Sexual Harassment & Discrimination Prevention Training
October 16th, 2018
Why are we here?
California State Laws require supervisors to be trained in unlawful harassment and discrimination (AB 1825) as well as abusive conduct (AB 2053) at least once every two years.
- Existing supervisors must receive training at least once every two years
- New supervisors must be trained within six months of hire/promotion
- The training must be two hours long and interactive
Overview
- Workplace harassment violates company policy and is likely to be illegal.
- Supervisors have a heightened responsibility to prevent and respond to harassment.
- This training will provide you with information about zero-tolerance policy against workplace harassment.
What We Will Cover
- Definition of workplace harassment
- Examples of prohibited conduct
- How the company handles harassment complaints
- Your responsibilities as a witness or victim of workplace harassment
- Your role as a manager to prevent and respond to harassment
Who is a Supervisor?
A “supervisor” is defined (by law) as any individual having the authority, in the interest of the employer that:
- Hires, fires, or disciplines another employee; or,
- Directs the work of another employee; or,
- Evaluates the work of another employee; or,
- Makes recommendations regarding the above, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
Negative Effects of Harassment
Business
- Decreased productivity
- Poor employee morale
- Legal liability
- Damage to company brand
- Personal embarrassment
- Damage to reputation
- Disciplinary action (e.g., termination)
- Legal liability (time and money)
Accused Harasser
Definition of Sexual Harassment
Federal law prohibits sexual harassment under Title VII of the Civil Rights Act of 1964. Under Title VII sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- submission to such conduct is made with explicitly or implicitly a term or condition of an individual's employment,
- submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
- such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating intimidating, hostile or offensive working environment.
Sexual Harassment Law Specific to California
In California, the Fair Employment and Housing Act (FEHA) prohibits sexual harassment in the workplace. FEHA specifically prohibits workplace harassment based on sex.
- Regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature.
- All employees are entitled to the benefit of a 'discrimination-free workplace‘ - a work environment free of harassment. Unwelcome sexual conduct that deprives an employee of this substantial benefit is itself unlawful under FEHA, whether or not the conduct also results in the loss of some more tangible employment benefit, such as a promotion, pay increase, or the job itself.
- Companies can and do prohibit all inappropriate conduct, even if it does not rise to the level of sexual harassment under the law.
Protected Classes Under California’s Fair Employment and Housing Act (FEHA)
California's FEHA prohibits harassment and discrimination in employment because of the categories below and/or retaliation for protesting illegal discrimination related to one of these categories.
- Age (40 and over)
- Ancestry
- Color
- Religious creed (including religious dress and grooming practices)
- Denial of FMLA
- Disability (mental and physical) including HIV and AIDS
- Martial Status
- Medical Condition (cancer and genetic characteristics)
The protected categories include:
- Genetic Information
- Military and Veteran status
- National Origin (including language use restrictions)
- Race
- Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth and breastfeeding)
- Gender, Gender identity and Gender expression
- Sexual Orientation
Two Types of Sexual Harassment
Sexual harassment generally falls into two categories: Quid Pro Quo and Hostile Environment
Quid Pro Quo
(Latin, meaning "this for that") harassment involves cases where a supervisor or other manager is requesting sexual favors in exchange for providing job benefits, or a supervisor or other manager is threatening denial of job benefits in order to gain sexual favors.
Examples of Quid Pro Quo
Some elements of quid pro quo include:
Extorting sexual favors by conditioning continued employment on the performance of sexual acts is the basis of quid pro quo harassment.
- The employee was subjected to unwelcome conduct.
- The harassment complained of was based upon sex.
- Submission to the unwelcome conduct was a condition to receiving or not taking away job benefits.
- Harassment by employer or agent of employer.
The following is a list of examples of the type of supervisory decisions that may be involved in quid pro quo harassment:
- Hiring
- Firing
- Failing to promote
- Promotion
- Demotion
- Reassignment with significantly different responsibilities, or
- A decision causing a change in benefits and/or compensation
Hostile Environment
Hostile environment involves unwelcome behavior of a sexual nature which creates an intimidating, hostile, or offensive work environment or has the effect of unreasonably interfering with an individual's work performance.
