[CALL TO ORDER]
[00:00:03]
IT'S TIME TO CALL TODAY'S MEETING TO ORDER.
PRESENT. COUNCIL MEMBER ACOSTA, HERE.
MAYOR PRO TEM BHAT-PATEL HERE.
ALL FIVE COUNCIL MEMBERS ARE PRESENT.
MS. LUNA, WILL YOU PLEASE LEAD US IN THE PLEDGE? READY TO BEGIN.
BROWN ACT REQUIRES AT ANY TIME YOU MIGHT SEE THREE OR MORE COUNCIL MEMBERS.
WE MUST ANNOUNCE IT IN ADVANCE.
CITY OF CARLSBAD SENIOR CENTER VOLUNTEER RECOGNITION EVENT THAT WILL BE AT THE CROSSINGS AT 5800.
THE CROSSINGS DRIVE IN CARLSBAD.
MAYOR. WE HAVE NO PUBLIC SPEAKERS FOR THIS MEETING.
[1. AB 1661 TRAINING – SEXUAL HARASSMENT PREVENTION TRAINING AND EDUCATION]
AND NOW WHAT I'D ASK IS IF COUNSEL CAN GO AHEAD AND ACTUALLY, EVERYONE THAT'S UP HERE, WE'RE GOING TO MOVE INTO THE AUDIENCE AND THEN WE'LL TURN IT OVER TO OUR TRAINERS TO WORK ON OUR SEXUAL HARASSMENT PREVENTION TRAINING.WELL, GOOD MORNING, EVERYBODY.
FOR THOSE OF YOU WHO DON'T KNOW ME, MY NAME IS EMILY BRUCE.
I'M IN HUMAN RESOURCES IN TRAINING AND ENGAGEMENT.
THANK YOU ALL FOR BEING HERE TODAY.
SO THAT'S REALLY IMPORTANT FOR US TO GET BACK.
AND THEN ONE MORE THING YOU WILL NEED TO DO TO COMPLETE YOUR OBLIGATION FOR THIS TRAINING IS LOG ON TO CARLSBAD, LEARN AND ACKNOWLEDGE THAT YOU HAVE READ AND REVIEWED THE ADMIN ORDER 45 POLICY.
SO YOU'LL GET AN EMAIL AFTER TODAY'S TRAINING WITH A DIRECT LINK TO GO DO THAT.
AND WITH THAT, I'LL GO AHEAD AND HAND IT OVER TO OUR TRAINER.
TODAY WE HAVE STEPHANIE LOWE FROM LIEBERT CASSIDY AND WHITMORE.
I HAVE BEEN TO THE CITY OF CARLSBAD MANY TIMES PRE-PANDEMIC TO DO THIS TRAINING.
SO MAYBE SOME OF YOU HAVE SEEN ME BEFORE.
MAYBE NOT. IF NOT, THEN HOPEFULLY ALL MY JOKES WILL BE FRESH FOR YOU AND A BIT ENTERTAINING TODAY.
IT WILL ALSO COVER THE TOPICS OF DISCRIMINATION AND RETALIATION AS WELL.
IF ANYONE HERE IS NOT A SUPERVISOR, THIS TRAINING WILL ALSO COVER YOUR REQUIREMENT AS WELL.
THE WAY I DO THIS TRAINING IS IF YOU HAVE QUESTIONS, FEEL FREE TO RAISE THEM AS WE GO ALONG.
IF WE'RE KIND OF RUNNING OUT OF TIME, I WILL LET YOU KNOW AND I'LL STAY HERE AFTERWARDS AS WELL.
IF ANYONE HAS QUESTIONS, THEY JUST WANT TO COME UP AND ASK.
THERE'S ALSO A COUPLE OF HYPOTHETICAL WHAT I CALL CASE STUDIES HERE WITH THIS TRAINING WHERE I AM GOING TO ASK YOU FOR YOUR THOUGHTS IN YOUR OPINIONS TRULY, JUST TO KIND OF GET YOUR FEEDBACK, KIND OF WHICH WAY YOU WOULD SWAY IN A CERTAIN SITUATION.
ALL RIGHT, SO LET'S GET STARTED.
HERE'S WHAT WE'RE GOING TO BE COVERING TODAY.
SO I'M GOING TO COVER FEDERAL LAW, STATE LAW, AND THEN THE CITY'S OWN ADMINISTRATIVE ORDER.
[00:05:01]
NUMBER 45.WE'RE GOING TO COVER PROTECTED CLASSIFICATIONS.
I'M GOING TO WALK YOU THROUGH WHAT ARE PROTECTED CLASSIFICATIONS AND HOW IT RELATES TO THIS TOPIC.
WE'RE GOING TO COVER WHAT IS UNLAWFUL DISCRIMINATION, HARASSMENT AND RETALIATION.
SO IN THAT SECTION, I'M GOING TO BREAK DOWN EACH THREE OF THOSE EACH OF THOSE THREE TOPICS REALLY BY GOING OVER THE ELEMENTS OF THEM AND DISTINGUISHING HOW THEY'RE DIFFERENT, BUT ALSO HOW THEY'RE SIMILAR TO EACH OTHER.
THE HEART OF TODAY'S TRAINING IS GOING OVER THE DIFFERENT TYPES OF UNLAWFUL HARASSMENT.
AND YOU'LL YOU'LL LEARN THE REASONS WHY.
AND THEN WE'RE GOING TO FINALLY WRAP UP WITH TALKING ABOUT THE DUTIES OF A SUPERVISOR WHENEVER THERE IS A REPORT OR KNOWLEDGE OF HARASSMENT, DISCRIMINATION OR RETALIATION AT THE CITY.
AND THEN FINALLY, JUST KIND OF LIKE A WRAP UP SECTION WHICH TALKS ABOUT WHAT IF THERE IS LITIGATION, WHAT WHAT IS THE POTENTIAL CONSEQUENCES OF LIABILITY AND DAMAGES.
SO IN GETTING STARTED, FIRST OF ALL, EVERYONE, THIS IS A RHETORICAL QUESTION.
BUT ALSO, MAYBE YOU'RE HERE BECAUSE YOU WANT TO LEARN.
WHAT ARE THOSE LEGAL UPDATES STEPHANIE KEEPS REFERENCING? OR IF I AM A SUPERVISOR, LIKE LET'S MAKE SURE I KNOW WHAT THE LAWS ARE AND WHAT POLICY IS GOVERNING THESE TOPICS.
SO I WILL DIRECT YOU NOW TO ADMIN ORDER NUMBER 45.
AND I UNDERSTAND THAT THE CITY RECENTLY UPDATED THIS ADMIN ORDER.
SO WHAT I'VE DONE IS I LOOKED AT THAT RECENT UPDATE AND I KIND OF JUST PULLED SOME OF THE BIG LIKE BIG PICTURE LANGUAGE THAT I THOUGHT WOULD BE GOOD TO FOCUS ON FOR THE TRAINING.
SO FIRST THE CITY, WHY WE'RE DOING THIS TRAINING.
THE CITY IS COMMITTED TO MAINTAINING A WORKPLACE THAT PROVIDES EQUAL EMPLOYMENT OPPORTUNITY.
EEO IS FREE FROM DISCRIMINATION, HARASSMENT AND RETALIATION IN ANY FORM AND FOSTERS DIVERSITY, EQUITY, INCLUSION DEI AND RESPECT FOR ALL INDIVIDUALS.
SO THIS LANGUAGE, WHEN I DID THESE TRAININGS FOR THIS CITY BACK IN, I THINK 2019, I USED A SIMILAR SORT OF INTRO FROM ADMIN ORDER NUMBER 45, AND EVEN THIS PART HAS BEEN UPDATED.
IT IS A LOT. IT HAS A LOT MORE WHAT I WOULD CONSIDER AS AN ATTORNEY LIKE VERY KEY LANGUAGE AND KIND OF THE WORKPLACE CULTURAL SHIFT THAT WE'VE SEEN THE LAW GO TOWARDS, SAYS EEO, THE DEI.
SO AS WE GO THROUGH TALKING ABOUT THE LAWS THAT PROTECT THIS AREA, THERE WILL BE A BIT OF A FOCUS OR A CLARIFICATION THAT WHEN WE TALK ABOUT ABOUT HARASSMENT, IT'S NOT JUST EMPLOYEE TO EMPLOYEE CONDUCT, BUT WE'RE ALSO TALKING ABOUT OTHER GROUPS, MEMBERS OF THE PUBLIC, VOLUNTEERS.
IF YOU HAVE INTERNS, VENDORS, EVERYONE WOULD BE COVERED UNDER THE RULES OF THIS POLICY.
SO CERTAINLY THE CITY OF CALIFORNIA HAS REQUIRED THIS TRAINING FOR SUPERVISORS SINCE, I THINK, 1994.
BUT WITHIN THE LAST FOUR YEARS, FIVE YEARS, THEY'VE REQUIRED IT FOR ALL LEVELS OF EMPLOYEES.
AND A BIG REASON THAT THE LEGISLATURE IS FOCUSED ON THIS IS BECAUSE.
BUT IT'S NOT REALLY ENOUGH TO JUST GO TO THE NEWS AND LOOK AT NATIONAL HEADLINES OR STATE HEADLINES.
IT'S IMPORTANT TO ACTUALLY HAVE REAL TRAINING DONE IN THE WORKPLACE.
SO THIS SLIDE, ALL IT SIMPLY DOES IS IT PULLS GRAPHICS FROM WHAT I WOULD CONSIDER NATIONAL HEADLINES WITHIN THE LAST PROBABLY FIVE, FIVE, SIX, FIVE OR SIX YEARS ON THE TOPIC OF HARASSMENT OR DISCRIMINATION.
I'M NOT GOING TO TALK ABOUT ALL THESE THINGS, BUT I WILL MENTION THAT IF YOU RECOGNIZE THIS, THE GENTLEMAN IN THE UPPER LEFT HAND CORNER CORNER, MR. WEINSTEIN, THERE'S AN EXACT EXAMPLE I'LL TALK ABOUT WHEN WE DISCUSS QUID PRO QUO.
[00:10:06]
THINGS HE'S DONE.SO THAT'S ANOTHER REASON WHY THIS TRAINING TAKES PLACE.
AND THEN FINALLY, SHOULD YOU WANT TO BE AT THIS TRAINING? SO JUST THINKING ABOUT, YOU KNOW, SORRY, YOU HAVE TO BE HERE.
IT'S 2 HOURS. WE'LL MAKE SURE YOU GET THAT PAPER SIGNED AND WE HAVE YOUR RECORD.
SO WE'RE GOING TO GET STARTED WITH WHAT I WOULD CONSIDER A PRETEST.
SO WE'RE GOING TO JUST RUN THROUGH A SERIES OF TRUE AND FALSE STATEMENTS AND KIND OF GET WHERE YOU GUYS THINK, YOU KNOW, YOU ARE ON CERTAIN STATEMENTS AS AS WE GO ALONG.
IT'S A PRETEST. YOU KNOW, I HAVEN'T JUMPED INTO THE SUBSTANCE OF THIS TRAINING.
SO IT'S GOING TO START OFF EASY AND IT'S GOING TO GET HARDER.
SO FIRST, TRUE OR FALSE HARASSMENT CAN BE BASED ON ANY PROTECTED CLASSIFICATION, TRUE OR FALSE? TRUE. TRUE.
OKAY, WE'RE GOING TO START OFF EASY.
JUST SIMPLY TO SAY TODAY IS TODAY'S TRAINING IS HARASSMENT.
IT IS NOT SPECIFIC TO SEXUAL HARASSMENT, ALTHOUGH WE COVER IT.
BUT HARASSMENT CAN BE BASED ON ANY PROTECTED CLASSIFICATION.
AND I'LL GIVE YOU THE LONG LIST OF PROTECTED CLASSIFICATIONS COMING UP.
OKAY. EXCELLENT. TRUE OR FALSE? ANTI HARASSMENT LAWS DO NOT APPLY TO VOLUNTEERS AND INTERNS.
PLUS, I ALREADY KIND OF ANSWER THAT TO YOU GUYS BECAUSE IT WAS IN YOUR POLICY.
OR AN INTERN. TRUE OR FALSE? EMPLOYEES WHO REPORT HARASSMENT MUST PUT THEIR COMPLAINT IN WRITING.
FALSE. JUST TO DISPEL THE MYTH THAT SOMEONE THAT SOME AGENCIES, NOT THIS ONE, MAY BELIEVE THAT IF SOMEONE NEVER WRITES THEIR COMPLAINT DOWN AND SUBMITS IT THROUGH SOME FORMAL COMPLAINT FORM, LET'S SAY WE DON'T WANT AGENCIES TO SAY, WELL, YOU NEVER MADE A COMPLAINT.
WE DON'T HAVE TO TAKE FURTHER ACTION.
SO IT'S FALSE. OK TRUE OR FALSE? UNLAWFUL DISCRIMINATION GENERALLY DOES NOT OCCUR WHEN A SUPERVISOR APPLIES WORK RULES UNIFORMLY.
BUT THE IDEA IS THAT WHEN WE TALK ABOUT WORKPLACE POLICIES, WHETHER IN AN ADMINISTRATIVE ORDER, PERSONNEL POLICY, DEPARTMENTAL RULE, IF THEY'RE APPLIED UNIFORMLY OR THE PHRASE WE USE IS UNIFORMLY AND CONSISTENTLY, THAT REALLY CUTS BACK ON ITS OWN LIABILITY OF UNLAWFUL DISCRIMINATION. THE BIG SIMPLE EXAMPLE IS THINGS LIKE ATTENDANCE POLICIES.
WE WANT TO MAKE SURE SUPERVISORS AREN'T DOCKING EMPLOYEES FOR BEING ABSENT THAT AND THEN LETTING OTHER EMPLOYEES BE ABSENT WITHOUT EVER SAYING ANYTHING ABOUT IT, BECAUSE OVER TIME, EMPLOYEES MAY FEEL SINGLED OUT.
AND WHEN EMPLOYEES FEEL SINGLED OUT, IT MAY LEAD TO A CLAIM OF DISCRIMINATION.
ALL RIGHT. TRUE OR FALSE? SO THEY GET A LITTLE BIT HARDER.
SO THIS IS ONE OF THE HARDER ONES.
IF AN EMPLOYEE'S RELIGIOUS BELIEFS PRECLUDE THE EMPLOYEE FROM WORKING WITH ANY GAY, LESBIAN OR TRANSGENDER EMPLOYEES, THE EMPLOYER HAS TO REASONABLY ACCOMMODATE THE EMPLOYEE, THE EMPLOYEE WITH THE RELIGIOUS BELIEF.
