Mar 04, 2025 City Council Special Meeting

[CALL TO ORDER]

[00:00:02]

I'M CALLING THE MEETING TO ORDER. PLEASE TAKE ROLL. COUNCIL MEMBER SHIN.

PRESENT. COUNCIL MEMBER BURKHOLDER. PRESENT. COUNCIL MEMBER ACOSTA.

PRESENT. MAYOR PRO TEM BHAT-PATEL. HERE. MAYOR BLACKBURN. PRESENT.

ALL FIVE COUNCIL MEMBER S ARE PRESENT. CITY ATTORNEY, WILL YOU PLEASE LEAD US IN THE PLEDGE? RIGHT HAND OVER YOUR HEART. READY? BEGIN. I PLEDGE ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA AND TO THE REPUBLIC FOR WHICH IT STANDS. ONE NATION UNDER GOD, INDIVISIBLE, WITH LIBERTY AND JUSTICE FOR ALL.

DO WE HAVE ANY PUBLIC COMMENT? THERE IS NO PUBLIC COMMENT.

THANK YOU. ITEM NUMBER ONE, CITY MANAGER . THANK YOU.

[1. AB 1661 TRAINING – WORKPLACE HARASSMENT PREVENTION TRAINING AND EDUCATION]

AND I'D LIKE TO TURN IT OVER TO OUR HUMAN RESOURCES DIRECTOR, JUDY VON KALINOWSKI.

GOOD MORNING, EVERYONE, AND WELCOME AND THANK YOU FOR JOINING US.

EXCUSE ME. JUDY, MAY I ASSUME THAT WE SHOULD GO INTO THE AUDIENCE SO WE'RE NOT LOOKING AT THE BACK OF YOU? YES. OKAY. IN THE AUDIENCE. AND I'LL DO A BRIEF INTRODUCTION.

JUDY. JUDY. THANK YOU. IS THIS ON? I'LL USE IT AFTER YOU.

THE FIRST PART OF IT. YEAH. I SAW THAT. WE'LL START AGAIN. WELL, GOOD MORNING EVERYONE.

I WANT TO THANK EVERYONE FOR JOINING US THIS MORNING FOR THIS TRAINING.

IT'S A VERY IMPORTANT TRAINING, AS WE ALL KNOW, AND WE HAVE AGAIN WITH US, STEPHANIE LOWE FROM LIEBERT CASSIDY WHITMORE, SHE WAS WITH US TWO YEARS AGO AT THIS TRAINING.

STEPHANIE COMES FROM A BACKGROUND, A STRONG EMPLOYMENT AND LABOR LAW BACKGROUND.

SHE SPECIALIZES IN NOT ONLY PRACTICING HER LAW, BUT ALSO DOES A LOT OF TRAININGS AND INVESTIGATIONS.

AND WE'RE HAPPY TO HAVE HER HERE TODAY. IT'S IMPORTANT, BEFORE WE GET STARTED, THAT BEFORE YOU LEAVE THAT YOU PLEASE COMPLETE THE ACKNOWLEDGMENT FORM AND THAT YOU HAVE SIGNED IN. SO WE'RE CAREFULLY WATCHING THE AUDIENCE.

SO WE WILL HOPEFULLY YOU WON'T BE MISSED IF YOU FORGET.

AND WE'LL MAKE SURE WE COMPLETE THAT FOR YOU. SO WITH THAT, WE'LL HAVE STEPHANIE START THE TRAINING.

AND THANK YOU SO MUCH. THANK YOU JUDY. ALL RIGHT.

GOOD MORNING EVERYONE. SO WE ARE HERE TODAY FOR OUR TWO HOUR STATE MANDATED TRAINING ON PREVENTING WORKPLACE HARASSMENT, DISCRIMINATION AND RETALIATION. IF YOU'VE EVER HAD ME AS A TRAINER BEFORE, LET'S SAY TWO YEARS AGO, I'M NOW RUNNING THROUGH MY HEAD. OKAY, I'M GOING TO REFRESH THE JOKES AND THE TALES THAT I'LL TELL WITH THIS, BECAUSE YOU MIGHT HAVE HEARD THEM BEFORE, BUT TODAY'S TRAINING, IF YOU HAVE BEEN THROUGH THIS BEFORE, IT IS REALLY UPDATED WITH THE LATEST LEGAL DEVELOPMENTS IN THE STATE OF CALIFORNIA.

SO SOME THINGS THAT YOU'LL SEE TODAY AS WE GO THROUGH THE TRAINING IS WHEN I TALK ABOUT PROTECTED CLASSIFICATIONS, THERE ARE PROTECTED CLASSIFICATIONS NOW THAT DIDN'T EXIST TWO YEARS AGO.

SO WE WILL BE HAVING THE LATEST AND GREATEST ON THIS TOPIC.

I DID THIS TRAINING FOR THE CITY LAST THURSDAY FOR JUST A GROUP OF CITY EMPLOYEES.

AND SO I GOT TO TELL YOU, MY GROUP LAST THURSDAY WAS VERY GOOD.

THEY ASKED GOOD QUESTIONS. THEY GAVE GREAT RESPONSES TO THE INTERACTIVE COMPONENTS.

SO I WILL BE COMPARING YOU GUYS TODAY TO THE GROUP THAT I JUST TRAINED LAST THURSDAY.

SO WE'LL SEE HOW YOU DO. AS WE GO THROUGH TODAY, THERE ARE LIKE I MENTIONED, THERE'S INTERACTIVE COMPONENTS.

SO WE WILL HAVE A BIT OF A TRUE FALSE PRETEST TO GET STARTED.

AND THEN WE HAVE A COUPLE OF CASE STUDIES AS WELL WHERE I WILL HAVE YOU THINK THROUGH A SCENARIO.

THERE'LL BE QUESTIONS POSED. YOU'LL SERVE AS KIND OF THE JUDGE OR THE JURY AND GIVE INPUT ON HOW YOU KIND OF THINK A SITUATION WOULD PLAY OUT.

OKAY, SO LET'S GET STARTED. HERE'S THE AGENDA OF WHAT WE'RE COVERING TODAY.

I'M GOING TO START OFF WITH AN OVERVIEW OF THE LAWS AND POLICIES RELATED TO DISCRIMINATION, HARASSMENT AND RETALIATION, BOTH FEDERAL LAW, STATE LAW, AND THEN A REAL FOCUS ON THE CITY'S OWN ADMINISTRATIVE ORDER, NUMBER 45. WE'RE GOING TO TALK ABOUT PROTECTED CLASSIFICATIONS AND WHAT THOSE ARE.

AND THEN THE HEART OF THE TRAINING IS TALKING ABOUT WHAT EXACTLY IS UNLAWFUL DISCRIMINATION, HARASSMENT AND RETALIATION. I'M GOING TO DEFINE THOSE CAUSES OF ACTION FOR YOU.

AND THEN WE'RE GOING TO DIVE DEEPER INTO WHAT IS UNLAWFUL HARASSMENT.

I'M GOING TO GIVE YOU THE TWO TYPES OF UNLAWFUL HARASSMENT AND GIVE YOU KIND OF EXAMPLES OF CONDUCT THAT COULD CONSTITUTE OR LEAD TO RISK OF CLAIMS OF HARASSMENT.

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I'M GOING TO DEFINE THAT FOR YOU. WE'RE GOING TO GET A GOOD SENSE OF WHAT THAT IS AND HOW IT DIFFERS FROM HARASSMENT.

AND THEN FINALLY, I DO THINK MOST PEOPLE HERE ARE IN A CAPACITY WHERE YOU WOULD CONSIDER YOURSELF A SUPERVISOR OR AN OFFICIAL OF THE CITY.

SO I'M GOING TO FOCUS ON WHAT THE DUTIES OF A SUPERVISOR ARE WHEN IT COMES TO THIS AREA OF THE LAW.

AND THE FINAL TOPIC WE'LL ADDRESS KIND OF WHAT YOU NEED TO KNOW IF THERE'S A CLAIM, IF SOMEBODY GOES TO THE CIVIL RIGHTS DEPARTMENT OR THE EEOC FILES A CLAIM OF HARASSMENT, DISCRIMINATION OR RETALIATION AND THEN MAYBE GOES TO COURT AND FILES A LAWSUIT.

OKAY, SO BEFORE WE GET STARTED, A LITTLE BIT OF A THINKING EXERCISE.

WE'RE GOING TO START OFF WITH RHETORICAL QUESTIONS. SO THESE ONES YOU DON'T HAVE TO ANSWER.

BUT IN YOUR MIND JUST THINK ABOUT WHY ARE WE HERE DOING THIS TRAINING.

ANOTHER VERSION OF THIS QUESTION IS, YOU KNOW, WHY DID HR TARGET YOU AND HAVE YOU COME TODAY, WHETHER IT'S PART OF THE STATE MANDATED TRAINING, THAT MAY BE YOUR ANSWER.

ANOTHER TWIST ON THIS QUESTION IS THINKING ABOUT WHY DOES THE STATE OF CALIFORNIA REQUIRE THIS TRAINING.

SO FOR SUPERVISORS. SO ANYONE WHO SERVES IN A SUPERVISORY CAPACITY AND WORKS IN THE STATE OF CALIFORNIA, THIS TRAINING IS NOT NEW BY ANY MEANS. IT'S BEEN REQUIRED FOR A COUPLE OF DECADES AT THIS POINT, BUT THE STATE OVER TIME HAS EXPANDED AND EXPANDED THIS TRAINING.

SO IN 2018, 2019, WE SAW IT EXPANDED TO ALL EMPLOYEES AT ANY LEVEL.

IF THEY WORKED, YOU KNOW, AT ANY WORKPLACE IN THE STATE OF CALIFORNIA, THIS TRAINING HAS ALSO BEEN CERTAINLY EXPANDED ON THE NUMBER OF TOPICS THAT I'M REQUIRED TO COVER. SO LUCKILY IF THEY'VE KEPT IT AT TWO HOURS, BUT THEY JUST KEEP TELLING ME TO ADD MORE AND MORE MATERIAL TO IT.

SO THINK ABOUT WHY WE'RE HERE DOING THIS TRAINING.

AND HERE'S ONE ANSWER. IT'S BASED ON THE CITY'S OWN ADMINISTRATIVE ORDER, AND I THINK EVERYONE SHOULD HAVE RECEIVED A COPY.

OR YOU HAVE ACCESS TO A COPY OF IT. IT IS THIS, I BELIEVE, NINE PAGE, TEN PAGE ADMINISTRATIVE ORDER.

AND I LIKE TO KIND OF JUST PULL OUT ONE OF THE FIRST SENTENCES IN THE FIRST PARAGRAPH.

YOU KNOW, THIS TRAINING IS A PIECE OF THE CITY'S COMMITMENT.

SO THE CITY IS COMMITTED TO MAINTAINING A WORKPLACE THAT PROVIDES EQUAL EMPLOYMENT OPPORTUNITY, IS FREE FROM DISCRIMINATION, HARASSMENT AND RETALIATION IN ANY FORM, AND FOSTERS DIVERSITY, EQUITY, INCLUSION AND RESPECT FOR ALL INDIVIDUALS.

SO THAT'S ANOTHER BIG PIECE OF WHY WE'RE DOING THIS TRAINING.

I DO VERY MUCH CUSTOMIZE AND TAILOR THIS TRAINING TO THE CITY'S EXACT ADMINISTRATIVE ORDER AND THE GOALS IT SERVES.

ALL RIGHT. HERE'S ANOTHER REASON WE DO THIS TRAINING AND WHY IT'S REQUIRED.

IT'S BECAUSE EVEN THOUGH WE'VE HAD LAWS IN PLACE FOR FOR A VERY LONG TIME, PREVENTING HARASSMENT IN THE WORKPLACE, UNFORTUNATELY, UNLAWFUL HARASSMENT STILL TAKES PLACE.

YOU KNOW, THERE'S NEVER A SINGLE YEAR IN THE STATE OF CALIFORNIA WHERE NO ONE FILES A HARASSMENT LAWSUIT.

THIS SLIDE PULLS OUT IMAGES REPRESENTING ACTUALLY MORE ON A NATIONAL BASIS.

SO NATIONAL NEWS, NATIONAL MEDIA COVERAGE ABOUT SITUATIONS, ALLEGATIONS AND SOME OF IT SUSTAINED FINDINGS OF, YOU KNOW, LIABILITY OF HARASSMENT IN A WORKPLACE SETTING.

SO FOR PRETTY MUCH THE WHOLE TIME I'VE DONE THIS TRAINING, WHICH IS LIKE GOING ON LIKE CLOSE TO TEN YEARS NOW.

PRETTY MUCH HARVEY WEINSTEIN HAS ALWAYS BEEN ON THIS SLIDE.

HE IS A GREAT EXAMPLE, ESPECIALLY WHEN I TALK ABOUT MORE OF THE QUID PRO QUO TYPE OF HARASSMENT.

BUT, YOU KNOW, WHEN HE FIRST APPEARED, WE TALKED ABOUT THE ALLEGATIONS MADE AGAINST HIM IN MULTIPLE STATES WHERE PEOPLE IN HOLLYWOOD IN HIS INDUSTRY WERE CLAIMING THAT HE HAD APPROACHED THEM TYPICALLY VERY EARLY ON IN THEIR CAREERS AND SAID, YOU KNOW, HERE'S MY HOTEL KEY. IF YOU MEET ME UP IN MY HOTEL ROOM AND WE HAVE SOME FUN, I'M GOING TO PUT YOU IN TOUCH WITH THE RIGHT PEOPLE, OR I'M GOING TO GIVE YOU THAT AUDITION IN MY NEXT MOVIE.

AND, YOU KNOW, OVER TIME, THOSE ARE NO LONGER NOW ALLEGATIONS.

YOU KNOW, THERE HAVE BEEN CRIMINAL CHARGES BROUGHT AGAINST HIM.

HE HAS BEEN FOUND GUILTY. SO WE'RE MUCH FURTHER BEYOND THAT NOW.

BUT EVEN AFTER THE ALLEGATIONS MADE AGAINST MR. WEINSTEIN, WE'VE HAD MORE AND MORE NATIONAL HEADLINES ABOUT WORKPLACES SUCH AS ELLEN DEGENERES STUDIO, HER TALK SHOW, AND THE COMMENTS OF STAFF MEMBERS ABOUT THE GENERAL WORKPLACE ENVIRONMENT THERE BEING TOXIC.

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ALL RIGHT. SO WE'RE GOING TO TALK ABOUT JUST WHAT YOU NEED TO KNOW IN THIS AREA OF THE LAW AND WHAT WE CAN DO TO PREVENT HARASSMENT, DISCRIMINATION AND RETALIATION. OKAY. SO WE'RE GOING TO START OFF WITH A TRUE FALSE TEST.

SO THIS WAS THIS IS CONSIDER THIS A PRETEST. IT'S KIND OF TO GAUGE YOUR KNOWLEDGE ON THESE TOPICS BEFORE I ACTUALLY JUMP INTO THE MATERIAL.

WE'RE GOING TO START OFF EASY AND THEN IT'LL GET HARDER AND HARDER AS WE GO.

SO HERE'S OUR FIRST ONE. TRUE OR FALSE HARASSMENT CAN BE BASED UPON ANY PROTECTED CLASSIFICATION.

ALL RIGHT. SO YOU CAN FEEL FREE TO SHOUT OUT OR WE CAN DO A VOTING SYSTEM.

BUT LET'S JUST MAYBE START OFF WITH VOTING WITH HANDS.

SO HARASSMENT CAN BE BASED UPON ANY PROTECTED CLASS.

RAISE YOUR HAND IF YOU FEEL LIKE THAT'S TRUE.

OKAY, GOOD. WE'RE WARMING UP OKAY. YES. SO THIS ONE IS TRUE.

SO THIS WE'RE STARTING OFF WITH JUST KIND OF DISPELLING THE MYTH THAT WHEN WE TALK ABOUT HARASSMENT, WE'RE NOT SOLELY TALKING ABOUT JUST SEXUAL HARASSMENT.

SEXUAL HARASSMENT IS HARASSMENT BASED ON SEX, SOMETIMES BROADER SEXUAL HARASSMENT BASED ON GENDER OR SEX.

BUT AS WE GO THROUGH TODAY, YOU WILL LEARN, ESPECIALLY WITH THE HARASSMENT TYPE THAT IS A HOSTILE WORK ENVIRONMENT.

IT CAN BE BASED ON ANY TYPE OF PROTECTED CLASSIFICATION.

SO HARASSMENT BASED ON RACE, BASED ON DISABILITY, BASED ON AGE, THAT IS ALL PROHIBITED UNDER THE LAW.

ALL RIGHT. TRUE OR FALSE. ANTI HARASSMENT LAWS DO NOT APPLY TO VOLUNTEERS AND INTERNS.

OKAY. RAISE YOUR HAND IF YOU FEEL LIKE THAT'S TRUE.

AND THEN RAISE YOUR HAND IF YOU FEEL LIKE THAT'S FALSE.

GOOD. OKAY. PRETTY MUCH EVERYONE SAID FALSE. THAT IS CORRECT.

START OFF EASY. BUT ACTUALLY THIS WHOLE REASON THIS IS ON THE SLIDE IS BECAUSE THAT, YOU KNOW, YEARS AGO, BEFORE CALIFORNIA, THE STATE LEGISLATURE CLARIFIED THE LAW.

THIS ACTUALLY WASN'T SO CLEAR. YOU KNOW, IF WE BRING VOLUNTEERS, WHETHER PAID OR UNPAID OR INTERNS TO OUR WORKPLACE.

ARE THEY ALSO PROTECTED? CAN THEY BRING A CLAIM OF HARASSMENT SHOULD THEY FEEL LIKE THEY'VE EXPERIENCED IT? AND NOW WE HAVE CLARIFICATION THAT YES, THEY CAN.

THEY ARE COVERED. A PIECE OF THIS IS ALSO THAT IT'S NOT JUST THAT THEY'RE PROTECTED FROM EXPERIENCING HARASSMENT IN THE WORKPLACE, BUT IT GOES TWO WAYS WHERE WE ALSO CAN'T HAVE VOLUNTEERS SHOW UP TO THE CITY OF CARLSBAD AND START HARASSING CITY EMPLOYEES EITHER.

SO THIS THESE AREAS OF THE LAW DO APPLY TO THEM.

ALL RIGHT. TRUE OR FALSE? EMPLOYEES WHO REPORT HARASSMENT MUST PUT THEIR COMPLAINT IN WRITING.

RAISE YOUR HAND IF YOU FEEL LIKE THAT'S TRUE.

AND RAISE YOUR HAND IF YOU FEEL LIKE THAT'S FALSE.

OKAY. YES, THIS ONE IS FALSE. LEANS TOWARDS FALSE.

I'M PRETTY SURE. I MEAN, I'VE READ YOUR POLICY.

YOU DON'T REQUIRE ANYTHING TO BE IN WRITING FOR IT TO BE A FORMAL COMPLAINT UNDER YOUR PROCEDURE AND THE LAW.

THE PROCESS OF THE LAW AND HOW INVESTIGATIONS ARE DONE WOULD AGREE WITH THAT.

A COUPLE OF YEARS AGO, I DID WORK WITH A LOCAL CITY, NOT THE CITY OF CARLSBAD, BUT ANOTHER ONE.

AND SO THEY BRIEFED ME ON AN HR MEETING THAT HAPPENED WITH AN EMPLOYEE WHO BROUGHT FORTH A COMPLAINT IN THAT MEETING OF HARASSMENT AND THEIR HR STAFF SAID, YEAH. SO FOR NEXT STEPS, WE'VE ASKED THE EMPLOYEE TO JUST WRITE DOWN KIND OF WHAT THEY TOLD US IN THE MEETING, AND WE'RE WAITING FOR THAT SO THAT WE CAN GET STARTED WITH THE INVESTIGATION.

AND I SAID, NOPE, NOPE. YOU DON'T HAVE TO WAIT FOR THAT.

OKAY. IT COULD BE THAT THE EMPLOYEE MAY TAKE A VERY LONG TIME TO PUT THAT IN WRITING, OR MAY CHOOSE TO NEVER GO THROUGH AND PUT ANYTHING IN WRITING, AND THAT DOESN'T CHANGE THE FACT THAT THEY'VE ALREADY MADE A COMPLAINT OF HARASSMENT.

YOU GO THROUGH, YOU FOLLOW YOUR POLICY. YOU DON'T JUST SIT AND WAIT FOR A FORMAL COMPLAINT IN WRITING.

ALL RIGHT. TRUE OR FALSE? UNLAWFUL DISCRIMINATION GENERALLY DOES NOT OCCUR WHEN A SUPERVISOR APPLIES WORK RULES UNIFORMLY.

ALL RIGHT. FROM YOUR EXPERIENCE, DO YOU FEEL LIKE THAT'S TRUE? OKAY. ANYONE FEEL LIKE THAT'S FALSE? OKAY. SO WE'RE GETTING A LITTLE BIT MORE SPLIT HERE.

ALL RIGHT, SO I SAID, BASED ON YOUR EXPERIENCE, I SAY YOUR EXPERIENCE MAY BE DIFFERENT THAN THE PRINCIPAL TRYING TO BE DISPLAYED ON THIS

[00:15:01]

AND THE PHRASE I USE IS THEY SHOULD BE APPLYING RULES AND POLICIES UNIFORMLY AND CONSISTENTLY, THEN THE IDEA IS IT'S GOING TO HELP MITIGATE RISK THAT AN EMPLOYEE WHO HAS MAYBE FOUND IN VIOLATION OF THAT RULE IS GOING TO FEEL LIKE THEY'RE BEING SINGLED OUT.

