reference specific steps in the complaint procedure.]
Now is a time to go through the “what to do if you are accused” role play examples.

36. 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
The law that requires that supervisors receive training in the prevention of harassment ALSO requires that supervisors know the potential remedies for harassment.
There are several remedies that victims of harassment, discrimination or retaliation can use.
First and foremost is to use the [agency’s] complaint procedure. Your agency is committed to preventing harassment, discrimination and retaliation, and has adopted a complaint procedure for all employees to use. The complaint procedure will provide for an investigation to find out what happened. If the investigation shows that prohibited conduct occurred, then the procedure will require the agency to take remedial action.
Second, employees have the option to report harassment, discrimination, and retaliation to the state and federal agencies who are responsible for administering the state and federal laws against employment discrimination. These agencies will investigate complaints and try to mediate resolutions.
Third, employees have the option of suing in state or federal court. In order to sue in court, however, the employee generally has to first bring the matter to the state or federal administrative agency for processing and a right to sue letter.

37. Disability Laws and Protections

38. 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
The Disability Interactive Process

39. What are the Relevant Laws?
Federal
Americans with Disabilities Act (ADA)
Family and Medical Leave Act (FMLA)
State
Fair Employment and Housing Act (FEHA)
California Family Rights Act (CFRA)
Confidentiality of Medical Information Act (CMIA)
Workers’ Compensation
Retirement Laws
In navigating disabilities, leaves, and discipline, the other laws dealing with injury and illness will be discussed as well. This is because you can never discuss the topic in a vacuum.
So, let’s start at the beginning and provide you a general overview the applicable legal principles. First, we have the federal law, with which you may be familiar.
The ADA prohibits discrimination on the basis of disability in hiring and employment. The FMLA overlaps to some extent with the ADA because it allows employees who have worked most of the preceding year to have 12 weeks of unpaid leave for a serious health condition, to care for a family member with a serious health condition or baby bonding.
Second, state law includes: The Fair Employment and Housing Act makes it unlawful for an employer to discriminate against individuals with disabilities by engaging in the following prohibited employment practices:
Refusing to hire or employ an applicant because of his or her physical disability, mental disability, or medical condition.
Refusing to select an individual for a training program that would lead to employment on the basis of his or her physical disability, mental disability, or medical condition.
Barring or discharging an individual from employment or from a training program leading to employment on the basis of his or her physical disability, mental disability, or medical condition.
Discriminating against an individual in matters of compensation on the basis of his/her physical disability, mental disability, or medical condition.
Discriminating against an individual with regard to the terms, conditions, or privileges of employment on the basis of his or her physical disability, mental disability, or medical condition.
The California Family Rights Act authorizes an eligible employee to take up to a total of 12 workweeks of paid or unpaid job-protected leave with employer-paid health, dental, and vision benefits during a “rolling” 12-month period for (1) the birth of a child or adoption or foster care placement of a child; (2) to care for an immediate family member (spouse, child, or parent) with a serious medical condition; or (3) when the employee is unable to work because of a serious health condition.
Workers’ Compensation is the set of laws that require employers to pay benefits to employees who are hurt on the job.
Disability retirement is granted to employees who can no longer perform the usual duties of their current position due to illness or injury.
Accommodating Bad Behavior: The Limits on Disciplining Disabled Employees (Standard)

40. 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
Makes the performance of your job more difficult.
Same as ADA but, remember bisexuality and homosexuality are FEHA protected classes.
In 2000 the CA legislature broke with the feds and made several changes to expand the reach of the FEHA.
1st change is the amount of impact that the impairment has on a major life activity.
Instead of “substantially” limiting a major life activity, simply “limit”.
Question: What amount of impact does the impairment have to have to limit?
Answer: Make it more difficult than unimpaired Jane or Joe in general population.
FEHA specifically excludes the following: sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs. (Gov. Code § (1)(6).)
The Disability Interactive Process

41. 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
The key inquiry is “can a reasonable accommodation enable the employer to perform the essential job functions?”
You still must determine if an accommodation is possible, by perhaps finding another job.
The Disability Interactive Process

42. 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
Disabled employees cannot be disqualified b/c they cannot perform a non-essential job function.
The next 3 slides address the essential functions of the job.
The first two slides help define just what is an essential job function
Question: So what is the definition of essential function?
Answer: In Summary, the essential functions of the job are those characteristics that distinguish it from all other jobs.
Question: When was the last time you reviewed your job description to verify that they reflect essential functions?
Answer: Good to check in every 2 years or more frequently if layoffs or reorganizations
Question: Why update so frequently?
Answer: Job descriptions have a extremely broad impact
1. Helps you attract an applicant pool that can do the job
2. Identifies essential functions
The Disability Interactive Process

