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AB 1825 Training S exual Harassment What it is. How to prevent it. Presented . Don Phin, Esq. California attorney since 1983 specializing in employment practices litigation and prevention. Developer of the HR That Works program, acquired by THinkHR . Author of seven books.

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don phin esq
Don Phin, Esq.
  • California attorney since 1983 specializing in employment practices litigation and prevention.
  • Developer of the HR That Works program, acquired by THinkHR.
  • Author of seven books.
  • Editor of EPLiC published by IRMI.
  • Editor Compliance and Culture Newsletter.
  • Lives in Coronado, CA.
  • Married with three sons.
today s program
Today’s Program
  • AB 1825 requirements
  • Definition of Sexual Harassment
  • Regulations and case law examples
  • Types of SH conduct with examples
  • Complaint process and other resources
  • Investigation
  • Remedies
  • Prevention strategies and tools
  • Model scenario
  • Quiz
  • Questions and answers
federal statutes and cases
Federal Statutes and Cases
  • 1964 Civil Rights Act- protects against sex discrimination. Applies to companies with 15+ employees or if engaged in interstate commerce.
  • Catharine MacKinnon –feminist author and scholar. In 1979 wrote "Sexual Harassment of Working Women"
  • EEOC Regulations- CFR Title 29 In 1980, the Equal Employment Opportunity Commission (EEOC) issued regulations defining sexual harassment and stating it was a form of sex discrimination prohibited by the Civil Rights Act of 1964.
  • In 1986, the Supreme Court first ruled in Vinson v. Merit One Bankthat sexual harassment can be sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.
california statutes
California Statutes
  • 1959 Fair Employment Practice Act signed by Gov. Pat Brown
  • 1970 Prohibition against sex discrimination added to FEPA
  • 1980 FEPA and Rumford Act (housing) combined within FEHA
  • 1983 Harassment and anti-retaliation added to FEHA
  • 1993 Poster and pamphlet requirement added to FEHA
california statutes cont
California Statutes cont.
  • Fair Employment and Housing Act- applies to every employer
  • California Code of Regulations
  • Enforced by Department of Fair Employment and Housing (DFEH)
  • 2005 AB 1825 passed requiring mandatory supervisor training for companies with 50 + employees
  • SB 292 new law says it does not have to be motivated by sexual desire
california case 1
California Case #1

Yanowitz v. L’Oreal (CA Supreme Ct 2005) discusses new guidelines around retaliation. Employers have to guard against retaliation- even for marginal complaints.

yanowitz v l oreal cont
Yanowitz v. L’Oreal cont.

“We conclude that an employee's refusal to follow a supervisor's order that she reasonably believes to be discriminatory constitutes protected activity under the FEHA and that an employer may not retaliate against an employee on the basis of such conduct when the employer, in light of all the circumstances, knows that the employee believes the order to be discriminatory, even when the employee does not explicitly state to her supervisor or employer that she believes the order to be discriminatory.”

california case 2
California Case #2

Miller v. Dept. of Corrections (CA Supreme Ct 2005) ruling that an employer can be sued for sexual harassment for conveying a message that the way to get ahead at work is to sleep with the boss. For the EEOC's position on this subject see http://www.eeoc.gov/policy/docs/sexualfavor.html.

miller v dept corrections cont
Miller v. Dept. Corrections cont.

1. An employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating widespread sexual favoritism that was severe or pervasive enough to alter his or her working conditions and create a hostile work environment. 2. Even though an employee’s complaint to management does not specifically include the words “sexual harassment” or “sexual discrimination,” if the nature of the complaint is such that management could reasonably believe the employee was making a claim of sexual harassment in violation of the FEHA, such a complaint constitutes a “protected activity” under the FEHA.