AND SINGLED OUT IS LIKE THE SOFT PHRASE USED BEFORE AN EMPLOYEE THEN JUMPS TO AM I BEING DISCRIMINATED AGAINST? AM I BEING HARASSED? AM I BEING TARGETED BECAUSE OF A PROTECTED CLASSIFICATION? SO THE IDEA IS WE HAVE A BIG PROBLEM WHEN WE HAVE SUPERVISORS.

LET'S USE A SIMPLE RULE AS AN EXAMPLE AN ATTENDANCE POLICY.

OKAY. YOU GOT TO SHOW UP ON TIME. IF YOU'RE NOT GOING TO SHOW UP, YOU HAVE TO FOLLOW THE CALL IN PROCEDURE.

NOW, IF THEY'RE ONLY ENFORCING THE CALL IN PROCEDURE AGAINST ONE EMPLOYEE OR TWO EMPLOYEES, BUT NOBODY ELSE WHO'S NOT CALLING IN ON TIME WHEN THEY NEED TO HAVE A LEAVE OF ABSENCE, THEN THOSE 1 OR 2 EMPLOYEES WHO ARE BEING SPOKEN ABOUT ABOUT THE ATTENDANCE POLICY OR MAYBE ULTIMATELY DISCIPLINED FOR NOT FOLLOWING IT ARE, AGAIN, LIKE I SAID, GOING TO FEEL LIKE WHY AM I BEING SINGLED OUT.

SO THIS IS A GENERAL STATEMENT, BUT IT DOES HELP WHEN WE HAVE OUR FRONTLINE DIRECT SUPERVISORS APPLYING THESE POLICIES UNIFORMLY AND CONSISTENTLY. ALL RIGHT. SO IT IS TRUE. OR IT LEANS TOWARDS TRUE.

OKAY. TRUE OR FALSE. IF AN EMPLOYEES RELIGIOUS BELIEFS PRECLUDE THE EMPLOYEE FROM WORKING WITH ANY GAY, LESBIAN OR TRANSGENDER EMPLOYEES, THE EMPLOYER HAS TO REASONABLY ACCOMMODATE THE EMPLOYEE.

OKAY, SO WE'RE GETTING LONGER. OKAY. RAISE YOUR HAND IF YOU FEEL LIKE THAT IS TRUE, THAT THE EMPLOYER HAS TO REASONABLY ACCOMMODATE THE EMPLOYEE BASED ON THEIR REQUEST, AND THEN RAISE YOUR HAND IF THAT IS FALSE.

OKAY. AND THEN A THIRD OPTION, RAISE YOUR HAND IF YOU WOULD GO DIRECTLY TO HR FOR HELP ON THAT.

YES. THAT'S WHAT I WOULD ALWAYS DO. OKAY. SO THIS STATEMENT IS, FIRST OF ALL, I'VE GOT TO BREAK DOWN A FEW PIECES OF IT.

SO EMPLOYEES WHO HOLD RELIGIOUS BELIEFS CAN REQUEST ACCOMMODATIONS.

OKAY. THAT IS A WELL-KNOWN LAW PRINCIPLE. THERE ARE ACCOMMODATIONS FOR RELIGIOUS BELIEFS.

THE MORE COMMON ONES ARE NOT THIS, THE MORE COMMON ONES ARE THINGS LIKE I NEED TO HAVE AN EXCEPTION WHERE I'M NOT WORKING A PARTICULAR DAY OF THE WEEK OR A PARTICULAR EVENING OF THE WEEK DUE TO MY RELIGIOUS PRACTICES.

OTHER ONES ARE EXCEPTIONS TO DRESS CODES OCCASIONALLY.

SO, YOU KNOW, WE JUST READ ABOUT HOW THE NEW YORK YANKEES ARE NOW ALLOWING BASEBALL PLAYERS TO HAVE BEARDS.

RIGHT? FOR YEARS THEY WERE JUST WELL KNOWN, ALL THEIR PLAYERS THAT HAD TO BE CLEAN SHAVEN.

SO I DON'T KNOW IF THIS EVER SHOWED UP IN THEIR ORGANIZATION, BUT IF THEY HAD A PLAYER WHO SAID, YOU KNOW, I HAVE TO HAVE A BEARD FOR RELIGIOUS REASONS, AND AGAIN, I DON'T KNOW QUITE WHAT THE STATE OF NEW YORK LAWS ARE ON THIS, BUT THEY'D HAVE TO PROBABLY INTAKE AND PROCESS THAT REQUEST FOR AN ACCOMMODATION DUE TO A REASONABLE BELIEF.

SO THAT DOES EXIST. I ALREADY HAVE A QUESTION.

GO AHEAD. YEAH. SO IF YOU SAY I DON'T WANT TO WORK SUNDAYS, HOW DOES THAT WORK? SO YOU GO TO HR AND YOU SEE IF SOMETHING CAN BE WORKED OUT, AND THERE'S A WHOLE PROCESS FOR IT.

IT'S NOT USUALLY HANDLED IN JUST ONE MEETING WITH LIKE A YES OR NO.

BUT THERE'S A LOT OF CONSIDERATIONS. THERE'S ALSO ANOTHER STANDARD WHERE IT SAYS THE WORD REASONABLY ACCOMMODATE.

SO THERE'S A WHOLE LEGAL STANDARD ABOUT WHAT, YOU KNOW, ACCOMMODATION THAT IS REQUESTED AND HOW THE EMPLOYER ASSESSES WHETHER IT'S A REASONABLE REQUEST OR NOT ULTIMATELY COMES DOWN TO WHETHER THE ACCOMMODATION WOULD IT PRESENT AN UNDUE BURDEN ON THE AGENCY, ON THE DEPARTMENT. BUT IT'S GOING TO DEPEND ON THE EXACT SITUATION OF THAT.

YOU KNOW, POLICE DEPARTMENT, FIRE DEPARTMENT, THEIR STAFFING.

WHAT'S THAT PERSON'S POSITION? WHAT IS THEIR SCHEDULE? THERE'S A WHOLE LOT. OKAY, BUT GREAT QUESTION.

OKAY. SO FOR THIS ONE THOUGH HERE WE HAVE THAT EMPLOYEE.

THEY HAVE REQUESTED TO NOT WORK WITH ANY GAY, LESBIAN OR TRANSGENDER EMPLOYEES OR COWORKERS.

HERE'S WHERE HR IS GOING TO HELP ADVISE ANY DEPARTMENT ON THIS.

IS THEIR ACCOMMODATION REQUEST REASONABLE? MOST LIKELY THE ANSWER IS GOING TO BE NO.

THE REASON FOR THAT IS WELL, IT DEPENDS. I MEAN, IF THIS IS AN EMPLOYEE WHO ONLY EVER WORKS BY THEMSELVES AND THEY DON'T WORK WITH ANY

[00:20:03]

I WOULD SAY THAT MOST EMPLOYERS, MOST EMPLOYEES DO HAVE TO WORK WITH OTHER PEOPLE, COWORKERS, MEMBERS OF THE PUBLIC ON A TEAM. AND SO THIS SORT OF REQUEST, IT'S GOING TO HAVE SOME OPERATIONAL IMPACT.

WE'RE PROBABLY REACHING THIS LIKE HARDSHIP FOR THE DEPARTMENT.

SO THIS ONE. IT LEANS TOWARDS FALSE. BUT I WOULD RECOMMEND, YOU KNOW, ANY SITUATION WHERE ANY EMPLOYEE MAKES A REQUEST FOR AN ACCOMMODATION IT'S HANDLED ON A CASE BY CASE BASIS WITH THE ADVISEMENT OF HR.

OKAY. NOW TRUE OR FALSE. IF THE EMPLOYER IS INVESTIGATING A CLAIM OF HARASSMENT AND THE HARASSMENT STOPS, THE EMPLOYER MAY DISCONTINUE THE INVESTIGATION.

RAISE YOUR HAND IF YOU FEEL LIKE THAT'S TRUE. YOU CAN STOP THE INVESTIGATION AND THEN RAISE YOUR HAND IF YOU'RE FALSE.

IF YOU VOTE FALSE. GOOD. EXCELLENT. I MEAN, THE SAME THING WITH, LIKE.

I SEE A NUMBER OF PEOPLE FROM THE POLICE DEPARTMENT HERE.

YOU'VE GOT SOMEONE OUT THERE LIKE A SUSPECT. I'M NOT GOING TO USE THE RIGHT TERMS, BUT LET'S SAY THEY ALL OF A SUDDEN STOP COMMITTING THE CRIMES.

YOU JUST SAY, GOOD. YOU STOPPED. WELL, JUST LIKE, YOU KNOW, CROSS YOUR NAME OFF OUR LIST.

GOODBYE. GO ENJOY YOUR LIFE LIKE, THAT'S NOT WHAT HAPPENS.

SO SAME THING HERE. IT'S GREAT IF THE HARASSMENT STOPS.

OKAY? ONE OF THE PRIMARY GOALS OF THE CITY WOULD STOP THE HARASSMENT FROM RECURRING IN THE FUTURE.

BUT THAT DOESN'T MEAN THAT THE ALLEGATIONS THAT HAVE BEEN MADE ABOUT WHAT HAPPENED IN THE PAST ARE NOT INVESTIGATED.

THEY STILL NEED TO BE INVESTIGATED. THEY STILL NEED TO BE FACTUAL FINDINGS INTO WHAT HAD OCCURRED.

SO THAT'S WHY THIS ONE IS FALSE. ALL RIGHT. SO THAT'S THE PRETEST.

YOU ALL SCORED PROBABLY IN THE 90% RANGE. SO THERE'S ROOM FOR IMPROVEMENT.

BUT YOU ALL PASSED. SO WE CAN GO ON OKAY. SO NOW I'M GOING TO COVER THE OVERVIEW OF THE LAWS AND POLICIES.

WE'LL JUMP INTO THE ACTUAL MATERIAL. SO HERE IS A SLIDE WITH THE VARIOUS SOURCES OF LAW BOTH FEDERAL LAW AND LAWS IN THE STATE OF CALIFORNIA THAT PROHIBIT DISCRIMINATION, HARASSMENT, AND RETALIATION IN THE WORKPLACE.

I'M GOING TO GIVE YOU, LIKE, THE ONE SENTENCE SUMMARY OF EACH OF THEM.

SO, YOU KNOW, KIND OF WHAT AREAS THEY COVER. SO UNDER THE FEDERAL LAW, WE HAVE THE EQUAL PAY ACT OF 1963.

AND THAT LAW PROHIBITS PAY DISPARITIES BETWEEN EMPLOYEES WHO PERFORM THE SAME WORK OR REALLY SIMILAR TYPE OF WORK.

THEY CANNOT HAVE PAY DISPARITIES BASED ON SEX OR GENDER.

WE HAVE TITLE SEVEN OF THE 1964 CIVIL RIGHTS ACT, AND THAT IS OUR NATION'S OUR ROOT HISTORICAL ANTI-DISCRIMINATION LAW.

IT PROHIBITS DISCRIMINATION BASED ON ALL PROTECTED CLASSIFICATIONS, AND IT HAS BEEN EXPANDED OVER TIME.

BLESS YOU. WE HAVE THE ADEA, THE AGE DISCRIMINATION IN EMPLOYMENT ACT AND THAT PROHIBITS DISCRIMINATION IN WORKPLACES AGAINST AN INDIVIDUAL BASED ON THEIR AGE IF THEY ARE AGE 40 OR OVER.

SO THAT IS THE ADEA. I WAS AT A WORK DINNER THE OTHER NIGHT, AND MY COWORKER.

I DON'T KNOW WHY THIS WAS BROUGHT UP, BUT SHE SAID, YOU KNOW WHAT? I'M GOING TO TURN 40 VERY SOON.

LIKE, WHAT ARE WE PLANNING FOR MY BIRTHDAY? LIKE, SHE EXPECTED AN OFFICE PARTY OR SOMETHING.

BUT THEN SHE JOKED, YOU KNOW, SHOULD SHOULD WE BE CELEBRATING MY 40TH BIRTHDAY? OR SHOULD WE BE CELEBRATING MY NEW PROTECTED CLASSIFICATION UNDER THE ADEA THAT I'M GOING TO GET ONCE I TURN 40? SO THAT'S AN INSIGHT ON EMPLOYMENT LAW JOKES, BUT I WOULDN'T SUGGEST DON'T MAKE THAT JOKES WHERE YOU WORK.

OKAY. THAT JUST WORKS FOR JUST A VERY DISTINCT FEW, I THINK.

OKAY. THEN WE HAVE THE AMERICANS WITH DISABILITIES ACT, THE ADA THAT PROHIBITS DISCRIMINATION IN WORKPLACES BASED ON AN INDIVIDUAL'S DISABILITY. IT DOES A WHOLE LOT MORE THAN THAT.

IT'S NOT JUST COVERING WORKPLACES, BUT IT'S ALSO THE LAW THAT REQUIRES PLACES OF PUBLIC ACCOMMODATION TO BE ACCESSIBLE TO PEOPLE WITH DISABILITIES.

AND THEN WE HAVE THE UNITED STATES CODE SECTIONS 1981 AND 1983.

LET ME SHOW YOU KIND OF HOW THEY FIT INTO THIS TOPIC WE'RE COVERING TODAY.

SECTION 1981 PROHIBITS DISCRIMINATION IN THE FORMATION, THE TERMS OF AND THE TERMINATION OF A CONTRACT.

SO AT SOME PUBLIC AGENCIES, YOU WILL HAVE VERY HIGH LEVEL EXECUTIVES OR MANAGERS OR DIRECTORS WHO ARE EMPLOYED THROUGH JUST THROUGH AN EMPLOYMENT CONTRACT AND THE WAY THAT CONTRACT IS SET UP AND WHETHER IT'S ULTIMATELY TERMINATED CANNOT BE BASED ON A DISCRIMINATORY REASON.

[00:25:07]

OKAY. AND THEN QUICKLY, IN CALIFORNIA, WE HAVE OUR OWN VERY IMPORTANT LAWS AS WELL.

THE FAIR EMPLOYMENT AND HOUSING ACT IS OUR VERSION OF TITLE SEVEN.

SO IT PROHIBITS DISCRIMINATION, HARASSMENT AND RETALIATION BASED ON PROTECTED CLASS.

IT IS MUCH MORE PROTECTIVE OF INDIVIDUAL EMPLOYEE RIGHTS THAN ANY FEDERAL LAW.

YOU'RE GOING TO SEE GLIMPSES OF THAT AS WE GO THROUGH THE MATERIAL TODAY.

AND WE HAVE OUR OWN CALIFORNIA EQUAL PAY ACT, WHICH IS ACTUALLY A LAW THAT HAS BEEN UPDATED IN MORE RECENT YEARS.

IT PROHIBITS PAY DISPARITIES BASED ON GENDER AND SEX AND ALSO BASED ON RACE HERE IN CALIFORNIA.

ALL RIGHT. WE HAVE TWO GOVERNMENTAL AGENCIES THAT GOVERN, REGULATE AND ALSO PROVIDE IMPORTANT GUIDANCE ON ALL THE LAWS THEY JUST COVERED.

WE HAVE THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, THE EEOC, AND THEN IN CALIFORNIA, WE HAVE THE CIVIL RIGHTS DEPARTMENT, WHICH WAS FORMERLY KNOWN AS.

DOES ANYONE KNOW? THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING.

SO THEY REBRANDED A FEW YEARS AGO, AND NOW THEY'RE THE CIVIL RIGHTS DEPARTMENT .

BUT IT IS THE SAME DEPARTMENT THAT WAS FORMERLY KNOWN AS THE DFEH.

SO BOTH OF THESE AGENCIES ARE AVAILABLE FOR ANY INDIVIDUAL EMPLOYEE TO GO TO AND TO FILE A REPORT OF HARASSMENT, DISCRIMINATION OR RETALIATION. IT'S AS SIMPLE AS GOING TO THEIR WEBSITE.

THEY ALL THEY ALSO HAVE REGIONAL OFFICES. AND IT USED TO BE THAT YOU WOULD GO TO THE REGIONAL OFFICE AND FILE A REPORT, BUT NOW THEY HAVE EVERYTHING ONLINE. THESE AGENCIES WILL GENERALLY DO ONE OF TWO THINGS WHEN THEY GET THAT SORT OF CLAIM.

WELL, FIRST, NO MATTER WHAT, THEY WILL NOTIFY THE EMPLOYER OF THE REPORT AND GENERALLY ASK THAT EMPLOYER TO SUBMIT A RESPONSE STATEMENT.

BUT FROM THERE, ONCE THEY INTAKE THAT INFO, THEY WILL EITHER PURSUE THE REPORT FURTHER, LOOK INTO THINGS A LITTLE BIT MORE INVESTIGATION. OCCASIONALLY THEY WILL TAKE ON A REPORTING PARTY AND REPRESENT THEM IN FILING A LAWSUIT.

BUT THE MORE COMMON AVENUE THEY ACTUALLY TAKE IS THAT THEY TYPICALLY JUST ISSUE THE REPORTING PARTY, A LETTER THAT'S KNOWN AS A RIGHT TO SUE LETTER.

AND THAT LETTER GIVES THE REPORTING PARTY THE OPTION NOW TO GO TO STATE OR FEDERAL COURT AND FILE THEIR OWN LAWSUIT.

SO AT THAT POINT, THE CIVIL RIGHTS DEPARTMENT AND THE EEOC ARE NOT INVOLVED, BUT THEY'RE GOING TO OPEN THE GATE FOR PEOPLE TO FILE LAWSUITS INTO THESE AREAS.

YEAH. SO THAT'S WHAT THEY DO. ALL RIGHT. SO THOSE ARE THE FEDERAL AND STATE LAWS.

AND THEN WE ALSO HAVE CITY POLICY ADMIN ORDER NUMBER 45.

SO THIS WAS UPDATED IN JANUARY 2023. IT IS VERY VERY UP TO DATE.

IF YOU HAVE NOT HAD THE PLEASURE OF READING IT, JUST MAKE SURE YOU ARE FAMILIAR WITH IT.

BUT I'M GOING TO POINT OUT A COUPLE OF KEY POINTS THAT AS I REVIEW THE POLICY THAT STAND OUT TO ME AND ARE KIND OF PRINCIPLES OF THE LAW IN THIS AREA. SO FIRST IS THAT THE CITY'S POLICY, IT PROHIBITS EMPLOYEES AND NON EMPLOYEES FROM DISCRIMINATING, HARASSING AND RETALIATING BASED ON PROTECTED STATUS.

YOUR POLICY IS ONE OF THE CLEAREST POLICIES I'VE EVER SEEN WITH LISTING WHAT IS PROTECTED STATUS, WHAT IS PROTECTED CLASSIFICATION. YOU HAVE IT ON PAGE ONE, CONTINUING TO PAGE TWO JUST IN BULLET POINT FORMS. I REALLY LIKE HOW THAT'S STRUCTURED. IT'S AGAIN ONE OF THE CLEAREST ONES I'VE SEEN AND HOW IT DEFINES THOSE CATEGORIES.

NOW IT PROTECTS APPLICANTS, VOLUNTEERS AND INDEPENDENT CONTRACTORS AND EMPLOYEES FROM BEING SUBJECTED TO THE PROHIBITED CONDUCT.

SO THIS IS JUST TO ILLUSTRATE. IT IS NOT JUST ABOUT CONDUCT THAT IS EMPLOYEE TO EMPLOYEE, BUT ALSO ABOUT OTHERS YOU MAY COME ACROSS IN THE WORKPLACE.

THEY ARE PROTECTED FROM THESE LAWS AND ALSO CAN'T ENGAGE IN HARASSMENT OR RETALIATION OR DISCRIMINATION.

WHEN I THINK THE VERY FIRST TIME I DID THIS TRAINING FOR THE CITY OF CARLSBAD, MAYBE IN LIKE 2016, 2017, I JUST A LITTLE BIT LIKE HISTORICAL KNOWLEDGE.

WHEN I WAS CUSTOMIZING THIS TRAINING, I GOT VERY CLEAR DIRECTION FROM THE CITY.

YOU KNOW, ONE PROBLEM WE'VE HAD IS THAT OUR EMPLOYEES WHO ARE FRONT FACING TO THE PUBLIC OCCASIONALLY,

[00:30:05]

SO THEY SAID, WE WANT YOU TO EMPHASIZE IN THIS TRAINING THAT IF A MEMBER OF THE PUBLIC DOES THAT, WE HAVE A POLICY PROHIBITING THAT AND THAT EMPLOYEES CAN STILL REPORT THAT EVEN IF IT'S NOT COMING FROM A COWORKER, BUT IT'S COMING FROM A MEMBER OF THE PUBLIC. SO THAT'S SOMETHING I TOLD YOUR EMPLOYEES FOR YEARS AND YEARS AND YEARS TO MAKE SURE THEY ALL KNEW.

ALL RIGHT. NOW, YOUR POLICY ALSO HAS A COMPLAINT PROCEDURE.

IT'S VERY CLEARLY TITLED THE COMPLAINT PROCEDURE FOR REPORTING VIOLATIONS.

