Preventing Workplace Harassment, Discrimination and Retaliation - PowerPoint PPT Presentation

Loading...

PPT – Preventing Workplace Harassment, Discrimination and Retaliation PowerPoint presentation | free to download - id: 5b3bb3-OTE0Z



Loading


The Adobe Flash plugin is needed to view this content

Get the plugin now

View by Category
About This Presentation
Title:

Preventing Workplace Harassment, Discrimination and Retaliation

Description:

Preventing Workplace Harassment, Discrimination and Retaliation & Disability Laws and Protections Presented By: Liebert Cassidy Whitmore 2013 Training – PowerPoint PPT presentation

Number of Views:1406
Avg rating:3.0/5.0
Slides: 57
Provided by: jmada
Learn more at: http://bos.ocgov.com
Category:

less

Write a Comment
User Comments (0)
Transcript and Presenter's Notes

Title: Preventing Workplace Harassment, Discrimination and Retaliation


1
Preventing Workplace Harassment, Discrimination
and Retaliation Disability Laws and Protections
  • Presented By Liebert Cassidy Whitmore
  • 2013 Training

2
AGENDA
  • Overview
  • Sources of Law
  • Administrative Agencies
  • Key Definitions
  • What is Prohibited
  • Consequences
  • Prevention

3
SOURCES OF LAW
  • Title VII of the 1964 Civil Rights Act
  • Americans with Disabilities Act
  • Age Discrimination in Employment Act
  • California Fair Employment and Housing Act
  • Your Agencys Policy Against Harassment,
    Discrimination and Retaliation

4
ADMINISTRATIVE AGENCIES
  • Title VII and ADA - U.S. Equal Employment
    Opportunity Commission
  • FEHA - California Department of Fair Employment
    Housing
  • Your Agencys Policy Human Resources/Personnel

5
KEY DEFINITIONS
  • PROTECTED CLASSIFICATIONS

6
PROTECTED CLASSIFICATIONS
  • SEX/GENDER IDENTITY EXPRESSION
  • RACE/NATIONAL ORIGIN/COLOR
  • DISABILITY/MEDICAL CONDITION
  • GENETIC INFORMATION
  • RELIGIOUS CREED
  • MARITAL STATUS
  • AGE
  • SEXUAL ORIENTATION
  • OPPOSITION TO HARASSMENT
  • ASSOCIATION/PERCEPTION

7
WHAT GENETIC INFORMATION IS PROTECTED?
  • Federal and State law protect the following
    genetic information
  • Information about an individuals genetic tests
  • Information about the genetic tests of an
    individuals family members
  • Information about the manifestation of a disease
    or disorder in an individuals family members

8
CASE STUDY
  • Andrea is a sheriffs deputy who has told
    everyone she is three months pregnant. The Chief
    wants to transfer Andrea so that she no longer
    has patrol duties. Andrea says that she does not
    want to transfer, and that the Chief did not
    transfer a male officer when he sought treatment
    for addiction to pain killers.
  • Is it discrimination for the Chief to transfer
    Andrea?

9
KEY DEFINITIONS
  • Adverse Action
  • Any action with material effect on employment
    taken within course and scope of employment
  • Includes actions which impact
  • Job performance
  • Opportunity for advancement

10
KEY DEFINITIONS
  • SUPERVISOR
  • Anyone who has any responsibility or discretion
    to lead others
  • Those with purely clerical or record-keeping
    responsibility are excluded

11
DISCRIMINATION
  • Intentionally treating individuals differently
    because of
  • The individuals protected classification
  • A perception that a protected classification is
    present
  • An individuals association with someone with an
    actual or perceived protected classification

12
WHAT WOULD YOU DO?
  • You are the Director of Environmental Health at
    the County, and in charge of promoting one of the
    Districts Associate Geologists to Geologist
    Manager. You have narrowed it down to Michelle
    and Natalie. During a staff meeting, Natalie
    mentions that her partner is pregnant.
  • Identify the protected status.