Examples of Hostile Environment
Some elements of hostile environment harassment include:
Some example of hostile environment include:
- Acts of cornering, patting, pinching, rubbing or brushing up against a person's body that is sexual in nature;
- Open speculation or inquiries about a person's sex life;
- Jokes, remarks, or innuendoes that are sexual in nature about a person or women and men in general;
- Displaying sexually explicit material in the workplace;
- Visual conduct such as leering or making sexual gestures;
- Making or using derogatory remarks, epithets, and slurs; and
- Suggestive or obscene letters, e-mails, notes or invitations.
- The employee was subjected to unwelcome conduct.
- The harassment was based on sex.
- The harassment affected a term, condition or privilege of employment.
- The harassment was severe* or pervasive** and unreasonably interfered with the employee's work performance.
*Severe means the conduct is harsh.
**Pervasive means frequent or continuous, not isolated or episodic.
California Law
California law defines sexual harassment as harassment based on sex or of a sexual nature; gender harassment (including harassment based on gender identity or gender expression); and harassment due to pregnancy, childbirth, breastfeeding or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire to be unlawful.
California puts harassing behavior into four categories:
- Verbal harassment
- Physical harassment
- Visual harassment
- Sexual favors
Lesser-Known Fact About Sexual Harassment
- The conduct must be unwelcome:
Sexual harassment affects more than just the victim. Sexual harassment creates a toxic work environment that can affect anyone who witnesses the conduct. When the employer fails to address the situation, victims may have legal options.
- The victim is not always the person harassed:
- The aggressor may not be a close colleague:
To be considered sexual harassment, the conduct must be unwanted by the victim. Sexual-natured conduct in the workplace that is welcomed may be inappropriate, but is not necessarily considered sexual harassment. However, if another person is bothered by the conduct, as noted above, it can be a form of harassment.
Many times, the victim and aggressor work closely together. But this is not always the case. The harasser can be any colleague, supervisor - or even a non-employee.
Source: https://www.eeoc.gov/eeoc/publications/fs-sex.cfm
Who might commit sexual harassment?
- Is it possible for sexual harassment to occur between persons of the same sex?
- Is it possible for a woman to sexually harass a man?
- Is it possible for a customer to sexually harass an employee?
- Is it possible for an interviewer to sexually harass a job applicant?
- Is it possible for an employer or an employee of the employer to sexually harass a subcontractor?
- Are supervisors the only persons that can commit sexual harassment?
What types of actions might be classified as 'sexual harassment'?
Depending on the circumstances, either could be sexual harassment. Occasional, appropriate compliments should not be sexual harassment as viewed by the 'reasonable person'. Touching is more likely to create problems and although in many circumstances, it is not sexual harassment. It is best to avoid rubbing or other types of touching in the workplace.
- Can sex jokes between men and women be considered sexual harassment?
- Can compliments or touching be considered sexual harassment?
- Can a single incident of rude behavior be considered sexual harassment?
Even though it may be welcome between the parties, the jokes may be unwelcome to others, or one of the parties may later find it unwelcome. This type of conduct is inappropriate and should be avoided in the workplace, including use of company computers, e-mail, the internet and intranet for such purposes.
Generally, a single incident of rude behavior is not sexual harassment as it is not severe or pervasive. However, such behavior can become sexual harassment if it is severe or pervasive (repeated) and on the basis of sex. A single, unusually severe incident of harassment may be sufficient to constitute a violation. The more severe the harassment, the less need to show a repetitive series of incidents. This is particularly true when the harassment is physical rather than verbal.
Questions and Answers on Sexual Harassment
Dating between coworkers in and of itself is not sexual harassment if it is welcome to the parties involved in the dating relationship. However, asking a coworker out on a date may become sexual harassment, especially if the coworker says no and one continues to pursue asking the individual out on a date. Another potential problem is if former dating partners don't get along with each other in the workplace.