AND THEN IT IDENTIFIES THE CIVIL RIGHTS DEPARTMENT AND THE EEOC AS OTHER RESOURCES EMPLOYEES CAN TURN TO.

NOW, ONE THING IT DOES DO IS IT PROVIDES CONFIDENTIALITY TO THE EXTENT POSSIBLE.

AND SO WHAT THIS MEANS I'M GOING TO FOCUS ON THIS POINT A LITTLE BIT, IS THAT WHEN SOMEBODY MAKES A REPORT OF HARASSMENT OR DISCRIMINATION OR RETALIATION, YOU KNOW, THERE ARE TIMES WHERE THE REPORTING PARTY SAYS, I AM RAISING THIS.

I WANT HR TO BE AWARE OF IT, BUT I DON'T WANT ANYBODY ELSE TO KNOW THAT I MADE THIS COMPLAINT.

OKAY. I WANT TO BE ANONYMOUS THROUGH THIS PROCESS.

AND SO IT'S REALLY IMPORTANT THAT ANYONE AT THE CITY, ESPECIALLY SUPERVISORS, NEVER PROMISE 100% ANONYMITY OR 100% CONFIDENTIALITY. AND THE REASON FOR THAT IS THAT GENERALLY, THE NEXT STEP IS GOING TO BE FOR THE CITY TO CONDUCT A FAIR, UNBIASED AND IMPARTIAL INVESTIGATION. AND THAT IS ALWAYS GOING TO INVOLVE INTERVIEWING THE SUBJECT OF THE ALLEGATIONS AND HEARING THEIR SIDE OF THE STORY. NOW, IF WE KEEP THE REPORTING PARTY COMPLETELY ANONYMOUS, IT'S GOING TO BE VERY HARD FOR THE SUBJECT OF THE ALLEGATIONS TO GIVE A FAIR RESPONSE. OKAY, LIKE, I DON'T KNOW WHAT WE'RE TALKING ABOUT.

YOU'RE NOT GIVING ME ANY DETAILS. WHO DID I SAY WHAT TO? AND SO JUST THROUGH THAT INVESTIGATIVE PROCESS, IT'S GENERALLY GOING TO HAVE NAMES ARE GOING TO HAVE TO COME OUT.

BUT WHAT THIS ALSO MEANS IS THAT ONLY THE PEOPLE WITH A NEEDS TO KNOW ARE GOING TO BE PRIVY TO WHAT THE CLAIM, WHAT THE ALLEGATIONS ARE IN THESE CASES. THE OTHER THING IS THAT IF THERE IS A, YOU KNOW, IF A HARASSMENT CLAIM IS SUSTAINED AND IT LEADS TO DISCIPLINE, YOU KNOW, PERMANENT EMPLOYEES AT THE CITY OF CARLSBAD HAVE DUE PROCESS RIGHTS.

THEY HAVE THE RIGHT FOR, WITH ANY PROPOSED SIGNIFICANT LEVEL OF DISCIPLINE, TO HAVE ALL MATERIALS THAT WERE RELIED UPON IN ENACTING THAT DISCIPLINE.

SO THAT'S ANOTHER REASON SOMEBODY MAY NOT REMAIN ANONYMOUS COMPLETELY.

I JUST INTERVIEWED A WITNESS YESTERDAY, AND IN THAT MEETING HE DID ASK ME, YOU KNOW, HOW CONFIDENTIAL IS THIS INFORMATION? BOTH. WHAT? LIKE HOW CONFIDENTIAL IS IT? WHAT I'M SHARING WITH YOU IN THIS INVESTIGATIVE INTERVIEW.

AND HOW CONFIDENTIAL LIKE IS THE ALLEGATION? WILL I KNOW WHAT HAPPENED IN ORDER TO SPEAK TO MY THOUGHTS? AND SO I JUST WALKED HIM THROUGH EXACTLY WHAT I WALKED YOU THROUGH.

CONFIDENTIALITY TO THE EXTENT POSSIBLE, THAT MEANS SOME INFORMATION WILL BE REVEALED TO THOSE WHO HAVE A NEEDS TO KNOW.

OKAY. AND THEN THE POLICY ALWAYS HAS TO HAVE THAT LANGUAGE THAT IF THERE IS A SUSTAINED VIOLATION, A POLICY VIOLATION OF HARASSMENT, DISCRIMINATION OR RETALIATION, THAT THE CITY CAN ENACT DISCIPLINE OR OTHER APPROPRIATE REMEDIES, CORRECTIVE ACTION TO ADDRESS IT AND TO PREVENT IT FROM RECURRING IN THE FUTURE.

OKAY, A FEW OTHER POINTS FROM THIS POLICY SO THE CITY CAN PRACTICE AND FOLLOW ADMIN ORDER NUMBER 45 AS A ZERO TOLERANCE POLICY. SO THAT MEANS JUST ONE SINGLE INCIDENT, SHOULD IT BE IN VIOLATION OF THE LANGUAGE IN THIS POLICY CAN LEAD TO DISCIPLINARY ACTION. I OCCASIONALLY SEE SOME POLICIES WRITTEN IN A WAY THAT SAYS WE WILL ENACT DISCIPLINE IF YOU ARE FOUND LIABLE OF HARASSMENT. AND THE THING ABOUT THAT IS THAT A POLICY VIOLATION IS DIFFERENT FROM A LEGAL VIOLATION.

OKAY. IN ORDER TO BE LIABLE FOR HARASSMENT, YOU HAVE TO HAVE A LAWSUIT.

YOU HAVE TO HAVE A JURY OR A JUDGE FINDING OF LIABILITY.

AND SO IF YOUR POLICY SAYS SOMETHING LIKE THAT, IT MEANS, WELL, WE CAN'T ACTUALLY DISCIPLINE UNTIL WE GO THROUGH THAT WHOLE PROCESS.

NO EMPLOYER WANTS TO WAIT THAT LONG. NO EMPLOYER WANTS TO EVEN LITIGATE THESE ISSUES.

SO YOU DO WANT TO RESERVE THE RIGHT TO DISCIPLINE JUST BASED ON ONE SINGLE POLICY VIOLATION, WITHOUT RELYING ON WHAT THE OUTCOME MAY BE IN STATE OR FEDERAL COURT.

[00:35:02]

BUT ALSO, REALLY ANYBODY WHO IS A SUPERVISOR AT THE CITY SHOULD KNOW WHERE TO LOCATE IT SHOULD AN EMPLOYEE ASK FOR HELP AND WANT IT AS A RESOURCE.

ALL RIGHT. SO THAT'S THE OVERVIEW OF THE LAWS AND THE POLICIES.

THERE'S NO TEST ON THAT. SO WE DON'T HAVE TO TEST YOU ON THE ADA OR ANYTHING.

WE'RE GOING TO NOW JUMP INTO PROTECTED CLASSES.

SO BEFORE I DEFINE PROTECTED CLASSIFICATION HERE'S A QUESTION.

AND AGAIN IF YOU'VE BEEN TO MY TRAINING YOU MIGHT HAVE BEEN ASKED THIS QUESTION BEFORE.

BUT WE'RE TALKING ABOUT HARASSMENT. AND SO THINK ABOUT YOU KNOW WHAT WOULD YOU CONSIDER TO BE UNLAWFUL HARASSMENT.

SO HARASSMENT THAT VIOLATES ONE OF THE LAWS THAT I COVERED.

AND IF THERE IS UNLAWFUL HARASSMENT, DOES THAT MEAN THAT THERE'S ALSO SUCH THING AS LAWFUL HARASSMENT.

OKAY, IT'S A LITTLE BIT OF A PHILOSOPHICAL QUESTION, BUT JUST THINK ABOUT IT FOR A MINUTE.

DOES ANYONE HAVE AN ANSWER TO THIS? AND IT'S OKAY IF YOU DON'T, BECAUSE PRETTY MUCH NOBODY HAS AN ANSWER TO THIS QUESTION WHEN I POSE IT, SO IT'S OKAY. LET ME WALK YOU THROUGH HOW I KIND OF DIGEST THIS.

SO. I DO HAVE A QUESTION. OH PLEASE.

I GUESS WHEN FOR ELECTED OFFICIALS LIKE IF FOLKS HARASS US OR WHATEVER ELSE BECAUSE I MEAN OBVIOUSLY IT'S HAPPENED.

BECAUSE I KNOW WE'VE BEEN SEEING THAT ACROSS THE SO JUST CURIOUS ON YOUR ANSWER TO THAT. YEAH.

OKAY. GREAT. SO I WILL ANSWER THAT BECAUSE IT IS NOT IT'S NOT ONE THAT I CAN SAY IS ON A FUTURE SLIDE OR ANYTHING.

SO YEAH. SO WHEN WE'RE DEALING WITH ELECTED OFFICIALS.

SO FIRST AND YOU'LL SEE THIS IN THE SLIDES. BUT THE STANDARDS DO NOT VARY BY WORKPLACE OR JOB TITLE OR ROLE OR POSITION AT THE PLACE OF EMPLOYMENT.

SO FIRST THE LAWS DO APPLY TO ELECTED OFFICIALS.

BUT YOU ALREADY KNOW THAT. IN PRACTICE WHAT ACTUALLY HAPPENS, WHETHER IT'S AN ELECTED OFFICIAL WHO MAKES A CLAIM THAT, YOU KNOW, I'VE BEEN AT THE RECEIVING END, I'VE BEEN TARGETED WITH HARASSING CONDUCT, OR, YOU KNOW, SOMEONE ELSE SAYING THE ELECTED OFFICIAL HAS HARASSED ME.

IT IS DIFFERENT BECAUSE WE TALK ABOUT THE ORGANIZATION OF THE AGENCY, AND ELECTED OFFICIALS ARE AT THE TOP.

THERE'S AUTOMATICALLY GOING TO BE A COUPLE OF CONFLICTS OF INTEREST JUST CREATED, BECAUSE WHEN YOU FOLLOW THIS POLICY AND YOU REPORT TO THE HR DIRECTOR, OR YOU HELP GET HELP FROM THE CITY ATTORNEY'S OFFICE.

WHO DO THEY ULTIMATELY REPORT TO? ELECTED OFFICIALS.

SO THERE'S JUST FIRST. MY FIRST ANSWER IS JUST A LITTLE BIT MORE OF A LIKE A CAREFUL PROCESS TO MAKE SURE THAT ANY REPORT ABOUT OR BY AN ELECTED OFFICIAL IS STILL HANDLED UP THE CHAIN. BUT WE HAVE TO SOMETIMES DEVIATE IT A LITTLE DIFFERENT THAN YOU WOULD WITH REGULAR CITY STAFF.

THE SECOND THING IS YOU KNOW, AN INVESTIGATION IS DONE EITHER DIRECTION OF WHERE THIS WHETHER THE COUNCIL MEMBER OR THE ELECTED OFFICIAL IS THE COMPLAINING PARTY OR THE SUBJECT. SO THEY'RE STILL GOING TO BE THAT STANDARD OF RUNNING AN IMPARTIAL AND A FAIR INVESTIGATION.

NOW HERE'S WHERE THINGS ARE DIFFICULT. SO IF THERE'S A SUSTAINED FINDING AGAINST AN ALLEGATION OF AN ELECTED OFFICIAL, WE HAVE TO THINK ABOUT OUR GENERAL KNOWLEDGE ABOUT CAN AN ELECTED OFFICIAL BE DISCIPLINED OR WHAT CORRECTIVE ACTION CAN BE TAKEN.

IT'S GOING TO LOOK MUCH DIFFERENT THAN WITH YOUR REGULAR CITY STAFF.

AND SO THERE HAS TO BE A BIG CONVERSATION AND STRATEGY ABOUT WHAT EVEN CAN BE DONE.

THERE IS NO WAY TO TERMINATE THE EMPLOYMENT OF AN ELECTED OFFICIAL.

AND SO THINGS ARE IT DOES ULTIMATELY LOOK LIKE A BIT OF A DIFFERENT PROCESS.

SO IT'S GOING TO DEPEND ON THE EXACT SITUATION, BUT WE'VE SEEN THINGS LIKE WHAT PUBLIC CENSURE IS THAT THE PHRASE WE USE LIKE IN MEETINGS SOMETIMES, LIKE WE TALK ABOUT THAT, BUT IT IS A LITTLE BIT OF A MORE DIFFICULT AND UNUSUAL PROCESS THAN WITH REGULAR CITY STAFF. ALSO JUST DON'T WANT TO DISREGARD, YOU KNOW, MEDIA ATTENTION, PUBLIC PRESSURE THAT CAN COME INTO PLAY.

BUT THAT IS NOT STUFF THAT IS COVERED LIKE UNDER POLICY OR LAW.

THOSE ARE JUST EXTERNAL FACTORS THAT ARE UNIQUE TO A SITUATION WHEN THERE'S AN INVESTIGATION INVOLVING A COUNCIL MEMBER OR AN ELECTED OFFICIAL.

DID THAT HELP GIVE SOME INSIGHT INTO THAT? KIND OF.

[00:40:20]

BUT IT SOUNDS LIKE THERE'S SOME LIKE THERE'S SOME CLARITY, BUT ALSO IT DOESN'T GO AS FAR AS OBVIOUSLY PROTECTING AN EMPLOYEE.

WELL, I THINK IT DOES GO AS FAR AS PROTECTING EMPLOYEE, BUT I THINK THE ACTION THAT CAN BE TAKEN.

SO AND WE'RE TALKING ABOUT TWO DIFFERENT SITUATIONS, BUT THE ACTION THAT CAN BE TAKEN WHEN THE ELECTED OFFICIAL IS THE ALLEGED SUBJECT OF THE CONDUCT OR THE FINDING IS AGAINST THEM. THAT'S WHERE THE CORRECTIVE ACTION IS GOING TO LOOK DIFFERENT.

ON THE OTHER SIDE, IF THE ELECTED OFFICIAL IS THE REPORTING PARTY IT ACTUALLY WOULD LOOK VERY SIMILAR TO ANY, SAME AS ANY CITY EMPLOYEE. SO THEY WOULD BE INFORMED ABOUT THE INVESTIGATION, THEY WOULD BE INTERVIEWED AS PART OF THE INVESTIGATION.

THEY MAY OR MAY NOT BE PRIVY TO THE OUTCOME. OKAY.

USUAL CITY, REGULAR CITY STAFF GET INFORMED ABOUT THE FINDINGS, BUT NOT ABOUT ANY SUBSEQUENT DISCIPLINE OR CORRECTIVE ACTION, BECAUSE THAT IS PRIVATE PERSONNEL INFORMATION.

SO THE PROTECTIONS ARE THE SAME. I THINK THE DISCIPLINE CORRECTIVE ACTION PIECE IS A BIT DIFFERENT.

THE INVESTIGATION PIECE IS A BIT DIFFERENT. YOU'RE PRETTY MUCH ALWAYS USING AN OUTSIDE INVESTIGATOR IN THOSE SITUATIONS.

BUT YEAH, THE RIGHT TO REPRESENTATION WOULD REMAIN THE SAME, EVEN THOUGH OBVIOUSLY ELECTED OFFICIALS ARE NOT REPRESENTED BY A UNION.

BUT IT WOULD IT WOULD STILL STAND. SO. OKAY. OKAY.

ANYONE WANT TO ANSWER THE QUESTION? DID ANYONE THINK OF SOMETHING WHILE WE WERE DOING OUR QUESTION AND ANSWER? YEAH. AND THEN HOW DOES THAT ONE PERSON FEEL? YEAH. COULD YOU FEEL HARASSED? YES, EXACTLY. SO GOOD I LIKED.

DID YOU GUYS COORDINATE? THAT WAS PERFECT. OKAY.

THERE YOU GO. [LAUGHTER] SO IT'S. YEAH. THIS SLIDE IS ALL ABOUT THIS IDEA THAT PEOPLE USE THE PHRASE HARASSMENT WITHOUT REALLY TYING IT TO AN ACTUAL KIND OF LAW IN PLACE. AND SO, YES, THERE'S THIS FEELING OR THIS STATEMENT THAT I'VE BEEN HARASSED AND IT COULD JUST BE, YOU KNOW, LIKENED TO I DON'T LIKE WHAT SOMEONE SAID TO ME.

I DON'T LIKE THE WAY I'VE BEEN TREATED. THERE'S MANY TIMES THAT I HAVE LIKE, NOT LIKED THE WAY I'VE BEEN TREATED WHEN I'M OUT IN MY NEIGHBORHOOD WALKING MY DOG AND MY NEIGHBOR'S DOG JUST FEROCIOUSLY BARKS AT US ALL THE TIME, VERY CONSISTENTLY.

NOW I FEEL HARASSED. OKAY. I FEEL HARASSED EVERY TIME THAT HAPPENS.

BUT THERE IS NO CAUSE OF ACTION. YOU KNOW, IF I GO TO THE CRD AND I FILE A REPORT, I'M NOT EVEN GOING TO GET A RIGHT TO SUE LETTER PROBABLY.

THERE'S NO CAUSE OF ACTION FOR THAT TYPE OF FEELING OF HARASSMENT.

SO WHAT THIS SLIDE IS MEANT TO SORT OF PORTRAY IS THAT THERE VERY MUCH IS A LEGAL DEFINITION OF HARASSMENT.

SO THERE IS UNLAWFUL HARASSMENT. AND YOU KNOW, SOMETIMES YOU DO HAVE TO THINK ABOUT YOU GOT TO DIVE IN.

AND THIS IS KIND OF WHAT AN INVESTIGATOR DOES.

BUT TO FIGURE OUT IS THIS ACTUALLY HARASSMENT THAT THEY'RE ALLEGING THAT I'M LOOKING INTO, OR IS IT SOME OTHER FEELING. AND IT COULD STILL BE, YOU KNOW, UNPROFESSIONAL CONDUCT? IT COULD BE I DON'T LIKE WHAT SOMEBODY SAID TO ME AT WORK, BUT IT MAY NOT, AT THE END OF THE DAY, BE THE SAME THING AS HARASSMENT. NOW, HERE'S WHAT DRAWS THE LINE.

IT'S WHAT THIS SECTION IS ABOUT. PROTECTED CLASSIFICATIONS.

OKAY. BECAUSE WHEN I MEAN HOPEFULLY WHEN THE OTHER DOGS ARE BARKING AT ME, IT'S BECAUSE THEY WANT TO BARK AT MY DOG.

I HAVE NO PROTECTED CLASS FOR BEING A PET OWNER OF A DOG OF A PARTICULAR BREED, OR ANY TYPE OF DOG.

OKAY. BUT I DON'T KNOW, MAYBE IF THOSE DOGS ARE BARKING AT ME BECAUSE I'M A WOMAN OR I'M ASIAN, WE COULD HAVE A PROBLEM. BUT THIS IS NOT A WORKPLACE SITUATION.

SO, OKAY, I'M NOT TELLING YOU THERE'S A LAW HERE.

WHAT DISTINGUISHES UNLAWFUL HARASSMENT FROM, LIKE A MORE GENERAL FEELING OF HARASSMENT IS REALLY WHETHER A PROTECTED CLASSIFICATION IS AT PLAY. WHEN I WALK THROUGH THE DEFINITION OF HARASSMENT, IT IS CONDUCT.

IT'S A CERTAIN TYPE OF CONDUCT, BUT IT'S BASED ON PROTECTED CLASS.

SO THIS SLIDE IS A BULLET POINT LIST OF THE PROTECTED CLASSIFICATIONS UNDER FEDERAL LAW.

AND ALSO UNDER CALIFORNIA LAW. OKAY. SO I COULD NOT USE THIS SLIDE IF I PRESENTED IN ANY OTHER STATE.

THIS IS VERY PARTICULAR TO CALIFORNIA. SOME OF THESE GROUPS, THESE CATEGORIES, THESE CHARACTERISTICS ARE, YOU KNOW, SELF-EXPLANATORY. BUT I'LL GO OVER A COUPLE OF THEM IN A LITTLE BIT MORE DETAIL.

[00:45:05]

WE HAVE RELIGIOUS CREED. OKAY. IT DOESN'T JUST SAY RELIGION.

THE LAW DOESN'T DEFINE WHAT A RELIGION IS. IT DOESN'T DEFINE LIKE DOESN'T HAVE A LIST OF THE LEGALLY RECOGNIZED RELIGIONS. SO WHAT THIS IS INTENDED TO PROTECT IS ANYBODY WHO PRACTICES OR FOLLOWS A RELIGION, BUT IT COULD ALSO BE A SPIRITUAL BELIEF. IT COULD BE A PHILOSOPHICAL BELIEF THAT THEY FOLLOW AND PRACTICE TO THE EXTENT THAT SOMEONE MAY FOLLOW AND PRACTICE OF RELIGION.

SO IT IS MUCH BROADER THAN JUST FORMALLY RECOGNIZED RELIGIONS.

MARITAL STATUS IS A PROTECTED CLASS IN CALIFORNIA, BUT NOT UNDER FEDERAL LAW AT THIS TIME.

ONE OF OUR REALLY, OUR NEWEST PROTECTED CLASSIFICATIONS IN THE STATE OF CALIFORNIA IS REPRODUCTIVE HEALTH DECISION MAKING.

AND SO THAT PROTECTED CLASS PROTECTS INDIVIDUAL EMPLOYEES WHERE THEY CANNOT BE DISCRIMINATED AGAINST OR RETALIATED OR, I GUESS, RETALIATED OR HARASSED FOR CHOICES THEY MAKE REGARDING THEIR OWN REPRODUCTIVE HEALTH.

