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An Overview of Equal Opportunity 2004. Training Objectives. EQUAL OPPORTUNITY (EO) PROGRAM LEGAL AUTHORITIES RELATED CALTRANS POLICIES & DIRECTIVES MANAGER/SUPERVISOR/Employees RESPONSIBILITIES, LIABILITIES, AND PREVENTION STRATEGIES OVERVIEW OF COMPLAINT PROCESS

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An

Overview

of

Equal Opportunity

2004


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Training Objectives

  • EQUAL OPPORTUNITY (EO) PROGRAM

  • LEGAL AUTHORITIES

  • RELATED CALTRANS POLICIES & DIRECTIVES

  • MANAGER/SUPERVISOR/Employees RESPONSIBILITIES, LIABILITIES, AND PREVENTION STRATEGIES

  • OVERVIEW OF COMPLAINT PROCESS

  • SEXUAL HARASSMENT PREVENTION


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Headquarters

Equal Opportunity Program

Organizational Chart


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Principles of Equal Opportunity

Achieve Equality

Come together to achievean environment free of discrimination

without regard to race, gender, religion, color, national origin, age,

marital status, sexual orientation, political affiliation, disability or

medical condition.

Appreciate Diversity

Recognize and appreciate the Caltrans Team for its blend of

different cultures, experiences and backgrounds by working

together to enhance our personal and professional lives and

contributing to the success of a very dynamic Department.

Acknowledge Differences

Acknowledge different perspectives at all levels and embrace the

uniqueness that others add to our personal andprofessional

growth, talent, and learning.


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EQUAL OPPORTUNITY PROGRAMRoles & Responsibilities

  • Encourages compliance w/Departmental EO Program

  • Increases employee awareness of EO issues

  • Provides training, resources & information

  • Assists w/the resolution of discrimination issues,

    and the informal/formal complaint process

  • Responds to control agencies

  • Provides technical assistance to other partner programs; i.e., ADA, Reasonable Accommodation


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LEGAL AUTHORITIES (Federal and State)

  • TITLE VI, Civil Rights Act of 1964

  • TITLE VII, Civil Rights Act of 1964

  • Section 504 - REHABILITATION ACT of 1973

  • AMERICANS WITH DISABILITIES ACT of 1990 (ADA)

  • CALIFORNIA FAIR EMPLOYMENT & HOUSING ACT

    of 1959 (FEHA)


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FEDERAL

Race

National Origin

Color

Religion

Sex

Gender

Sexual Harassment

Pregnancy

Age – 40 or older

American with Disabilities Act

Family Medical Leave Act

STATE

Race

National origin

Color

Religion

Sex

Age – 40 or older

Ancestry

Sexual Orientation

Marital Status

Disability

Medical Condition

Pregnancy Disability Leave

CA Family Rights Act (CFRA)

Retaliation

Perceived Status or Association

Political Affiliation

Basis of Protection From Discrimination


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Employment Decisions Regulated by Law

  • Hiring, firing, promotions, transfers, layoffs

  • Recruitment, testing, advertisements

  • Compensation, retirement plans, disability leave

  • Training

  • Other terms and conditions of employment


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THEORIES OF DISCRIMINATION

  • Differential/Disparate Treatment:

    Intentionally denying an employment opportunity on the basis of a protected characteristic.

  • Adverse Impact:

    A neutral policy, practice or procedure that disproportionately burdens or screens out a protected group.


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THEORIES OF DISCRIMINATION

  • Perpetuation of Past Discrimination:

    Where a past discriminatory policy or practice is maintained.

  • Reasonable Accommodation:

    Failure to provide accommodation for disabilities and religious practices.

  • Retaliation:

    Reprisals against persons who have participated in a complaint.


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KEY ELEMENTS OF DISCRIMINATION

  • ISSUE - Promotion, Work Environment

  • BASIS - Race, Religion, Disability, etc.

  • THEORY OF DISCRIMINATION - Retaliation, Disparate Treatment, etc.

  • CAUSAL LINK - Link between the employment practice and the protected characteristic


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KEY ELEMENTS OF DISCRIMINATION

  • PRIMA FACIE CASE:

    Evidence to support an allegation

  • BURDEN OF PROOF:

    Obligation to establish a degree of belief.

  • PREPONDERANCE OF EVIDENCE:

    Standard for evaluating evidence.