- Can it be sexual harassment when supervisors date subordinates?
- Can dating away from work be considered sexual harassment?
- Can it be sexual harassment if the harassment occurs away from the workplace?
Supervisors must be particularly careful about dating subordinates because of the power that supervisors have over subordinates. Even if a subordinate consents to go out with a supervisor, it may actually be unwelcome conduct to the subordinate and sexual harassment may occur.
Sexual harassment can occur away from the workplace at company-sponsored events or while conducting company business away from the workplace. You must be careful to avoid inappropriate behavior even when you are away from the workplace.
Law Requiring Prevention of Abusive Conduct and Bullying
AB 2053 amended California Government Code section 12950.1, effective January 1, 2015, to include prevention of abusive conduct as part of the required sexual harassment training of California supervisors. The amendment did not add "abusive conduct" as a protected category under the Act. It amended the training requirement only.
The law defines "abusive conduct" as:
"For purposed of this section, "abusive conduct" means conduct of an employer or employee in the workplace with malice that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating, or the gratuitous sabotage or undermining of a person's work performance. A single act shall not constitute abusive conduct unless especially severe and egregious."
How to Avoid Abusive Conduct and Bullying
- All employees must avoid malicious workplace conduct that is hostile, offensive and unrelated to an employer's legitimate business interests.
- All employees must avoid repeated infliction of verbal abuse such as:
- Derogatory remarks, insults and epithets
- Verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating
- Gratuitous sabotage or undermining of a person's work performance
- Supervisors should refrain from acting impulsively in difficult workplace situations and should handle all employee issues in a logical and rational manner while addressing the employer's legitimate business interests
- Supervisors must make bona fide performance critiques, and avoid indignant remarks which do not serve the employer's legitimate business interests
- Complaints of workplace abusive conduct and bullying will be promptly investigated and appropriately disciplined.
Internet and E-mail Use
The computer has evolved to become an irreplaceable tool in business. Many of us probably have trouble imagining our jobs without it. Technology has also brought us other benefits, such as e-mail and the internet, which have made our jobs even more efficient. But as our ability to communicate has increased, so has the need to police these cyber tools.
Supervisors must be aware of how the internet and e-mail are used in the workplace in order to avoid sexual harassment that may arise as a result of improper usage of the internet and e-mail.
It is important to remember that e-mail and internet access are services of your job and must be treated with respect. Every time you use an e-mail address provided to you by HUB, you are representing HUB. So every e-mail and every hit on a web site leaves the mark of HUB – whether sent from your office, laptop, or home computer.
Monitoring and Accessing E-mail and the Internet
For many reasons, companies may retain the right to check on employees’ use of its computer system. Companies can monitor and access any messages, files, or other communications on the system as it pertains to legitimate business reasons. Having a private password does not negate the company’s right to access and monitor employee’s e-mail and Internet use.
Some of the legitimate reasons companies may access employee files include:
- Solving software and hardware problems.
- Ensuring compliance with the related company policies as outlined in the Employee Handbook.
- Protecting legal interests.
- Preventing system abuse.
Companies may reserves the right to restrict or limit use of these tools or block access to any material on the internet or transmitted via e-mail.
Conduct that shows gender bias, even if not sexual in nature, is also a form of harassment based on sex.
Here is an example of an actual harassment claim to help illustrate:
Example: A male manager appointed an all-male staff to a project that would entail extra work for overtime pay. No women were asked to participate despite having equal qualifications for the project. When a female employee inquired, the manager stated that he did not consider any females for the project because he was being sensitive to their needs and desires to be at home with their families after work – and that women cannot handle the added stress of late hours and extra work. Although these comments were not “sexual” per se, they showed gender bias which is a prohibited form of sexual harassment.