AND THAT IS MEANT TO BE VERY BROAD. IT COVERS ALL GENDERS.

IT COVERS DECISIONS ABOUT THINGS LIKE NOT HAVING CHILDREN.

IT COVERS THINGS LIKE ANY MEDICAL PROCEDURE RELATED TO REPRODUCTIVE HEALTH, IVF, IT INCLUDES ABORTION CARE.

IT INCLUDES THINGS LIKE HAVING PROCEDURES TO CHOOSE NOT TO HAVE CHILDREN OR ANY MORE CHILDREN.

SO IT IS VERY BROAD. IT IS ALSO VERY, VERY NEW.

I HAVEN'T BEEN ABLE TO DIVE DEEP INTO LIKE CASES ALLEGING DISCRIMINATION BASED ON THIS, JURY DECISIONS ON THAT, BECAUSE IT IS ABOUT TWO YEARS. IT'S A TWO YEAR OLD CLASSIFICATION.

SO WE'LL SEE WHERE THAT GOES. OKAY. ANY EMPLOYEE WHO REPORTS OR OPPOSES DISCRIMINATION OR HARASSMENT, THEY ARE ACTUALLY IN THEIR OWN PROTECTED CLASSIFICATION.

SO THEY CAN'T BE TERMINATED FOR OPPOSING DISCRIMINATION IN THE WORKPLACE, WHICH IS KIND OF VERY SIMILAR TO WHAT RETALIATION MAY LOOK LIKE.

SO THEY'RE ALSO PROTECTED UNDER RETALIATION LAWS.

WE HAVE A PROTECTED CLASS IN CALIFORNIA OF ASSOCIATION.

AND SO THAT REFERS TO AN INDIVIDUAL EMPLOYEE AND WHO THEY ASSOCIATE WITH WHO THEY'RE FRIENDS WITH, WHO ARE, WHO THEY'RE FAMILY MEMBERS WITH. AND SO EVEN IF THAT SPECIFIC EMPLOYEE MAY NOT BE A MEMBER OF A PROTECTED CLASS, THEY ARE PROTECTED FROM HARASSMENT OR DISCRIMINATION FOR BEING FRIENDS WITH SOMEBODY IN A PROTECTED CLASSIFICATION.

OKAY, SO IF MY EMPLOYER SAYS, STEPHANIE, YOU'RE GREAT, BUT I REALLY DON'T LIKE THAT YOUR HUSBAND IS OF A PARTICULAR RELIGION OR PARTICULAR NATIONAL ORIGIN. AND SO I'M NOT GIVING YOU THE PROMOTION THAT YOU'RE APPLYING FOR.

THEN THOSE ARE GOING TO BE ELEMENTS WHERE I CAN FIT INTO THE ASSOCIATION PROTECTED CLASS.

PERCEPTION REFERS TO AN INDIVIDUAL WHO IS PERCEIVED AS BEING A MEMBER OF A PROTECTED CLASSIFICATION, WHEN IN FACT THEY ARE NOT. SO THIS IS KIND OF A GOOD REMINDER.

YOU LOOK AT THIS LIST, YOU CANNOT ALWAYS JUST LOOK AT AN INDIVIDUAL AND AUTOMATICALLY KNOW WHICH PROTECTED CLASSIFICATION THEY ARE A MEMBER OF.

THERE ARE ALSO SEVERAL PROTECTED CLASSIFICATIONS ON HERE WHERE EVERYONE IS A MEMBER OF IT, SUCH AS SEX, EVERYBODY HAS A SEX THAT THEY ARE OR THAT THEY AT LEAST IDENTIFY WITH.

AND SO I HAD A QUESTION REALLY RECENTLY WHICH KIND OF SHOCKED ME BECAUSE THIS IS NOT NEW TRAINING, BUT I DID HAVE A GENTLEMAN SAY, WELL, I'M A MAN, SO DON'T I HAVE NO PROTECTED CLASS UNDER SEX.

AND I SAID, NO, LIKE, IF YOU'RE A MAN, YOU STILL CANNOT BE DISCRIMINATED AGAINST BECAUSE YOU ARE A MAN.

LIKE YOU STILL DO HAVE A PROTECTED CLASSIFICATION.

IT'S NOT THAT YOU HAVE NONE OF THEM. ALL RIGHT.

AND THEN WE HAVE A VERY, VERY NEW PROTECTED CLASS.

IT'S THE ONE THAT SAYS, BASED ON A COMBINATION, COMBINATION OF ANY TWO OR MORE PROTECTED CHARACTERISTICS, THAT ONE IS NEW AS OF IT STARTED JUST LAST TWO MONTHS AGO, JANUARY 25, AND THIS REFERS TO AN EMPLOYEE WHO FEELS LIKE THEY'RE BEING HARASSED OR DISCRIMINATED AGAINST BECAUSE THEY ARE A COMBINATION OF TWO OR MORE OF THESE THINGS.

SO I'LL USE MYSELF AS AN EXAMPLE. SO IF I WORKED SOMEWHERE AND I FELT LIKE THIS IS A GREAT PLACE, I HAVE A LOT OF COLLEAGUES WHO ARE WOMEN. SO WE HAVE FEMALE.

[00:50:01]

GREAT. BUT LET'S SAY I START TO FEEL LIKE BECAUSE I'M A COMBINATION OF THE TWO, THERE'S SOMETHING ABOUT THIS WORKPLACE WHERE THEY DON'T LIKE AND I'M GETTING COMMENTS THAT I FIND HARASSING BECAUSE I AM AN ASIAN WOMAN.

SO IT'S NOT BECAUSE I'M A WOMAN ISOLATED ON ITS OWN, AND IT'S NOT BECAUSE I'M ASIAN, ISOLATED ON ITS OWN.

IT'S THE COMBINATION OF THE TWO THAT, LET'S SAY, I FEEL LIKE PEOPLE ARE MAKING FUN OF ME AT WORK.

THAT WOULD BE AN EXAMPLE OF THIS NEWEST PROTECTED CLASS IN CALIFORNIA.

ALL RIGHT. WE ALSO HAVE LAWS UNDER THE FAIR EMPLOYMENT AND HOUSING ACT THAT PROHIBIT DISCRIMINATION OR DISCIPLINE, REALLY FOR EMPLOYEES DUE TO THEIR OFF DUTY CANNABIS USE.

SO IF AN EMPLOYEE UNDERGOES DRUG TESTING AND TESTS POSITIVE FOR NON-ACTIVE THC, EMPLOYERS ARE NOW CONSTRAINED IN DISCIPLINING THE EMPLOYEE FOR THAT DRUG TESTING RESULT.

THERE ARE EXCEPTIONS TO THAT, BUT THAT IS A NEWER PROTECTED CLASS.

OUT OF THE LAWS IN CALIFORNIA. JUST TO BE CLEAR, IT DOES NOT PROTECT EMPLOYEES WHO COME TO WORK UNDER THE INFLUENCE OR IN POSSESSION OF.

I NOTICE IT SAYS 40 YEARS OF AGE AND OLDER. YEAH.

IS IT ONLY PROTECTING FOLKS IN THAT CATEGORY? OR IS IT AGE REGARDLESS OF WHAT AGE YOU ARE? YEAH, IT IS ONLY PROTECTING INDIVIDUALS ONCE THEY ARE AGE 40 OR OVER.

SO ANYBODY WHO IS A YOUNGER OF A YOUNGER AGE EMPLOYEE, THEY DO NOT HAVE A PROTECTED CLASS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT. YEAH. SO YEAH. NO, BUT WE ALL KNOW LIKE 40 YEAR OLDS ARE REALLY YOUNG NOW.

SO IT ACTUALLY COVERS VERY YOUNG EMPLOYEES. LET'S GET THAT RIGHT.

YEAH. BUT YEAH IT IS JUST ONLY WRITTEN FOR THAT IN THE PROTECTED AGE GROUP.

YES. HOW DO YOU GET ON THAT LIST? HOW DO YOU GET ON IT.

SO YOU'RE NOT OH LIKE THE BECAUSE I SAID, OH, WE ADDED THIS.

THE STATE LEGISLATURE ADDED THIS. THAT IS A GOOD QUESTION.

AND I DON'T KNOW THE EXACT PROCESS EXCEPT THE GENERAL LIKE STATE LAWMAKING PROCESS.

YOU GENERALLY HAVE A REPRESENTATIVE PROPOSED A BILL AND THEN, YOU KNOW, SOME OF THESE, AREN'T ALWAYS, YOU KNOW, ENACTED AND PASSED INTO LAW THE FIRST GO AROUND.

BUT YES, THEY WRITE A BILL AND IT GOES THROUGH THE WHOLE, YOU KNOW.

YES.

I THINK YOU CALLED IT A FAIR.

YEAH, YEAH. THE LAWS AND THE AGENCIES. OKAY. SO YOU'RE JUST LIKE, HOW DOES IT GO FROM.

YEAH. SO WHEN THEY DO PROPOSE A BILL ENACTING OR PROPOSING A NEW PROTECTED CLASS WITH THAT, THEY ARE CERTAINLY GIVEN, LIKE THE PURPOSE AND THE INTENT OF WHAT THEY'RE PROPOSING, BUT THEY ACTUALLY HAVE TO DO THE WORK WITH IDENTIFYING IF THIS GOES INTO LAW, WHAT LAW IN CALIFORNIA WILL BE AMENDED TO ADD IT.

AND SO THAT'S EXACTLY WHAT YOU WERE REACHING ON.

SO FOR A LOT OF THESE. WE SAW THEY TOOK THE FAIR EMPLOYMENT AND HOUSING ACT, WHICH IS IN GOVERNMENT CODE SECTION 12940 ISH AROUND THERE SEVERAL STATUTES. AND THEN THEY ADD IN THEIR PROPOSAL FOR THE BILL, THEY ARE SHOWING EXACTLY HOW THEY'RE PROPOSING THAT LAW BE AMENDED TO ADD THIS, TO DEFINE THIS, TO PROVIDE ANY TERMS THAT THEY'RE PROPOSING. AND SO IF THE LAW IS PASSED AND ULTIMATELY SIGNED BY THE GOVERNOR, THEN IT GOES INTO EFFECT AND IT USUALLY GOES INTO EFFECT THE FOLLOWING JANUARY 1ST.

YEAH. ANY OTHER QUESTIONS HERE. ALL RIGHT. SO I SAID I WOULD GET BACK TO GENDER IDENTITY AND EXPRESSION.

SO IN THE STATE OF CALIFORNIA, HOW WE DEFINE GENDER IDENTITY AND EXPRESSION IS BY SELF-IDENTIFICATION.

SO HOW AN INDIVIDUAL SELF-IDENTIFIES THEIR GENDER IDENTITY AND GENDER EXPRESSION.

WE DO NOT HAVE A LAW THAT REQUIRES ANY SORT OF DOCUMENTATION FOR PROVING THIS PROTECTED CLASS.

SO IN 2019, IN CALIFORNIA, WE HAD A NUMBER OF REGULATIONS GO INTO EFFECT ABOUT THIS PROTECTED CLASS AT PLACES OF WORK. AND SO THE REGULATIONS PROVIDE HERE'S SOME OF THE KEY REGULATIONS.

SO EMPLOYERS MUST PERMIT EMPLOYEES TO USE THE RESTROOM THAT CORRESPONDS TO THE EMPLOYEES GENDER IDENTITY AND EXPRESSION.

EMPLOYERS MUST AND ALSO COWORKERS MUST REFER TO EMPLOYEES USING THE EMPLOYEES PREFERRED NAME,

[00:55:04]

BUT EVEN BEFORE THIS WAS A REGULATION. IF I SAW DRESS CODE THAT SAID, HERE'S WHAT MEN SHOULD WEAR AND HERE'S WHAT WOMEN SHOULD WEAR, WE WERE ALREADY HAVING ISSUES WITH THAT SORT OF A DRESS CODE TO BEGIN WITH.

AND THEN EMPLOYERS MUST NOT DISCRIMINATE AGAINST AN APPLICANT FOR FAILING TO DESIGNATE A GENDER, OR DESIGNATING A GENDER THAT IS INCONSISTENT WITH THE APPLICANT'S SEX ASSIGNED AT BIRTH.

SO WHAT THIS REALLY MEANS IS THAT ANYBODY WHO IS IN A ROLE WHERE YOU'RE REVIEWING APPLICATIONS OR YOU'RE PART OF THE HIRING PROCESS, IF A CANDIDATE OR AN APPLICANT DOESN'T MARK WHAT BOX FOR A GENDER, THEY DON'T MARK ANYTHING OR THEY MARK SOMETHING AND YOU'RE LIKE, OH, THAT SEEMS OFF. WHAT DO YOU DO ABOUT THAT? NOTHING. YOU JUST PROCESS THE APPLICATION BASED ON THE OTHER INFORMATION FOLLOWING YOUR USUAL HIRING PROCESS.

AND THEN ALSO EMPLOYERS MUST NOT INQUIRE ABOUT OR REQUIRE DOCUMENTATION OR PROOF OF AN INDIVIDUAL'S SEX OR GENDER.

SO LIKE I SAID, THERE'S NO GOVERNMENT DOCUMENT.

THERE'S NO COUNTY DOCUMENT. THERE'S NO NEW BIRTH CERTIFICATE OR DRIVER'S LICENSE OUT THERE THAT WOULD BE REQUIRED TO SHOW MEMBERSHIP IN THIS PROTECTED CLASS. ALL RIGHT. SO NOW WE KNOW. YES. QUESTIONS? LIKE YOU WOULD NOT NECESSARILY KNOW WHAT SOMEONE'S GENETIC INFORMATION IS, OR SOMETIMES YOU DO NOT KNOW WHETHER AN EMPLOYEE HAS A DISABILITY OR NOT, IF IT HAS NO IMPACT ON THEIR ABILITY TO PERFORM THEIR JOB.

SO YOU DON'T ALWAYS KNOW. I WILL SAY THAT. OKAY.

SO HOW DOES THAT TRANSLATE INTO IF THERE'S LITIGATION? WELL, IT CAN BE A DEFENSE THAT WE TOOK ACTION TO DISCIPLINE THIS EMPLOYEE AND IT WASN'T BASED ON THEIR PROTECTED CLASS.

HERE'S A DEFENSE. WE DID NOT KNOW THEIR MEMBERSHIP IN THAT PROTECTED CLASS.

HOW COULD WE HAVE CHOSEN TO DEMOTE THEM OR TERMINATE THEM IF WE HAD NO KNOWLEDGE OF THAT? SO SOMETIMES YOU WILL NOT KNOW. SOMETIMES YOU WILL KNOW.

OKAY, SO MY ANSWER TO YOU IS VERY, VERY GRAY.

BUT YEAH, IT'S JUST TO RAISE THE POINT. IT DEPENDS ON THE SITUATION.

AND SOMETIMES AN EMPLOYER OR A SUPERVISOR OR MANAGER MAY NOT KNOW, BUT SOMETIMES THERE ARE YOU KNOW, YOU KNOW, WHAT WOULD A JURY BELIEVE? OKAY. IF MY EMPLOYER SAID I DID NOT KNOW THAT STEPHANIE, YOU KNOW, WAS ASIAN, YOU KNOW, IT MIGHT BE A LITTLE QUESTIONABLE.

OKAY. BUT AGAIN, YOU COULD HAVE THE OPPOSITE ARGUMENT.

I DON'T KNOW. YOU KNOW, YOU CAN'T ALWAYS TELL WHAT SOMEONE'S RACE IS BY LOOKING AT THEM.

BUT, YOU KNOW, FROM MY EXPERIENCE, MOST PEOPLE I COME ACROSS HAVE BEEN PRETTY ACCURATE WITH GUESSING MY RACE.

SO YES.

THEY'RE NOT PROMOTED BECAUSE THEY HAVE TO ATTEND TO THEIR CHILDREN AS A SINGLE MOM, WOULD THAT FALL INTO THE GENDER PORTION OF THAT SLIDE THAT YOU JUST SAID? SO IT COULD. OKAY. BECAUSE IN ORDER FOR IT TO FALL INTO GENDER, THOUGH, THEY WOULD HAVE TO KIND OF PROBABLY SHOW, YOU KNOW, THE SINGLE DADS OUT THERE AREN'T BEING TREATED THE SAME WAY.

SO THERE'S A DIFFERENCE WITH THAT. BUT THERE'S ALSO A NUMBER OF OTHER PROTECTED CATEGORIES MARITAL STATUS, OKAY, BEING DIVORCED OR SINGLE OR UNMARRIED ALL FITS INTO THAT.

WE ALSO HAVE THE NOW REPRODUCTIVE HEALTH DECISION MAKING, AND I DON'T KNOW KIND OF HOW WE'RE GOING TO SEE THAT PLAY OUT IN COURTS, BUT COULD THAT TIE INTO SOMEBODY'S CHOICE TO HAVE CHILDREN AND FITTING INTO THAT? YEAH, POTENTIALLY.

YOU KNOW, WHAT I DO. AND, YOU KNOW, I GOT TO TELL YOU WHEN I DO MY TRAININGS COVERING ALL OF THE JOB PROTECTED LEAVES OUT THERE, I OFTEN GET ASKED WHAT LEAVES ARE OUT THERE FOR PET OWNERS.

WHAT IF YOUR PET IS SICK OR INJURED? SO YEAH, THAT'S A, WE DO TALK ABOUT THAT.

OKAY.

YEAH. AND IT DOESN'T COVER PETS AT THIS TIME.

SO I JUST WANT TO NOTE THAT. OKAY. SO LET'S COVER WHAT IS EXACTLY UNLAWFUL DISCRIMINATION HARASSMENT AND RETALIATION.

SO THIS IS A VERY SIMPLE VISUAL SLIDE. BUT IT IS MEANT TO ILLUSTRATE THAT THESE ARE THREE SEPARATE CAUSES OF ACTION.

[01:00:03]

HARASSMENT WOULD BE SEPARATE AND RETALIATION WOULD BE SEPARATE.

BUT AS I GO THROUGH THE ELEMENTS, YOU WILL SEE THAT THERE IS OVERLAPPING COMMON ELEMENTS OF THESE CLAIMS. SO WE'RE GOING TO START OFF WITH DISCRIMINATION.

SO IF I WERE TO TAKE ALL OF THE FEDERAL AND THE STATE LAWS THAT I DESCRIBED TO YOU THAT PROHIBIT DISCRIMINATION IN THE WORKPLACE AND SUMMER IT DOWN TO REALLY THE KEY LEGAL ELEMENTS THAT CONSTITUTE UNLAWFUL HARASSMENT, IT WOULD BE AN ADVERSE EMPLOYMENT ACTION TAKEN BASED ON A PROTECTED CLASS.

OKAY. SO WE COVERED IN DEPTH WHAT PROTECTED CLASSIFICATIONS ARE.

LET'S FOCUS ON ADVERSE EMPLOYMENT ACTIONS. SO AS IT SAYS HERE IT'S GOING TO BE AN ACTION.

SO THESE ARE GENERALLY GOING TO BE A NEGATIVE ACTION TAKEN WITHIN THE COURSE AND SCOPE OF EMPLOYMENT.

THERE ARE A COUPLE OF EMPLOYMENT DECISIONS AND ACTIONS THAT ARE VERY BLACK AND WHITE, WHETHER THEY ARE ADVERSE OR NOT.

IT SAYS HIRING HERE. IT SHOULD REALLY SAY, I MEAN, IF YOU'RE HIRED, THAT'S GREAT.

SO IT SHOULD REALLY SAY LIKE THE DECISION NOT TO HIRE SOMEONE, NOT TO HIRE THE CANDIDATE.

THAT WOULD BE THE ADVERSE EMPLOYMENT ACTION DECIDED AND TAKEN.

FIRING OR TERMINATION OF EMPLOYMENT. DEMOTION.

FAILURE TO PROMOTE. THOSE ARE ALL ADVERSE EMPLOYMENT ACTIONS.

THERE ARE ALSO A COUPLE OF ACTIONS WHERE THEY COULD BE ADVERSE, BUT IT IS REALLY GOING TO DEPEND ON THE EXACT EMPLOYEE SITUATION.

SO THE ASSIGNMENT OF JOB DUTIES. IT CAN BE BENEFICIAL TO BE REASSIGNED JOB DUTIES.

IF YOU FEEL LIKE NOW YOU KNOW MY SUPERVISOR IS GOING TO NOTICE ME, COUNCIL'S GOING TO NOTICE ME.

THEY'RE GOING TO SEE HOW SKILLED I AM. IT'S GOING TO HELP ME GET THAT PROMOTION DOWN THE LINE.

THEN THAT ASSIGNMENT, THAT REASSIGNMENT OF JOB DUTIES IS NOT ADVERSE.

BUT, YOU KNOW, OPPOSITE. IF I'M REASSIGNED JOB DUTIES AND I NOW FEEL LIKE I'M BEING ISOLATED FROM MY TEAM AND IT IS VERY HARD FOR ME TO GET MY WORK DONE IF I CAN'T REGULARLY COMMUNICATE WITH PEOPLE.

I CAN CLAIM THAT'S AN ADVERSE EMPLOYMENT ACTION.

SO SOMETIMES WE'RE NOT TALKING ABOUT JUST THE BIG THINGS LIKE TERMINATION OF EMPLOYMENT OR WHO GETS HIRED.