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Discriminatory PracticesRegulated by Law

  • Harassment based on any protected characteristic.

  • Retaliation for filing a complaint of discrimination or for participating in an investigation.

  • Employment decisions based on stereotypes or assumptions of a particular group.


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#1. TRUE OR FALSE?

FACT:

NINA VOLUNTARILY RESIGNED AS A

RESULT OF SERIOUS RACIAL

HARASSMENT.


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TRUE OR FALSE?

NINA CANNOT HAVE A VALID CLAIM FOR

WRONGFUL DISMISSAL IF THE STATE RESPONDED

TO THE REPORT OF HARASSMENT, RID THE

WORKPLACE OF HARASSMENT AND TOOK

CORRECTIVE ACTION AGAINST THOSE

RESPONSIBLE FOR THE HARASSMENT.


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BEST ANSWER: FALSE

NINA MAY HAVE SUCH A CLAIM IF THE “RESPONSE”

CAME AFTER FRONT-LINE SUPERVISORS HAD

FAILED TO RESPOND TO PRIOR COMPLAINTS,

RESULTING IN NINA’S FORCED DEPARTURE.

ALTHOUGH THIS EMPLOYER PROPERLY RESPONDED

AFTER THE FACT, IT FAILED TO PREVENT THE “SERIOUS

RACIAL HARASSMENT”.


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#2. TRUE OR FALSE?

FACTS: WARD IS A STATE WORKER. HIS CO-WORKER,

SHEILA, COMPLAINS TO HER SUPERVISOR THAT WARD

IS CONSTANTLY LOSING HIS TEMPER WITH HER AND

RAISING HIS VOICE IN ANGER. ON SEVERAL OCCASIONS,

WARD HAS SAID DIVISIVE THINGS LIKE:

“IF IT WASN’T FOR AFFIRMATIVE ACTION, WOMEN WOULD

NOT BE ALLOWED TO DO A MAN’S JOB - YOU JUST DON’T

HAVE WHAT IT TAKES?”


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TRUE OR FALSE?

THIS MAY BE RUDE CONDUCT ON WARD’S PART,

BUT IT IS NOT SEXUAL OR GENDER HARASSMENT

BECAUSE WARD HAS A RIGHT TO EXPRESS HIS

FIRST AMENDMENT OPTIONS.


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BEST ANSWER: FALSE

WHILE WARD CERTAINLY HAS A RIGHT TO HIS

BELIEFS, HE DOES NOT HAVE AN ABSOLUTE FIRST

AMENDMENT RIGHT TO EXPRESS THEM IN THE

WORKPLACE.


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CALTRANS POLICY & DEPUTY DIRECTIVES

  • EQUAL OPPORTUNITY

  • SEXUAL HARASSMENT

  • REASONABLE ACCOMMODATION

  • AMERICANS WITH DISABILITIES ACT (ADA)


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EQUAL OPPORTUNITY POLICY(Zero Tolerance Policy)

  • What does Zero Tolerance mean?

    • Must take immediate and appropriate action.

    • Conduct does not need to be severe and pervasive.

    • Caltrans has a higher standard than the law.


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Sexual HarassmentDeputy Directive

  • Provide a workplace free of sexual harassment.

  • Provide training and encourage employees

    to identify, prevent and report inappropriate conduct.

  • Take effective, appropriate and timely corrective actions.

  • Refrain from conduct that can reasonably be interpreted as sexual harassment.


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Sexual Harassmentis

Any conduct or communication of a sexual

nature (verbal, written, visual or physical)

which is:

unwanted, creates a hostile, offensive or

intimidating work environment, and/or

affects a person’s ability to perform work.


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Reasonable AccommodationDeputy Directive

Provide reasonable accommodations to

assist qualified employees and applicants

with a disability to participate in Departmental

programs, services and/or to perform the essential functions of the employee’s job.


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Americans w/Disabilities Act (ADA)Deputy Directive

Ensures equal employment opportunities for

employees and applicants, including those

with a disability, by providing access

opportunities to Departmental programs,

services, and activities.


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Manager/Supervisor Responsibilities

As a supervisor and agent of the Department,

your role is to assure that Caltrans provides

equal access to all its programs, services

and employment opportunities.


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Employees’ Responsibilities

  • Employees are responsible for behaving in ways that maintain a work environment which is free of discrimination and harassment. Employees are also responsible for reporting inappropriate behavior in a timely manner.