Gender Stereotyping:
- “Your hormones are making you crazy”
- “You would think he would dress better since he is gay”
- “She looks more manly than I do”
- “’It’ is using the women’s bathroom again”
- “Sean wants us to call him Susan but I refuse to call him that”
- “That’s a man’s job, a woman could never handle it”
- “Women are too sensitive to handle high pressure jobs”
- “Men are pigs and can’t be trusted”
- “If she didn’t dress that way he would never have harassed her”
- “Pregnancy brain is making you forgetful”
These comments may seem harmless to some, but stereotyping on the basis of ANY protected characteristic can be offensive and is inappropriate in the workplace.
Definition of Discrimination
Protected classifications. A variety of protected classifications have been created by federal laws. These classifications include, among others, race, color, religion, national origin, and sex. California includes protected classes in addition to the five federal protected classes. It is unlawful employment practice to discriminate when making employment decisions against persons on the basis of these classifications.
Discriminatory practices include biases in personnel decisions:
Discrimination can occur if a neutral policy of an employer has an adverse impact on a protected class of persons (disparate impact). Discrimination can also occur if an employer intentionally discriminates against an individual because they are a member of a protected class (disparate treatment).
- Hiring
- Firing
- Discipline
- Promotion
- Scheduling
- Duties
- Title
- Pay issues
- Office location
Companies can an do prohibit all inappropriate conduct, even if it does not rise to the level of discrimination under the law.
Examples of Discrimination
Discrimination can occur when employees are treated differently because of their race, color, age, sex, disability, national origin, religion or any other protected class under the law with respect to their terms and conditions of employment.
Discriminatory conduct may include, but not limited to:
- Offensive jokes
- Slurs
- Epithets or name calling
- Physical assaults or threats
- Intimidation
- Ridicule or mockery
- Insults or put-downs
- Offensive objects or pictures
- Interference with work performance
Definition of Discriminatory Harassment
Discriminatory harassment in the workplace on the basis of race, color, age, sex, disability, national origin, religion and other protected classes includes conduct such as the following:
- Abusing the dignity of an employee through insulting or degrading remarks or conduct;
- Threats, demands, or suggestions that an employee’s work status is contingent upon the employee’s toleration of such behavior;
- Subjecting an employee to demeaning and/or degrading activities in order to gain co-worker acceptance (e.g. hazing);
OR
- Degrading cartoons, drawings or other writings.
Companies can and do prohibit all inappropriate conduct, even if it does not rise to the level of discrimination under the law.
Questions and Answers on Discrimination and Harassment
- What can be discriminatory harassment?
- Can discrimination and harassment occur if it wasn't intentional?
- Can a customer harass an employee?
- Who can commit discrimination and harassment?
- Where can discriminatory harassment occur?
- Can jokes/materials be harassment?
- Can a single incident be discriminatory harassment?
- Is it harassment if it occurs away from the workplace?
Costs of Sexual Harassment and/or Discrimination
In addition, sexual harassment and/or discrimination may result in a lawsuit. If such a lawsuit is lost, in addition to paying legal expenses, the following damages may have to be paid to the victim of the harassment/discrimination.
Sexual harassment and/or discrimination can negatively impact the workplace by causing:
- Lower employee morale
- Increased absenteeism
- Lower productivity
- Decreased commitment
- Decreased motivation
- Decreased job satisfaction
- Increased stress
- Lost wages
- Emotional distress damages
- Punitive damages (damages which are meant to punish the defendant for the actions which brought about the lawsuit)
- Attorney fees of the victim or possibly a multiplier of attorney fees in California
- Reinstatement of employment
Employer Liability for Actions of Supervisors
Supervisors must take seriously their actions as representatives of their company. It is important that supervisors refrain from sexually harassing conduct, discriminatory conduct and other offensive conduct. The employer may be held liable for the actions of supervisors.
Under California state law, the employer is strictly liable, or always (absolutely) liable for sexual harassment by a supervisor.
Employer Liability
An employer is subject to strict liability for unlawful harassment if the harassment was committed by a supervisor with immediate (or successively higher) authority over the employee. In many circumstances, employers may be strictly liable even when the supervisor does not have actual authority over the employee.