BUT IT'S YOU KNOW, WE HAVE SEEN CLAIMS FROM EMPLOYEES ABOUT OTHER THINGS WHERE THEY TRY TO EXPLAIN WHY IT IS ADVERSE TO THEIR SITUATION.

OKAY. SO SO THIS IS TO SAY, THOUGH, YOU KNOW, IT'S NOT THAT CHOOSING NOT TO HIRE A CANDIDATE BY ITSELF IS DISCRIMINATION.

IT'S IF THAT DECISION IS BASED ON A PROTECTED CLASSIFICATION.

OKAY. SO I CAN'T BE TERMINATED BECAUSE OF MY RACE.

I CAN'T BE DEMOTED BECAUSE OF A DISABILITY I HAVE.

I CAN'T BE THE ONE WHO'S CHOSEN NOT TO HAVE THE PROMOTION BECAUSE OF MY, YOU KNOW, STATUS AS A MILITARY VETERAN.

OH. DID I TRIGGER SOMETHING? OKAY. GO AHEAD. KIND OF.

BACK TO GARY'S POINT. SO HOW DO WE KNOW IF WE DON'T KNOW WHAT THE PROTECTED CLASSES ARE, THAT WE'RE.

YEAH, DISQUALIFYING THEM FROM BEING HIRED FOR THAT.

I THINK YOU GOT TO ASK THE OPPOSITE QUESTION.

IT'S WHEN WE MAKE THESE DECISIONS, WHAT ARE WE BASING THEM ON? OKAY, SO IF WE'RE NOT PROMOTING SOMEONE BECAUSE THEY DIDN'T RANK THE HIGHEST ON THE LIST OR THE EXAM OR DIDN'T DO WELL ON THE INTERVIEW, THEN THAT'S THE REASON WE'RE NOT PROMOTING THEM OR WE DIDN'T HIRE THEM.

YOU DON'T ALWAYS KNOW WHAT SOMEONE'S PROTECTED CLASS IS.

SOMETIMES YOU DO, SOMETIMES YOU DON'T. BUT I THINK AT THE END OF THE DAY, REALLY ANY ONE OF THESE ACTIONS TAKEN, IT'S GOING TO BE BASED ON SOMETHING ELSE BESIDES PROTECTED CLASS.

AND THAT'S REGARDLESS OF WHETHER YOU KNOW THE PROTECTED CLASS OR NOT.

SO YOU NEED TO FOCUS ON WHAT I GUESS THE PHRASE WE USE IS IF YOU'RE GOING TO MAKE THESE DECISIONS, YOU KNOW, WHAT WAS THE LEGITIMATE BUSINESS REASON FOR THAT DECISION? SO DOWN THE LINE, THOUGH, LET'S SAY THERE'S A LAWSUIT AND SOMEONE CLAIMS, WELL, YOU DIDN'T PROMOTE ME BECAUSE I AM A WOMAN.

THAT'S GOING TO BE HARDER TO SAY. I DIDN'T KNOW YOU WERE A WOMAN.

IF YOU'VE BEEN THEIR COLLEAGUE AND WORKING WITH THEM FOR TEN YEARS.

BUT IF SOMEONE SAYS YOU DIDN'T PROMOTE ME BECAUSE OF MY DISABILITY, BUT THIS IS AN INDIVIDUAL WHO NEVER CAME TO THE DEPARTMENT, NEVER CAME TO HR, NEVER DISCLOSING A DISABILITY OR REQUESTING AN ACCOMMODATION OR COMMUNICATING WORK RESTRICTIONS, THEN IT COULD VERY WELL BE A SITUATION WHERE, YOU KNOW, THE DEPARTMENT DID NOT KNOW OF THAT PROTECTED CLASSIFICATION.

SO IT'S A VERY BROAD ANSWER TO YOUR QUESTION.

OKAY. HARASSMENT. SO THE FIRST THING TO KNOW ABOUT HARASSMENT IS THAT IT IS NEVER WITHIN THE COURSE AND SCOPE OF EMPLOYMENT.

WHAT THAT MEANS IS THAT IT IS NEVER SOMEBODY'S JOB TO HARASS OTHER PEOPLE WHILE AT WORK.

[01:05:02]

I KNOW WHERE TO FIND THEM. IF I PULL UP ANYONE'S JOB DESCRIPTION AND I LOOK AT YOUR DUTIES, YOUR ESSENTIAL JOB DUTIES. NOBODY'S JOB DESCRIPTION SHOULD SAY, COME TO WORK AND GREET EVERYONE BY SAYING A RACIAL SLUR TO EVERYONE YOU COME ACROSS.

NOBODY'S JOB SHOULD SAY COME AND GIVE YOUR COWORKERS MASSAGES, EVEN IF THEY FIND IT VERY UNCOMFORTABLE.

OH, AND BY THE WAY, ONLY GIVE MASSAGES TO WOMEN AND NOT MEN.

OKAY. RIGHT. NOBODY HAS. THERE'S NO MASSAGE THERAPISTS AT THE CITY.

OH, SORRY. SO IT IS NEVER A PART OF SOMEBODY'S JOB.

AND THIS IS A BIG SORT OF DISTINCTION FROM DISCRIMINATION, BECAUSE WHEN WE TALK ABOUT DISCRIMINATION, I'LL GO BACK. IT ACTUALLY IS SOMEBODY'S JOB TO DECIDE.

WHO ARE WE HIRING FOR THIS POSITION? WHEN DO WE HAVE TO ENACT DISCIPLINE DUE TO MISCONDUCT? THAT IS A TERMINATION, A DEMOTION. AND THEN IF THERE'S A PROMOTION ON THE LINE, UNFORTUNATELY, WE CANNOT PROMOTE EVERY PERSON THAT APPLIES FOR IT.

SO IT ACTUALLY IS GOING TO BE A SUPERVISOR, A MANAGER, A DEPARTMENT HEADS JOB TO DECIDE WHO GETS THE PROMOTION.

IT IS SOMEBODY'S JOB TO DECIDE ADVERSE EMPLOYMENT ACTIONS, BUT IT IS NOT SOMEBODY'S JOB TO ENGAGE IN HARASSMENT IN THE WORKPLACE.

SO HARASSMENT IS VERBAL, VISUAL OR PHYSICAL ACTIONS THAT ARE UNWELCOME AND DIRECTED OR RELATED TO AN EMPLOYEE'S PROTECTED CLASS.

SO ONCE AGAIN, THE CONDUCT HAS TO BE BASED ON PROTECTED CLASSIFICATION.

AND IT INCLUDES BOTH ACTIONS TOWARDS AND BY EMPLOYEES, BUT ALSO OTHER PEOPLE YOU MAY COME ACROSS IN THE WORKPLACE.

ALL RIGHT. AND THEN OUR THIRD. OUR THIRD CAUSE OF ACTION IS RETALIATION.

SO GENERALLY RETALIATION IS AN INDIVIDUAL OR OCCURS IF AN INDIVIDUAL ENGAGES IN PROTECTED ACTIVITY.

NOW WHAT IS PROTECTED ACTIVITY. IT'S THERE'S A LOT OKAY.

THERE'S A LOT OF LAWS THAT HAVE ANTI-RETALIATION PROVISIONS.

I GAVE SOME EXAMPLES HERE KIND OF ON TOPIC. SO IT WOULD INCLUDE PEOPLE WHO REPORT DISCRIMINATION OR HARASSMENT.

THE REPORT IS PROTECTED ACTIVITY. SOMEBODY WHO PARTICIPATES IN AN INVESTIGATION, WHETHER THEY ARE THE COMPLAINING PARTY, A WITNESS OR THE SUBJECT OF THE ALLEGATIONS, THEY ARE PROTECTED FOR THAT PARTICIPATION.

AND SOMEBODY WHO GETS AN ORDER FROM A SUPERVISOR REFUSES TO FOLLOW THE ORDER BECAUSE THEY BELIEVE IT TO BE DISCRIMINATORY.

THEY HAVE NOW ENGAGED IN PROTECTED ACTIVITY, ALTHOUGH HONESTLY, TO TAKE IT A STEP FURTHER FURTHER, THEY SHOULD VOICE AND REPORT. YOU KNOW WHY THEY FEEL THAT IS DISCRIMINATORY.

OKAY, SO AN INDIVIDUAL ENGAGES IN PROTECTED ACTIVITY AND THEN THEY EXPERIENCE AN ADVERSE EMPLOYMENT ACTION, WHICH IS THE SAME DEFINITION THAT WE JUST USED IN DISCRIMINATION.

SO THEY ARE TERMINATED. THEY ARE DEMOTED. THEY ARE NOT SELECTED FOR THE PROMOTION.

THEN THEY HAVE TO BE ABLE TO SHOW A CAUSAL CONNECTION BETWEEN THE TWO.

OKAY. SOMETIMES THAT CAUSAL CONNECTION CAN BE THE TIMING OF THINGS LIKE I REPORTED DISCRIMINATION, AND THE NEXT DAY I RECEIVED MY NOTICE OF INTENT TO TERMINATE MY EMPLOYMENT.

BUT GENERALLY, IN A LAWSUIT THAT GOES DOWN THE LINE GOES ALL THE WAY TO JURY TRIAL.

USUALLY THE PLAINTIFF WILL HAVE TO SHOW SOMETHING ELSE FOR THE CAUSATION BESIDES SIMPLY TIMING.

SO IT USUALLY HAS TO BE SOME OTHER ELEMENT FACTOR SHOWN TO MEET THEIR CASE.

ALL RIGHT. SO LET'S TRY THIS CASE STUDY. SO DAISY FILES A SEXUAL HARASSMENT CLAIM AGAINST HER SUPERVISOR JOHN SUSIE.

OKAY. SO SUSIE AND DAISY ARE TWO DIFFERENT PEOPLE.

SUSIE, WHO IS ALSO SUPERVISED BY JOHN, PARTICIPATES IN THE INVESTIGATION OF THIS CLAIM.

JOHN EXPRESSES ANNOYANCE WITH THE INVESTIGATION AND COMPLAINS TO THE OTHER EMPLOYEES IN THE DEPARTMENT THAT SUSIE IS LOOKING FOR ATTENTION, AND TELLS THEIR HIGHER LEVEL SUPERVISOR THAT SHE IS DIFFICULT TO WORK WITH, RESULTING IN SUSIE'S DEMOTION TO A LOWER POSITION.

OKAY, FIRST QUESTION FOCUSES ON SUSIE'S SITUATION.

HAS SUSIE BEEN SUBJECTED TO UNLAWFUL RETALIATION? SO IF YOU WERE THE JURY ON THIS. RAISE YOUR HAND IF YOU WOULD SAY, YEAH, I'M SEEING RETALIATION.

OKAY. SO A NUMBER OF PEOPLE. OKAY, SO LET'S BREAK IT DOWN.

SO RETALIATION. THERE HAS TO BE AN ADVERSE EMPLOYMENT ACTION.

SORRY. PROTECTED ACTIVITY. PROTECTED ACTIVITY IN PLAY.

SO WHAT WAS THE PROTECTED ACTIVITY THAT SUSIE ENGAGED IN? EXACTLY. PARTICIPATING IN THE INVESTIGATION. OKAY, THERE WE GO.

THERE THEN HAS TO BE AN ADVERSE EMPLOYMENT ACTION.

THAT'S PRETTY OBVIOUS. WHAT HAPPENED TO HER, RIGHT? SHE WAS DEMOTED.

THEN WE'D HAVE TO SEE, YOU KNOW, FOR THE JURY.

HOW DOES SHE EXPLAIN THE CAUSATION BETWEEN THE TWO?

[01:10:03]

YOU KNOW, IT SAYS HE SAID THESE STATEMENTS TO HIS SUPERVISOR, RESULTING IN SUSIE'S DEMOTION, RESULTING IN SHE'S GOING TO BE ABLE TO SHOW THE CAUSATION HERE.

SO YEAH, WE'RE SEEING THOSE ELEMENTS OF UNLAWFUL RETALIATION.

OKAY. LET'S GO TO THE NEXT QUESTION. SO WHILE THIS IS GOING ON, WHAT IF JOHN IGNORES DAISY 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 THE QUESTION IS THEN NOW, HAS DAISY BEEN SUBJECTED TO RETALIATION? SO RAISE YOUR HAND IF YOU FEEL LIKE IT'S. YES.

OKAY, THEN RAISE YOUR HAND IF YOU FEEL LIKE IT'S A NO AND IT'S OKAY.

WE CAN HAVE YOU KNOW WE'RE THE JURY. LIKE I'M NOT SUPPOSED TO TELL YOU WHICH WAY TO VOTE, RIGHT? AND THEN A NUMBER OF YOU DIDN'T, YOU KNOW, PUT IN YOUR JURY VOTE.

SO RAISE YOUR HAND IF YOU'RE LIKE, I PROBABLY WOULD NEED MORE INFORMATION, GO TO HR.

OKAY. SO YEAH, THIS IS ONE WHERE YOU KNOW, SUSIE, THE OUR FIRST QUESTION ON THE SPECTRUM, I THINK WE COULD, YOU KNOW, JUMP STRAIGHT TO LIKE, YEAH, THERE LOOKS LIKE RETALIATION WITH DAISY.

AND WHAT JOHN IS DOING AS A RESULT NOW IS A LITTLE BIT LESS UNCLEAR.

DOES ANYONE HAVE LIKE WHAT IS A KEY PIECE OF INFORMATION YOU FEEL LIKE YOU WOULD NEED TO KNOW TO MAKE A JUDGMENT HERE? IS JOHN IGNORING DAISY DURING LIKE A WORK REQUESTED CONVERSATION THAT SHE'S TRYING TO INITIATE? OR IS IT JUST THERE IN THE BREAK ROOM AND HE'S REMOVING HIMSELF FROM THE SITUATION? DEPENDING ON WHAT SHE'S WHAT THE INTERACTION WOULD BE? PERFECT. YEAH. SO IT KIND OF BOILS DOWN TO LIKE, WHEN IS HE IGNORING HER? AND KIND OF WHAT IS THE IMPACT ON DAISY? TO KIND OF SUMMARIZE THAT, IT'S GENERALLY LIKE WE WOULD WANT TO KNOW BECAUSE HE IS HER SUPERVISOR.

IF HE IGNORES HER, THEN WHAT'S THE HARM GOING TO BE ON HER WORK PERFORMANCE OR HER ABILITY TO JUST COMPLETE HER JOB DUTIES? IF IF THERE IS AN IMPACT, A NEGATIVE IMPACT, WE CAN ACTUALLY HAVE DAISY SAY THAT THAT IN AND OF ITSELF IS THE ADVERSE EMPLOYMENT ACTION. SO THAT'S IMPORTANT. THE OTHER THING I WANT TO NOTE IS THAT IF JOHN IS IGNORING DAISY, SOMETIMES THAT CAN BE OKAY. BUT GENERALLY YOU WANT THAT TO BE LIKE A DEPARTMENTAL OR AN HR ORDER.

YOU KNOW, WE'RE INVESTIGATING SEXUAL HARASSMENT BETWEEN THE TWO OF YOU WHILE THIS INVESTIGATION IS GOING ON.

WE'RE GOING TO SEPARATE YOU. BUT GENERALLY, WHEN THAT ORDER IS GIVEN THE NO CONTACT ORDER, ESSENTIALLY THEY GIVE DAISY A TEMPORARY SUPERVISOR SO THAT HER OWN JOB, HER WORK IS NOT GOING TO BE HOPEFULLY IMPACTED.

YES. BY HIM EXPRESSING ANNOYANCE WITH THE INVESTIGATION.

DOESN'T THAT KIND OF OPEN THINGS UP THAT HE IS LIKE ALMOST DOUBLING DOWN THE HARASSMENT, MEANING THAT NOW THE ENVIRONMENT IS GETTING MORE RISKIER FOR DAISY? SHE WALKS IN WITH HER COWORKERS NOW THINK YOU KNOW SOMETHING? YES, THAT'S A GREAT POINT. SO EXPRESSING COMMUNICATING ANNOYANCE WITH THE INVESTIGATION, I COULD LEAD TO FURTHER CLAIMS. IT COULD ALSO LIKE, AGAIN, WHEN THERE IS A CLAIM, THE PRIORITY OF THE DEPARTMENT SHOULD BE TO STOP ANYTHING FURTHER FROM HAPPENING MOVING FORWARD. SO THAT WOULD BE A REALLY BIG CONCERN.

I JUST ADVISED SO SOMETIMES I CONDUCT THESE INVESTIGATIONS AND SOMETIMES I OVERSEE THEM AND SOMETIMES I CONSULT ON THEM.

AND I JUST CONSULTED A NONPROFIT THAT WAS DOING AN INVESTIGATION.

AND IT WAS ONE OF THOSE SITUATIONS THAT YOU KIND OF JUST ELABORATED ON.

THERE WAS THE ALLEGATION AND THAT WAS BEING INVESTIGATED.

BUT THEN WHAT THE SUBJECT OF THE ALLEGATION DID NEXT? KIND OF MADE A BAD SITUATION FOR THEM EVEN WORSE.

OKAY. LIKE THEY IN THIS PARTICULAR SITUATION, THE SUPERVISOR THAT I WAS ADVISING ON CONFRONTED EVERY SINGLE PERSON THEY FELT MADE THE REPORT AGAINST THEM. AND SO THAT DEFINITELY CAN CREATE FURTHER CLAIMS FOR OTHER THINGS TO BE INVESTIGATED.

ALL RIGHT. NOW THIS SLIDE IS JUST TO TAKE A MOMENT AND JUST HONE IN ON A KEY POINT, WHICH IS WHAT DO YOU DO IF YOU ARE ACCUSED.

AND THIS SLIDE IS REALLY INTENDED FOR SUPERVISORS OR ANYONE WHO SERVES AS A LEAD FOR OTHER EMPLOYEES AT THE CITY.

SO IT IS MAINLY FOR SUPERVISORS, BUT REALLY SHOULD BE FOR ANYONE AT ANY LEVEL.

SO THIS IS DESCRIBING A SITUATION WHERE YOU'RE MADE AWARE THAT AN EMPLOYEE IS MAKING A CLAIM AGAINST YOU THAT YOU HAVE HARASSED OR DISCRIMINATED THEM. THIS IS ALL ABOUT THE PHRASE I JUST USED, AND I'LL USE IT AGAIN AND AGAIN, WHICH IS TO NOT MAKE A BAD SITUATION WORSE.

[01:15:04]

BUT LET'S MAKE SURE YOU FOLLOW THROUGH WITH YOUR OWN DUTIES AS A SUPERVISOR AND MAKE SURE THINGS ARE HANDLED PROPERLY FROM THERE ON OUT.

SO WE RECOMMEND YOU WOULD REFER THE ACCUSING PARTY OR THE REPORTING PARTY TO A SUPERIOR AIR OR UPPER MANAGEMENT IF THEY HAVEN'T GONE THERE ALREADY.

YOUR EXACT POLICY DESCRIBES THAT ANY EMPLOYEE CAN FILE A REPORT WITH.

I BELIEVE IT'S ANY DEPARTMENT DIRECTOR ANY, THEIR DEPARTMENT DIRECTOR, ANY MANAGER OR SUPERVISOR OR STRAIGHT TO THE HR DEPARTMENT.

YOU ALSO WANT TO MAKE SURE THAT YOU REPORT THAT ACCUSATION TO YOUR SUPERVISOR AND TO HR.

SOUNDS A LITTLE WEIRD. I'VE HAD THIS TRAINING AND THE EMPLOYEE SAID, IF SOMEONE ACCUSED ME, WHY WOULD I GO TELL MY SUPERVISOR ABOUT IT? AND THE REASON IS, IF YOU'RE A SUPERVISOR, YOU JUST HAVE THIS INDIVIDUAL LEGAL OBLIGATION THAT ANY REPORT OF HARASSMENT OR DISCRIMINATION YOU HEAR OR INTAKE, YOU'RE MAKING SURE IT GOES UP THE CHAIN AND IT'S NOT IGNORED.

AT ANY POINT IN THE REPORTING PROCESS, YOU WANT TO REFRAIN FROM ANY ACTION THAT COULD BE INTERPRETED AS FURTHER RETALIATION.

YOU CAN SEEK CONSTRUCTIVE COUNSELING FROM HR OR UPPER MANAGEMENT ABOUT THE PROCESS, ABOUT WHEN IS THE INVESTIGATION GETTING STARTED? WHEN CAN I BE EXPECTED TO BE INTERVIEWED? YOU SHOULD COOPERATE IN THE INVESTIGATION AND THEN FOLLOW THE CITY'S ADMIN ORDER.

ALL RIGHT. SO WE'RE GOING TO NOW DIVE INTO THE DIFFERENT TYPES OF UNLAWFUL HARASSMENT OKAY.

STARTING WITH QUID PRO QUO. SO HERE IS THE CLASSIC EXAMPLE.

TO JUST PUT THIS IDEA OF WHAT QUID PRO QUO HARASSMENT IS FRESH IN YOUR MINDS.

SO QUID PRO QUO. WE CALL IT ECONOMIC HARASSMENT.

IT TRANSLATES INTO ENGLISH FROM LATIN INTO ENGLISH INTO THIS FOR THAT.

SO THERE'S ALWAYS GOING TO BE THIS ELEMENT OF AN EXCHANGE GOING ON.

SO THE CLASSIC EXAMPLE IS SLEEP WITH ME AND I'LL MAKE SURE YOU GET THAT PROMOTION.