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How to do you fulfill your role as a Supervisor?

  • Know the departmental policies, who is protected and what is protected.

  • Implement the policies.

  • Assure accessibility.

  • Provide an harassment free environment.


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How do you fulfill your role as an employee?

  • Know the departmental policies, who is protected and what is protected.

  • Self-awareness, in terms of understanding your own culture, identity, biases, prejudices, and stereotypes.

  • Be aware of accessibility needs.

  • Participate in providing an harassment free environment


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Supervisory Liability

Caltrans liability for discrimination and

harassment begins:

  • When knowledge of the condition exists, and when you should have known about it, but failed to take action.

  • As agents of the Department, supervisors can personally incur liability in the same way.


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How to Prevent

Discrimination & Harassment

in the

Workplace


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PRACTICE PREVENTION

  • Set standard; and lead by example.

  • Communicate policies clearly and consistently.

  • Address complaints or observations of discriminatory/harassing conduct immediately.

  • Document incidents of discriminatory & harassing conduct.

  • Effectively monitor the workplace after a complaint of discrimination/harassment is filed.


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What if? (Situation #1)

#1

You have a position opening up soon in your

unit. You have worked with Joe in the past

and you believe that he would be just perfect

for the job.

What action would you take in this

situation?


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OPTIONS

A. Tell Joe that you have an opening in your unit and you would like him to have the position.

B. Mention in meetings and other conversations that Joe would be a great choice for the position.

C. Encourage Joe to apply for the position.

D. Provide Joe with materials and background information to prepare for the interview.


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BEST RESPONSE

  • ISSUE: Pre-selection

    C is the best response. It is acceptable for

    supervisors to request a certain individual to

    compete along with other interested

    candidates. Supervisor needs to be careful

    so that there are no promises or pre-selection.


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What if? (Situation #2)

Three gay men, Sam, Bill, and Don, are co-workers on large project. All three men were repeatedly exposed to graphic and offensive jokes about homosexuals. Sam and Bill objected to supervisors. Don, however, laughed along with the remarks.


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True or False?

This may be a preventable hostile environment if Don was offended, but felt compelled to "go along."


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BEST ANSWER: True

A hostile environment is based in part on unwelcome conduct. Although Don might have a difficult time producing evidence that the conduct was unwelcome, this element is subjective in nature.

The real issue is: The supervisor and employees involved must be aware and follow the Caltrans Zero tolerance for discrimination and harassment in the workplace.


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RESPONDING

TO

DISCRIMINATION


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Supervisors:

Take the situation seriously

Communicate with employee

Act immediately to stop behavior

Maintain confidentiality

Remain neutral

Employees:

Contact the EO Office for assistance

Report it to your supervisor

Document actions

Resolve at lowest possible level - whenever possible

Supervisors and EmployeesDO’S


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Supervisors and EmployeesDON’TS

  • Make judgments

  • Ignore or delay

  • Diminish or exaggerate

  • Make promises

  • Legally advise the complaining party

  • Take the complaint personally!

  • Retaliate!



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INTERNAL COMPLAINT PROCESS (Informal)

  • Offers informal confidential counseling concerning potential discrimination and/or harassment.

  • Provides a means for resolving discrimination complaint issues quickly, informally and at the lowest possible level.

  • EO Staff works with employees, supervisors, and managers to assist in finding a fair and equitable solution to the employee’s issues/concerns.


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INTERNAL COMPLAINT PROCESS (Informal)

  • Employee or applicant may utilize the informal process by contacting:

    • HQ Office of Equal Opportunity

    • District Office of Equal Opportunity

    • Calling the Discrimination Complaint Hotline #

      at 1-866-810-6346.

  • Informal contact must be made within one year of the date of the discriminatory action.


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    EXTERNAL COMPLAINT PROCESS

    Employees who believe they have been subjected to

    discrimination can go outside the Department to file

    a discrimination complaint.

    External Agencies:

    • Department of Fair Employment and Housing (DFEH)

    • Equal Employment Opportunity Commission (EEOC)

    • State Personnel Board


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    PREVENTING

    SEXUAL HARASSMENT

    IN THE WORKPLACE


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    SEXUAL HARASSMENTWhat is it?

    Any conduct or communication of a sexual

    nature (verbal, written, visual or physical)

    which is:

    • Unwanted

    • Creates a hostile, offensive or intimidating work environment, and/or

    • Affects a person’s ability to perform work.