WHAT DO YOU THINK? GOOD. I GOT SOME.
AND WITH THAT AN EMPLOYEE CAN CERTAINLY REQUEST AN ACCOMMODATION BASED ON THEIR RELIGIOUS BELIEFS.
BUT WHETHER THAT ACCOMMODATION REQUEST IS ACCEPTED REALLY HAS TO BE WEIGHED AND CONSIDERED WITH WHAT IS A REASONABLE. AND ALSO WOULD IT PUT THE CITY IN A POSITION OF PRIORITIZING ONE PROTECTED CLASSIFICATION OVER ANOTHER? WOULD IT LEAD TO OPERATIONAL BURDEN? YOU KNOW, JUST SAYING, OKAY, IT'S FINE.
[00:15:01]
THAT DECISION ALONE COULD RESULT IN DISCRIMINATION FOR ANOTHER GROUP OF EMPLOYEES.ALL RIGHT, WE'RE ALMOST DONE. SO TRUE OR FALSE, IF THE EMPLOYER IS INVESTIGATING A CLAIM OF HARASSMENT AND THE HARASSMENT STOPS, THE EMPLOYER MAY DISCONTINUE THE INVESTIGATION. EXCELLENT.
WE STILL HAVE THE ALLEGATIONS.
IT IS WONDERFUL. IF THE HARASSMENT STOPS, THAT'S EXACTLY WHAT WE WANT TO HAPPEN.
BUT IT DOESN'T MEAN THAT THE INVESTIGATION, THE DUTY TO INVESTIGATION STOPS.
ALL RIGHT. SO THAT'S YOUR TRUE FALSE PRETEST.
SO STARTING OFF WITH AN OVERVIEW OF THE LAWS THAT GOVERN THESE TOPICS.
SO HERE'S A LIST OF FEDERAL LAW AND STATE LAW.
AND EACH OF THEM ARE UNIQUE AND THEY COVER DIFFERENT AREAS.
BUT IN GENERAL, THEY PREVENT HARASSMENT, DISCRIMINATION AND RETALIATION IN THE WORKPLACE.
AND SOME OF THEM DO EVEN MORE THAN THAT.
IT'S JUST GOOD TO BE FAMILIAR WITH THESE LAWS.
YOU DON'T HAVE TO MEMORIZE THEM.
THERE'S NO POST TRAINING TEST WHERE YOU'LL BE GRADED ON IT.
WHEN SOMEONE FILES A LAWSUIT OF DISCRIMINATION OR HARASSMENT, IT'S GOOD TO BE FAMILIAR WITH THEM.
SO STARTING OFF WITH THE FEDERAL LAWS, WHICH, YOU KNOW, OF COURSE ARE GOING TO APPLY TO ALL 50 OF THE STATES AND ALSO SOME OF THE TERRITORIES OF THE UNITED STATES, WE HAVE THE EQUAL PAY ACT OF 1963, WHICH IS OUR NATION'S OUR ROUTE HISTORICAL ANTI DISCRIMINATION LAW.
WE HAVE TITLE SEVEN OF THE 1964 ACTUALLY, THAT'S THE ROUTE HISTORICAL AND TITLE SEVEN OF THE 1964 ACT IS OUR MAIN LAW FEDERALLY PROHIBITING DISCRIMINATION. SORRY, THE EQUAL PAY ACT IS A BIT MORE NARROW THAN THAT.
WHAT IT REQUIRES IS THAT IN PLACES OF EMPLOYMENT, EMPLOYEES WHO PERFORM SIMILAR OR COMPARABLE DUTIES ARE PAID THE SAME RATE OR ABOUT THE SAME RATE REGARDLESS OF THEIR SEX OR GENDER.
THE AGE DISCRIMINATION AND EMPLOYMENT ACT.
THE ADEA DOES EXACTLY WHAT IT SAYS.
IT PROHIBITS DISCRIMINATION IN THE WORKPLACE BASED ON AGE, AND IT CONSIDERS THE PROTECTED CLASSIFICATION OF AGE TO BE INDIVIDUALS WHO ARE AGE 40 OR OVER. WE HAVE THE AMERICANS WITH DISABILITIES ACT, THE ADA, THAT PROHIBITS DISCRIMINATION IN WORKPLACES BASED ON DISABILITY OR MEDICAL CONDITION.
IT DOES A WHOLE LOT MORE THAN THAT, THOUGH IT ALSO REQUIRES A PROCESS THAT WE CALL THE DISABILITY INTERACTIVE PROCESS WHEN AN EMPLOYEE IS DISABLED AND IT ALSO HAS OTHER REQUIREMENTS FOR PLACES OF PUBLIC ACCOMMODATION.
WE HAVE THE UNITED STATES CODE TITLE 42, SECTIONS 1981 AND 1983.
THESE ARE A LITTLE BIT PERIPHERALLY CONNECTED TO DISCRIMINATION AND HARASSMENT.
SECTION 1981 WHAT IT DOES IS IT PROHIBITS DISCRIMINATION ON THE BASIS OF RACE WHEN MAKING OR ENTERING A CONTRACT. SO FOR CERTAIN HIGH LEVEL EMPLOYEES, THEY MAY BE EMPLOYED THROUGH A CONTRACT AT A PUBLIC AGENCY.
AND IN THE WAY THAT CONTRACT IS MADE OR FITS TERMINATED CANNOT BE BASED ON RACIAL DISCRIMINATION.
WHAT IT IS, IS AN INDIVIDUAL CAN FILE A 1983 CLAIM SAYING THAT THE GOVERNMENT OR GOVERNMENTAL ENTITY HAS DEPRIVED ME OF ONE OF MY CONSTITUTIONAL RIGHTS. AND IN CALIFORNIA, WE HAVE OUR OWN SET OF LAW, WHICH IS, AS YOU MAY KNOW, MUCH MORE PROTECTIVE OF INDIVIDUAL RIGHTS THAN THE FEDERAL LAWS. SO IN CALIFORNIA, WE HAVE THE FAIR EMPLOYMENT AND HOUSING ACT, WHICH IS OUR STATE VERSION OF TITLE SEVEN.
THERE ARE VERY SPECIFIC WAYS IT'S MORE PROTECTIVE.
AND THEN IN CALIFORNIA, WE HAVE THE EQUAL PAY ACT AS WELL.
IT STARTED OFF SIMILAR TO THE FEDERAL LAW WHERE IT PROHIBITED DISPARITIES IN PAY FOR PEOPLE WHO PERFORM THE SAME OR SIMILAR DUTIES BASED ON THEIR SEX OR GENDER. IT'S BEEN EXPANDED TO ALSO PROHIBIT THAT DISCRIMINATION OR DISPARATE TREATMENT BASED ON RACE.
[00:20:02]
AND NOW IT'S EVEN GOING FURTHER EVERY YEAR.ALL RIGHT. WITH THOSE SOURCES OF FEDERAL AND STATE LAW, THESE ARE THE TWO GOVERNMENTAL AGENCIES THAT REGULATE THOSE LAWS AND ALSO PROVIDE GUIDANCE AND ARE KIND OF THE FIRST AVENUE FOR SOMEONE REPORTING A CLAIM.
FEDERALLY, WE HAVE THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, THE EEOC, AND THEN IN CALIFORNIA, WE HAVE THE CALIFORNIA CIVIL RIGHTS DEPARTMENT OR DEPARTMENT OF CIVIL RIGHTS.
YOU MAY HAVE BEEN PREVIOUSLY FAMILIAR WITH THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING.
IT WAS REBRANDED TOWARDS THE END OF LAST YEAR.
I DON'T KNOW IF REBRANDED IS THE RIGHT WORD, BUT I'M GOING TO USE IT LIKE A CORPORATE SORT OF TERM.
IT'S NOW THE CIVIL RIGHTS DEPARTMENT.
AND THIS IS THE DEPARTMENT THAT NOW GOVERNS FEHA AND THE EQUAL PAY ACT.
AND IF ANYTHING, YOU SHOULD KNOW WHERE TO LOCATE IT ON THE CITY'S I THINK YOU'VE CALL IT AN INTRANET SYSTEM BECAUSE YOU MAY NEED TO MAKE SURE THAT YOUR EMPLOYEES HAVE ACCESS TO IT AND KNOW WHERE TO FIND IT AS WELL.
SO YOU SHOULD KNOW FIRST SOME KEY THINGS FROM THIS POLICY THAT I'M GOING TO POINT OUT, BECAUSE THIS IS REALLY WE TEND TO RELY A LOT MORE ON POLICY WHEN DOING INVESTIGATIONS OF HARASSMENT, DISCRIMINATION AND RETALIATION THAN LAW.
SO WE HAVE TO FOCUS ON KEY PARTS OF THE POLICY.
IT PROTECTS. AND THEN HERE IT LISTS DIFFERENT TYPES OF INDIVIDUALS, BUT IT'S GOING TO PROTECT APPLICANTS, VOLUNTEERS, INDEPENDENT CONTRACTORS AND THEN EMPLOYEES AS WELL. NOW, THE POLICY PROVIDES A COMPLAINT PROCEDURE.
A CLEAR COMPLAINT PROCEDURE FOR AN EMPLOYEE TO REPORT DISCRIMINATION, HARASSMENT OR RETALIATION, WHICH CAN LEAD TO FURTHER IT'S GOING TO LEAD TO FURTHER STEPS FOR THE CITY TO INVESTIGATE.
IT IDENTIFIES THE CIVIL RIGHTS DEPARTMENT AND THE EEOC AS RESOURCES.
AND THEN ONE THING THAT I ALWAYS LIKE TO MENTION THAT.
WHETHER POLICIES, POLICIES STATED EXPLICITLY OR IF CITIES DO THIS WHILE ADMINISTERING AN INVESTIGATION, IS THAT REALLY WHEN THERE'S AN INVESTIGATION, THE CITY CAN PROVIDE CONFIDENTIALITY TO THE EXTENT POSSIBLE.
WHAT THAT MEANS IS THAT IF SOMEBODY FILES A REPORT OF HARASSMENT OR DISCRIMINATION OR RETALIATION, THERE'S BEEN TIMES IT'S NOT UNCOMMON FOR THEM TO SAY, I'VE MADE MY REPORT KNOWN, BUT I'D LIKE TO REMAIN ANONYMOUS.
I DON'T WANT MY NAME TO COME OUT.
THEY DON'T SAY, YEAH, WE WON'T TELL ANYONE YOUR NAME.
THERE'S NO BLANKET GUARANTEE THAT SOMEONE WHO FILED A COMPLAINT WILL REMAIN ANONYMOUS.
NOW, WHY IS THAT? IN GENERAL, IT'S BECAUSE IN ORDER TO DO A GOOD, THOROUGH, IMPARTIAL INVESTIGATION, A KEY STEP IS QUESTIONING THE PERSON WHO IS THE SUBJECT OF THE ALLEGATIONS.
AND THEY'RE GOING TO HAVE A RIGHT TO KNOW WHAT ARE THE ALLEGATIONS MADE AGAINST THEM.
NOW, IF WE'RE TRYING TO KEEP THE COMPLAINANTS IDENTITY ANONYMOUS, THAT'S REALLY GOING TO HINDER THE SUBJECT FROM BEING ABLE TO RESPOND FAIRLY. AND THEN IN ADDITION TO THAT.
AND SO IF WE'RE GOING TO BE TERMINATING AN EMPLOYEE'S EMPLOYMENT BASED ON HARASSMENT OR DISCRIMINATION, AGAIN, IT'S JUST NOT FAIR TO PROVIDE THEM WITH A PACKET OF SUSTAINED FINDINGS OF THEIR CONDUCT WITHOUT ALLOWING THEM TO REALLY KNOW THE FULL EXTENT OF WHAT THE REPORT WAS.
IF SOMEONE'S REMAINING CONFIDENTIAL, THAT'S GOING TO MAKE THINGS VERY DIFFICULT.
LAST YEAR, I HANDED AN ENTIRE OVER I OVERSEE.
I OVERSAW AN INVESTIGATION WHERE THE COMPLAINANT WAS DEMANDING SHE REMAIN ANONYMOUS.
NOW, IT WAS A MUCH DIFFERENT CONTEXT BECAUSE IT WAS IN A PRIVATE SCHOOL AND THIS WAS A STUDENT.
AND SO YOU HAVE TO BE VERY DELICATE WITH STUDENTS AND WHAT THEY WOULD LIKE AND THEIR FAMILIES.
[00:25:02]
BUT WE THE SAME THING APPLIED REALLY, WHERE WE SAID, IF THAT IS WHAT YOU WANT, LIKE IN AN EMPLOYMENT CONTEXT, WE WOULD NEVER GIVE THE OK FOR THAT.LIKE WE MAY NOT GET A FULL SCOPE OF ANSWERS FOR WHAT YOU'RE ALLEGING.
IT'S JUST NOT SOMETHING WE CAN PROMISE.
ALL RIGHT. OTHER POINTS ON CITY POLICY CAN BE APPLIED A ZERO TOLERANCE, WHICH MEANS ONE SINGLE VIOLATION OF THE POLICY CAN RESULT IN DISCIPLINE THAT'S CAN BE SOMETIMES DIFFERENT FROM THE ELEMENTS AT LAW, WHICH YOU'LL SEE.
BUT MANY AND MOST PUBLIC AGENCY EMPLOYER POLICIES ARE ZERO TOLERANCE.
AND THEN FINALLY, JUST DISTRIBUTION OF THE POLICY.
LIKE I SAID, JUST MAKE SURE YOU KNOW WHERE IT'S LOCATED AND CAN REVIEW IT.
ALL RIGHT. SO THAT'S THE LAWN THAT OVERVIEWS.
THAT'S LIKE THE MOST I'LL BE TALKING ABOUT THE LAW AGAIN.
YOU'RE NOT GOING TO BE TESTED ON TITLE SEVEN OR FIRE OR ANYTHING LIKE THAT.
SO WE'RE GOING TO START BY TALKING ABOUT THOSE PROTECTED CLASSIFICATIONS.
THAT'S WHAT WE'RE GOING TO BE FOCUSING ON.
I'LL TALK ABOUT BULLYING AND ABUSIVE CONDUCT IN A LATER SECTION.
ALL RIGHT, SO BEFORE I JUST GIVE YOU THE ANSWER ABOUT THIS, WHAT ARE PROTECTED CLASSIFICATIONS? I'M GOING TO POSE A VERY PHILOSOPHICAL SET OF QUESTIONS FOR YOU.