SO WE CALL THIS THE CLASSIC EXAMPLE BECAUSE IF YOU KNOW, I GUESS THE OSCARS JUST HAPPENED AND MOVIES ARE SUPER COMPLICATED THESE DAYS.

BUT BACK WHEN THEY WERE A LITTLE BIT SIMPLER, IF A MOVIE LIKE A ROMANTIC COMEDY WANTED TO HAVE A PLOTLINE OF HARASSMENT, THEY WOULD GO WITH THE QUID PRO QUO PLOTLINE.

IT WOULD BE SLEEP WITH ME AND I'LL MAKE SURE YOU GET THAT PROMOTION.

YOU KNOW, THE REASONS FOR THAT IS IT'S A LOT MORE IN YOUR FACE.

IT'S EGREGIOUS. THAT EXCHANGE IS IS OBVIOUS IN THIS, IN THIS EXAMPLE, BUT THE ACTUAL ELEMENTS OF QUID PRO QUO ARE THE FOLLOWING. SO THERE'S GOING TO BE A JOB BENEFIT THAT'S PROMISED.

AND THAT PROMISES EITHER EXPLICIT OR IMPLICIT, AND IT'S IN EXCHANGE FOR SEXUAL FAVORS, OR THE JOB BENEFIT WILL BE DENIED IF SEXUAL FAVORS ARE NOT GIVEN. SO THIS IS KIND OF WHAT I DESCRIBE AS A LOT OF WHAT HARRY, NOT HARRY HARVEY WEINSTEIN WAS DOING WAS SHOWCASING MORE OF THESE ELEMENTS OF QUID PRO QUO.

OKAY. SO LET'S TRY A CASE STUDY ON THIS. SO NATALIE IS AN ACCOUNTANT WITH THE CITY'S FINANCE DEPARTMENT.

ONE DAY, IN THE DEPARTMENT'S BREAK ROOM WHILE GETTING LUNCH, SHE CONFIDES TO CHRIS, A FINANCE MANAGER, THAT SHE HAS APPLIED FOR A SENIOR ACCOUNTANT POSITION AND THAT SHE DESPERATELY WANTS TO GET THE PROMOTION.

CHRIS EXCITEDLY RESPONDS, THAT'S GREAT. I'M ACTUALLY ON THE INTERVIEW PANEL FOR THAT RECRUITMENT, AND I'M GOOD FRIENDS WITH THE OTHER MEMBERS OF THE PANEL.

I CAN PUT IN A GOOD WORD FOR YOU. SHE THANKS HIM TOWARDS THE END OF THE WORK DAY.

NATALIE GETS A TEXT MESSAGE FROM CHRIS ASKING HER IF SHE WANTS TO GRAB A DRINK WITH HIM AFTER WORK.

CHRIS AND NATALIE HAVE NEVER SOCIALIZED OUTSIDE OF WORK BEFORE.

OKAY, LET'S SAY THIS GOES ALL THE WAY. OKAY. SHE MAKES A CLAIM FOR HARASSMENT.

JURY TRIAL. YOU'RE THE JURY. IS CHRIS GUILTY OF QUID PRO QUO HARASSMENT? ALL RIGHT, YOU'RE THE JURY. RAISE YOUR HAND IF YOU SAY YES.

QUID PRO QUO. OKAY. AND THEN RAISE YOUR HAND IF YOU SAY NO.

NOT QUID PRO QUO. OKAY. AND RAISE YOUR HAND IF YOU'RE JUST, LIKE, IN THE MIDDLE AND NEED MORE CONVINCING.

OKAY. THAT'S FAIR. ALL RIGHT, SO HERE'S HOW I WOULD KIND OF BREAK DOWN THIS ONE THERE.

THERE IS A LOT. THERE'S A BIT OF UNKNOWN HERE.

LET'S BREAK DOWN QUID PRO QUO. A JOB BENEFIT PROMISED.

SO IS HE PROMISING HER THE PROMOTION? NO. LIKE, DEFINITELY NOT EXPLICITLY, AND I DON'T THINK WE'RE QUITE.

WE MIGHT NOT BE THERE IMPLICITLY. OKAY. IT'S MAYBE GOING TO DEPEND ON A LITTLE BIT MORE INFORMATION.

OKAY. JOB BENEFIT PROMISE IN EXCHANGE FOR A SEXUAL FAVOR.

IS HE ASKING FOR A SEXUAL FAVOR? NOT YET. NOT TODAY.

[01:20:05]

WE'VE NEVER HUNG OUT OUTSIDE OF WORK. AND THIS IS RIGHT AFTER WE HAD THE CONVERSATION WHERE HE SAID HE'D PUT IN A GOOD WORD FOR ME.

I THINK THE QUESTION IS, WAS THAT A PROMISE? LIKE NOW, IS HE COMMUNICATING? I WILL ONLY PUT IN A GOOD WORD FOR YOU. YOU'RE ONLY GOING TO GET THE PROMOTION IF YOU GO HAVE DRINKS WITH ME. AND THEN WE CONTINUE ON WITH THIS SOCIAL RELATIONSHIP.

SO WE ARE NOT THERE YET. SO FOR THIS ONE, I WOULD SAY AT THIS POINT IN TIME, NO, HE'S NOT GUILTY OF QUID PRO QUO.

IT SHOULD ACTUALLY SAY LIABLE. HE'S NOT LIABLE FOR QUID PRO QUO.

BUT WE ALSO JUST HAVE TO BE CAREFUL WITH MAYBE WHERE THIS SITUATION COULD COULD GO IF, YOU KNOW, THERE'S FURTHER REQUESTS FOR OTHER THINGS IN THE FUTURE.

OTHER THING IS LIKE HIM BEING ON THE PANEL, SHOULD HE EVEN BE SAYING THIS SORT OF THING TO HER? NO. SO THAT'S THAT'S A WHOLE SEPARATE TOPIC THOUGH.

NOT NOT HARASSMENT. OKAY. I'M GOING TO SKIP THIS ONE IN THE INTEREST OF TIME.

AND WE'RE GOING TO GO TO HOSTILE WORK ENVIRONMENT.

SO HOSTILE WORK ENVIRONMENT IS THE OTHER TYPE OF HARASSMENT IN THE WORKPLACE.

IT HAS A LOT MORE ELEMENTS. IT IS ACTUALLY KIND OF WHAT WE SEE A LOT MORE LITIGATION OVER THESE DAYS RATHER THAN QUID PRO QUO.

SO HOSTILE WORK ENVIRONMENT. THE ELEMENTS ARE THERE'S A PROTECTED CLASSIFICATION AT PLAY.

SO THE CONDUCT IS GOING TO BE BASED ON OR RELATED TO A PROTECTED CLASS.

THE CONDUCT CAN BE PHYSICAL, VERBAL OR VISUAL CONDUCT THAT IS OBJECTIVELY AND SUBJECTIVELY OFFENSIVE OR UNWELCOME.

AND THAT IS TWO DIFFERENT ELEMENTS OF OFFENSIVENESS.

OKAY, SO NEXT TIME SOMEONE OFFENDS YOU, YOU CAN SAY YOU BOTH OBJECTIVELY AND SUBJECTIVELY HAVE BEEN OFFENSIVE.

BUT WHAT IT MEANS IS SO TWO DIFFERENT STANDARDS.

SOMETHING IS OBJECTIVELY OFFENSIVE. IF WE ACTUALLY TAKE OURSELVES OUT OF THE SHOES OF THE REPORTING PARTY, AND WE PUT OURSELVES INTO THE SHOES OF THE REASONABLE PERSON WHO HAS THE SAME PROTECTED CLASSIFICATIONS AS THE REPORTING PARTY, AND WE ASK, WOULD THAT REASONABLE PERSON ALSO BE OFFENDED BY THE CONDUCT? THIS STANDARD IS MEANT TO RULE OUT PEOPLE THAT MAY BE ULTRA SENSITIVE TO ALL SORTS OF SITUATIONS.

IT'S MEANT TO RULE OUT CLAIMS THAT JUST OTHER PEOPLE WOULDN'T EVEN THINK TWICE OR HAVE AN ISSUE AN ISSUE WITH.

I'M TRYING TO THINK OF LIKE RECENT EXAMPLES I'VE HAD.

I DON'T KNOW. SOME OF THEM ARE KIND OF BORDERLINE, BUT I'VE HAD A LOT LATELY OF EMPLOYEES CLAIMING THEY'VE EXPERIENCED HARASSMENT BECAUSE ANOTHER EMPLOYEE. OKAY, HERE'S THE LATEST ONE I'VE HAD AN EMPLOYEE CLAIMING THEY WERE HARASSED.

OKAY. BECAUSE ANOTHER EMPLOYEE WOULD CONSTANTLY WALK BY THEIR OFFICE.

JUST LIKE, WHY IS HE ALWAYS WALKING BY MY OFFICE? IS THIS TO HARASS ME OR IS THIS TO PHYSICALLY INTIMIDATE ME? AND I NOT LEAVE MY OFFICE. AND SO THIS WAS A WHOLE CLAIM THAT I, YOU KNOW, HAD A THIRD PARTY INVESTIGATOR HAVE TO INVESTIGATE.

THIS WAS ONE CLAIM. THERE WAS A COUPLE MORE THINGS BETWEEN THE HISTORY OF THESE TWO EMPLOYEES.

BUT THAT'S SOMETHING THAT PROBABLY, YOU KNOW, ISOLATED MOST REASONABLE PEOPLE WOULD NOT JUST BE FIND REALLY OFFENSIVE, WOULDN'T CALL HARASSMENT JUST BECAUSE A COWORKER IS COMMONLY WALKING BY SOMEBODY'S WORK AREA.

OKAY. LIKE WITH THE BUSINESS REASON, THEY ALSO WORK IN THE SPACE AS WELL.

OKAY, SOMETHING IS SUBJECTIVELY OFFENSIVE. IF WE PUT OURSELVES ACTUALLY BACK INTO THE SHOES OF THE TARGET OF THE CONDUCT AND WE ASK, WAS THAT PERSON IN FACT OFFENDED? SO A BIG CONVERSATION HAS BEEN, YOU KNOW, WITH REPORTING CLAIMS OF HARASSMENT.

IT IS NOT JUST THE PERSON WHO EXPERIENCES OR IS ON THE RECEIVING END OF THE HARASSMENT THAT CAN FILE A CLAIM, BUT IT CAN BE ANYBODY WHO WITNESSES IT. OKAY.

AND IT SAYS SOMETHING IS OFFENSIVE ABOUT THIS. I'M GOING TO REPORT IT.

WE KIND OF CALL THOSE BYSTANDER REPORTS. SO LET'S SAY WE HAVE A BYSTANDER REPORT, AND THEN THE INVESTIGATOR INTERVIEWS THE OTHER PERSON WHO WAS ACTUALLY AT THE RECEIVING END OF THE CONDUCT.

AND THE INVESTIGATOR IS TRYING TO FIGURE OUT, YOU KNOW, HOW COMFORTABLE OR UNCOMFORTABLE WAS THAT PERSON WITH THE CONDUCT.

IF THAT PERSON TELLS THE INVESTIGATOR, WELL, LIKE THAT CONDUCT HAPPENED, BUT I WASN'T OFFENDED BY IT.

OR LIKE, YOU KNOW, I DON'T EVEN HARDLY REMEMBER IT.

IT WAS NO BIG DEAL OR I WAS PART OF THIS INSIDE JOKE, SO IT DEFINITELY WASN'T OFFENSIVE TO ME.

THEN IT MAY NOT MEET THAT STANDARD OF BEING SUBJECTIVELY OFFENSIVE.

SO THAT'S THE OTHER STANDARD. OKAY. THE CONDUCT ALSO HAS TO BE SEVERE OR PERVASIVE.

SEVERE MEANS JUST ONE SINGLE TIME, ONE INCIDENT.

IF IT IS BAD, IF IT IS EGREGIOUS, CAN MEET THE STANDARD OF A HOSTILE WORK ENVIRONMENT, EVEN THOUGH IT HAPPENED ONCE.

[01:25:04]

AND MAYBE IF THAT THING HAPPENED ONE TIME, NO BIG DEAL.

BUT IT'S ALMOST A FACT THAT IT KEEPS POPPING UP.

IT KEEPS REOCCURRING, IS WHAT MAKES IT OFFENSIVE.

SO THE EXAMPLE IS A COWORKER ASKING ANOTHER COWORKER OUT TO DRINKS.

MAYBE IF ASKED ONE TIME, THE COWORKER POLITELY DECLINES.

NO BIG DEAL, BUT IT'S GOING TO BE VIEWED A LOT DIFFERENTLY IF THAT COWORKER ASKS THE OTHER ONE OUT FOR DRINKS EVERY SINGLE DAY.

YOU KNOW, IT'S GOING TO PROBABLY CREATE A PROBLEM OF BEING AN UNWELCOME REQUEST.

AND THEN FINALLY, THE CONDUCT HAS TO UNREASONABLY INTERFERE WITH WORK.

THIS IS WHY IT'S WORKPLACE HARASSMENT. WHAT THIS MEANS IS THAT EVEN CONDUCT THAT OCCURS OFF DUTY, LIKE AT A HAPPY HOUR OR A WEEKEND SOCIAL EVENT, IF IT COMES BACK AND HAS AN IMPACT ON THE WORKPLACE, A NEGATIVE IMPACT, IT CAN STILL BE BROUGHT IN AS A HOSTILE WORK ENVIRONMENT SITUATION.

OKAY. IN 2019, WE HAD A NUMBER OF CHANGES TO THE LAW THAT WERE MEANT TO REALLY CLARIFY THE LAW, ACTUALLY NOT CHANGE. I'M GOING TO JUST TOUCH ON ONE OF THESE, WHICH IS THAT LET'S SEE, I COVERED SOME OF THESE ALREADY JUST THROUGH ANSWERING QUESTIONS. AND IN THE LAST SLIDE I'LL TOUCH ON THE THIRD ONE.

THE TOTALITY OF THE CIRCUMSTANCES MATTER, INCLUDING STRAY REMARKS BY NON-DECISION MAKERS.

JUST TO SAY IN CALIFORNIA, WHEN THERE IS A LAWSUIT OF HOSTILE WORK ENVIRONMENT, THE COURT AND THE JURY ARE GOING TO LOOK AT ALL THE STATEMENTS, LIKE VERBAL STATEMENTS MADE TOWARDS AN EMPLOYEE.

THEY'RE NOT GOING TO JUST LOOK AT WHAT SUPERVISORS MAY HAVE SAID, BUT GENERALLY WHAT COWORKERS OR PEERS SAID CAN ALSO BE USED AS EVIDENCE OF A HOSTILE WORK ENVIRONMENT. ALL RIGHT. WE ARE GOING TO GO THROUGH SOME QUICK EXAMPLES.

SO HOSTILE WORK ENVIRONMENT CLAIMS CAN COME FROM PHYSICAL CONDUCT.

AND HERE ARE SOME EXAMPLES OF THAT. THE LESS OBVIOUS EXAMPLES ARE MASSAGES AND HUGGING.

THIS IS NOT TO SAY THAT THERE IS NO LAW THAT PROHIBITS HUGGING IN THE WORKPLACE, BUT IN CALIFORNIA THERE HAVE BEEN LAWSUITS ALLEGING A HOSTILE WORK ENVIRONMENT FOR A SUPERVISOR WHO HUGGED FEMALE SUBORDINATES MORE THAN MALE SUBORDINATES.

SO. YES, SIR. HERE'S THE CHALLENGING WHAT'S GOING ON RIGHT NOW? SORRY TO BRING THIS UP BECAUSE IT'S POLITICAL, BUT AND THIS IS THE PREVIOUS SLIDE NOT VISIBLE.

OH, OKAY. SO RIGHT NOW LIKE, YOU KNOW FEDERALLY WE'RE WE'RE SEEING CHALLENGES WITH PREVENTION OF CLASSES.

RIGHT. YEAH. SO IF AN EMPLOYEE WERE TO SAY LIKE OH I'M ALL FOR THAT.

I CAN'T WAIT TILL THAT HAPPENS OR WHATEVER. AND THEY START TALKING ABOUT THINGS THAT ARE DISRUPTING PROTECTED CLASSES.

AND THEN LET'S SAY THAT PROTECTED CLASS STARTS FEELING UNCOMFORTABLE WITH IT. IS, IS THAT SOMETHING GOING ON RIGHT NOW? AND IS THAT BEING CHALLENGED LIKE WITHIN LIKE WHAT YOU'RE DEALING WITH.

SO LIKE THEY ARE DEALING WITH SO LIKE A GROUP OF EMPLOYEES WHO ARE CHATTING AND ONE EMPLOYEE IS KIND OF EXPRESSING THEIR VIEWS ON LIKE THE YEAH, GENDER IDENTITY, GENDER EXPRESSION RIGHT NOW.

RIGHT. YEAH. LIKE I DON'T WANT TO LIKE SAY LIKE WE'RE ALL OBLIVIOUS. SO IT'S YEAH HAPPENING ALL OF A SUDDEN YOU'RE IN A PROTECTED CLASS, YOU'RE LIKE, OH, LIKE, I REALLY DO NOT LIKE MY BOSS SAYING THESE THINGS THAT I FEEL LIKE ARE INAPPROPRIATE, BUT IT'S NEWSWORTHY. IT'S HAPPENING. YOU KNOW, IT'S IT'S A PART OF OUR SOCIAL CONVERSATION.

OKAY. YEAH, I GET THE QUESTION. HARASSMENT. IS IT JUST A TOPIC OF POLITICS AND POLICY? LIKE WHAT? YOU KNOW WHAT I MEAN. LIKE. YEAH. IS THAT BECOMING A MORE PERCOLATING? YEAH. IN OUR HUMAN RESOURCE SIDE. OKAY. GREAT QUESTION.

SO YES, IT IT HAPPENS. AND YES, IT CAN LEAD TO USING THIS PROCESS AND REPORTING A VIOLATION.

I'M NOT GOING TO DEFINITIVELY ANSWER YES, IT IS HARASSMENT.

NO, IT IS NOT HARASSMENT. OBVIOUSLY, IT'S GOING TO DEPEND ON THE SITUATION.

WE'D HAVE TO LIKE, YOU KNOW, PLAY IT OUT IN COURT.

BUT INTERNALLY, WHAT WE SPEAK ABOUT AT PLACES OF EMPLOYMENT IS THAT, YES, THOSE SORT OF WORKPLACE CONVERSATIONS, WHETHER WORK RELATED OR NOT. RIGHT. IF THEY'RE HAPPENING AT WORK, CAN LEAD AN EMPLOYEE TO COME TO THIS POLICY AND REPORT A VIOLATION.

IT CAN ALSO LEAD AN EMPLOYEE TO GO TO THE CIVIL RIGHTS DEPARTMENT OR THE EEOC AND FILE A REPORT.

COURT. SO THIS IS ON PHYSICAL CONDUCT. BUT THE VERBAL CONDUCT IS LIKE WAY MORE COMMON AS, AS THE FACTS LEADING TO A LAWSUIT OR COMPLAINT IN THE REALM OF HOSTILE WORK ENVIRONMENT.

THE OTHER QUESTION OF JUST LIKE IN TERMS OF I'M NOT EVEN GOING TO CALL IT A TREND, BUT JUST LIKE, WHAT HAVE WE BEEN SEEING? OH, MAN, WE NEED TO GO TO LIKE AN HR PROFESSIONAL CONFERENCE AND ASK THAT QUESTION BECAUSE IT WOULD BE GREAT TO HEAR.

BUT WHAT I'VE BEEN SEEING IS I MEAN, I I'LL BE VERY HONEST WITH YOU.

[01:30:06]

SO THIS SORT OF TRAINING, AS CALIFORNIA PASSES ALL THESE LAWS, NEW PROTECTED CLASSIFICATIONS, WE GO ON AND ON WITH THE PROTECTIONS FOR THE INDIVIDUAL EMPLOYEES.

I TRAIN ON THE LAW. I TALK ABOUT WHAT THE REGULATIONS ARE.

BUT, YOU KNOW, I'VE FOR A VERY LONG TIME HAVE HAD AUDIENCES WHERE I DO AS A TRAINER.

SO I'M NOT IN THE HR PROFESSIONAL REALM, BUT AS A TRAINER, I DO GET READY FOR THOSE QUESTIONS WHEN I GET TO THE SLIDE ON GENDER IDENTITY AND GENDER EXPRESSION. I AM NOW ALSO GETTING READY FOR CONVERSATIONS AUDIENCE MEMBERS MIGHT HAVE WHEN WE DO TRAININGS ON DEI AND THINGS LIKE THAT.

I ALSO JUST DO GENERAL LEGAL ADVICE ON, YOU KNOW, HEY, COUNSEL WANTS DEI TRAINING AND NONE OF THE DEPARTMENTS ARE AGREEING WITH THAT AND IN SITUATIONS LIKE THAT. SO WE HAVE DEFINITELY SEEN THAT.

BUT I WOULD SAY IT'S NOT JUST SOMETHING THAT I'VE SEEN, YOU KNOW, RECENTLY, BUT IT'S IT'S BEEN FOR A COUPLE OF YEARS NOW.

OKAY. THAT'S MY HONEST ANSWER. SOME OF THAT WAS A LITTLE BIT OF A OUTSIDE THIS TRAINING ANSWER.