13
CASE STUDY
  • Rita, the County Chief Librarian, needs to
    select the most qualified librarian to attend a
    conference in San Diego. Nancy is the most
    qualified candidate, but Rita wants to send Tom
    because Tom has been struggling financially since
    his divorce. The librarian who attends will
    receive a stipend.
  • Rita asks you for advice. What would you tell
    her?

14
HARASSMENT
  • Conduct that is
  • Physical
  • Verbal
  • Visual
  • Taken because of a protected classification
  • Two types
  • Quid Pro Quo
  • Hostile Work Environment

15
QUID PRO QUO
  • Job benefits promised
  • Explicit or implicit
  • In exchange for sexual favors or denied if sexual
    favors are not given

16
CASE STUDY
  • Pedro frequently uses County vehicles for
    non-work related purposes. Anika, who is charge
    of monitoring mileage on City vehicles, never
    reports him. Anika thinks she is in love with
    Pedro, and regularly daydreams about having a
    sexual relationship with him.
  • Did Anika violate the prohibition against quid
    pro quo harassment?
  • Would your answer be different if.?

17
HOSTILE WORK ENVIRONMENT
  • Protected Classification
  • Verbal, Visual or Physical Conduct
  • Objectively and Subjectively Offensive
    (Unwelcome)
  • Severe or Pervasive
  • Unreasonably Interferes with Work
  • No Intent to Harass Necessary

18
VERBAL CONDUCT
  • Sexual Comments
  • Jokes
  • Mocking Accent
  • Teasing
  • Slurs

19
CASE STUDY
  • Janelle is Mormon and often jokes about her
    religion. Janelles supervisor, Bianca, who is
    also Mormon, will laugh at these jokes and make
    jokes of her own about Mormonism. After working
    together for two years, Janelle files a
    harassment complaint with Human Resources against
    Bianca.
  • How should Biancas supervisor respond?

20
VISUAL CONDUCT
  • Posters
  • Calendars
  • Magazines

Emails
Racial or Religious Cartoons
Gestures
Sexual Conduct / Affection between other
employees at work
Staring / Leering
21
PHYSICAL CONDUCT
Massage
  • Hugs

Physical Intimidation
22
GRAY (BORDERLINE) AREAS
  • Private and consensual relationships between
    supervisors and subordinates? (Warning Not for
    long!)
  • Invitations to lunch, drinks or dinner
  • References to appearance or dress
  • Casual touching of non-intimate parts of the
    body

23
CASE STUDY
  • Tiffany, County IT Director, is in charge of
    hiring all IT employees. While in line at the
    coffee cart in the County Administration
    Building, Francine, a County manager in the
    Auditor-Controllers Office, overhears Tiffany
    tell another County employee that she wants to
    hire some young blood.
  • If you were Francine, what would you do?

24
RETALIATION
  • Protected activity Broad standard
  • Reporting discrimination or harassment
  • Participating in an investigation
  • Refusing to follow order reasonably believed to
    be discriminatory
  • Adverse action -- Broad standard
  • Causal connection

25
CASE STUDY
  • Several employees filed complaints with their
    supervisors about the Department Head, Cynthia,
    for making offensive comments and jokes about
    Native Americans. You are asked to interview
    Cynthia. During the interview, Cynthia asks you
    who complained about her. Cynthia says she has a
    right to know as the subject of the investigation
    and as the Department Head.
  • What do you tell her?