AND I DO WANT YOUR INPUT ON THIS IF YOU HAVE SOME.
SO WHAT IS UNLAWFUL HARASSMENT? AND THEN IS THERE SUCH THING AS LAWFUL HARASSMENT? OKAY. SO IF THERE IS UNLAWFUL HARASSMENT, COULD THERE BE SOMETHING THAT'S HARASSMENT BUT OKAY, UNDER THE LAW? ANY THOUGHTS OR IDEAS ON THIS? THERE'S NO RIGHT OR WRONG ANSWER.
IT'S LIKE I SAID, VERY PHILOSOPHICAL.
NO, THAT'S NOT QUITE WHAT THIS QUESTION IS ASKING.
BUT IF THEY OBVIOUSLY IF THEY EVENLY AND CONSISTENTLY HARASS PEOPLE, THEN THEY'RE NOT EVENLY AND CONSISTENTLY APPLYING A WORKPLACE POLICY OR A RULE.
BUT I DON'T THINK THAT'S WHAT IT SAYS.
YEAH. ANY OTHER THOUGHTS HERE? LIKE IT'S BASICALLY ASKING IT, COULD THERE BE CONDUCT THAT'S LAWFUL? THAT'S HARASSMENT OR THAT PEOPLE FEEL IS HARASSMENT.
THAT'S OKAY. I REALLY USED THIS ONE AS A WATER BREAK BECAUSE PEOPLE ARE THIS ONE'S HEART.
THE CONCEPT OR THE USE OF THE PHRASE HARASSMENT CAN SOMETIMES BE OVERBROAD OR OVERUSED IN A WAY THAT'S BROADER THAN THE WAY THE LAW INTENDS TO PROTECT EMPLOYEES.
SO THAT'S KIND OF WHAT THESE TWO QUESTIONS ARE GETTING AT.
SO THERE ARE SOME PEOPLE OR ACTUALLY MOST PEOPLE CAN USE THE WORD HARASSMENT AND USE IT IN A WAY THAT JUST MEANS I DON'T LIKE THE WAY I'VE BEEN TREATED OR DIDN'T LIKE SOMETHING OR SOMEONE DID SAID SOMETHING, AND I WASN'T REALLY OKAY WITH IT.
BUT IT DOESN'T MEAN THAT IN EVERY CONTEXT THAT FEELING RESULTS IN UNLAWFUL HARASSMENT.
OK SO TO ILLUSTRATE THIS POINT, I LIKE TO USE AN EXTREMELY SILLY EXAMPLE.
SO I DON'T KNOW ABOUT HERE BECAUSE, I MEAN, WE'RE CITY OF CARLSBAD, SO EVERYONE'S KIND OF LOCAL.
BUT AT MY LAW FIRM, WE HAVE DIFFERENT OFFICES ALL ACROSS CALIFORNIA.
AND SO YOU CAN IMAGINE THAT THERE'S A BIT OF RIVALRY WHEN IT COMES TIME FOR BASEBALL PLAYOFFS, BECAUSE WE HAVE AN LA OFFICE, WE HAVE A SAN DIEGO OFFICE, WE HAVE A SAN FRANCISCO OFFICE, AND THEN WE HAVE OFFICES WE DON'T CARE ABOUT IN TERMS OF BASEBALL LIKE FRESNO AND SACRAMENTO.
YOU'RE ALLOWED TO WEAR SPORTS APPAREL ON CERTAIN GAME DAYS AT YOUR DISCRETION.
NOW, IF TWO OF MY COLLEAGUES GOT IN A HEATED DEBATE, EITHER IN PERSON OR THROUGH THE EMAIL FOR EVERY SINGLE PERSON IN THE FIRM TO SEE, AND THEY STARTED CALLING EACH OTHER NAMES OR, YOU KNOW, IT GOT MAYBE A LITTLE BIT MORE PERSONAL THAN IT SHOULD HAVE.
[00:30:06]
I DIDN'T LIKE WHAT THEY HAD TO SAY ABOUT MY OUTFIT.YOU KNOW, MAYBE I'M WHATEVER I'M WEARING THAT DAY.
AND THAT COULD BE SOMETHING THAT THEY SAY I'M BEING HARASSED.
BUT IS THAT UNLAWFUL HARASSMENT? NO, BECAUSE WHAT IS IT MOSTLY BASED ON? FROM WHAT WE CAN TELL, AT LEAST.
SPORTS TEAMS IS SPORTS TEAMS ARE PROTECTED CLASSIFICATION UNDER THE LAW? NO, ABSOLUTELY NOT.
JUST LIKE MY NEIGHBOR'S DOG THAT BARKS AT ME EVERY TIME I WALK MY DOG.
THAT'S NOT. THAT'S HARASSMENT.
THAT'S, LIKE THE STRONGEST FORM OF HARASSMENT OUT THERE.
THAT'S WHAT THIS IS GETTING AT.
THERE ARE AS PEOPLE WHO ARE SUPERVISORS, MANAGERS, DEPARTMENT, HEAD ELECTED OFFICIALS AT A PUBLIC AGENCY, YOU'RE SOMETIMES GOING TO COME ACROSS SITUATIONS OR REPORTS WHERE SOMEONE'S GOING TO REPORT THAT THEY FEEL HARASSED.
BUT IS IT UNLAWFUL HARASSMENT OR HARASSMENT THAT VIOLATES ADMIN ORDER NUMBER 45? NOT ALWAYS. AND THAT'S SOMETHING THAT AN INVESTIGATION WOULD HAVE TO FIGURE OUT.
NOW, I'M NOT GOING TO DEFINE ALL OF THESE FOR YOU.
THERE ARE SOME OF THEM ARE VERY SELF EXPLANATORY, BUT I'M GOING TO PROVIDE YOU WITH FURTHER DETAILS ON SOME OF THE NEWER ONES OR LIKE THE MORE THE TRICKIER ONES.
SO I WILL COVER GENDER IDENTITY AND GENDER EXPRESSION ON THE NEXT SLIDE.
SO WE'RE GOING TO HOLD OFF ON THAT.
I WILL SAY THAT THE PROTECTED CLASSIFICATION OF RACE IN CALIFORNIA A FEW YEARS AGO WAS EXPANDED.
SO IT STILL MEANS RACE IN TERMS OF HOW THE LAW HAS BEEN DEFINING IT, HOW SOMEONE SELF-IDENTIFIES THEIR RACE OR, YOU KNOW, THAT'S HOW WE USE IT WHEN WE INVESTIGATE. BUT IT'S BEEN EXPANDED TO ALSO PROTECT HAIRSTYLES AND HAIR TEXTURES THAT ARE ASSOCIATED WITH AN INDIVIDUAL'S RACE OR CULTURE BASED ON A RACE.
I JUST WANT TO MENTION IT DOES NOT ONLY PROTECT RELIGIONS, BUT ALSO ANY SPIRITUAL OR PHILOSOPHICAL BELIEFS THAT SOMEONE MAY FOLLOW OR PRACTICE TO THE EXTENT SOMEONE ELSE PRACTICES A RELIGION.
ESSENTIALLY AN INDIVIDUAL WHO FILES A CLAIM OF DISCRIMINATION OR HARASSMENT, WHETHER THROUGH THE EEOC, THE CALIFORNIA CIVIL RIGHTS DEPARTMENT OR THE CITY'S INTERNAL POLICY, THEY ARE PROTECTED FROM BEING HARASSED, DISCRIMINATED OR RETALIATED AGAINST FOR MAKING THAT CLAIM.
MAKES ABSOLUTE SENSE, RIGHT? IF YOU FILE A CLAIM OF HARASSMENT, YOU SHOULDN'T BE TERMINATED THE NEXT DAY.
IT'S ACTUALLY KIND OF TWO DIFFERENT CONCEPTS.
A PROTECTED CLASS IF AN INDIVIDUAL ASSOCIATES WITH OTHER PEOPLE IN A PROTECTED CLASSIFICATION SO THEY THEMSELVES MIGHT NOT BE A MEMBER OF A SPECIFIC PROTECTED CLASS, BUT LET'S SAY THEIR FAMILY MEMBERS OR THEIR FRIENDS ARE MEMBERS OR PRACTICE A PARTICULAR RELIGION, EVEN IF THE EMPLOYEE THEMSELVES DOESN'T IDENTIFY OR DOESN'T PRACTICE THAT RELIGION, THEY CAN'T BE DISCRIMINATED OR HARASSED FOR BEING FRIENDS WITH, FOR BEING ASSOCIATED WITH, FOR BEING FAMILY MEMBERS, WITH PEOPLE OF THAT RELIGION, OR YOU CAN SAY OF THAT RACE OR, YOU KNOW, IN CALIFORNIA, WE HAD THERE WAS A STATE LAWSUIT ABOUT ASSOCIATION WITH A FAMILY MEMBER WITH A DISABILITY.
SO THAT'S KIND OF WHERE THAT PROTECTED CLASSES COME IN.
PERCEPTION REFERS TO AN INDIVIDUAL WHO'S PERCEIVED OR ASSUMED AS BEING A MEMBER OF A PROTECTED CLASSIFICATION AND THEN, LET'S SAY IS ON THE RECEIVING END OF HARASSMENT OR DISCRIMINATION BASED ON THAT PERCEPTION.
SO IN CALIFORNIA, THERE WAS A LAWSUIT FILED OVER AN INDIVIDUAL WHO HAD CLAIMS THAT HE WOULD COME TO WORK, AND EVERY DAY HIS COWORKERS WOULD TARGET HIM BY SAYING HOMOPHOBIC COMMENTS, YOU KNOW, GAY SLURS DIRECTED AT HIM.
[00:35:02]
NOW, WHEN HE FILED HIS LAWSUIT, HE PUT FORTH THE FACTS FROM THE TREATMENT HE HAD RECEIVED.BUT HE SAID, BUT I'M IN FACT, HETEROSEXUAL, SO I'M NOT GAY.
MY COWORKERS PERCEIVE ME AS BEING GAY AND THAT'S WHY THEY'RE TARGETING ME.
OR EVEN IF THEY DIDN'T, IT DOESN'T MATTER.
THIS CONDUCT IS STILL BASED ON SEXUAL ORIENTATION.
AND SO THAT'S WHAT HE BROUGHT HIS LAWSUIT UNDER.
NOW, THE VERY NEW CATEGORY IS REPRODUCTIVE HEALTH DECISION MAKING.
NEW AS IN IT BECAME A PROTECTED CLASS OF JANUARY 1ST OF THIS YEAR.
IT'S STILL KIND OF I'M STILL FIGURING OUT EXACTLY HOW THAT ONE WORKS.
BUT BASICALLY AN INDIVIDUAL CANNOT BE HARASSED, DISCRIMINATED OR RETALIATED AGAINST FOR THE ESSENTIALLY PERSONAL DECISIONS THEY'RE MAKING WITH THEIR HEALTH CARE IN TERMS OF REPRODUCTIVE MEDICAL CARE.
I THINK. I GUESS WE'RE STILL LEARNING MORE ABOUT THIS.
BUT THE IDEA IS AN EMPLOYEE WHO'S MAYBE UNDERGOING FERTILITY TREATMENTS OR MEDICAL TREATMENTS RELATED TO THAT CAN'T BE DISCRIMINATED OR HARASSED FOR UNDERGOING AND CHOOSING TO UNDERGO THOSE TREATMENTS.
OK. SO WE'LL GO BACK NOW TO GENDER IDENTITY AND EXPRESSION.
SO BEFORE WE COVER THE MUST AND THE MUST NOTS FOR EMPLOYERS, LET ME JUST SIMPLY DEFINE IT.
THE STATE OF CALIFORNIA USES A DEFINITION OF GENDER IDENTITY AND EXPRESSION AS A SELF DEFINITION.
SO HOW ONE SELF IDENTIFIES THEIR GENDER IDENTITY AND OR EXPRESSION.
EMPLOYERS MUST REFER TO EMPLOYEES USING THE EMPLOYEE'S PREFERRED NAME, GENDER AND PRONOUNS.
AND THAT'S NOT REALLY JUST EMPLOYERS, BUT ITS COWORKERS AS WELL.
EMPLOYERS MUST DESIGNATE SINGLE OCCUPANCY FACILITIES USING GENDER NEUTRAL SIGNAGE.
THERE'S ALSO BEEN UPDATES TO THE LIKE THE CODE THAT GOVERNS BUILDINGS, AND SO NEWER BUILDINGS OF A CERTAIN SIZE ALSO HAVE TO BUILD IN SINGLE OCCUPANCY FACILITIES FOR FOR RESTROOMS OR LOCKER ROOMS OR THINGS LIKE THAT.
SO ANYONE WHO WANTS, LET'S SAY PRIVACY CAN USE THEM AS WELL.
ALL RIGHT. THE MUST NOTS, THOUGH.
I MEAN, PRETTY MUCH ALL DRESS CODE POLICIES I SEE TODAY ARE WRITTEN IN A VERY GENDER NEUTRAL FORMAT.
EMPLOYERS MUST NOT DISCRIMINATE, DISCRIMINATE AGAINST AN APPLICANT FOR FAILING TO DESIGNATE A GENDER OR DESIGNATING A GENDER THAT'S INCONSISTENT WITH THEIR SEX ASSIGNED AT BIRTH. SO WHAT THAT MEANS IS THAT ANYONE HERE WHO'S REVIEWING APPLICATIONS FOR EMPLOYMENT OR FOR PROMOTION, IF AN APPLICANT DOESN'T DESIGNATE OR MARK A BOX FOR THEIR GENDER OR THEY DO, AND YOU'RE READING OTHER INFORMATION ON THE APPLICATION AND IN YOUR MIND YOU'RE JUST LIKE SOMETHING SEEMS INCONSISTENT.
WHAT DO YOU DO? NOT. NOT REALLY ANYTHING.
YOU JUST FORWARD AND PROCESS THAT APPLICATION JUST LIKE YOU WOULD ANY OTHER.
ALL RIGHT. AND THEN FINALLY, EMPLOYERS MUST NOT INQUIRE ABOUT OR REQUIRE DOCUMENTATION OR PROOF OF AN INDIVIDUAL'S SEX OR GENDER, ESPECIALLY BECAUSE WE USE SELF IDENTIFICATION AS OUR STATE'S DEFINITION OF THIS PROTECTED CLASS.
ALL RIGHT. WE'RE GOING TO COVER NOW THE THREE TOPICS.
DISCRIMINATION, HARASSMENT AND RETALIATION.