43. 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?
Use the “what would the jury think” approach. Not the “everything is essential” approach.
Here is a series of questions to ask to help you determine if a job function is essential.
Note – There are several factors to consider so no one factor is determinative.
Not every function is essential particularly in a larger entity.
The Disability Interactive Process

44. 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
As opposed to applicants. Different rules for applicants and employees.
Info you need to determine whether to send someone to a fitness for duty exam.
The concepts that we will discuss about the interactive process, and the analysis of whether your agency can make the reasonable accommodation, are equally applicable to employees.
Question: When can you make a medical inquiry or submit to a fitness for duty?
Answer: First two bullet points lay out the rule of thumb.
The Disability Interactive Process

45. 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
Be careful how much you tell the doctor; not OK to give doctor the employee’s medical info.
See Appendix A. - Doctor’s letter.
If you have established the need to perform fitness for duty exam, then here is what you need to do to follow through.
The critical step is focusing the Dr. on ADA/FEHA standard of disability
If using a W/C doctor, have to refocus on major life activities and limits on those activities.
Make sure doctor knows you DON’T WANT medical history, diagnosis, treatment plan – that is Confidential Medical Information that is protected by Confidentiality In Medical Information Act
The Disability Interactive Process

46. 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
Without a signed authorization from the employee, the employer is only entitled to receive the information on this slide.
Here is a list of the information that employers are entitled to receive without authorization from employee.
ADA/FEHA Limitations are Distinct from Workers’ Compensation.
The Disability Interactive Process

47. 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.
One of the most difficult issues to deal with in the disability interactive process is when disability and discipline issues interact.
Many disabilities cause bad behavior (depression = absenteeism, obsessive compulsive disorder = tardiness)
Conduct cause by a disability or resulting from a disability is considered part of the disability.
DANGER – Discipline because of a disability is discrimination ; except when disability causes violence – Wills v. OC case
So if you are going down the discipline track and the employee claims his or her disability made him or her do it, then stop and go down the disability track follow the interactive process.
The Disability Interactive Process

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

49. Answer:
Generally No, but YES if the misconduct consists of threatening behavior.
Generally No, but YES if the misconduct consists of threatening behavior.
This is based on the new case Wills v. Superior Court where court held that employee whose mental disability (bipolar disorder) caused her to engage in misconduct that consisted of threatening other employees, it was ok to discipline (terminate) her for the misconduct even though caused by her disorder, BECAUSE THE MISCONDUCT WAS THREATS. Case is careful to say the holding is limited to this particular fact pattern. There is also a case study in this workshop using the facts of this case, so you should probably not do the case study until you have done this slide.
The Disability Interactive Process

50. 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
Employer knowledge triggers obligation to discuss accommodation.
See 2 Cal Code Regs § (c) for discussion of leaves – no need to provide unlimited leaves or leaves that would not likely be effective in allowing the employee to return to work
Note that new DFEH regs say that an employee with a disability is entitled to preferential consideration to a vacant position over other applicants and existing employees. But reg does not override a bona fide seniority system Cal Code Regs § (d)(5)
Case Study #2
Now let’s turn to the Reasonable Accommodation process.
The Reasonable Accommodation requirement comes from the foundational principle in the ADA/FEHA that employers have: an affirmative duty to take a reasonable amount of measures to ensure a disabled individual’s ability to perform job duties
Whether a particular accommodation is reasonable depends upon the facts of the case.
Stress that accommodations go beyond tools or ergo issues and can get into modifying schedules and non-essential functions.
The Disability Interactive Process

51. 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!
The FEHA says that the employer has the duty to engage in a timely, good faith interactive process in response to a request for reasonable accommodation by an applicant or employee. (Gov. Code section 12940(n).)
An interactive process is most effective when you have reviewed the medical reports and the job functions in advance. Do some planning in advance.
In the next several slides, we will be talking about the interactive process.
Although both the ADA and the FEHA require it, only the FEHA defines the scope of the interactive process.
“…a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by employee”
Recommend doing all of “steps” listed on slide before meeting with employee during the in interactive meeting.
In that way – you will have the benefit of 2 opportunities to think creatively and you will be better prepared and more relaxed (patient).
In my experience – creativity takes time – The more time preparing, the more creative.
REMEMBER – process counts here.
The Disability Interactive Process