26
CONSEQUENCES DAMAGES LIABILITY
  • Employers are liable for the conduct of
    supervisors who harass
  • Employees can be liable for harassment
  • Employers have no duty to defend for conduct that
    is outside of the scope of employment
  • Liability can include
  • Back pay
  • Compensatory and punitive damages

27
ESSENTIAL ELEMENTS OF A POLICY
  • Prohibit both employees and non-employees
    discrimination, harassment and retaliation based
    on any protected status
  • Protect applicants, independent contractors and
    employees
  • List examples of prohibited conduct
  • Require supervisors to promptly report

28
ESSENTIAL ELEMENTS OF A POLICY
  • Provide a thorough, prompt, objective and
    non-judgmental investigation procedure
  • Provide confidentiality to the greatest extent
    possible
  • Identify the right to go to the U.S. Equal
    Employment Opportunity Commission and California
    Department of Fair Employment and Housing

29
SUPERVISOR RESPONSIBILITIES
  • Report Observed/Overheard Conduct
  • Forward Reports to Human Resources Promptly
  • Third-party complaints
  • Verbal complaints
  • Rumors
  • Remember The word harassment need
    not be used to trigger your duty
    to act

30
SUPERVISOR RESPONSIBILITIES
  • Cooperate in the investigation
  • Prevent further harassment
  • Assure no retaliation

31
APPROPRIATE CORRECTIVE ACTION
  • Conduct prompt and thorough investigation
  • Discipline perpetrator appropriately
  • Offer counseling for the target
  • Preventative training to prevent future
    violations
  • Republish/update agencys policy

32
WHAT IF YOU ARE ACCUSED?
  • Refer the accuser to a superior, Human Resources
    or legal advisor
  • Report the accusation to your supervisor and to
    Human Resources
  • Refrain from any action that could be interpreted
    as retaliation
  • Seek constructive counseling from Human Resources
  • Cooperate in the investigation
  • Follow your agency policy

33
OPTIONS FOR RESOLUTION
  • Use the Agencys complaint procedure
  • Report to the U.S. Equal Employment Opportunity
    Commission (EEOC)
  • Report to the California Department of Fair
    Employment Housing (DFEH)
  • Lawsuits

34
Disability Laws and Protections
35
Overview
  • Disability Laws
  • What is a Disability?
  • What Information Can/Cannot Be Considered?
  • Fitness for Duty Issues
  • The Interactive Process is Ongoing
  • Ending the Relationship because of Inability to
    Accommodate

36
What are the Relevant Laws?
  • Americans with Disabilities Act (ADA)
  • Family and Medical Leave Act (FMLA)
  • Fair Employment and Housing Act (FEHA)
  • California Family Rights Act (CFRA)

37
What is a Disability?
  • Mental, Physical, or Medical Condition
  • Limits a Major Life Activity
  • Mitigating Measures Not Considered
  • Temporary Conditions are Not Excluded (so assume
    they are included)
  • Specifically Excluded Conditions
  • FEHA standard more generous than ADAs

38
Individual with a Disability
  • An Employee or Applicant Who
  • Has the Prerequisites and Qualifications for the
    Position
  • Education, Skill, Licenses, Job-Related
    Requirements
  • Can Perform Essential Functions with or without
    Reasonable Accommodations

39
Focus on the Essential Functions of the Job
  • These are Job Requirements that Cannot Be
    Compromised
  • Update Job Descriptions to Include All Essential
    Functions to
  • Yield a Better Applicant Pool
  • Provide Performance Standards

40
What are the Essential Functions of the Job?
  • Several Factors to Consider
  • Does the Position Exist to Perform a Particular
    Function?
  • Are Other Employees Available to Perform
    Function?
  • Degree of Expertise or Skill Required to Perform
    Function?

41
When a Disability-Related Inquiry is Allowed of
an Employee
  • Employee Generated Request / Doctors Note or
  • Observed Difficulty Performing Essential
    Functions of the Job and
  • Other Good Cause, Such as Excessive Absenteeism,
    Poor Productivity, etc.
  • Inquiry Must Be Job Related and Consistent with
    Business Necessity
  • Rebuttal Information Accepted Considered

42
Fitness-for-Duty Exam
  • Provide Doctor with
  • Detailed Job Description
  • List of Essential Functions
  • Seek Functional Limitations and Potential
    Accommodations Only
  • Do Not Request Medical History, Diagnosis, or
    Treatment Plan

43
What Information is Employer Entitled to Receive?
  • Whether Employee Has a FEHA Disability
  • Whether Employee Can Perform Essential Functions
    of Job
  • Not Underlying Mental, Physical, Genetic or
    Medical Condition
  • Functional Limitations
  • Potential Accommodations

44
What Do You Do If?
  • An employee being disciplined says that his
    disability made him do it.
  • An employee goes out on stress leave when
    discipline is pending.
  • An employee responds to a performance evaluation
    with information on his/her disability.