I DON'T KNOW. IS THIS CONSIDERED MATH? VENN DIAGRAMS, OVERLAPPING DIAGRAMS? SO THIS IS SIMPLY TO ILLUSTRATE THAT DISCRIMINATION, HARASSMENT AND RETALIATION ARE THREE SEPARATE CAUSES OF ACTION.
WHEN SOMEONE IS FILING A LAWSUIT, I'M GOING TO WALK YOU THROUGH THE ELEMENTS OF EACH, AND WHAT YOU'RE GOING TO NOTICE IS THAT THEY HAVE OVERLAPPING ELEMENTS, BUT THEY EACH HAVE SOMETHING THAT MAKES THEM DISTINCT.
[00:40:07]
THE COMPLAINT IN THIS PHRASE HAS BEEN DISPARATE TREATMENT, WHICH IS ACTUALLY MORE DISCRIMINATION.SO THIS IS WHAT I'M THINKING THROUGH.
I DON'T HAVE A FORMAL COMPLAINT, SHE WROTE.
SO I'VE ONLY GOTTEN INFORMATION THROUGH WORD OF MOUTH TO THE PERSON SHE VERBALLY REPORTED TO.
SO ONE IMPORTANT THING I'M GOING TO DO WHEN I MEET WITH HER ON THURSDAY IS ACTUALLY FIGURE OUT IS SHE ALLEGING DISCRIMINATION, HARASSMENT, BOTH SOMETHING ELSE RETALIATION.
AND SO KNOWING THE ELEMENTS AND THE DIFFERENCES IS REALLY KEY.
WE'RE GOING TO START WITH DISCRIMINATION.
SO IF WE WERE TO TAKE THE FEDERAL THE VARIOUS FEDERAL AND STATE LAWS PROHIBITING DISCRIMINATION IN THE WORKPLACE, KIND OF SUMMARIZE THEM OR BOIL THEM DOWN TO ONE SENTENCE, THIS THESE ARE KNOW, THIS IS WHAT THE ELEMENT IS.
DISCRIMINATION IS AN ADVERSE EMPLOYMENT ACTION TAKEN BASED ON A PROTECTED CLASSIFICATION.
SO YOU GUYS ALREADY KNOW WHAT PROTECTED CLASSIFICATIONS ARE.
THE KEY THING HERE IS WHAT IS AN ADVERSE EMPLOYMENT ACTION? WELL, IT'S AN ACTION, AS IT SAYS HERE, TAKEN WITHIN THE COURSE AND SCOPE OF EMPLOYMENT.
THERE ARE A COUPLE OF EMPLOYMENT ACTIONS THAT ARE VERY LIKE BLACK AND WHITE ADVERSE IF THEY OCCUR.
BUT ACTUALLY IF I GOT HIRED, THAT WOULD NOT BE ADVERSE AT ALL.
SO REALLY THE ADVERSE VERSION OF THAT WOULD BE NOT HIRING A CANDIDATE OR NOT HIRING AN APPLICANT.
FIRING OR TERMINATION DEMOTION.
NOW, THERE'S A COUPLE OF GRAY AREAS AS WELL THAT I'VE SEEN RAISED ALL THE TIME.
THAT'S NOT GOING TO BE AN ADVERSE EMPLOYMENT ACTION.
THAT'S GOING TO HELP ME GET THE PROMOTION I WANT.
BUT IF I WAS REASSIGNED JOB DUTIES AND I FELT ISOLATED FROM MY TEAM, I FELT HINDERED IN MY ABILITY TO MAKE DEADLINES BECAUSE NOW LET'S SAY I'M AT A DIFFERENT LOCATION TWO DAYS A WEEK OR FOR SOME REASON WITH MY DUTIES, I'M NOT INCLUDED ON TEAM MEETING INVITES.
THERE'S A LOT THAT GETS TACKED ON TO THAT MAKES THAT REASSIGNMENT AND ADVERSE EMPLOYMENT ACTION.
THE LIGHTEST GRAY COLOR I'VE SEEN IS AN EMPLOYEE WHO CLAIMED THAT THEIR ADVERSE EMPLOYMENT ACTION THAT THEY EXPERIENCED WAS A CHANGE IN THEIR DESK LOCATION.
I SAID, OKAY, TELL ME WHAT HAPPENED.
IS IT IN THE SAME BUILDING? YES. IS IT IN THE SAME ROOM? YES. IS IT STILL NEAR THE SAME COWORKERS? YES. BUT THEY'RE LIKE, BUT NOW I'M IN THE CORNER AND IT'S JUST LESS SOCIAL OVER THERE.
SO YOU SEE IT CAN GET STRETCHED FAR.
IS THAT AN ADVERSE EMPLOYMENT ACTION? MAYBE NOT TO AN INVESTIGATOR, MAYBE NOT TO SOMEONE LIKE ME, BUT YOU HAVE TO GET THE FULL SORT OF CONTEXT OF EVERYTHING.
SO THE SECOND CAUSE OF ACTION WE'RE COVERING IS UNLAWFUL HARASSMENT.
THAT IS ONE OF THE BIGGEST DIFFERENCES BETWEEN HARASSMENT AND DISCRIMINATION.
SO WHAT THIS MEANS IS THAT IT'S NOT SOMEBODY'S JOB TO HARASS EMPLOYEES OR VOLUNTEERS OR INTERNS.
NOBODY AT THE CITY OF CARLSBAD HAS A JOB DESCRIPTION THAT SAYS COME TO WORK AND MAKE STATEMENTS THAT YOU FEEL WILL PUSH PEOPLE TO BE OFFENDED BASED ON THEIR PROTECTED CLASSIFICATION.
RIGHT. IT'S NEVER PART OF SOMEBODY'S JOB.
DISCRIMINATION, THOUGH YOU'LL REMEMBER IT INVOLVES AN ADVERSE EMPLOYMENT ACTION.
IT ACTUALLY IS SOMEBODY'S JOB, A SUPERVISOR, A MANAGER OR A DEPARTMENT HEAD TO DECIDE WHO DO WE HIRE FOR A POSITION? WHEN DO WE INITIATE DISCIPLINE? WHO DO WE PROMOTE? YOU KNOW, HOW DO WE JUDGE PERFORMANCE EVALUATION? WHO GETS A PROMOTION? WHO GETS A PAY INCREASE AND WHO DOESN'T? THAT'S ACTUALLY SOMEBODIES JOB.
SO THAT IS NOT PART OF HARASSMENT, THOUGH.
SO HARASSMENT, THE ELEMENTS, THE VERY SORT OF GENERAL ELEMENTS.
BEFORE WE DIVE DEEP IN THE NEXT SECTION.
[00:45:08]
CLASSIFICATION. SO IT'S CONDUCT THAT IS UNWELCOME AND BASED ON A PROTECTED CLASS.IT ALSO INCLUDES OTHER GROUPS AS WELL.
ALL RIGHT. AND THEN THE THIRD CAUSE OF ACTION IS RETALIATION.
RETALIATION INVOLVES PROTECTED ACTIVITY.
PROTECTED ACTIVITY UNDER THE LAW.
THERE'S NUMEROUS, LAWS THAT KIND OF TACK ON THAT IF SOMEBODY.
FOR PURPOSES OF THIS TRAINING, I LISTED A FEW MORE COMMON ONES WE SEE MADE IN EMPLOYEE CLAIMS. I MENTIONED THAT IF SOMEBODY FILES A REPORT OF DISCRIMINATION OR HARASSMENT, THEY CAN'T BE RETALIATED FOR MAKING THAT REPORT.
IF SOMEBODY IS PARTICIPATING IN AN INVESTIGATION, WHETHER AS A WITNESS OR THE COMPLAINANT OR EVEN THE SUBJECT OF THE ALLEGATIONS, THEY CAN'T BE RETALIATED FOR PARTICIPATION AND COOPERATION IN THAT INVESTIGATION.
IF SOMEBODY REFUSES TO FOLLOW AN ORDER THAT THEY REASONABLY BELIEVE TO BE DISCRIMINATORY.
THEY COULD POTENTIALLY BE PUT IN A PROTECTED CLASSIFICATION OR PROTECTED ACTIVITY CATEGORY AND COULD NOT FACE RETALIATION FOR REFUSING TO FOLLOW THAT ORDER. I ACTUALLY HATE THAT EXAMPLE.
THEY NEED TO FOLLOW THAT PROCESS.
I WOULD HATE FOR SOMEONE TO JUST SIT BACK AND SEE IF THEY GET RETALIATED AGAINST.
NOW WE HAVE AN INDIVIDUAL WHO ENGAGES IN A PROTECTED ACTIVITY.
AND THEY FEEL OR THEY CAN PROVE THAT THERE'S A CAUSAL CONNECTION BETWEEN THE TWO.
THAT'S WHAT CONSTITUTES THE ELEMENTS OF RETALIATION.
NOW, CAUSAL CONNECTION, THE MOST POPULAR EVIDENCE WITH CAUSAL CONNECTION IS TIMING.
THAT'S WHERE ALL THE EVIDENCE AND DISCOVERY KIND OF COMES IN.
ALL RIGHT. WE'RE GOING TO TRY OUR FIRST CASE STUDY TOGETHER.
ALL RIGHT. SO I'M GOING TO READ IT AND THEN I'LL GET YOUR TAKE ON THE QUESTIONS THAT FOLLOW.
SO JODI FILES A SEXUAL HARASSMENT CLAIM AGAINST HER COWORKER, DAWN.
WHILE THE AGENCY INVESTIGATES JODI'S ALLEGATIONS.
DAWN IS UPSET ABOUT THE COMPLAINT AND TELLS THE OTHER EMPLOYEES IN THE DEPARTMENT THAT JODI IS A NO GOOD LIAR AND TELLS THEIR SUPERVISOR THAT SHE HAS A POOR WORK ETHIC RESULTING IN JODY'S DEMOTION TO A LOWER POSITION.
NOW, HAS JODY BEEN SUBJECTED TO UNLAWFUL RETALIATION? WHAT ARE YOUR THOUGHTS ON THAT? I'M GOING TO INSTITUTE.
MY SECOND, LIKE MY PLAN B OF PARTICIPANT PARTICIPATION.
SO THIS IS SIMPLY TO ME, YOU KNOW, WE'RE NOT WE'RE KIND OF IT'S VOTING.
IT'S YOUR WAY OF VOTING, KIND OF TO SEE HOW THE ROOM FEELS ABOUT THIS.
SO HAS JODI BEEN SUBJECTED TO UNLAWFUL RETALIATION? OKAY, GOOD. SO THIS IS JUST GETTING IN THE FEEL.
YEAH. SO WHEN WE WALK THROUGH THE ELEMENTS, PROTECTED ACTIVITY, WHAT ARE WE SPOTTING HERE? HERE? HAS I MEAN, DOES SHE HAVE ANY PROTECTED ACTIVITY? SIMPLE AS THAT. EXACTLY.
ALL RIGHT. DID SHE EXPERIENCE AN ADVERSE EMPLOYMENT ACTION? YEAH. DEMOTION TO A LOWER POSITION.
DO WE HAVE ANY? A FEELING OR INFORMATION THAT THERE COULD BE A CASUAL CONNECTION BETWEEN THE TWO.
YEAH, POTENTIALLY RIGHT BECAUSE WHEN THE WORLD IS DONE BEEN DOING RIGHT.
THE KEY THING THAT I'M SPOTTING IS IT'S NOT JUST THAT HE'S TELLING.
[00:50:01]
I MEAN, PART OF IT IS HE'S TELLING OTHER EMPLOYEES THAT SHE'S A NO GOOD LIAR.BUT REALLY THE KEY THING IS WITH THE SUPERVISOR, RIGHT? TELLS THE SUPERVISOR SHE HAS A POOR WORK ETHIC.
AND THEN OUR CASE STUDY USES THE WORD RESULTING.
RESULTING IS LIKE I MEAN, HOW MUCH MORE OF A CAUSAL CONNECTION CAN YOU GET THERE? ALL RIGHT. THE SECOND QUESTION, THOUGH, IS WHAT IF DON INSTEAD IGNORES JODI AT WORK FOLLOWING THE HARASSMENT COMPLAINT AND LEAVES THE ROOM WHEN SHE COMES IN BECAUSE HE DOES NOT WANT HER TO ACCUSE HIM OF ANYTHING ELSE? SO HE'S NOT SAYING THE PHRASE IS NO GOOD.
WE'RE GOING TO COUNT THAT OUT.
BUT LET'S SAY SHE STILL GETS DEMOTED.
OK IS BEING TREATED DIFFERENTLY.
HOSTILE WORK ENVIRONMENT. YOU KNOW, FOR THE ELEMENTS OF A HOSTILE WORK ENVIRONMENT.
I'M NOT SURE IF THAT WILL BE MET HERE, BUT SHE CERTAINLY HAS FILED A SEXUAL HARASSMENT CLAIMS. SO THAT NEEDS TO BE INVESTIGATED ON ITS OWN.
BUT IN TERMS OF LIKE WOULD SHE FEEL OR HAVE A CLAIM FOR RETALIATION WITH THAT SECOND QUESTION, JUST I GUESS, RAISE YOUR HAND IF YOU'RE LIKE A LITTLE BIT FURTHER ON THE SPECTRUM MOVING TOWARDS.
AND I SAY MOVING ON THE SPECTRUM, MEANING LIKE YOU'RE NOT HERE TO COMMIT TO LIKE, YES OR NO.
BUT THE IDEA WITH THAT SECOND QUESTION IS WE'RE CHANGING THE FACTS.
AND I THINK IT MAKES A LITTLE BIT MORE QUESTIONABLE OR BLURRY.
WHETHER THERE IS THAT CAUSAL CONNECTION, COULD THERE BE? YOU COULD DON LEAVING THE ROOM AND IGNORING HER LEAD TO HER DEMOTION.
OKAY. SO, I MEAN, WE DON'T KNOW.
LET'S YOU KNOW, AN INVESTIGATION NEEDS TO BE DONE TO FIND OUT, REALLY.
SO WE WALKED THROUGH THE ELEMENTS OF DISCRIMINATION, HARASSMENT AND RETALIATION.
THE IDEA ABOUT THESE SIMPLE SORT OF TIPS AND STEPS IS TO MAKE SURE THAT ANYONE WHO IS A SUPERVISOR KNOWS OF WHAT THEIR DUTY IS AS A SUPERVISOR AND DOESN'T TAKE A BAD SITUATION AND MAKE IT WORSE.