california case 3
California Case #3
  • Lyle v. Warner Bros. TV Prods (CA Supreme Ct. 2006) in a unique fact scenario, the Court ruled constant sexual language was not improper. The plaintiff, hired as a writer’s assistant for the “Friends” TV serial, claimed the writers produced a hostile environment as a result of frequent sexual banter. The Court, sidestepping First Amendment issues, ruled no liability because she was forewarned re the environment, because it was a natural part of the writing process and that there was no disparate treatment. Note: no comments were made specifically about the plaintiff.
lyle v warner bros cont
Lyle v. Warner Bros. cont.
  • “Because the FEHA, like Title VII, is not a fault based tort scheme, unlawful sexual harassment can occur even when the harassers do not realize the offensive nature of their conduct or intend to harass the victim.”
  • “…numerous court decisions have held evidence of misogynous, demeaning, offensive, obscene, sexually explicit and degrading words and conduct in the workplace is relevant to prove environmental sexual harassment.”
california case 4
California Case #4

Sallie Mae Bradley v. California Department of Corrections and Rehabilitation(California Fifth Appellate District)

“CDC had duty to act immediately to stop the sexual harassment …and to ensure that no harassment had occurred. Referring the matter to a lengthy and complicated investigative process alone is insufficient to comply with the protections mandated by the FEHA when continued contact with the harasserleads to further harassment.”

Failing to stop the harassment resulted in a verdict of $437,000 and attorney fees of $305,000.

definition of sexual harassment
Definition of Sexual Harassment

The Fair Employment and Housing Commission regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser.

list of sh violations
List of SH Violations
  • Unwanted sexual advances
  • Offering employment benefits in exchange for sexual favors (quid pro quo, meaning “this for that”)
  • Making or threatening reprisals after a negative response to sexual advances
  • Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoon or posters
  • Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes
list of violations cont
List of Violations Cont.
  • Verbal sexual advances or propositions
  • Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations
  • Physical conduct: touching, assault, impeding or blocking movements
statistics
Statistics
  • Most women have experienced SH
  • Thousands of claims filed with EEOC (12,000) and DFEH (4000) annually
  • Half dismissed as “no reasonable cause”
  • Increase in claims by men v. women and same sex claims.
  • 16 % by men per EEOC.
  • Average verdict $200,000. Settlement $75,000
most common complaints 1
Most Common Complaints #1

An employee is fired or denied a job or an employment benefit because he/she refused to grant sexual favors or because he/she complained about harassment. Retaliationfor complaining about harassment is illegal, even if it cannot be demonstrated that the harassment actually occurred.

most common complaints 2
Most Common Complaints #2

An employee is exposed to an offensive work environment. Exposure to various kinds of behavior or to unwanted sexual advances alone may constitute harassment.

most common complaints 3
Most Common Complaints #3

An employee quits because he/she can no longer tolerate an offensive work environment, referred to as a"constructive discharge" harassment case. If it is proven that a reasonable person, under like conditions, would resign to escape the harassment, the employer may be held responsible for the resignation as if the employee had been discharged.

sexual harassment is
Sexual Harassment Is:
  • Unwelcomed sexual advances
  • Quid Pro Quo
  • Adverse Consequence
  • Hostile Environment
hostile environment
Hostile Environment
  • Jokes, posters, remarks
  • Looks and gestures
  • Favoritism
it s about power
It’s About Power
  • Strength = Power
  • Resources = Power
  • Knowledge = Power
it s about sex
It’s About Sex
  • Hormonal drives
  • Laws of attraction
  • %15-%20 of couples meet at work
  • Misusing our energy
it s about perception
It’s About Perception
  • Men are from Mars, Women are from Venus
  • Funny to you, insulting to me
  • Respect peoples differences
it s about stupidity
It’s About Stupidity

Some people just “don’t get it” or don’t want to get it!

who gets harassed
Who Gets Harassed?
  • Anyone can be sexually harassed
  • Women to men
  • Same sex harassment
who harasses
Who Harasses?
  • Supervisors
  • Co-workers
  • Third Parties
the reasonable person standard
The “Reasonable Person” Standard
  • Not just your view point
  • Objective view point
  • Subjective view point
  • Hypersensitivity
weighing the circumstances
Weighing the Circumstances
  • Is it sexual?
  • Is it unwelcome?
  • Is it severe?
  • Is it frequent?
does it interfere with the job
Does it Interfere With the Job?
  • Productivity
  • Promotions
  • Mind, body or spirit
provocation and consent
Provocation and Consent
  • Behavior
  • Dress
  • Speech
defense that won t work
Defense that Won’t Work
  • “Boys will be boys”
  • “I didn’t mean anything by it”
  • “She asked for it”
employer liability
Employer Liability

An employer might avoid liability if the harasser is a non-management employee, the employer had no knowledge of the harassment, and there was a program to prevent harassment. If the harasser is a non-management employee, the employer may avoid liability if the employer takes immediate and appropriate corrective action to stop the harassment once the employer learns about it. Employers are strictly liable for harassment by their supervisors or agents.

employer liability cont
Employer Liability, Cont.