45
Question
  • Can an adverse employment action (discipline,
    termination, etc.) be based on misconduct that is
    caused by the disability?

46
Answer
  • Generally No, but YES if the misconduct consists
    of threatening behavior.

47
Reasonable Accommodations
  • Employers Duty to Identify and Implement Unless
    a Defense Applies
  • Modifying Workplace Policy
  • Make Facilities Accessible
  • Job Restructuring
  • Modified Work Schedules
  • Reassignment to a vacant position
  • Preferential consideration unless seniority
    system
  • Paid or Unpaid Leaves of Limited Duration

48
Interactive Process
  • Means for Determining Whether Employee Can Be
    Reasonably Accommodated
  • Steps
  • Analyze Job Functions and Essential Functions
  • Identify Limitations of the Position
  • Identify Possible Reasonable Accommodations
  • Be Creative Process Counts!

49
What Triggers the Interactive Process?
  • Request for Reasonable Accommodation from
  • An employee or applicant
  • Doctors Note Describing Limitations
  • ER or 3rd Party Observation that
  • An accommodation is needed
  • Existing accommodation is not effective
  • Periodic Check-in Regarding Temporary
    Accommodations
  • EE has Exhausted Workers Comp or Family Leaves

50
Interactive Process
  • Guidelines
  • Allow Employees Representative to Attend
  • Schedule at Convenient Time
  • Consider Meeting by Phone if Employee Unable to
    Meet in Person
  • Create Detailed Record
  • Consider Tape Recording
  • Take Notes
  • Prepare Written Summary to Document Your Agencys
    Good Faith

51
Interactive Process
  • Guidelines
  • Consider
  • Preferences of Employee
  • Recommendations of Doctors
  • Input of Family Members and Other Representatives
  • Decision Whether to Grant or Deny Accommodation
    Must Be Supported by Specific, Legitimate Reasons

52
Interactive Process
  • Both Parties Must Demonstrate Good Faith
  • Consider Everything
  • Be Flexible
  • Meet More Than Once, as Necessary
  • Continuing Obligation Dont Drop the Ball
  • Condition May Change
  • Employer Has Ultimate Discretion to Select
    Appropriate Accommodation

53
Interactive Process
  • If Employee Cannot Be Reasonably Accommodated
  • Termination Follow Due Process Procedures
  • Disability Retirement
  • Determination Required Prior to Termination if
    Employee Has Five or More Years of Service

54
Defenses
  • Direct Threat to Self or Others
  • Factors
  • Duration of the Risk
  • Nature and Severity of the Potential Harm
  • Must Be Significant
  • Likelihood That Potential Harm Will Occur
  • Imminence of Potential Harm
  • Rely on Objective Facts

55
Defenses
  • Undue Hardship
  • Very Difficult Burden for Public Employers
  • Factors
  • Nature and Cost of Accommodation
  • Overall Financial Resources of Employer
  • Number of Employees Impacted by Accommodation
  • Terms of Collective Bargaining Agreement

56
Critical Points
  • Inadvertent Employer Mistakes That Lead to
    Failure to Accommodate Will Not Be Acceptable to
    Judge/Jury
  • Make Sure Your Agency Never Leaves the Ball in
    Its Court
  • Act Promptly to Pass the Ball Back to the
    Employee or Applicant
  • Follow Up Always
About PowerShow.com