SO FIRST OF ALL, THE IDEA BEHIND THIS IS THAT IF YOU BECOME AWARE OF AN EMPLOYEE THAT YOU WORK WITH SAYING THAT THEY WANT TO FILE A REPORT THAT YOU'VE BEEN HARASSING THEM OR YOUR DISCRIMINATED AGAINST THEM OR RETALIATING AGAINST THEM, YOU NEED TO KNOW THAT IT'S IMPORTANT TO REFER THE ACCUSER OR I SAY COMPLAINANT TO A SUPERIOR HR OR UPPER MANAGEMENT.
IT'S ABOUT SAYING, I HEAR WHAT YOU'RE TELLING ME, BUT WHAT'S REALLY IMPORTANT IS THAT YOU FOLLOW OUR COMPLAINT PROCEDURE WITHIN THE CITY AND YOU GO TO HR OR YOU GO TO THE MANAGER, AND THAT'S WHO YOU SHOULD BE REPORTING THIS TO.
OR FOLLOWING ADMIN ORDER NUMBER 45.
THIS IS MY WHOLE CONCEPT OF NOT TAKING A BAD SITUATION AND MAKING IT WORSE, NOT TACKING ON ANY POTENTIAL LIABILITY THAT YOU IGNORED IT AND THAT YOU DIDN'T FOLLOW YOUR LEGAL DUTY TO REPORT CERTAINLY REFRAINED FROM ANY ACTION THAT COULD BE INTERPRETED AS RETALIATION FOR THAT PERSON WHO FILED THE REPORT.
YOU CAN SEEK CONSTRUCTIVE COUNSELING FROM HR AND UPPER MANAGEMENT.
WHAT I'VE SEEN THAT LOOK LIKE IS THE SUBJECT OF ALLEGATIONS ASKING HR FOR CAN YOU PLEASE JUST INFORM ME OF WHAT THE INVESTIGATION PROCESS IS LIKE, WHAT THE TIMELINE IS, YOU KNOW, WHAT ARE MY RIGHTS? DO I HAVE A RIGHT TO A REPRESENTATIVE? YOU CAN SEEK THAT COUNSELING, CERTAINLY COOPERATE IN THE INVESTIGATION AND THEN FOLLOW THE CITY'S ADMIN ORDER.
NOW, I HANDLED I WAS AN OUTSIDE INVESTIGATOR FOR A BIG AGENCY WHO HAD THEIR VERY OWN DEPARTMENT FOR INVESTIGATING CLAIMS OF DISCRIMINATION, HARASSMENT AND RETALIATION INTERNALLY, LIKE IT WAS SEPARATE FROM H.R.
LIKE, THAT'S WHAT THAT DEPARTMENT DID.
AND WITHIN THAT DEPARTMENT, THERE WAS AN EMPLOYEE WHO FILED THE DISCRIMINATION COMPLAINT FORM A HANDWRITTEN FORM, AND SHE DROPPED THAT FORM OFF IN HER SUPERVISOR'S INBOX OR EVEN AN INBOX.
AND IT WAS LIKE A PHYSICAL MAILBOX, AN OLD FASHIONED MAILBOX IN A MAIL ROOM.
AND HER SUPERVISOR SAW THAT GOT THE COMPLAINT.
[00:55:02]
THE ORIGINAL HER SUPERVISOR DID NOT RIP IT UP AND HIDE IT.HER SUPERVISOR DID THE EXACT RIGHT THING, WHICH WAS TO MAKE SURE SHE TOOK THAT COMPLAINT.
SHE TOOK IT TO THE NEXT LEVEL UP THE DEPARTMENT HEAD, AND THEN THEY WENT TO THE CITY ATTORNEY TO FIGURE OUT WHAT TO DO WITH THAT COMPLAINT BECAUSE THEY WERE THE DEPARTMENT CHARGED WITH INVESTIGATING THESE COMPLAINTS.
SO IT'S JUST A REALLY SIMPLE, YOU KNOW, STORY, REAL LIFE STORY OF MAKING SURE TO REPORT THAT ACCUSATION. ALL RIGHT.
SO WE'RE GOING TO NOW FOCUS ON THE DIFFERENT TYPES OF UNLAWFUL HARASSMENT.
IT'S GOING TO GET FUN NOW, RIGHT? ALL RIGHT. SO THERE ARE.
I CAN MENTION TO TWO MAIN SORT OF CATEGORIES OF HARASSMENT PROTECTED UNDER THE LAW.
THE SECOND IS HOSTILE WORK ENVIRONMENT.
WE'RE GOING TO START BY FOCUSING ON QUID PRO QUO.
SO HERE I HEAR IT'S PHRASED AS ECONOMIC, BUT DOES ANYONE HERE KNOW WHAT QUID PRO QUO TRANSLATES INTO FROM LATIN INTO ENGLISH? PERFECT. YEAH. THIS FOR THAT OK.
AND NOW YOU'LL REMEMBER THAT FOREVER.
FOREVER WHEN YOU GO TO THESE TRAININGS.
SLEEP WITH ME AND I'LL MAKE SURE YOU GET THAT PROMOTION.
YOU GIVE ME THIS, I WILL GIVE YOU THAT.
IT IS ALSO HARASSMENT THAT IS PROHIBITED BASED ON SEX.
SO YOU DON'T HAVE QUID PRO QUO HARASSMENT RELATED TO OTHER PROTECTED CATEGORIES.
IT'S ONLY BEEN MORE I MEAN, HOSTILE WORK ENVIRONMENT HAS BEEN AROUND A LONG TIME, BUT THERE HAS BEEN REALLY BIG CHANGES TO THE HOSTILE WORK ENVIRONMENT LANDSCAPE REALLY WITHIN THE LAST TEN YEARS.
THAT SHOULDN'T HAPPEN IN THE WORKPLACE AND YOU'LL SEE WHY WE'LL GO THROUGH THE ELEMENTS NOW.
SO QUID PRO QUO INVOLVES A JOB BENEFIT THAT'S PROMISED.
THE PROMISE IS EITHER EXPLICIT OR IMPLICIT, LIKE IMPLIED IN EXCHANGE FOR A SEXUAL FAVOR OR DENIED OF SEXUAL FAVORS ARE NOT GIVEN. SO THIS WAS I MEAN, BASED ON MY HIGHLY TECHNICAL RESEARCH, READING NEWSPAPER ARTICLES, THESE WERE THE ALLEGATIONS MADE AGAINST HARVEY WEINSTEIN, KIND OF LIKE AN INFORMAL WORKPLACE SETTING WHERE HE WOULD OR ONE OF HIS STAFF MEMBERS WOULD OFFER TENDED TO BE A YOUNGER FEMALE LIKE ACTRESS OR SOMEONE IN HOLLYWOOD, MAKE AN OFFER FOR THEM TO MEET HIM IN HIS HOTEL ROOM OR HAVE A PRIVATE MEETING WITH HIM.
IN EXCHANGE FOR NOW, YOU GET TO BE IN CONTACT WITH HARVEY WEINSTEIN.
HE'S GOING TO CONNECT YOU TO THE RIGHT PEOPLE IN HOLLYWOOD.
YOU MAY HAVE A ROLE IN HIS NEXT MOVIE OR HE'LL INTRODUCE YOU TO FURTHER PEOPLE IN HOLLYWOOD.
AND THEN YOU GO THROUGH I MEAN, HE WENT THROUGH AN ENTIRE CRIMINAL CHARGING PHASE AND A TRIAL.
ALL RIGHT. SO I THINK WE HAVE A CASE STUDY.
I'M GOING TO READ IT AND THEN I'LL ASK YOU WHAT YOU THINK.
SO SONIA IS THE FINANCE MANAGER AND OVERSEAS ACCOUNTANT, LEO, AMONG OTHERS AT THE AGENCY.
SOME PEOPLE LIKE OVERTIME AT ONE TIME.
[01:00:06]
IRRITATED BY THE FLIRTING, LEO CONFRONTS SONIA AND TELLS HER TO STOP.SO WHAT DO YOU THINK? IS SONIA LIABLE FOR QUID PRO QUO HERE? GOOD. IT'S NOT MEANT TO BE TRICKY AT ALL.
AND I THINK EVEN IF SHE DOESN'T EXPRESSLY REQUEST A SEXUAL FAVOR OR TO GET BACK INTO A DATING RELATIONSHIP WITH HIM BY THE CONTEXT, I THINK WE AS IF WE WERE JURY PEOPLE WOULD KNOW WHAT THE IMPLICIT PROMISE THERE IS OR I'LL GOOD OK.
WE'LL TRY ANOTHER ONE. THEY'LL GET A TWIST ON THE ELEMENTS OF QUID PRO QUO.
NOW, HAS JILL ENGAGED IN QUID PRO QUO SEXUAL HARASSMENT? YEAH. SO QUID PRO QUO.
IS IT BELIEVABLE OR REASONABLE THAT SHE WOULD BE GIVING A JOB? LIKE A JOB BENEFIT PROMISE OR THE PROMOTION WE'RE FEELING.
SO CERTAINLY WE I MEAN THERE'S NOT ENOUGH WITH THIS TWO SENTENCES OK OR.
YEAH, I MEAN, I KNOW HERE WE GOT SOME ELECTED OFFICIALS IN THE ROOM.
YOU KNOW WHAT? IF YOU KNOW, WE'RE FAMILY, FRIENDS WITH JILL, YOU KNOW, SO YOU JUST NEVER KNOW.
RIGHT. BUT BASED ON THIS ALONE, WHAT WE KNOW.
NOT REALLY BELIEVABLE THAT I MEAN, SHE JUST DOESN'T HAVE THE AUTHORITY.
AND ONE OF THE KEY THINGS WITH QUID PRO QUO IS THAT THE JOB BENEFIT AND THAT PROMISE EITHER EXPLICITLY OR IMPLICITLY, IT DOES ACTUALLY HAVE TO BE A PROMISE IF JACK TRULY BELIEVES THAT SHE CAN GET HIM THE PROMOTION, IF SHE'S IF HE SLEEPS WITH HER, OKAY, THEN MAYBE WE HAVE A BIGGER ISSUE HERE.
BUT ON THIS SURFACE LEVEL, LIKE NO, HE SHOULD NOT REASONABLY BELIEVE THAT TO BE TRUE.
KEY THING, THOUGH, IS THAT THIS QUESTION IS ASKING, IS THERE A QUID PRO QUO? IT'S NOT ASKING IF THERE'S HOSTILE WORK ENVIRONMENT.
YOUR ANSWER MAY BE DIFFERENT, IF THAT WAS THE QUESTION.
SO PROGRAM ANALYST MARY, IF I FIND SEXUALLY OFFENSIVE LANGUAGE ON THE WALL IN THE UNISEX RESTROOM AT THE OFFICE, MARY IS IMMEDIATELY OFFENDED AND COMPLAINS TO HER SUPERVISOR.
IS THIS QUID PRO QUO? NO. WHAT ELEMENT IS MISSING OR ELEMENTS ARE MISSING? NOTHING'S BEING PROMISED.
EXACTLY. NO JOB BENEFIT PROMISED.
YEAH. I MEAN, IT'S JUST A LARGELY CONFUSING SITUATION BECAUSE IT'S ALSO JUST NOT SURE.
CONTACT ME AND I'LL GIVE YOU A RECOMMENDATION FOR PROMOTION.
OKAY. LET'S JUST SAY IT STILL WOULD BE VERY STRANGE BECAUSE IT'S LIKE, WHO'S MAKING THE PROMISE? WHO'S THE TARGET? HOW IS THERE AN EXCHANGE IF WE DON'T EVEN HAVE PARTIES QUITE INVOLVED? SO THERE'S A LOT THERE. OKAY.
AND THEN IF NOT, COULD THIS STILL CONSTITUTE UNLAWFUL HARASSMENT IN THE WORKPLACE? POTENTIALLY. WE NEED TO LOOK INTO IT.
SHE FILED A COMPLAINT, WHICH IS GOOD.
SHE FILED POLICY. PROBABLY SHE WAS OFFENDED.
SO LET'S LOOK INTO IT FURTHER.
NOW WE'RE GOING TO TALK ABOUT HOSTILE WORK ENVIRONMENT NOW, WHICH HAS SEVERAL MORE ELEMENTS TO IT.
SO HOSTILE WORK ENVIRONMENT CAN BE BASED ON ANY PROTECTED CLASSIFICATION.
IT'S NOT LIMITED TO SEXUAL HARASSMENT.
HOSTILE WORK ENVIRONMENT INVOLVES A PROTECTED CLASSIFICATION.
THE CONDUCT IS OBJECTIVELY AND SUBJECTIVELY OFFENSIVE OR UNWELCOME.
WE PAUSE AND TALK ABOUT THAT BECAUSE THAT'S ACTUALLY TWO DIFFERENT ELEMENTS.
IT HAS TO BE SUBJECTIVELY OFFENSIVE AND OBJECTIVELY OBJECTIVE OFFENSIVENESS.
[01:05:06]
WE WOULD PLACE OURSELVES INTO THE SHOES OF THE REASONABLE PERSON WITH THEIR SAME PROTECTED CLASS, SO THEIR SAME AGE, THEIR SAME DISABILITY, THEIR SAME RACE. WE WOULD ASK, WOULD THAT REASONABLE PERSON FIND THE CONDUCT TO BE OFFENSIVE OR UNWELCOME? SO THIS IS A STANDARD SET IN THE LAW TO, AS YOU CAN IMAGINE, AVOID LIABILITY OR PROVIDE A DEFENSE FOR CONDUCT.IF SOMEBODY IS MAYBE JUST THIS IS NOT DON'T QUOTE ME ON THIS IS NOT A LEGAL WORD.
IT'S KIND OF MEANT TO RULE OUT THOSE SORTS OF CLAIMS. SO I WORKED WITH A LOCAL CITY AND THEY HAD AN EMPLOYEE WHO REGULARLY FILED CLAIMS OF HARASSMENT THROUGH THEIR INTERNAL POLICY.
AND THE CITY ALWAYS TOOK THOSE COMPLAINTS, NEVER IGNORED THEM.
BUT IT GOT TO A POINT WHERE THEY WOULD INTAKE THEM AND KIND OF DO THEIR OWN INVESTIGATION.
BUT THE COMPLAINTS WERE OVER THINGS LIKE.
AND THAT WAS IT. THERE WAS NOTHING FURTHER.
SOMEBODY PARKED TOO CLOSE TO MY VEHICLE AT CITY HALL, AND THAT WAS IT.
POTENTIALLY, THOUGH, IN ASSESSING RISK.