    Examples of unwelcome behavior l.jpg
    EXAMPLES OF UNWELCOME BEHAVIOR

    • Verbal - epithets, derogatory comments, slurs

    • Physical - assault, blocking movement or physical interference with work

    • Visual - derogatory posters, cartoons, drawings, gestures

    • Sexual - conditioning an employment benefit on a sexual favor


    Two categories of sexual harassment l.jpg
    Two Categories of Sexual Harassment

    • “QUID PRO QUO” SEXUAL HARASSMENT:

      Simply means offering employment benefits in exchange for sexual favors.

    • ‘HOSTILE ENVIRONMENT - SEXUAL HARASSMENT:

      Occurs when an employee is subjected to unwelcome, unsolicited sexual conduct.

      In this type of harassment, there is no threat of loss of job, raise, or promotion as in quid pro quo harassment.


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    #1. TRUE OR FALSE?

    Gary complains to Martha, his friend and supervisor, about sexually suggestive comments made him by Kate, but demands that the

    information be kept strictly "confidential."


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    True or False?

    Martha should not violate the confidence Gary placed in her because Gary has chosen not to pursue a claim.


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    BEST ANSWER: False

    Although this is a common reason for inaction by mangers, receiving information about sexual harassment "in

    confidence" does not form the basis for a defense of privilege in a sexual harassment case. Martha owes duties to her employer, herself, and

    to other employees in the workplace (including Kate), as well as to Gary.


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    #2. TRUE OR FALSE?

    One night after work Jennifer, an employee

    with the State, goes to a local pub with a

    few of her friends from work. While there

    she runs into Ray, her supervisor. Ray

    jokes to Jennifer’s friends that he can’t

    stop thinking about her. Later that

    evening, Ray asks Jennifer to join him for

    dinner.


    True or false56 l.jpg
    TRUE OR FALSE?

    This is not sexual harassment because it

    occurred outside the workplace.


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    BEST ANSWER: FALSE

    Supervisors should consider themselves on

    duty 24-hours a day when it comes to potential

    sexual harassment. Although this incident occurred

    off premises (and we do not know if Jennifer was

    offended), Ray’s conduct may become a factor at

    work the next day. That fact that it occurred

    “outside the workplace” may be irrelevant.


    Manager supervisor responsibilities with regard to sexual harassment l.jpg
    Manager/Supervisor Responsibilities with regard to Sexual Harassment

    • Provide a harassment-free workplace.

    • Be proactive.

      • Know and understand the Department’s policies.

      • Implement the policies, and assure equal access.

    • Take immediate and appropriate action.


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    Employee Responsibilities with regard to Sexual Harassment Harassment

    • Participate in a harassment-free workplace.

    • Know and understand the Department’s policies.

    • Regularly review personal behavior for potentially harassing elements.

    • Become familiar with employee rights under policy guidelines and laws.

    • Confront and report incidents of sexual harassment.


    Effects of sexual harassment individual l.jpg
    Effects of Sexual Harassment (Individual) Harassment

    • Anger

    • Reduction in performance

    • Avoidance

    • Increased absentee rate

    • Self-blame


    Effects of sexual harassment unit l.jpg
    Effects of Sexual Harassment (Unit) Harassment

    • Loss of unit cohesion

    • Low morale

    • Undermines ability of unit to complete job

    • Detracts from mission accomplishment


    Supervisor s roles summary l.jpg
    Supervisor’s Roles HarassmentSUMMARY

    • Supervisor’s primary role is to support the Department’s policy/directives of “zero tolerance” of discrimination and harassment.

    • Practice prevention. Immediately and effectively address complaints of discriminatory and harassing conduct in the work place.


    Employee s role summary l.jpg
    Employee’s Role HarassmentSummary

    • Employee’s primary role is to comply with the Department’s policy/directives of “zero tolerance” of discrimination and harassment.

    • Participate in any training provided by the Department

    • Model appropriate behavior


    Eo resources available to you l.jpg
    EO Resources HarassmentAvailable to You

    • Dean Lan , Chief, Office of Equal Opportunity

      916-324-0989

    • Terry Baker, EEO Program Manager

      916-324-0904

    • Michelle Adams, ADA Statewide Coordinator

      916-324-0987

    • Veronica Vargas, Statewide RA Coordinator

      916-227-4592


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    THANK YOU! Harassment