This is the case when the employee reasonably believed that the harasser had authority over their employment status or if the employee reasonably believed that the harasser had a broad delegated power which allowed the harasser to significantly influence employment decisions.
Supervisor Liability
Supervisors may be sued and may be held liable for their harassing conduct. California law specifically provides that it is unlawful for not only the employer, but also for 'any other person' to harass an employee or applicant for employment. Supervisors may be held liable if they have assisted or encouraged harassment.
Preventing Sexual Harassment and Discrimination
Under the law, it does not matter whether the person doing the harassing/discriminatory conduct considers his/her behavior offensive. What matters is whether the person allegedly being harassed/discriminated against reasonably finds it to be both subjectively and objectively offensive.
As a supervisor you must report anything that may be sexual harassment, discrimination, discriminatory harassment, or inappropriate conduct. You are subject to discipline if you do not. In addition, as a supervisor you must be particularly careful to conduct yourself appropriately.
Courts require the conduct to be both subjectively and objectively offensive. Therefore you should:
- Respect your fellow workers. If it is possible that a fellow worker will find your behavior offensive, don't do it.
- If you are not sure whether a fellow employee would consider your conduct unwelcome, don't engage in the conduct.
- Many times people do not understand that their conduct is offensive. You should tell them their conduct is offensive.
- Don't put your head in the sand. You cannot avoid liability by pretending that inappropriate behavior is not occurring.
- Report offensive conduct to the proper person as stated in the your Employee Handbook. Employers can avoid liability by taking prompt and appropriate remedial action. In order for the employer to be aware of a potential problem and to solve it, supervisors must report offensive and inappropriate conduct to the proper person(s).
Tips for Supervisors
As a supervisor you should report anything that may be sexual harassment, discrimination, discriminatory harassment, or inappropriate conduct. In addition, as a supervisor you should be particularly careful to conduct yourself appropriately. You are subject to discipline if you do not. Here are a few more tips to help you when responding to complaints of sexual harassment and/or discrimination:
Don't
Do
- Contact the HR Department immediately
- Tell the complainant you are contacting the HR Department
- Write down what you were told or witnessed
- Attempt to investigate the claim yourself
- Ask questions out of curiosity
- Wait to the following day to report the claim
- Talk about it to your peers or other employees outside of HR or an investigative team
Investigations of complaints vary, but they tend to include the following:
- HR Department determines appropriate level of investigation needed
- Complaint is documented including accounts of witnesses
- HR Department considers level of action needed appropriate to conduct
- Take action to prevent future conduct
- HR Department will communicate action taken
What if an employee doesn’t want sexual harassment or discrimination reported?
Sometimes employees tell a supervisor a coworker has been sexually harassing/discriminating against them, but they don't want the supervisor to do anything. It is important that you make it clear that inappropriate behavior must be investigated and reported pursuant to employer’s policy.
You and your employer cannot avoid liability by "keeping quiet" about these kinds of problems in the workplace. Inaction by a supervisor in this situation could lead to employer liability. While it may seem reasonable to let the employee determine whether or not to pursue a complaint, the employer must do its duty to prevent and correct harassment/discrimination. Therefore, it is important that you report any complaint of harassment/discrimination to the Human Resources Department.
What if I am threatened with retaliation for reporting sexual harassment or discrimination?
The employer will not allow anyone to retaliate against you for reporting what you in good faith believe is sexual harassment/discrimination. It is important that you report any retaliation or threat of retaliation to the Human Resources Department.
What is your responsibility as a supervisor to prevent retaliation?
Retaliation against someone who is involved in a sexual harassment/discrimination claim is illegal. As a supervisor, you should ensure that retaliation does not occur.
For example, when the complaint is investigated, the person who interviews the parties and witnesses should remind all of the individuals about the prohibition against retaliation.
You, as part of management, should scrutinize employment decisions affecting the complaint and witnesses during and after the investigation to ensure that such decisions are not based on retaliatory motives.
Employer’s Reaction to Report of Sexual Harassment and/or Discrimination
- Confidentiality.