52. 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
So let’s look back at the CA Anti-discrimination law to answer the question on this slide.
CA law requires an employer “to engage in a timely good faith interactive process with the employee or applicant”…. “in response to a request for Reasonable Accommodation by an employee or applicant” (Gov. Code Section 12940(n)).
Know employee has disability
Know employee is experiencing problems
Know that disability prevents employee from requesting a Reasonable Accommodation
See also new DFEH reg 2 Cal. Code Regs § (c)
The Disability Interactive Process

53. 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
Once you decide an interactive process is necessary, there are some guidelines for setting up the interactive process meeting
If you need to terminate because of inability to accommodate, you need to also prove good faith consideration of all potential reasonable accommodations.
Use Appendix A - F templates to create a paper trial.
The Disability Interactive Process

54. 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
In order to interact in good faith as the law requires, have an open mind. Consider all of the potential accommodations. There is no legal requirement to make a decision as to a reasonable accommodation in any particular period of time. A good rule to follow is to make the decision in 2 – 3 weeks of the interactive process meeting. Support your decision with legitimate and specific factors. It is ok to go in incremental steps and to require a second interactive process meeting in 2-3 months after the initial meeting. Contemporaneous note to file or record really good note taking is essential.
The Disability Interactive Process

55. 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
So let’s focus on the good faith requirement.
You meet the good faith requirement by considering all potential accommodations – no matter how unreasonable the accommodation may seem.
You don’t have to make unreasonable accommodations, but until you fully consider it, you will not be in a position to determine if it is reasonable or not.
You have the liberty to decide whither the accommodation is reasonable or not based upon your unique circumstances but you also have the responsibility to defend your decision to the employee and perhaps the courts.
Make sure your agency promptly follows up and documents all follow up; show that your agency passed the ball to the person with the disability.
We will discuss the risk of harm and undue hardship defense later on.
The Disability Interactive Process

56. 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
What happens if the employee cannot be reasonably accommodated?
You can take either or both of the alternatives below:
Termination
Dis-retirement
37 Act Counties – Gov Code Section 31721; PERS – Gov Coed Section – Employer has duty to file on behalf of the employee.
Uncertainty in the law re – ability to put on unpaid leave or on a re-employment list prior to the running of the disability retirement and appeal process. (See workbook – we advise pay through PERS process.)
The Disability Interactive Process

57. Defenses Direct Threat to Self or Others Rely on Objective Facts
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
An employer’s decision to decline an accommodation based upon a direct threat must be documented by documented facts and not free-floating anxieties or fears. Write it down/make a record.
This slide and the next describe the 2 defenses that employers have in response to a refusal to make an accommodation.
First – The “Direct Threat” defense: an employer has no duty to hire or employ someone who poses a direct threat to self or others.
Note: Rely on facts, not fears.
See workbook Gov Code Section 12940(a)(i)
For FEHA need to show that even with accommodations still endanger self or others
Implies need to make the accommodation before deciding accommodation does not remove risks.
Have to show “imminent and substantial degree of risk”
Evidence
Employees record
Statements of others
The Disability Interactive Process

58. 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
Here is the second of the 2 defenses to rejection of accommodation.
The undue hardship defense can be difficult for public employers to prove
The larger you are, the less likely you will be able to establish undue hardship
Generally harder for Counties than Cities because larger entity with more jobs
The Disability Interactive Process

59. 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
Then tell facts of A.M. v. Albertsons 178 Cal.App.4th 455 (2009) Employee had cancer of tonsils and larynx, was on chemo and radiation treatment, which affected her salivary glands by making them extremely dry. This required her to drink a lot of water, which required her to urinate frequently. She worked at the cash register at Albertson's. She told Albertson's that she had to have water with her at all times and might have to use the bathroom as frequently as every 45 minutes. Albertson's said that was not a problem, even though it usually did not allow employees to have drinks at the checkstand. Also told her that whenever she needed to use the bathroom, a manager would cover for her. They accommodated her without incident for more than a year.
One day all the managers were out and a new manager was in charge of the store that day. The employee asked for a break and the manager kept telling her to wait, because other employees were too busy to relieve her and the store was short-staffed. The employee did not tell the manager about her disability, and the new manager did not know about it. The employee kept waiting and ultimately urinated on herself at the checkstand. She then developed severe emotional distress from this incident and sued Albertson's for failure to accommodate.
Albertson's argued that it was a mistake, that because they had accommodated her for a year they should be excused for this one lapse. The court found that that was not a valid excuse and that it was Albertson's responsibility to let new managers know of ongoing accommodations. Jury verdict: 200k damages (148k of which was for emotional distress).
So, the takeaway point is that if you have ongoing accommodation, make sure all managers know about it because it's the employer's duty to continue to provide an ongoing accommodation.
The Disability Interactive Process