SO I JUST WANT TO PUT THAT OUT THERE. OKAY. SO WITH PHYSICAL CONDUCT THOUGH THESE ARE THE THINGS ALSO JUST A REMINDER PHYSICAL CONDUCT IN THE WORKPLACE THAT IS SEXUAL ASSAULT. ALSO NOT JUST DEALING WITH HARASSMENT HOSTILE WORK ENVIRONMENT.

WE'RE DEALING WITH LIKE A POTENTIAL CRIME OCCURRING IN THE WORKPLACE AS WELL.

PLEASE FEEL FREE TO HUG COWORKERS COLLEAGUES.

IF YOU READ THE ROOM AND YOU FEEL LIKE THE SITUATION IS RIGHT AND YOU KNOW EACH OTHER WELL.

MASSAGES IN THE WORKPLACE. I'VE PULLED MY AUDIENCES WHEN I'VE DONE THIS TRAINING, AND A LOT OF PEOPLE AREN'T COMFORTABLE WITH THE MASSAGES IN THE WORKPLACE, SO BE CAREFUL ABOUT THOSE AS WELL. BUT YEAH, THAT'S THAT'S MY TAKE ON THE LESS OBVIOUS EXAMPLES.

ALL RIGHT. WE'RE GOING TO TRY THIS VERBAL CONDUCT CASE STUDY.

SO ALTHOUGH DANIELA WAS ASSIGNED AT BIRTH AS A MALE, SHE RECENTLY BEGAN PRESENTING AS A FEMALE.

CONSISTENT WITH HER GENDER IDENTITY. SHE NOTIFIED HER COWORKERS OF HER NEW, CHANGED PRESENTATION AS SHE PREVIOUSLY PRESENTED AS MALE NAME DANIEL. JOHN AND ASHLEY REFUSED TO REFER TO DANIELA BY HER NAME OR FEMALE PRONOUNS AND STILL CALL HER DANIEL, AND FREQUENTLY ASK HIM WHY HE USES THE WOMEN'S RESTROOM AND WEARS SKIRTS.

SO THE QUESTION FOR YOU IS HAVE JOHN AND ASHLEY CREATED A HOSTILE WORK ENVIRONMENT? YES. YEAH. AND SO WITH THAT, HAVE THEY CREATED LIABILITY FOR THE PLACE WHERE THEY WORK? YES, YES. SO WE KNOW THAT WE WERE TRAINED ON THE REGULATIONS IN THIS AREA.

SO LIKE I MENTIONED, VERBAL CONDUCT IS ONE OF THE BIGGEST TYPES OF IT'S LIKE THE BIGGEST TYPE OF CONDUCT WE SEE IN COMPLAINTS OF A HOSTILE WORK ENVIRONMENT. SO IT'S WHAT PEOPLE SAY, YOU KNOW, PERSON TO PERSON INFORMALLY.

IT CAN INCLUDE THINGS LIKE SEXUAL COMMENTS, JOKES BASED ON A PROTECTED CLASSIFICATION, MOCKING SOMEBODY'S ACCENT.

OKAY. TEASING AND SLURS. AGAIN, ALL BASED ON PROTECTED CLASSES THAT FITS INTO THIS CATEGORY OF VERBAL CONDUCT.

VISUAL CONDUCT AS WELL CAN LEAD TO A HOSTILE WORK ENVIRONMENT CLAIM.

EXAMPLES ARE SOCIAL MEDIA POSTS AND IMAGES. IF THEY HAVE A WAY THAT THEY COME BACK AND UNREASONABLY INTERFERE WITH THE WORKPLACE.

EMAILS, CARTOONS OR DRAWINGS. GESTURES LIKE LIKE PHYSICAL BODY LANGUAGE.

GESTURES SOMEONE MAY MAKE STARING AND LEERING.

OKAY. THAT'S ACTUALLY ONE I HAVE YOU KNOW, ADVISED A LOT OF COMPLAINTS ON.

MY COWORKER IS STARING AT ME. AND THEN SEXUAL CONDUCT, EVEN IF IT'S AFFECTION BETWEEN EMPLOYEES AT WORK, WHERE THIS ONE KIND OF LEADS IS EVEN IF TWO EMPLOYEES ARE IN A CONSENSUAL DATING RELATIONSHIP, YOU KNOW, WHETHER THAT'S ALLOWED OR NOT UNDER POLICY IS ONE THING. BUT IF THEY ARE THERE HAVE BEEN INSTANCES THERE HAVE BEEN LAWSUITS WHERE OTHER EMPLOYEES HAVE FILED CLAIMS SAYING THEY CREATED A HOSTILE WORK ENVIRONMENT BECAUSE OF THEIR PUBLIC DISPLAYS OF AFFECTION AT WORK.

IT MADE ME UNCOMFORTABLE. AND, YOU KNOW, IF THEY CAN TIE IT IN TO SOME PROTECTED CLASS, THEY'VE GOT A LAWSUIT THERE, A VISUAL CONDUCT. ONE THING THAT'S NOT ON THIS SLIDE THAT I HAVE SEEN A LOT OF RECENTLY ARE TEXT MESSAGES TEXT MESSAGES.

PEOPLE TYPE A LOT MORE FREELY THAN THEIR WORKPLACE EMAIL.

AND SO LAST YEAR, I DID OVERSEE AN ENTIRE INVESTIGATION JUST BASED ON A GROUP CHAT BETWEEN THREE EMPLOYEES.

[01:35:01]

AND THEN ONE EMPLOYEE JUST FELT LIKE IT GOT IT GOT TOO FAR WITH WHAT THEY WERE TEXTING AND SAYING AND THE MEMES THEY WERE POSTING ABOUT COWORKERS.

AND SHE ULTIMATELY REPORTED IT AND IT LED TO AN INVESTIGATION.

ALL RIGHT. SO THERE IS A COUPLE OF TYPES OF CONDUCT THAT CAN ALSO BE BORDERLINE AREAS.

WHICH YOU KNOW, WE DON'T GET TO DECIDE WHETHER SOMEBODY FILES A REPORT THAT THEY'VE BEEN HARASSED.

BUT, YOU KNOW, THESE ARE SOME BORDERLINE AREAS OF CONDUCT THAT COULD OR MAY NOT ACTUALLY LEAD TO A HOSTILE WORK ENVIRONMENT.

SO I MENTIONED THE PRIVATE AND CONSENSUAL DATING RELATIONSHIPS PARTICULARLY.

WE HAVE TO BE CAREFUL IF IT'S BETWEEN SUPERVISORS AND SUBORDINATES.

FROM MY EXPERIENCE, YOU KNOW, THINGS ARE GREAT WHEN THINGS ARE GREAT, BUT WHEN PEOPLE BREAK UP, THE DEPARTMENT DOESN'T ALWAYS KNOW. AND EVEN IF PEOPLE BREAK UP, IT DOESN'T MEAN THAT WE ALL OF A SUDDEN HAVE TO REORGANIZE THE SUPERVISORY STRUCTURE AND THINGS. SO YOU HAVE TO BE CAREFUL WITH THAT. OKAY? WE, YOU KNOW, HARASSMENT LAWSUITS ALL THE TIME WITH PEOPLE HAVING FORMER DATING HISTORIES WITH EACH OTHER, OFF DUTY CONDUCT IF IT COMES BACK AND IMPACTS THE WORKPLACE UNREASONABLY INTERFERES WITH THE WORKPLACE COULD BE PART OF A HOSTILE WORK ENVIRONMENT CLAIM. WE TALKED ABOUT THE INVITATIONS TO LUNCH, DRINKS OR DINNER WHEN SOMEONE IS POLITELY DECLINING OVER AND OVER AGAIN, AND THE CAUTION OF LIKE, IF THAT MAY BECOME SEVERE, SORRY, PERVASIVE, UNWELCOME CONDUCT, AND THEN THE CASUAL TOUCHING OF INTIMATE BODY PARTS OR APPEARANCE REFERENCING SOMEONE'S APPEARANCE OR THEIR DRESS.

HANDS ON SHOULDERS. HANDS ON WAIST. HANDS OR ARMS OR LEGS.

QUESTION. YES. YOU HAD A WARNING? NOT FOR LONG.

YEAH. THE FIRST BULLET. WHAT IS THAT ABOUT? YEAH.

IT MEANS THAT THEY ARE. OKAY. SO IT'S LIKE THEY'RE IN A PRIVATE, CONSENSUAL RELATIONSHIP.

WARNING. NOT FOR LONG. AS IN, THEY THEY BREAK UP.

YEAH. SO, I MEAN, EVERY HARASSMENT CLAIM THAT I'VE TAKEN IN THAT INVOLVE PEOPLE WHO WERE IN A DATING RELATIONSHIP, THEY'RE NO LONGER IN A DATING RELATIONSHIP, AND THEN THEY STILL WORK TOGETHER.

AND DOWN THE LINE, THINGS HAPPEN. SO GREAT QUESTION THOUGH.

JUST WITH THE LAST POINT OF THE CASUAL TOUCHING OF NON-INTIMATE BODY PARTS, THIS IS ONE OF THE KEY REASONS YOU WOULD NEED TO DO AN INVESTIGATION WHEN THERE IS SUCH A CLAIM. RIGHT NOW I AM INVESTIGATING AN ALLEGATION OF SEXUAL HARASSMENT ACTUALLY BETWEEN TWO STUDENTS AT A COMMUNITY COLLEGE DISTRICT.

OKAY. AND ONE OF THE ALLEGATIONS, JUST ONE, IS ABOUT WHETHER ONE STUDENT CAME UP TO THE OTHER AND MASSAGED HER SHOULDERS.

OKAY. SO I AM, LIKE, REALLY DEEP INTO MAKING MY FINDING ABOUT WHAT HAPPENED.

DID HE COME UP AND MASSAGE HER SHOULDERS OR HIS VERSION OF EVENTS? HE JUST CAME UP AND TAPPED HER ON THE SHOULDER LIKE THIS.

SO, YOU KNOW, SHE MADE A CLAIM, SHE ALLEGED SEXUAL HARASSMENT.

BUT I'M ACTUALLY DOING THE INVESTIGATION TO FIND WHAT IS MORE LIKELY THAN NOT TO HAVE OCCURRED.

ALL RIGHT, SO THAT'S HARASSMENT. QUID PRO QUO.

HOSTILE WORK ENVIRONMENT. WE'RE NOW GOING TO TALK ABOUT BULLYING AND ABUSIVE CONDUCT.

SO BULLYING. FIRST THING I WANT TO MENTION IS YOUR POLICY ADDRESSES IT.

SO I HAVE YOUR POLICY, WHICH WHICH I THOUGHT WAS WONDERFUL BECAUSE YOU'RE GOING TO SEE THE EXACT SAME LANGUAGE HERE AS IN WHAT'S IN YOUR ADMIN ORDER, BUT YOU HAVE A WHOLE SECTION ON IT, WHICH I, FOR SOME REASON, NOT FINDING RIGHT NOW.

BUT TRUST ME, YOU DO. SO AT THIS POINT, YOU KNOW, WE COVERED HARASSMENT.

THEN YOU GET THINKING, OKAY, WE KNOW HARASSMENT.

WE KIND OF KNOW WHAT CONSTITUTES HARASSMENT. BUT WHAT ABOUT OTHER UNPROFESSIONAL CONDUCT IN THE WORKPLACE WHERE WE DON'T LIKE THE WAY SOMEBODY IS TREATING SOMEBODY ELSE? YOU KNOW, WHAT IS THAT? AND SO THAT BRINGS US INTO THE CONVERSATION OF BULLYING AND ABUSIVE CONDUCT.

SO WITH BULLYING AND ABUSIVE CONDUCT, WE HAVE A CALIFORNIA GOVERNMENT CODE DEFINITION.

AND HERE'S HOW IT'S DEFINED. SO IT'S ITS CONDUCT IN THE WORKPLACE WITH MALICE.

SO THERE'S AN INTENT TO HARM THAT A REASONABLE PERSON WOULD FIND HOSTILE, OFFENSIVE AND UNRELATED TO AN EMPLOYER'S LEGITIMATE BUSINESS INTERESTS. IT INCLUDES VERBAL ABUSE, DEROGATORY REMARKS, INSULTS, THREATS, INTIMIDATING AND HUMILIATING PHYSICAL OR VERBAL CONDUCT, OR UNDERMINING A PERSON'S WORK PERFORMANCE.

SO THIS DEFINITION IS A LITTLE BIT ALL OVER THE PLACE, BUT THIS IS HOW THE GOVERNMENT CODE DEFINES IT.

AND IN TURN, YOUR POLICY USES PRETTY MUCH THE SAME LANGUAGE.

THERE IT IS ON PAGE EIGHT, BECAUSE YOU GUYS ARE STICKING REALLY CLOSE TO THE GOVERNMENT CODE'S DEFINITION, WHICH IS WHAT I WOULD RECOMMEND. SO THAT'S BULLYING AND ABUSIVE CONDUCT GENERALLY.

[01:40:05]

THAT'S THE PRIMARY SOURCE WE GO TO WHEN THERE IS AN INSTANCE OF BULLYING IN THE WORKPLACE.

WE LOOK AT POLICY. OKAY, SO HERE'S THE THING.

WHEN WE BRING IN THE CONVERSATION ABOUT HOW IS BULLYING DIFFERENT THAN HARASSMENT? SO THEY HAD A LOT OF SIMILAR ELEMENTS OKAY. THEY BOTH CONSISTED OF OFFENSIVE CONDUCT PROBABLY HAS TO BE EITHER SEVERE OR PERVASIVE.

WE TALKED ABOUT IT'S LIKE UNWELCOME. IT'S NOT SOMETHING WE WANT IN THE WORKPLACE.

BUT THERE IS ONE BIG, BIG DIFFERENCE BETWEEN THE TWO.

DOES ANYBODY KNOW? YOU DON'T NEED TO BE IN A PROTECTED CLASS.

EXCELLENT. AND IF NOBODY IF WE DIDN'T HAVE A BRAVE VOLUNTEER, I WOULD HAVE SAID JUST GO TO THE NEXT SLIDE.

YOU ARE EXACTLY RIGHT. THE KEY DIFFERENCE, THE THRESHOLD OR WHAT TRIGGERS HARASSMENT IS WHETHER A PROTECTED CLASSIFICATION IS AT PLAY.

SO WHETHER THE CONDUCT IS BASED ON OR ARISING OUT OF A PROTECTED CLASS.

SO BULLYING YOU WILL NOTICE IT IS BULLYING IS MY ANSWER.

WHEN AN EMPLOYEE SAYS MY SUPERVISOR IS RUDE TO ME LIKE I JUST.

THEY SAY VERBAL REMARKS THAT I FIND TO BE OFFENSIVE.

BUT HERE'S THE THING THEY'RE RUDE TO EVERYBODY.

LIKE THEY'RE JUST RUDE TO EVERYONE, REGARDLESS OF THEIR SEX OR GENDER OR DISABILITY OR AGE OR ANYTHING.

THEN WE MIGHT BE TALKING MAYBE POTENTIALLY ABOUT A BULLYING SORT OF INCIDENT.

SO UNLAWFUL HARASSMENT IS ALWAYS TIED TO OR DIRECTED AT MEMBERSHIP IN A PROTECTED CLASS.

WE KNOW THERE ARE LAWS THAT PROHIBIT HARASSMENT IN THE WORKPLACE.

BULLYING IS DIFFERENT. IT'S NOT NECESSARILY DIRECTED AT MEMBERSHIP IN A PROTECTED CLASS.

AND HERE'S THE THING IT'S NOT UNLAWFUL. SO IN CALIFORNIA, WHILE WE HAVE A LEGAL DEFINITION OF BULLYING, WE HAVE NO FEDERAL LAW. WE HAVE NO STATE LAW.

THAT MAKES IT A CAUSE OF ACTION WHERE SOMEBODY CAN BRING A LAWSUIT AGAINST THEIR EMPLOYER, AN ALLEGED THAT THEY'VE BEEN BULLIED. OKAY. THAT JUST DOESN'T EXIST IN CALIFORNIA.

OUR LEGISLATURE HAS TRIED TO PASS ANTI BULLYING IN THE WORKPLACE LAWS A FEW TIMES.

NONE OF THEM HAVE BEEN PASSED INTO LAW. SO THERE'S NO CAUSE OF ACTION WITH THAT.

BUT NONETHELESS, IF THERE IS AN INCIDENT OF BULLYING OR ABUSIVE CONDUCT IN THE WORKPLACE, AGAIN, THAT'S WHY WE RELY SO HEAVILY ON POLICIES LIKE ADMIN ORDER NUMBER 45.

THAT'S WHAT WOULD GET THE CITY TO LOOK INTO IT.

ENACT DISCIPLINE FOR ANY SUSTAINED FINDINGS OF BULLYING.

ALL RIGHT. THERE ARE ANTI-BULLYING LAWS SORT OF IN OTHER REALMS, SUCH AS IN THE SCHOOL CONTEXT, BUT JUST NO LAWS HAVE BEEN PLACED FOR WORKPLACES.

ALL RIGHT. SO WE'RE GOING TO NOW COVER THE DUTIES OF A SUPERVISOR.

ALL RIGHT. SO THIS TRAINING IS ABOUT THIS ONE IS GENERALLY FOCUSED FOR SUPERVISORS.

AND WHEN I SAY SUPERVISOR, WE HAVE TO GO BY WHAT THE GOVERNMENT CODE, THE FAIR EMPLOYMENT AND HOUSING ACT, HOW IT DEFINES WHO A SUPERVISOR IS. AND IT SAYS A SUPERVISOR IS ANYONE WHO HAS ANY RESPONSIBILITY OR DISCRETION TO LEAD OTHERS.

SO MY TAKE ON THIS IS IT'S A VERY, VERY BROAD DEFINITION.

OKAY. WHEN I DO A CLASSIFICATION STUDY INTO WHO'S A SUPERVISOR, I'M A LOT MORE FOCUSED ON, YOU KNOW, CAN THEY ASSIGN WORK SCHEDULES? DO THEY DO PERFORMANCE EVALUATIONS? CAN THEY ENACT DISCIPLINE? AND HERE FOR PURPOSES OF HARASSMENT AND DISCRIMINATION, THE LAW DOES NOT CARE.

IT JUST SAYS IF YOU CAN LEAD OTHERS IN YOUR ROLE, YOU ARE A SUPERVISOR FOR THESE PURPOSES.

SO I OFTEN TRY TO SAY SUPERVISOR OR LEAD WORKERS ARE SUBJECT TO THE FOLLOWING DUTIES.

SO SUPERVISORS HAVE A DUTY TO RESPOND WHEN THEY BECOME AWARE OF OR ACTUALLY SHOULD KNOW OF HARASSMENT IN THE WORKPLACE.

HERE'S WHAT THE FAIR EMPLOYMENT AND HOUSING ACT SAYS.

SO 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.

SO THIS IS THE AREA OF THE LAW WHERE WE COME DOWN TO WHERE WE SAY SUPERVISORS HAVE A LEGAL OBLIGATION TO REPORT HARASSMENT AND ALSO DISCRIMINATION, RETALIATION, THINGS COVERED BY FEHA WHEN WHEN THEY BECOME AWARE OF IT OR WHEN IT'S JUST GLARING IN THEIR FACE THAT THEY SHOULD HAVE HAVE KNOWN ABOUT THE CLAIM? YEAH. I JUST AGAIN I CONSULTING ON A NONPROFIT AND THEIR INVESTIGATION REPORT AND THEIR INVESTIGATION REPORT SAID, WELL, SUPERVISORS HAVE NO DUTY TO REPORT HARASSMENT.

[01:45:03]

OKAY. OKAY. SO LET'S TRY A SUPERVISOR CASE STUDY.

SO LAWRENCE SUPERVISES A TEAM OF FIVE EMPLOYEES, FOUR OF WHOM ARE MALE AND ONE OF WHOM IS FEMALE.

TODAY, LAWRENCE OVERHEARD THE MALE EMPLOYEES STANDING AROUND A FOOD TRUCK AT LUNCH, SPECULATING ON HOW THEIR FEMALE COLLEAGUE MUST BE IN BED.

THE FEMALE COLLEAGUE WAS NOT IN THE OFFICE AND DID NOT OVERHEAR THE DISCUSSION.

DOES LAWRENCE. SO THE SUPERVISOR HAVE AN OBLIGATION TO TAKE ACTION, EVEN THOUGH THE FEMALE EMPLOYEE WAS NOT THERE TO OVERHEAR THE DISCUSSION? WHAT DO YOU THINK? YES. SO IF YOU WERE THE SUPERVISOR, YOU KNOW, WOULD YOU WOULD YOU DO SOMETHING AS A RESULT OF THIS? YEAH. OKAY. WHAT ACTION DO YOU THINK LAWRENCE SHOULD TAKE? YEAH. YOU'RE RIGHT. LET THEM. LET THEM KNOW THAT THEY HAVE BEEN HEARD.

YEAH. GOOD. SO YEAH, IN THE IN THIS SITUATION.

YES. LAUREN SHOULD GO CUT IT OFF LIKE I HEARD WHAT YOU SAID.

THIS IS NOT APPROPRIATE WORKPLACE SPEAK. THEY'RE GOING TO BE SOME EXCEPTIONS TO THAT.