AT THE END OF THE DAY, IT'S ABOUT WOULD THAT BE OBJECTIVELY OFFENSIVE? PROBABLY MOST PEOPLE WOULD THINK NO.
SUBJECTIVELY OFFENSIVE IS A SEPARATE STANDARD.
WE DO PUT OURSELVES BACK INTO THE SHOES OF THE PERSON WHO WAS THE TARGET OF THE CONDUCT, AND WE ASK, WERE THEY IN FACT OFFENDED OR DID THEY FIND THAT CONDUCT UNWELCOME? NOW, IT MAKES SENSE THAT IF SOMEBODY FILES A CLAIM OF HARASSMENT THAT THEY FOUND THAT CONDUCT TO BE UNWELCOME.
THAT'S WHY THEY'RE FILING THE COMPLAINT MOST LIKELY.
BUT OF COURSE, WE HAVE I MEAN, WE HAVE ALL SORTS OF TRAININGS ABOUT BYSTANDER REPORTS OR REPORTING SUPERVISORS, THE LEGAL DUTY TO REPORT IF YOU WITNESSED SOMETHING IN THE WORKPLACE THAT YOU THINK COULD BE HARASSMENT.
SO THERE ARE SOME MAYBE RARE SITUATIONS WHERE THE PERSON WHO IS THE ACTUAL TARGET OF THE CONDUCT MAY COME INTO AN INVESTIGATION AND THEIR POINT OF VIEW OR THEIR POSITION IS, YEAH, THAT CONDUCT HAPPENED, BUT I WASN'T OFFENDED BY IT.
LIKE IT'S JUST PERHAPS PART OF THE COMMON THING I HEAR IS IT'S AN ONGOING INSIDE JOKE.
OK WASN'T MEANT TO OFFEND ANYONE LIKE I WAS IN ON IT.
AND THEN PERHAPS, MAYBE YOU'RE NOT MEETING THAT ELEMENT OF SUBJECTIVELY OFFENSIVE.
OKAY. NOW, THE NEXT SET OF ELEMENTS IS THAT THE CONDUCT IS SEVERE OR PERVASIVE.
SEVERE MEANING THAT ONE SINGLE INCIDENT, MAYBE IT WAS SO BAD, EVEN IF IT WAS ONE TIME IT WAS OFFENSIVE, OBJECTIVELY AND SUBJECTIVELY, VERSUS A PERVASIVENESS LIKE ELEMENT IS CONDUCT THAT MAY BE IF IT HAPPENS ONCE MOST PEOPLE OR EVEN THE PERSON WHO EXPERIENCED IT WOULDN'T FIND IT TO BE OFFENSIVE.
BUT IT'S OVER TIME, THE PATTERN OR REPETITIVENESS OF IT, THAT'S WHAT MAKES IT OFFENSIVE SO PERVASIVE IS LIKE, I DON'T KNOW IF WE HAVE A CASE D ON THIS LATER, BUT IF TWO COWORKERS OR IF A SUPERVISOR AND A SUBORDINATE WORK TOGETHER AND THE SUPERVISOR ASKS THE SUBORDINATE OUT ON A DATE.
ALL RIGHT. I'LL COVER THAT A LITTLE BIT MORE IN THE NEXT SLIDE AS WELL.
THE LAST ELEMENT IS THAT THE CONDUCT HAS TO UNREASONABLY INTERFERE WITH WORK.
IT HAS TO HAVE SOME WORKPLACE IMPACT.
WHAT THIS ALSO MEANS IS THAT CONDUCT THAT HAPPENS OFF DUTY OR OUTSIDE OF WORK HOURS OR OUTSIDE OF CITY FACILITIES CAN STILL UNREASONABLY INTERFERE WITH WORK.
SO IF A GROUP OF COWORKERS GOES OUT FOR A HAPPY HOUR AFTER WORK OR HAS A WEEKEND BARBEQUE TOGETHER AT A COWORKER'S HOUSE, IF SOMETHING HAPPENS THAT COWORKER, A COWORKER OR A GROUP FEELS WAS HARASSMENT OR WAS JUST INAPPROPRIATE AND IT NOW COMES BACK TO WORK.
SO IN 2019, WE HAD SOME BIG CHANGES TO THIS LAW.
[01:10:05]
SO THE HOSTILE WORK ENVIRONMENT LAW UNDER FIRE.AND REALLY WHAT IT DID WAS WHAT THE LEGISLATURE DID WAS IT TOOK THE ELEMENTS THAT I JUST WENT OVER AND IT SAID THAT IT WAS PROVIDING CLARIFICATIONS. THE MAJORITY OF THESE WERE VERY SPECIFIC INTENTIONS BASED ON THE WAY LAWSUITS WERE TURNING OUT IN CALIFORNIA.
AND THE LEGISLATURE SAID, NO, WE WANT TO GO A DIFFERENT DIRECTION.
SO THAT LAST ELEMENT THAT THE CONDUCT HAS TO UNREASONABLY INTERFERE WITH WORK SOMETIMES.
JUDGES AND JURIES WOULD KIND OF LOOK FOR INFORMATION ABOUT HOW DID THIS EMPLOYEE WHO EXPERIENCED HARASSMENT, HOW DID THEY SUFFER IN THEIR PERFORMANCE? WERE THEY MISSING DEADLINES? WERE THEY NOT AS PRODUCTIVE? BECAUSE THAT WOULD SHOW AN IMPACT OR AN INTERFERENCE WITH WORK.
BUT YOU WOULD HAVE PLAINTIFFS THAT WOULD SAY, MY PERFORMANCE HAS STILL BEEN STELLAR.
I'VE STILL BEEN ABLE TO PERFORM WELL.
BUT THERE CERTAINLY ARE OTHER WAYS THAT MY JOB HAS BEEN IMPACTED.
THE BIG ONE THAT I EXPRESSED WAS I'M NOW FEARFUL EVERY DAY I COME TO WORK, STILL GET MY JOB DONE, BUT IT SEEMS INCREDIBLY STRESSFUL FOR ME TO COME TO WORK EVERY DAY AND WORK WITH THAT COLLEAGUE. SO THAT WAS THE FIRST CHANGE.
SO WE HAVE THAT SEVERE OR PERVASIVE ELEMENT.
BUT THE SEVERE STANDARD JUDGES WERE HOLDING THAT TO A VERY HIGH THRESHOLD THAT REALLY THEY JUST WOULD TYPICALLY KICK OUT A CASE TO DISMISS IT IF CONDUCT ONLY HAPPENED ONE TIME, EVEN IF THE PLAINTIFF PUT FORTH ALL THE EVIDENCE THEY COULD ABOUT THAT INCIDENT BEING SO EGREGIOUS THAT ONE TIME WAS ENOUGH.
A LOT OF JUDGES WERE VERY HESITANT TO SAY ONE SINGLE ACT OF CONDUCT.
COULD THAT BE A HOSTILE WORK ENVIRONMENT? A LOT OF JUDGES ARE SAYING NO.
SO OUR CALIFORNIA LEGISLATURE PUT A CLARIFICATION AND SAID THAT'S NOT THE WAY WE'RE GOING WITH THIS.
A SINGLE INCIDENT OF HARASSING CONDUCT CAN ABSOLUTELY BE SUFFICIENT.
THAT'S NOT A REASON TO DISMISS THE LAWSUIT.
THIS CHANGE CAME FROM A LAWSUIT INVOLVING GOOGLE UP IN SILICON VALLEY.
THEY HAD AN I WANT TO SAY HE WAS AN ENGINEER, BUT NOW I'M NOT POSITIVE THAT WAS HIS TITLE.
HIS LAST NAME IS READ MAYBE TO BE AN ENGINEER, BUT TO REALLY KIND OF BE INVOLVED WITH THE OPERATIONS AT GOOGLE'S HEADQUARTERS IN SILICON VALLEY, HE SHOWED UP TO WORK. HE NOTICED A LOT OF HIS COLLEAGUES WERE MUCH YOUNGER THAN HIM.
I BELIEVE THERE WAS A QUOTE WHERE SOMEONE CALLED HIM AN OLD FUDDY DUDDY, SOMETHING LIKE THAT.
IT WASN'T NECESSARILY JUST ABOUT HARASSMENT, BUT IT ALSO TIED IN DISCRIMINATION.
AND THE THING THAT THE COURT WAS FOCUSING ON IN THE FACTS THAT HE PLED OR THE INFORMATION HE PROVIDED WAS THAT ALL OF THE REMARKS ABOUT HIS AGE HE ATTRIBUTED AS COMING FROM COLLEAGUES, NOT SUPERVISORS, NOT THE PEOPLE WHO ULTIMATELY LET HIM GO FROM HIS EMPLOYMENT.
STRAY REMARKS BY NON DECISION MAKER COLLEAGUES WAS ONE OF THE FOCUSES ON THAT.
WE WANT TO BE CLEAR THAT WHEN WE ASSESS HOSTILE WORK ENVIRONMENT, WE'RE LOOKING AT ALL OF THAT.
THEN FINALLY, STANDARDS DO NOT VARY BY WORKPLACE.
OK. THERE IS NO EXCEPTION FOR THE CITY OF CARLSBAD POLICE DEPARTMENT TO PUSH THE BOUNDARIES WITH HARASSMENT AND DISCRIMINATION MORE THAN THE DEPARTMENT OF HUMAN RESOURCES. THE STANDARDS AND THE LAW APPLY EVENLY.
AND THEN FINALLY, THAT THE THESE LAWSUITS ARE GOING TO BE RARELY DETERMINABLE ON PAPER ALONE.
[01:15:03]
PAPER REFERS TO THE BORING THINGS THAT ATTORNEYS WRITE, MOTIONS AND PLEADINGS AND JUDGES READ, AND JUDGES DECIDE WHETHER TO DISMISS A LAWSUIT OR NOT.SO THE LEGISLATURE WANTS A BIT MORE OF A LENIENT STANDARD FOR LAWSUITS TO MOVE FORWARD.
ALL RIGHT. SO WE COVERED QUID PRO QUO AND HOSTILE WORK ENVIRONMENT.
WITH HOSTILE WORK ENVIRONMENT.
I'M GOING TO JUST GO OVER SOME EXAMPLES OF EACH.
SO PHYSICAL CONDUCT THAT COULD LEAD TO A HOSTILE WORK ENVIRONMENT, CLAIM OR LIABILITY.
CRIMINAL CONDUCT. VERY OBVIOUS EXAMPLES, NOT JUST IN THE HOSTILE WORK ENVIRONMENT REALM, BUT CAN BE CRIMES AS WELL RAPE, SEXUAL ASSAULT, TOUCHING AND GROPING, ALSO PHYSICAL INTIMIDATION, WHICH I'VE NOT EXPERIENCED.
A HALLWAY THAT EMPLOYEES REGULARLY WANT TO WALK DOWN AND ARE NOW FEARFUL FOR DOING.
AND THEN WE HAVE SOME LESS OBVIOUS EXAMPLES OF AS WELL, MASSAGES AND HUGS.
SO YOU'LL SEE THIS VERY BLURRY GRAPHIC.
IT'S VERY BLURRY BECAUSE IT WAS FROM THE EARLY 2000S.
DOES ANYONE RECOGNIZE THE OTHER INDIVIDUAL IN THE PHOTO? PERFECT. YEAH. ANGELA MERKEL, I BELIEVE, FORMER NOW FORMER GERMAN CHANCELLOR.
SO WHAT IS HAPPENING IN THIS IMAGE IS THAT THEY BOTH ATTENDED AN INTERNATIONAL ECONOMIC SUMMIT.
DURING ONE OF THE BREAKS OUR PRESIDENT WENT UP AND KIND OF GAVE.
HER. I GUESS I'D CALL IT LIKE A SHOULDER RUB.
THAT WAS HER PHYSICAL REACTION.
HE IMMEDIATELY NOTICED HER REACTION AND JUST, LIKE, WALKED AWAY FROM THE SITUATION.
SO WHAT THIS REALLY ILLUSTRATES, THOUGH, IS THAT.
WOULD SOME PEOPLE BE COMFORTABLE WITH MASSAGES IN THE WORKPLACE? MAYBE WITH SOME PEOPLE NOT BE COMFORTABLE WITH MASSAGES IN THE WORKPLACE? ABSOLUTELY. I THINK IF I DID LIKE A SURVEY OF CITY EMPLOYEES, I DON'T THINK WE'D GET 100% SAYING YES MASSAGES.
LET'S ADD THAT AS A NONTAXABLE BENEFIT FOR EMPLOYEES LIKE, NO, I DON'T THINK WE'RE GOING THAT FAR.
HUG SAYS, WELL, OK SILLY TO BE TALKING ABOUT HUGS, RIGHT? IT'S NOT MY GOAL TO DO THESE TRAININGS AND THEN TELL PEOPLE DO NOT HUG PEOPLE AT WORK.
BUT WE DO COVER THESE BECAUSE ESPECIALLY WITH THE HUGS.
THERE WAS A LAWSUIT AGAINST AN ELECTED COUNTY SHERIFF WHERE A SUBORDINATE FEMALE EMPLOYEE ALLEGED THAT THE ELECTED SHERIFF WHO IS IDENTIFIED AS MALE.
ENGAGED IN HOSTILE WORK ENVIRONMENT BY HUGGING HER AND HER OTHER FEMALE COLLEAGUES MORE OFTEN THAN HE WOULD MALE COLLEAGUES, AND THAT SHE FOUND THOSE HUGS TO BE UNWELCOME AND TRIED TO VOICE THAT TO HIM.
SO REAL LAWSUIT THERE WAS ABOUT THE FACTS THAT ABOUT 100 HUGS THAT OCCURRED IN THE SPAN OF TEN YEARS, A LONG PERIOD OF TIME. THAT LAWSUIT SETTLED.
BUT AGAIN, I'M NOT SAYING DON'T HUG PEOPLE.
YOU CAN HUG PEOPLE. JUST KNOW THE CONTEXT.
WE'RE GOING TO DO A CASE STUDY ON VERBAL CONDUCT RELATED TO HOSTILE WORK ENVIRONMENT.
RICK AND JOHN REFUSED TO REFER TO GEORGETTE BY HER NAME OR FEMALE PRONOUNS AND STILL CALL HER GEORGE AND FREQUENTLY ASK HIM WHY HE USES THE WOMEN'S RESTROOM AND WEAR SKIRTS.
NOW, HAVE RICK AND JOHN CREATED A HOSTILE WORK ENVIRONMENT? YEAH. ARE WE GOING TO DO AN INVESTIGATION INTO THIS AS A CITY? YES. YEAH.