Government Code section 12940, subdivision (k), requires an entity to take "all reasonable steps to prevent harassment from occurring." If an employer has failed to take such preventative measures, that employer can be held liable for the harassment. A victim may be entitled to monetary damages even though no employment opportunity has been denied and there is no actual loss of pay or benefits.

personal liability
Personal Liability
  • The harasser can be held personally liable for sexual harassment damages.
  • Also possibly for battery, assault, intentional infliction of emotional distress and other common law “torts”.
types of damages
Types of Damages
  • Loss of income
  • General damages for pain and suffering
  • Special damages for medical treatment, retraining, etc.
  • Punitive damages
  • Attorneys fees and court costs
  • Remedial training, etc.
bad faith claims
Bad Faith Claims
  • Slander and Defamation
  • Attorneys fees and costs
conclusion re what is sexual harassment
Conclusion re What is Sexual Harassment
  • SH will not be tolerated
  • It’s about respect and responsibility
  • It’s about productivity
  • It’s about the law
prevention strategies
Prevention Strategies
  • The best claim is the one never filed
  • Comply with posting and handout requirements
  • Educate and train on policies and law
  • Find out if there is a problem
  • Prompt and thorough investigation
  • Remedial action
  • Get professional advice
the company policy
The Company Policy
  • Inform employees of the law
  • Inform employees of their rights to complain internally and externally to EEOC and DFEH
  • Alternate reporting channels, including 3rd party “hotlines”
  • Zero Tolerance
  • Re-read your company policy now
the culture of silence
The “Culture of Silence”
  • “It is not my job”
  • “I don’t know what to do”
  • “I am afraid”
speak up
Speak Up!
  • Just say “no”
  • Speak to the harasser directly
  • File complaint internally with HR or other person first
  • Cooperate with investigation
  • Preventing SH is everyone’s responsibility!
filing a complaint
Filing a Complaint
  • Ability to file with EEOC www.eeoc.gov and DFEH www.dfeh.ca.gov Also can be found in the phone book.
  • Statute of limitations 300 days with EEOC , 1 year with DFEH…but don’t wait.
dfeh on investigation
DFEH on Investigation

Fully and effectively investigate. The investigation must be immediate, thorough, objective and complete. Anyone with information on the matter should be interviewed. A determination must be made and the results communicated to the complainant, to the alleged harasser, and, as appropriate, to all others directly concerned.

investigate
Investigate!
  • Don’t ignore, bury or deny
  • Be prompt and thorough
  • Don’t promise confidentiality
  • Communicate on a “need to know” basis
cotran case
Cotran Case
  • “Employers can obtain information anyway they think best, always giving fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. ”
  • Flexibility and fairness are key.
dfeh on taking action
DFEH on Taking Action

If harassment is proven, there must be prompt and effective remedial action. First, appropriate action must be taken against the harasser and communicated to the complainant. Second, steps must be taken to prevent further harassment. Third, appropriate action must be taken to remedy the complainant's loss, if any.

take action
Take Action
  • Is it your system?
  • Stern warning
  • Discipline
  • Termination
prevent retaliation
Prevent Retaliation
  • Fastest growing claim
  • Guard against “negative filters”
  • Use an ombudsman
compensate victims
Compensate Victims
  • Paid time off
  • Counseling
  • Money
conclusion
CONCLUSION
  • Send a message from the top
  • Educate and break past the culture of silence
  • Investigate and take action
  • Discipline appropriately
model case scenario
Model Case Scenario
  • Read the facts
  • Look at the issues raised. How would you answer them?
  • What steps would you take?
questions
Questions??
  • Ask ‘em now
  • Speak to HR
  • don@hrthatworks.com
  • Or call (800) 234-3304 x1