OKAY. IT'S THIS IS MY RECOMMENDED STEP. BUT JUST IMAGINE A SITUATION WHERE IF THE SUPERVISOR DID NOT FEEL SAFE HAVING THAT CONVERSATION OR, YOU KNOW, I DON'T KNOW, DUE TO WHATEVER FACTORS, IT MAY BE NO LEGAL REQUIREMENT, BUT STILL IT'S THE RECOMMENDED ACTION. IF THE SUPERVISOR FEELS SAFE AND IN THEIR ROLE, THEY CAN DO THAT.

EXCELLENT. WHAT ELSE WOULD BE CONSIDERED TAKING ACTION IN THIS SITUATION? REPORT IT TO HR. PERFECT. THAT'S. YEAH. THIS IS NOT A SITUATION THAT LAURA LAUREN HAS AN OBLIGATION TO HANDLE ON HER OWN, BUT USUALLY THE NEXT STEP IS JUST FOLLOWING THE PROCESS.

REPORT TO HR OR HER CHOICE. REPORT TO THE DEPARTMENT DIRECTOR OR SOMEONE HIGHER UP.

EXCELLENT. SO NONE OF YOU WERE TRICKED BY, LIKE, THE TWIST THAT THEY TRIED TO DO IN THIS, WHICH IS THE FEMALE COLLEAGUE WAS NOT IN THE OFFICE AND DID NOT OVERHEAR THE DISCUSSION.

OKAY. IN THAT SITUATION, IT DOES NOT ULTIMATELY MATTER.

WE WOULD STILL JUDGE THAT LAUREN HAS A DUTY AS A SUPERVISOR TO TAKE ACTION.

EVEN THOUGH THE FEMALE COLLEAGUE DIDN'T OVERHEAR IT, SHE COULDN'T HAVE BEEN OFFENDED BY IT.

WHO IN THIS SITUATION DID FIND THE CONVERSATION OFFENSIVE? LAUREN. OKAY. WHEN I WALKED THROUGH THE ELEMENTS OF A HOSTILE WORK ENVIRONMENT, WE DID FOCUS ON WHO WAS THE TARGET OR THE RECEIVING END OF THE CONDUCT.

BUT ALSO IN THE SAME SENSE, LAUREN CAN SAY, HEY, I FIND THIS OFFENSIVE.

I THIS IS MY WORKPLACE. I WAS HEARING THESE CONVERSATIONS AND CAN REPORT IT.

SO THERE CAN SOMETIMES BE MORE THAN ONE PERSON WHO WOULD FIND IT OFFENSIVE.

YES. SO THEY'RE AT A FOOD TRUCK. IS THIS FOOD TRUCK ON THE PROPERTY OF THE WORKPLACE? I'M TRYING TO GET THE CONNECTION OF WORK. YEAH, YEAH, YEAH, YEAH.

GO OUT FOR LUNCH. YES, A FOOD TRUCK. SO HOW IS THAT? SO THAT'S A GREAT POINT BECAUSE LET'S LET'S STRETCH IT A LITTLE BIT FURTHER. LET'S SAY IT'S A FOOD TRUCK THAT'S NOT ON THEIR EMPLOYER'S PROPERTY.

AND LET'S SAY THEY'RE ALSO ON THEIR UNPAID MEAL BREAK.

RIGHT. THE THING THOUGH IS THAT THE ELEMENT THOUGH IS DOES IT UNREASONABLY INTERFERE WITH WORK.

SO IF LAUREN IS COMING BACK AND SHE'S LIKE, HERE'S HERE'S THE TIE, THEY'RE TALKING ABOUT A FEMALE COLLEAGUE.

AND I THINK THAT THAT IS KIND OF THE TIE IN. THEY'RE TALKING ABOUT A COWORKER.

WE'RE LAUREN, IN HER JUDGMENT, CAN SAY THIS IS LIKE A WORKPLACE RELATED CONVERSATION AND KIND OF USED THE REPORTING PROCEDURE, NOT CONDONING WHAT THESE GENTLEMEN WERE TALKING ABOUT.

BUT I WAS JUST LIKE, YEAH, THAT'S THE PART THAT TRICKS ME ON IT. NO, THAT'S THAT'S A GREAT POINT. AND IT'S NOT TO SAY THAT YOU KNOW, LET'S SAY THERE'S AN INVESTIGATION. LET'S SAY THESE EMPLOYEES ARE INTERVIEWED.

THEY COULD THEY COULD BRING THAT UP, LIKE, DON'T I HAVE A HERE'S THE COMMON, DON'T I HAVE A RIGHT TO PRIVACY ABOUT WHAT I TALKED ABOUT WHILE I WAS ON MY UNPAID MEAL BREAK? SO YOU'RE BALANCING THAT WITH. BUT WE ALSO HAVE THIS DUTY WHERE, LIKE, YOU WERE AROUND COWORKERS, YOU HAD NO RIGHT TO PRIVACY, AND YOU WERE TALKING ABOUT A FEMALE COLLEAGUE.

SO THERE ARE DEFINITELY ARGUMENTS I COULD SEE THEY COULD MAKE.

YEAH, IT WOULD BE MAYBE DIFFERENT. LET'S SAY THEY WERE TALKING ABOUT A CELEBRITY, YOU KNOW, SOMEONE TOTALLY RANDOM. BUT I THINK THE TIE IN IS THE FEMALE COLLEAGUE AND VERY SPECIFICALLY THE CONVERSATION ABOUT THE FEMALE COLLEAGUE.

BUT I LOVE THAT POINT. NO ONE'S EVER RAISED THAT BEFORE.

SO NOW I'M GOING TO THINK ABOUT WHERE THAT FOOD TRUCK IS.

OKAY. OKAY, SO JUST TO REMIND SO THE DUTY TO RESPOND IT'S GOING TO BE A FEW A FEW PIECES TO

[01:50:08]

THIS IS CONDUCT THAT THEY OBSERVE FIRSTHAND, BUT IT IS ALSO CONDUCT THAT THEY ARE INFORMED OF BY OTHER EMPLOYEES.

IT CAN ALSO SOMETIMES BE THINGS THEY JUST HEAR ABOUT BEING LIKE AROUND THE DEPARTMENT, EVEN IF THEY CAN'T ATTRIBUTE IT TO LIKE ONE SPECIFIC EMPLOYEE TELLING THEM ABOUT IT.

PART OF THEIR DUTY IS FORWARDING THAT COMPLAINT OR THAT ISSUE TO MANAGEMENT AND HR IN A PROMPT MANNER.

THIS IS GOING TO INCLUDE ANY REPORTS FROM THIRD PARTIES LIKE VOLUNTEERS, VENDORS, INTERNS.

WE TALKED ABOUT HOW A VERBAL COMPLAINT IS A REAL COMPLAINT.

IT DOESN'T HAVE TO BE IN WRITING, BUT IT CAN BE RELAYED VERBALLY, SO THEY SHOULD REPORT THOSE AS WELL.

THERE'S SOME JUDGMENT NEEDED ON THE PART OF SUPERVISORS IF THEY HEAR A RUMOR.

OKAY. IF THEY FEEL LIKE THE RUMOR HAS SOME SUBSTANCE TO IT, IT MAY BE THE CAUTIOUS THING FOR THE SUPERVISOR TO REPORT IT TO HR.

AND THE SUPERVISOR TO BE CLEAR, THE SUPERVISOR IS NOT MAKING A JUDGMENT NECESSARILY ABOUT WHETHER THE INCIDENT HAPPENED OR NOT. THEY ARE JUST REPORTING WHAT THEY HAVE HEARD.

IT'S ULTIMATELY GOING TO BE AN INVESTIGATION THAT'S DONE TO DO THE ACTUAL FINDING ABOUT WHAT HAPPENED, WHAT MAY NOT HAVE HAPPENED. SO WE JUST WANT TO MAKE SURE SUPERVISORS DON'T FEEL LIKE THEY HAVE TO KNOW IT ALL BEFORE THEY AFFORD A REPORT.

YES, SIR. IT COULD BE HELD NEGLIGENT FOR NOT REPORTING.

RIGHT. YOU CAN BE HELD LIABLE. YES, FOR NOT REPORTING.

AND I'LL COVER WHERE LIABILITY FALLS IN THE NEXT SECTION.

GREAT QUESTION. OKAY. A GOOD THING TO REMEMBER IS THAT ANY REPORTING PARTY DOESN'T HAVE TO USE THE OFFICIAL WORD HARASSMENT OR DISCRIMINATION OR RETALIATION IN ORDER TO TRIGGER A SUPERVISOR'S DUTY TO ACT.

IF I WERE TO REPORT TO ANY ONE OF YOU LIKE, HEY, I WORK HERE, AND I FEEL LIKE MY SUPERVISOR HAS BEEN YOU KNOW, MOCKING THE WAY I TALK. AND IT'S BECAUSE OF, YOU KNOW, I HAVE A SPEECH IMPEDIMENT, WHICH IS A DISABILITY. I'M WORKING ON IT. AND IF I SAY THAT I NEVER ACTUALLY SAID I'M BEING HARASSED.

I JUST SAID THEY'RE MAKING FUN OF MY ACCENT THAT I HAVE.

THIS WOULD STILL TRIGGER AND MEET THE ELEMENTS OF OF HARASSMENT THAT A SUPERVISOR SHOULD BE ABLE TO RECOGNIZE AND THEN REPORT IT UP.

ALL RIGHT. HERE'S WHAT WE DON'T WANT SUPERVISORS TO DO.

WE DON'T WANT THEM TO JUST IGNORE, OKAY. HEARING A REPORT.

WE DON'T WANT THEM TO IGNORE THINGS. I HAD AN AGENCY IN A LITTLE BIT OF HOT WATER WHEN WE WERE DOING THE INVESTIGATION AND WE WERE INVESTIGATING A CLAIM OF HARASSMENT BETWEEN TWO COWORKERS, AND WE FOUND OUT THAT ONE OF THE EMPLOYEES HAD TWO YEARS AGO ALLEGED HARASSMENT AGAINST THE SAME COWORKER. AND WE SAID, YOU, YOU, YOU MADE A CLAIM AGAINST THE SAME PERSON TWO YEARS AGO.

OKAY. TELL US, YOU KNOW, WHO DID YOU MAKE THAT REPORT TO? AND THEY SAID, I TOLD MY SUPERVISOR. SO THE SUPERVISOR WAS BROUGHT IN AND THE SUPERVISOR SAYS, YEAH, I REMEMBER THAT CONVERSATION. I TALKED TO MY TWO EMPLOYEES ABOUT IT AND I THOUGHT WE RESOLVED IT.

I DON'T REMEMBER TELLING HR ABOUT IT. I THINK, OH, NO, OH, NO, I WASN'T INVESTIGATING, I WAS ADVISING, I WAS LIKE, THAT'S NOT GOING TO BE GREAT IF THERE'S LITIGATION FROM THIS.

BUT WE DID SOME DIGGING AND WE FOUND AN EMAIL WITH A SUPERVISOR DID ACTUALLY REPORT IT TO HR.

WE SAID APPARENTLY HE JUST DOESN'T REMEMBER IT, BUT HE DID FOLLOW THAT PROCEDURE.

SO WE JUST WANT TO MAKE SURE SUPERVISORS KNOW.

DON'T IGNORE THE RESPONSE. I MEAN, IF HE HAD BEEN A LITTLE BIT MORE AWARE, HE SHOULDN'T IN AN INVESTIGATIVE INTERVIEW SAID I DIDN'T DO ANYTHING WITH IT.

I MEAN, MAYBE THAT WAS HIS TRUE RECOLLECTION AT THE MOMENT, BUT HE ACTUALLY HAD REPORTED IT.

OKAY. PART OF THAT SUPERVISOR'S DUTY IS TAKING IMMEDIATE ACTION, AND THAT CAN BE TELLING EMPLOYEES TO CUT OFF THE CONVERSATION THAT IT IS INAPPROPRIATE IN THE WORKPLACE. IT CAN BE ABOUT TELLING JOHN, JOHN, DO NOT IGNORE, YOU KNOW, DAISY.

OKAY. IF YOU FEEL LIKE YOU WANT TO HAVE NO CONTACT WITH HER BECAUSE YOU'RE AFRAID SHE'S GOING TO FURTHER ALLEGE SOMETHING, THEN LET'S PUT SOMETHING OFFICIAL IN PLACE AND GET HER A TEMPORARY SUPERVISOR.

THE SUPERVISOR SHOULD ALSO WE TALKED ABOUT REPORTING UP AND THEN COOPERATE IN ANY INVESTIGATION.

EVERY SINGLE INVESTIGATION I'VE CONDUCTED, I HAVE INTERVIEWED THE SUPERVISOR.

THIS IS REGARDLESS OF WHETHER THEY'VE HAD PERSONAL KNOWLEDGE ON THE SITUATION, BECAUSE NO MATTER WHAT, THEY'RE GOING TO BE ABLE TO DESCRIBE CONTEXT, WORK ASSIGNMENTS, THE HIERARCHY OF WORKPLACE RELATIONSHIPS AND THINGS LIKE THAT.

SUPERVISORS SHOULD ALSO ENSURE NO FURTHER HARASSMENT OCCURS BETWEEN THE INVOLVED PARTIES, AND ASSURED NO RETALIATION FOR PEOPLE WHO FILE

[01:55:07]

ALL RIGHT. NOW, WHAT HAPPENS WHEN THERE ARE REPORTS OF HARASSMENT, DISCRIMINATION OR HARASSMENT? SO HERE ARE THE THINGS THAT THE CITY REALLY CAN DO AND MUST DO.

SO FIRST IS CONDUCTING A PROMPT AND THOROUGH INVESTIGATION.

SO PROMPT, THOROUGH, NEUTRAL AND BIASED INVESTIGATION KEEPING IN MIND THAT CONFIDENTIALITY IS LIMITED.

IT'S NOT GUARANTEED 100%. KEEP THE VICTIM AND THE REPORTING PARTY INFORMED.

YOU KNOW, HEY, WE ARE INITIATING AN INVESTIGATION.

YOU WILL BE CONTACTED BY AN INVESTIGATOR FOR YOUR INTERVIEW.

WOULD BE AN EXAMPLE OF THAT. NOW, IF THERE'S A SUSTAINED FINDING OF A ADMIN ORDER NUMBER 45 VIOLATION, THEN THE CITY AND THE DEPARTMENT CAN DISCIPLINE THE PERPETRATOR APPROPRIATELY.

WHETHER THAT LOOKS LIKE TERMINATION OF EMPLOYMENT OR SOMETHING ELSE, THAT WILL BE THE DEPARTMENT AND ITS DISCIPLINARY PROCESS TO DECIDE.

THE CITY ALSO HAS A DUTY TO DO THIS PREVENTATIVE TRAINING.

SO THAT'S WHY YOU ARE HERE WITH ME AND REALLY UPDATE AND KEEP EMPLOYEES INFORMED ABOUT YOUR ADMIN ORDER NUMBER 45.

ALL RIGHT. ANY EMPLOYEE WHO FEELS LIKE THEY HAVE EXPERIENCED HARASSMENT, DISCRIMINATION OR RETALIATION IN THE WORKPLACE CAN TAKE ANY OF THE FOLLOWING OPTIONS.

THEY CAN USE THE CITY'S ADMIN ORDER COMPLAINT PROCEDURE TO FILE AN INTERNAL COMPLAINT.

THEY CAN ALSO GO TO THE EEOC OR THE CIVIL RIGHTS DEPARTMENT AND FILE A REPORT THERE, WHICH MAY ULTIMATELY LEAD TO A RIGHT TO SUE LETTER AND THEIR ABILITY TO GO OFF ON THEIR OWN TO FILE A LAWSUIT IN STATE OR FEDERAL COURT.

THERE ARE DIFFERENT SORT OF PROCEDURES FOR ANY OF THESE OPTIONS IN TERMS OF WHAT MAY HAPPEN, BUT THE CITY'S HARASSMENT POLICY IS REALLY THE ONE THAT TRIGGERS RIGHT AWAY LOOKING INTO IT THROUGH AN INVESTIGATION.

OKAY, HERE WE GO. LIABILITY. OKAY. SO WHEN THERE'S A LAWSUIT AND THERE'S LIKE A JURY FINDING THAT.

YEAH, THERE WAS A HOSTILE WORK ENVIRONMENT BASED ON PROTECTED CLASS IN A WORKPLACE.

HERE'S WHERE LIABILITY WILL FALL. SO STARTING WITH THE EMPLOYER, THE EMPLOYER IS LIABLE FOR THE CONDUCT OF SUPERVISORS WHO ENGAGE IN UNLAWFUL HARASSMENT, DISCRIMINATION OR RETALIATION.

THE EMPLOYER IS ALSO LIABLE IF THE EMPLOYER FAILS TO TAKE ALL REASONABLE STEPS NECESSARY TO PREVENT HARASSMENT FROM OCCURRING.

SO THE SECOND ONE MEANS THERE'S GOING TO BE ADDITIONAL LIABILITY FOUND IF THE EMPLOYER IS NOT DOING THE HARASSMENT TRAINING DOESN'T HAVE A POLICY PREVENTING HARASSMENT, ISN'T DOING AN INVESTIGATION WHEN THERE'S A HARASSMENT COMPLAINT.

THOSE ARE ALL THINGS THAT CAN TRIGGER A LIABILITY, YOU KNOW, FROM JUST NOT THE ACTUAL CONDUCT, BUT WHAT HAPPENS BEFORE AND AFTER THAT CONDUCT.

OKAY. A LITTLE BIT MORE INTERESTING THOUGH. WHO ELSE IS LIABLE? HARASSMENT CAN ALSO TRIGGER PERSONAL LIABILITY WHICH MEANS INDIVIDUAL PERSON LIABILITY.

SO ALL EMPLOYEES SUPERVISORS AND NON SUPERVISORS OFFICIALS NON-OFFICIALS CAN BE FOUND PERSONALLY LIABLE FOR ENGAGING IN UNLAWFUL HARASSMENT. THE REASON FOR THAT IS BECAUSE HARASSMENT IS NEVER WITHIN THE COURSE AND SCOPE OF SOMEBODY'S JOB.

SO THE LAW CONSIDERS IT TO BE A PERSONAL DECISION AND ACTION TAKEN.

SUPERVISORS CAN ALSO BE PERSONALLY LIABLE FOR CONDONING UNLAWFUL HARASSMENT OR FAILING TO ACT IN RESPONSE TO AN UNLAWFUL HARASSMENT COMPLAINT. THIS IS THE NUMBER ONE REASON WHY I TELL SUPERVISORS YOU HAVE TO REMEMBER YOUR DUTY TO REPORT.

IF YOU SAY, I RECEIVED THAT COMPLAINT AND I NEVER REPORTED IT, THAT IS WHAT CAN TRIGGER PERSONAL LIABILITY.

AND PERSONAL LIABILITY IS THE TYPE WHERE IT'S NOT THE CITY THAT COVERS, YOU KNOW, DAMAGES AND WHAT MAY RESULT FROM THAT.

IT'S THE INDIVIDUAL'S RESPONSIBILITY. SO WHEN THERE IS A FINDING OF LIABILITY, DAMAGES CAN INCLUDE BACK PAY TO THE PLAINTIFF.

IF THE PLAINTIFF HAD A PERIOD OF UNEMPLOYMENT OR IF THEY WERE ABLE TO PROVE THEY SHOULD HAVE GOTTEN THE PROMOTION.

SO IF THERE'S A PERIOD WHERE THEY SHOULD HAVE RECEIVED PAY OR MORE PAY, IT CAN ALSO INCLUDE EMOTIONAL DISTRESS DAMAGES.

AND THEN FOR WHEN THERE IS INDIVIDUAL PERSONAL LIABILITY TRIGGERED.

INDIVIDUAL EMPLOYEES CAN BE ASSESSED TO PAY PUNITIVE DAMAGES TO THE PLAINTIFF.

ALTHOUGH PUNITIVE DAMAGES ARE NOT ARE NOT FOR PUBLIC AGENCIES TO PAY AS THE EMPLOYER, SO IT'S JUST FOR THE INDIVIDUAL PERSONAL

[02:00:01]

ALL RIGHT. SO KEY TIPS FOR PREVENTION OF HARASSMENT IS NEVER PLAY FAVORITES.

OR I LIKE TO SAY IF YOU DO PLAY FAVORITES LET'S BASE IT ON MERIT AND PERFORMANCE.

TAKE ALL REPORTS IN IMMEDIATELY AND TAKE THEM SERIOUSLY.

GENERALLY, MONITOR THE WORKPLACE AND THE WORKPLACE CULTURE.

FOLLOW THE CITY'S ADMIN ORDER AND THEN YOU AND YOUR ROLE SERVE AS A ROLE MODEL.

ALL RIGHT. SO THAT IS THE END OF TODAY'S TRAINING.

I HOPE YOU LEARNED AT LEAST ONE NEW THING, EVEN IF IT WAS ONE OF THE LEGAL UPDATES.

PLEASE NOW TAKE THAT ACKNOWLEDGMENT FORM. IF YOU HAVEN'T ALREADY SIGNED IT, PLEASE SIGN IT AND YOU CAN LEAVE IT WITH JUDY OR WITH EMILY.

AND THAT'LL MAKE SURE THAT WE KNOW YOU'VE BEEN TO THIS TRAINING, AND YOU DON'T HAVE TO COME SEE ME AGAIN NEXT WEEK.

OKAY? SO THANK YOU, EVERYONE. THANK YOU.

* This transcript was compiled from uncorrected Closed Captioning.