WHEN WE COVER GENDER IDENTITY, GENDER EXPRESSION, THE MUST AND THE MUST NOTS.
THAT WAS PRETTY PRETTY CLEAR EXAMPLE.
[01:20:04]
COMMON CONDUCT ALLEGED IN THE COMPLAINTS.SO LOTS OF DIFFERENT TYPES OF CONDUCT.
ALL RIGHT. I'M GOING TO GIVE YOU AN EXAMPLE OF A CASE STUDY OF VISUAL CONDUCT.
DID YOU JUST WANT TO PREFACE THIS ONE BY SAYING THIS IS A MORE SERIOUS CASE STUDY HITTING ON SOME MORE SERIOUS TOPICS? SO RON DRIVES TO WORK AND FINDS A NOOSE HANGING IN HIS OFFICE'S DOORWAY WITH HIS COWORKERS AND SUPERVISOR IN THE HALLWAY LOOKING AT IT AND DOING NOTHING.
AS AN AFRICAN AMERICAN, RON IS EXTREMELY OFFENDED AND ALSO EMBARRASSED IN FRONT OF HIS COWORKERS.
NOW, HAS RON BEEN SUBJECTED TO A HOSTILE WORK ENVIRONMENT? YEAH. SO WALKING THROUGH THE ELEMENTS, HOSTILE WORK ENVIRONMENT, WE HAVE A THIS IS AN EXAMPLE OF VISUAL CONDUCT.
OKAY. DO WE SEE A CONNECTION TO PROTECTED CLASSIFICATION? SO WE KNOW HE RON IS AFRICAN AMERICAN.
THIS WAS ON HIS OFFICES DOORWAY.
NOW. IT SAYS RON IS EXTREMELY OFFENDED.
THE OTHER ELEMENT THAT WOULD NEED TO BE MET IS OBJECTIVELY OFFENSIVENESS.
I DO BELIEVE THAT IF YOU PUT THIS BEFORE A JURY, THEY WOULD FIND IT TO BE OBJECTIVELY OFFENSIVE.
SO WE'RE CERTAINLY MEETING THE ELEMENTS HERE NOW, UNREASONABLY INTERFERED WITH WORK.
DO YOU SEE ANY WAYS THAT WHAT'S GOING ON HERE IS IMPACTING THEIR WORK DAY? YEAH. OKAY. THAT'S OUR VOTING IS.
YEAH. I MEAN, IT SAYS RON IS OFFENDED.
BEING EMBARRASSED IS A WAY WE CAN CERTAINLY TIE IT INTO INTERFERENCE WITH THE WORKPLACE.
THEY'RE ALSO LIKE THEY'RE LOOKING AT IT AND DOING NOTHING, WHICH WE'LL TALK ABOUT THAT.
BUT ALSO JUST IT'S CAUSING A DISRUPTION, RIGHTFULLY SO.
BUT A SUPERVISOR SHOULD ALSO MAKE SURE THEY'RE FULFILLING THEIR SEPARATE LEGAL OBLIGATION TO REPORT.
JUST SOME EXAMPLES OF VISUAL CONDUCT THAT COULD LEAD TO A HOSTILE WORK ENVIRONMENT CLAIM.
MAYBE THIS IS POSTERS, CALENDARS AND MAGAZINES WITH THE IMPLICATION THAT THE THE THE VISUALS WITH THOSE THINGS ARE MAYBE NEGATIVELY ATTRIBUTING A PROTECTED CLASSIFICATION.
ANYONE CAN HAVE A CALENDAR OF FLOWERS, THAT'S FINE, BUT OTHER CONTENT AS WELL.
NOW THE BOTTOM SAYS SEXUAL CONDUCT SLASH AFFECTION BETWEEN OTHER EMPLOYEES AT WORK.
THE IDEA BEHIND THAT ONE IS IF YOU DO HAVE TWO EMPLOYEES AT THE SAME AGENCY WHO ARE IN A CONSENSUAL DATING RELATIONSHIP, WHICH. IS MAYBE OKAY, BUT THERE MIGHT BE OTHER POLICIES PROHIBITING THAT.
OTHER EMPLOYEES AT WORK MAY FEEL THAT THEY'RE BEING OR EXPERIENCING HARASSMENT IF THEY SEE THOSE CONSENSUALLY DATING EMPLOYEES, BASICALLY DOING PUBLIC DISPLAYS OF AFFECTION, OR IF ONE IS A SUPERVISOR MAYBE SHOWING FAVORITISM TO THE OTHER.
SO IT WAS JUST SOME LIKE WEIRD, ROUNDABOUT WAY TO FILE A HOSTILE WORK ENVIRONMENT CLAIM.
I MENTIONED PRIVATE AND CONSENSUAL RELATIONSHIPS.
[01:25:02]
CLAIM, THAT'S WHAT HAPPENS SOMETIMES WHEN WE ARE LOOKING AT AN INVESTIGATION INTO CLAIMS OF HARASSMENT.WHEN WE FIND OUT THAT TWO PEOPLE WERE LIKE LEO AND HIS SONIA, HIS SUPERVISOR, WHERE THEY HAD A PREVIOUS DATING RELATIONSHIP, THAT AUTOMATICALLY MAKES THINGS MORE DIFFICULT AND NOT BECAUSE SIMPLY THE NATURE OF THE RELATIONSHIP, BUT IT'S LIKE, AT WHAT POINT DO PEOPLE BREAK UP? AND IF ONE PERSON IS STILL PURSUING ANOTHER IN THE WORKPLACE OR INTERFERING WITH WORK, THAT'S WHAT'S GOING TO BRING IT INTO LIKE THE CITY'S POLICY BEING COVERED, BEING COVERING IT, TALKED ABOUT OFF DUTY CONDUCT, KIND OF GAVE YOU THAT DESCRIPTION OF INVITATIONS TO LUNCH DRINKS OR DINNER IF THEY ARE REFUSED AND THEN REPEATED, COULD LEAD TO A HOSTILE WORK ENVIRONMENT CLAIM.
SO CONSENSUAL RELATIONSHIPS BUT WARNING NOT FOR LONG IF THEY BREAK UP.
GOTCHA. NO. YEAH. NO, THAT'S NOT CLEAR.
AND THEN FINALLY, WE TALKED ABOUT, LIKE, HUGS AND KISSING, NOT KISSING, HUGS AND MASSAGES AND OTHER CASUAL TOUCHING OF BODY PARTS MAY NOT BE APPROPRIATE IF PEOPLE ARE UNCOMFORTABLE IN THE CONTEXT.
OKAY. SO THAT WAS A LOT OF DETAIL, RIGHT ON QUID PRO QUO AND HOSTILE WORK ENVIRONMENT.
WE'RE NOT GOING TO TALK ABOUT BULLYING AND ABUSIVE CONDUCT, WHICH IS DIFFERENT FROM HARASSMENT.
BUT WHEN THE LEGISLATURE ADDED ON HARASSMENT PREVENTION TRAINING FOR ALL LEVELS OF EMPLOYEES, THEY SAID, YOU KNOW WHAT? PEOPLE ALSO NEED TO BE TRAINED ON WHAT IS ABUSIVE CONDUCT.
WE'RE GOING TO COVER THAT NOW.
YOU KNOW, I JUST SAID THAT WHAT IS ABUSIVE CONDUCT? ALL RIGHT. SO THE WAY THAT THE GOVERNMENT CODE.
DEFINES ABUSIVE CONDUCT IS AS FOLLOWS.
SO IT'S CONDUCT IN THE WORKPLACE WITH MALICE OR WITH THE INTENT TO HARM THAT A REASONABLE PERSON WOULD FIND HOSTILE, OFFENSIVE AND UNRELATED TO AN EMPLOYER'S LEGITIMATE BUSINESS INTERESTS.
NOW THE GOVERNMENT CODE GIVES THESE EXAMPLES, SO IT INCLUDES VERBAL ABUSE, DEROGATORY REMARKS OR INSULTS, THREATENING, INTIMIDATING, HUMILIATING, PHYSICAL OR VISUAL VERBAL CONDUCT OR UNDERMINING A PERSON'S WORK PERFORMANCE.
THOSE WERE THE EXAMPLES OUR STATE LEGISLATURE CAME UP WITH.
MANY AGENCIES ALSO HAVE THEIR OWN POLICIES PREVENTING BULLYING IN THE WORKPLACE, OR EVEN JUST IT CAN BE FOUND IN, LET'S SAY, A DISCIPLINARY POLICY PROHIBITING DISCOURTEOUS TREATMENT OF COLLEAGUES OR MEMBERS OF THE PUBLIC.
IT ALSO COULD BE TACKED ON TO AREAS SUCH AS LIKE A CODE OF ETHICS OR CODE OF PROFESSIONALISM.
THAT'S ALSO WHERE WE GET ADDITIONAL DEFINITIONS OF HOW WE CAN PREVENT OR WHAT IS ABUSIVE CONDUCT.
OK BUT I MENTIONED THAT THERE IS A DIFFERENCE BETWEEN ABUSIVE CONDUCT AND HARASSMENT.
SO BOTH UNLAWFUL HARASSMENT AND BULLYING CONSIST OF OFFENSIVE CONDUCT THAT IS EITHER PERVASIVE OR SEVERE AND THUS GOES BEYOND MERE INCIVILITY IN CIVILITY. SO WHAT'S THE DIFFERENCE? WHAT'S THE KEY DIFFERENCE BETWEEN THE TWO? OKAY, SO WE'RE GETTING HARD HERE.
YEAH. PROTECTED CLASSIFICATION.
PROTECTED CLASSIFICATION IS A VERY KEY ELEMENT TO UNLAWFUL HARASSMENT.
AND THEN YOU GET THESE TRAININGS AND YOU GET SOMEBODY WHO SAYS, WELL, WHAT IF MY SUPERVISOR IS MEAN TO EVERYBODY, REGARDLESS OF WHAT THEIR PROTECTED CLASSIFICATION IS, THEY'RE JUST RUDE.
PERHAPS NOW YOU'RE TALKING ABOUT DO WE HAVE A BULLY IN THE WORKPLACE? IS THAT ABUSIVE CONDUCT? BECAUSE THE CONDUCT, THE ELEMENTS OF ABUSIVE CONDUCT ARE NOT BASED ON OR ARISING FROM OR RELATED TO A PROTECTED CLASS? SO THIS HAS BIG IMPLICATIONS, THAT DIFFERENCE.
THE BIG THING IS THAT UNLAWFUL HARASSMENT IS TIED.
IT'S BASED ONTO A PROTECTED CLASS.
IT IS UNLAWFUL IN THE WORKPLACE.
WE HAVE LAWS. WE HAVE FIRE PROHIBITING IT.
BUT BULLYING IS NOT NECESSARILY DIRECTED AT MEMBERSHIP IN A PROTECTED CLASS.
AND THEN HERE'S THE KEY THING.
BUT THEY'VE NEVER BEEN ABLE TO PASS A LAW.
[01:30:05]
A BIG REASON WAS THAT IT'S SO HARD TO DEFINE IT, TO DEFINE IT FOR A CAUSE OF ACTION IN A LAWSUIT.SO INSTEAD, THE LEGISLATURE SAID, OKAY, IF WE'RE NOT ABLE TO PASS AN ANTI BULLYING LAW, WE'RE GOING TO STILL DEFINE IT THE BEST THAT WE CAN AND MAKE SURE THAT PEOPLE ARE TRAINED ABOUT IT AND THAT IT WOULD BE GREAT IF EMPLOYERS WOULD TAKE IT ON THEIR OWN INITIATIVE TO HAVE POLICIES REQUIRING PROFESSIONALISM AND PROHIBITING BULLYING ON A POLICY BASIS.
IT'S NOT UNLAWFUL IN THE WORKPLACE.
ALL RIGHT. SO THAT'S BULLYING AND ABUSIVE CONDUCT.
NOT GOING TO COVER THE DUTIES OF A SUPERVISOR.
SO LIKE I MENTIONED AT THE BEGINNING, SO WITH THE TOPIC OF HARASSMENT, SPECIFICALLY HARASSMENT, BUT ALSO DISCRIMINATION AND RETALIATION, ANYBODY WHO IS A SUPERVISOR OR IN THE ROLE OF A SUPERVISOR HAS THIS SEPARATE LEGAL OBLIGATION TO REPORT WHEN THEY KNOW OR SHOULD KNOW OF HARASSMENT IN THE WORKPLACE.
NOW, THE LAW FOR IHOP DEFINES SUPERVISOR MUCH MORE BROADLY THAN ANY PUBLIC AGENCY WOULD.
I'VE DONE MANY GRIEVANCES OVER OUT OF CLASS WORK WHERE AGENCIES ARE PINNING THE DEFINITION OF A SUPERVISOR ON, YOU KNOW, DO YOU EVALUATE PERFORMANCE, DO YOU DECIDE WHO TO DISCIPLINE AND SPECIFIC ELEMENTS LIKE THAT? THAT'S NOT WHAT CALIFORNIA LAW DOES.
IT SIMPLY DEFINES A SUPERVISOR AS ANYONE WHO HAS RESPONSIBILITY OR DISCRETION TO LEAD OTHERS.
IT DOESN'T HAVE TO BE SOMEONE WITH THE OFFICIAL TITLE OF SUPERVISOR.
NOW A SUPERVISOR'S DUTY IS AS FOLLOWS.
THIS IS JUST PULLED STRAIGHT FROM THE GOVERNMENT CODE.
HARASSMENT SHALL BE UNLAWFUL IF THE ENTITY OR ITS AGENTS OR SUPERVISORS KNOWS OR SHOULD HAVE KNOWN OF THIS CONDUCT AND FAILS TO TAKE IMMEDIATE AND APPROPRIATE CORRECTIVE ACTION.
A CLAIM OR AN OBSERVATION OF HARASSMENT OR DISCRIMINATION UP THE CHAIN.
ALL RIGHT, SO LET'S DO A CASE STUDY WITH A SUPERVISOR IN IN A SITUATION.
SO MARGARET SUPERVISES A TEAM OF FIVE EMPLOYEES, FOUR OF WHOM ARE MALE AND ONE OF WHOM IS FEMALE.
THE FEMALE COLLEAGUE WAS NOT IN THE OFFICE AND DID NOT OVERHEAR THE DISCUSSION.
NOW, DOES MARGARET HAVE AN OBLIGATION TO TAKE ACTION EVEN THOUGH THE FEMALE EMPLOYEE WAS NOT THERE TO OVERHEAR THE DISCUSSION? YEAH. AND I THINK IF MARGARET EVER WENT UP TO ANY OF YOU AND ASKED, SHOULD I REPORT THIS, YOU SHOULD ALWAYS LEAN MORE TOWARDS.