If you report sexual harassment/discrimination, your Human Resources should initiate an investigation. The purpose of the investigation will be to discover the relevant facts which will enable Human Resources to determine whether improper conduct has occurred and to determine the appropriate discipline if there was inappropriate behavior.
- Investigation.
- Prompt and appropriate action.
Employer should do its best to keep the investigation confidential, but confidentiality cannot be guaranteed. Confidentiality is also expected of persons with whom the investigation is discussed.
If it is determined that inappropriate conduct occurred, your employers should take prompt and appropriate corrective action. In addition, your employer should continue to monitor the situation to make sure there are no further problems or retaliation.
QUIZ
Question #1
Who is liable for harassment?
- The _________________ is liable.
- The harassing ___________________
is personally liable.
Question #2
What are the two types of sexual harassment?
a) Discrimination and Hostile
b) Hostile and Quid Pro Quo
c) Protected Class and Quid Pro Quo
Question #3
Perception is a key factor regarding sexual harassment, discrimination and/or discriminatory harassment.
- True
- False
Question #4
Abusive Conduct is illegal
- True
- False
Question #5
What action(s) is/are affected under discrimination?
a) Harassing behavior regarding a protected class
b) Personnel decisions
c) All of the above
Question #6
Angela comes in to interview for an open position. You are astounded by her experience and professionalism – obviously she is the right candidate for the job. She tells you that she is unable to work Saturdays due to her religious beliefs. Due to this reason, you chose to offer the position to a less qualified candidate.
This is a possible example of which of the following?
- Discrimination
- Hostile
- Quid Pro Quo
- Discriminatory harassment
Question #7
Tim is a very outgoing and friendly manager. One day Tim is seen by Tina chatting it up with Crystal outside. Tim and Crystal are giggling and seem very relaxed with one another. Tina is under the impression that Tim and Crystal are flirting with one another and feels that Crystal is receiving preferential treatment.
This is a possible example of which of the following?
- Discrimination
- Hostile
- Quid Pro Quo
- Sexual harassment
Question #8
You receive an email from an external party. You open it to find it includes a joke which implies something of a sexual or discriminatory nature.
What should you do with the email?
- Forward it to your friend(s) – it’s hilarious
- Send it to a co-worker that would appreciate it
- Delete it
Question #9
Tye and Lisa work together and are talking about Dr. Smith, who is 65 years old. Tye and Lisa don’t intend for Dr. Smith to hear them, but regularly make derogatory remarks about his inability to do his job because of his age. However, Dr. Smith does hear their remarks.
This is a possible example of which of the following?
- Discrimination
- Hostile
- Quid Pro Quo
- Sexual harassment
Question #10
Your employee informed you that they underwent gender reclassification 2 years ago. A co-worker found out from “snooping” on the employees’ social media account and is now making comments about “being confused” and being passive-aggressive towards the employee.
What should you do?
- Report it to your Manager
- Tell the employee it’s not a big deal
- Report it to HR
Question #11
An employee, Layla, decides to put a picture of her and her significant other up in her cubicle. The next day she overhears her neighboring co-worker making degrading comments about lesbians to other co-workers. This continues for the entire month.
This is a possible example of which of the following?
- Discrimination
- Hostile
- Quid Pro Quo
- Sexual harassment
Question #12
You have an opening for a Cash Applications Specialist. You feel that it would be beneficial to hire a male because the department is predominately female and this would provide a “good balance”. HR sends you 10 applicants that meet the minimum qualifications – two of the ten applicants are male. However, you chose to only interview the two male candidates.
This is a possible example of which of the following?
- Discrimination
- Hostile
- Quid Pro Quo
- Sexual harassment
Question #13
It is okay for an employee to be treated differently because they reported harassment?
- True
- False
What is Harassment?
- A hostess asks her manager out for a date.
- A co-worker sends a provocative text message to another co-worker.
- A FedEx delivery person flirts with the receptionist.
- An executive comes in on a weekend to view pornography on the internet.
- A male manager meet with a female colleague in his hotel room to discuss a business meeting.