YES. I MEAN, WE COULD EVEN CHANGE THE FACTS.
AND IF SHE SAYS, SHOULD I REPORT THIS, YOU SAY, YEAH, YOU SHOULD JUST REPORT IT.
LET'S MAKE SURE YOU'RE COVERING YOUR LEGAL DUTY.
GOOD. THIS CASE IS TRYING TO LIKE ADD A LITTLE BIT OF A.
IT WOULD ACTUALLY BE SUFFICIENT IF I MEAN, IF MARGARET HEARS IT, SHE NOW HAS OBSERVED IT.
SHE CAN REPORT IT ON BEHALF OF THE FEMALE COLLEAGUE IF IT EVER GOT BACK TO THE FEMALE COLLEAGUE.
SO THAT'S JUST NOT AN ESSENTIAL ELEMENT OF HOSTILE WORK ENVIRONMENT.
THIS MEANS FORWARDING THE COMPLAINTS, AND THIS ALSO MEANS FORWARDING THIRD PARTY COMPLAINTS.
SO IF A MEMBER OF THE PUBLIC MAKES A CLAIM TO A SUPERVISOR THAT AN EMPLOYEE HAS HARASSED THEM BASED ON THEIR PROTECTED CLASSIFICATION, THAT COMPLAINT SHOULD ALSO BE BROUGHT UP.
THROUGH THE COMPLAINT PROCEDURE.
IT INCLUDES VERBAL COMPLAINTS AS WELL.
WE WENT OVER HOW COMPLAINTS DO NOT NEED TO BE WRITTEN DOWN.
IT IS NICE IF THEY ARE, BUT IT'S NOT NECESSARY.
[01:35:03]
THEN FINALLY, RUMORS.THIS IS PROBABLY AND THIS IS TRICKY FOR SUPERVISORS.
WHEN IS SOMETHING JUST A RUMOR VERSUS WHEN SHOULD I ACTUALLY REPORT IT? WELL. TO BE VERY CAUTIOUS AND MAKE SURE YOU ARE FULFILLING YOUR DUTY CERTAINLY DOESN'T HURT TO REPORT RUMORS OR TO ASK SOMEONE ELSE.
CAN YOU TELL ME WHAT YOU KNOW ABOUT THIS RUMOR AND THEN MAKING A DECISION TO REPORT IT? BIT OF A TRICKY SITUATION.
ALL RIGHT. REMEMBER THAT THE WORD HARASSMENT NEED NOT BE USED TO TRIGGER YOUR DUTY TO ACT.
WHEN I INTERVIEW A COMPLAINANT ON THURSDAY, SHE HAS NEVER USED THE WORD HARASSMENT.
SHE HAS NEVER USED THE WORD DISCRIMINATION.
ALL SHE DID WAS TELL A STORY OF WHAT HAPPENED TO HER.
AND THAT'S ENOUGH TO STILL INITIATE THE INVESTIGATION.
ALL RIGHT. KEY THINGS LIKE THE NUMBER ONE THING NOT TO DO IS DON'T IGNORE THE RESPONSE.
DON'T IGNORE THE DUTY TO REPORT.
MAKE SURE YOU'RE TAKING ACTION IMMEDIATELY.
I KNOW EVERYONE'S BUSY, BUT THIS IS AN AREA THAT REQUIRES PRIORITY.
OFTENTIMES, THE SUPERVISOR WILL BE BROUGHT IN FOR THE INVESTIGATION TO REALLY JUST LEARN ABOUT MAYBE THE CONTEXT OF THE SITUATION, WHAT THEY KNOW ABOUT THE TEAM OF EMPLOYEES WORKING TOGETHER.
SUPERVISORS HAVE A DUTY TO PREVENT FURTHER HARASSMENT OR REPORT FURTHER HARASSMENT.
WITH THE PREVENTION PIECE, AIR CAN SERVE AS A GREAT GUIDE ON WHAT CAN BE DONE IN THE INTERIM, WHILE AN INVESTIGATION IS PENDING TO PREVENT FURTHER HARASSMENT AND THEN ASSURE NO RETALIATION THAT SOMEONE WON'T BE RETALIATED FOR.
IT'S VERY COMMON THAT WHEN WE ISSUE NOTICES OF INVESTIGATION INTERVIEWS, WE INCLUDE A PARAGRAPH THAT ASSURES BASICALLY NO RETALIATION OR CITES CITY POLICY ON ANTI RETALIATION.
ALL RIGHT. AND THEN WRAPPING THINGS UP.
SO WHAT CAN THE CITY DO? OK BIG PICTURE SORT OF THINGS ABOUT RISK AND LIABILITY AND CONSEQUENCES WHEN THERE IS LIABILITY.
SO THE CITY, AFTER DOING AN INVESTIGATION, WHEN THERE IS A SUSTAINED FINDING OF THE CONDUCT.
THEY MAKE A DECISION, WAS THERE A POLICY VIOLATED? WAS ADMIN ORDER NUMBER 45 VIOLATED? IF SO, IT'S WITHIN THE CITY'S OF 30.
AUTHORITY TO ENACT APPROPRIATE CORRECTIVE ACTION.
SO CORRECTIVE ACTION IS EVERYTHING FROM THAT INVESTIGATION TO KEEPING THAT VICTIM INFORMED.
AND THEN DISCIPLINE BEING A VERY KEY PART WHEN THERE ARE SUSTAINED FINDINGS.
THE CITY ALSO IN ITS EFFORTS IS REQUIRED TO DO PREVENTATIVE TRAINING, THIS STATE MANDATED ONE AND THEN PUBLISH AND UPDATE THE CITY'S POLICY. ALL AGENCIES HAVE BEEN UPDATING POLICIES LATELY BECAUSE OF THOSE CHANGES IN LAW THAT I'VE BEEN MENTIONING.
OPTION NUMBER ONE IS TO FOLLOW THE CITY'S ADMIN ORDER THE COMPLAINT PROCEDURE.
THERE ARE ALSO OPTIONS TO FILE A REPORT WITH THE EEOC OR THE CALIFORNIA CIVIL RIGHTS DEPARTMENT.
BOTH OF THESE AGENCIES MAKE THEIR COMPLAINT PROCEDURE AVAILABLE ELECTRONICALLY.
THERE ARE ALSO TECHNICALLY REGIONAL OFFICES.
IF PEOPLE DON'T WANT TO REPORT IT ELECTRONICALLY BUT WANT TO GO TO THE OFFICE NOW.
BOTH OF THESE AGENCIES, THE EEOC AND THE DEPARTMENT OF CIVIL RIGHTS, ARE KIND OF THE GATEWAY FOR SOMEBODY WHO WANTS TO FILE A LAWSUIT IN FEDERAL OR STATE COURT. THEY HAVE TO FIRST REPORT TO THE EEOC OR THE CIVIL RIGHTS DEPARTMENT AND GET WHAT'S KNOWN AS A RIGHT TO SUE LETTER THAT WILL LET THEM THAT WILL ALLOW THEM TO INITIATE LITIGATION.
THERE ARE PROS AND CONS TO EACH OF THESE OPTIONS.
CITY'S HARASSMENT POLICY HAS A COMPLAINT PROCEDURE AND HAS A PROCEDURE FOR AN INVESTIGATION.
BUT THEY DON'T ALWAYS DO THEIR OWN INVESTIGATION BEFORE THEY ISSUE A RIGHT TO SUE LETTER.
SO THERE ARE THE OPTIONS DO KIND OF LEAD TO DIFFERENT PATHWAYS.
[01:40:07]
IN HARASSMENT OR DISCRIMINATION OR RETALIATION, THE EMPLOYER, MEANING THE AGENCY, THE CITY IS LIABLE FOR THE CONDUCT OF SUPERVISORS WHO HAVE ENGAGED IN THAT UNLAWFUL HARASSMENT, DISCRIMINATION OR RETALIATION.THAT'S WHAT'S GOING TO TRIGGER AGENCY LIABILITY.
WHAT DOES ESSENTIALLY MEANS IF YOU HAVE AN EMPLOYER WHO ISN'T DOING THE PREVENTATIVE TRAINING OR DOESN'T HAVE A HARASSMENT PREVENTION POLICY OR WHO ISN'T DOING INVESTIGATIONS WHEN THEY GET THE COMPLAINT.
THAT'S WHERE ADDITIONAL LIABILITY CAN TACK ON.
ALL RIGHT. AND THEN THIS IS THE SLIDE THAT EMPLOYEES, LIKE NON SUPERVISORS WHO ATTEND MY TRAINING, ARE EVEN MORE INTERESTED IN PERSONAL LIABILITY BECAUSE WE ALL WANT TO KNOW, LET'S NOT BE THE ONE WHO'S NAMED AS A DEFENDANT IN ANYTHING.
PERSONAL LIABILITY CAN BE TRIGGERED WITH HARASSMENT LAWSUITS.
WHEN THOSE LAWSUITS HAPPEN, THOSE INDIVIDUAL EMPLOYEES CAN SOMETIMES BE ON THEIR OWN.
THEY NEED TO GET THEIR OWN PERSONAL ATTORNEY.
PERSONAL LIABILITY CAN ATTACH.
NOW SUPERVISORS CAN ALSO BE PERSONALLY LIABLE FOR CONDONING UNLAWFUL HARASSMENT OR FAILING TO ACT IN RESPONSE TO UNLAWFUL HARASSMENT COMPLAINTS.
SO THIS IS WHY WE REALLY KEY ON KEY IN ON THE SUPERVISORS DUTY TO REPORT.
THIS IS WHY WE TALK ABOUT WHEN THAT WHEN I COVERED THAT SLIDE WHAT TO DO IF YOU ARE ACCUSED.
IT'S ABOUT NOT MAKING A BAD SITUATION WORSE.
ALWAYS MAKING SURE SUPERVISORS FULFILL THAT DUTY TO REPORT A COMPLAINT.
SO BACK PAY, IF SOMEBODY IS NO LONGER WORKING FOR THE AGENCY OR HAS NOT HAD EMPLOYMENT AS A RESULT OF SEPARATION, EMOTIONAL DISTRESS DAMAGES AND THEN PUNITIVE DAMAGES, PUNITIVE DAMAGES CAN BE AWARDED WITH INDIVIDUAL LIABILITY AND THE EMOTIONAL DISTRESS AND PUNITIVE DAMAGES AMOUNTS.
LIKE WHEN YOU SEE HEADLINES OF LAWSUITS AND JURY TRIALS.
THAT'S WHERE MOST OF THE MONEY FROM THE AWARD COMES FROM.
ALL RIGHT. JUST SIMPLE PREVENTION.
REPORT ALL COMPLAINTS IMMEDIATELY.
TAKE ALL COMPLAINTS SERIOUSLY.
EVEN IF SOMEBODY IS ALLEGING SOMEBODY MOVE THEIR COFFEE CUP.
MONITOR THE WORKPLACE, FOLLOW THE CITY'S ADMIN ORDER, AND THEN BE A GOOD ROLE MODEL.
ALL RIGHT. THIS IS THE ULTIMATE GOAL, A WORKPLACE WITH COURTESY, SENSITIVITY AND RESPECT.
ALL RIGHT, THERE IS MY CONTACT INFO.
NOW, WE'RE A LITTLE BIT EARLY.
AND THIS IS A TWO HOUR TRAINING.
SO I'M GOING TO JUST COVER SOME THINGS BEFORE I LET YOU GO.
IF YOU HAVE AN EMERGENCY, THOUGH, LET ME KNOW.
FIRST OF ALL, IF YOU HAVE ANY QUESTIONS, FEEL FREE TO ASK THEM NOW.
I DO WANT TO LET YOU KNOW I'LL ALSO BE UP HERE AFTERWARDS.
AGAIN, IF YOU WANT TO ASK QUESTIONS, THEN.
SECOND, YOU ALL HAVE A COPY OF YOUR YOUR FORM OK.
NOW'S A GOOD TIME TO MAKE SURE YOU HAVE IT COMPLETED.
THAT IS A VERY KEY PIECE FOR THE CITY TO MAINTAIN RECORD THAT YOU ATTENDED TODAY.
SO WITH THAT SAID, DOES ANYONE HAVE ANY QUESTIONS? YES. HMM.
[01:45:02]
YES. YES.SO I WISHED I HAD IT MEMORIZED ALL THE TIME.
I FEEL LIKE IT WAS AB 500 AND SOMETHING.
THE RECENT BILL THAT PASSED ON IT.
I WOULD LOOK THAT UP. I THINK I WANT TO SAY IT'S LIKE 523 OR 532.
BUT THAT BILL IS WHAT REALLY INTRODUCED THAT LANGUAGE FOR THE FIRST TIME.
AND IT'S A PROTECTED CLASS FOR BOTH HARASSMENT AND DISCRIMINATION.
AND IT AGAIN, I'M STILL TRYING TO GET AN IDEA OF LIKE HOW IT'S GOING TO BE INTERPRETED OR PLAYED OUT IN REAL LIFE ONCE WE MAYBE SEE CLAIMS OR SEE PRACTICAL APPLICATION OF IT.
BUT I DO RECOGNIZE A LOT OF POLICIES ALSO HAVE A CATCH.
ALL. ALL PROTECTED CLASSIFICATIONS PROTECTED UNDER THE LAW, WHICH WOULDN'T NECESSARILY NEED AN EXACT UPDATE THIS YEAR IF YOU JUST KNOW THAT THIS IS A NEW PROTECTED CLASS. YEAH, IT'S AN INTERESTING IT'S AN INTERESTING ONE THAT IS A LITTLE BIT LIKE GENETIC INFORMATION.
IT'S NOT TYPICALLY SOMETHING THAT EMPLOYEES ARE ASKED ABOUT WHEN THEY APPLY.
ALL RIGHT. ANY OTHER QUESTIONS? OK, CAN YOU PLEASE? I'M DOING MY CHECK IN.
AND PLEASE RAISE YOUR HAND IF YOU LEARNED AT LEAST ONE NEW THING TODAY.
SO I THINK I MEAN, WE ARE PRETTY GOOD.
I AM HERE. IF YOU HAVE ANY QUESTIONS, PLEASE FILL OUT THAT FORM.
OTHERWISE, I'M LETTING YOU OUT ON A TIMELY BASIS.
BUT I'LL STILL BE HERE FOR THE FULL 2 HOURS.
THANK YOU, EVERYONE.
* This transcript was compiled from uncorrected Closed Captioning.