Embracing the Future Now ACWA JPIA 2017 Spring Conference Sexual Harassment Prevention for Board Members & Managers (AB1825 & AB2053) Presented by: Robert Greenfield, JPIA General Counsel Patricia Slaven, JPIA Director of Administration May 9, 2017 Hyatt Regency Hotel Monterey, California
1 Sexual Harassment Prevention for Managers & Board Members AB 1825, 1661 & 2053 Presented by: Rob Greenfield & Patricia Slaven, ACWA/JPIA Why Are We Here? The law Compliance Reduce claims Create positive work environment Because It Still Happens
2 Ever Been Asked to Change Your Behavior? Relevant Laws Federal (EEOC) Title VII of Civil Rights Act of 1964 Americans with Disabilities Act (ADA) Age Discrimination in Employment Act (ADEA) Genetic Information Non-discrimination Act (GINA) California (DFEH) Fair Employment and Housing Act (FEHA) AB 1661 This law requires local agency officials, as defined, to receive sexual harassment prevention training and education every two years.
3 DFEH Complaints 2015 What is Discrimination? Discrimination What is Unlawful Discrimination? Unjust or prejudicial treatment of different categories of people on grounds of race, sex, age, etc. Discrimination
4 What is Unlawful Discrimination? Protected Classes Discrimination Which are Protected Characteristics? Race Medical Condition Hair Color Gender identity Marital Status Age Smoker Ancestry Gender Military Status Color Gender expression Pregnancy Sexual orientation Animal lover Genetic info Religion National origin Political Party Disability Scenario Hector has worked for Flushing Water Agency for 35 years as a water tender. He is required to do heavy lifting as a part of his job, and can perform such tasks with no problem. The new boss, Barbara, decided to hire Mitch to take over Hector s position. She demotes Hector to an office position where he does not have to lift because she is worried about Hector and thinks he will be slowing down soon. Is this discrimination? YES or NO or NOT SURE
5 What is Harassment Harassment Lawful Harassment? 1. My boss is harassing me about getting to work on time. 2. A customer is harassing me about my football team losing. 3. My team mate is harassing me about finishing our project. Harassment How is Unlawful Harassment Different? When one is harassed because of a protected characteristic.
6 Unlawful Harassment Protected Classes Harassment Discrimination & Harassment Protected Classes Discrimination Harassment Sexual Harassment sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: 1. Submission to such conduct is made either explicitly or implicitly a term/condition of employment OR
7 Sexual Harassment Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: 1. Submission to such conduct is made either explicitly or implicitly a term/condition of employment OR Sexual Harassment Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: 2. Submission to or rejection of such conduct is the basis for employment decisions, OR Sexual Harassment Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: 3. Such conduct has the purpose or effect of unreasonably interfering with an individual s work.
8 Definition Sexual Harassment Unwelcome sexual advances, requests for sexual favors and other verbal, non-verbal or physical conduct of a sexual nature Quid Pro Quo Submission to such conduct is made term of employment or forms basis for employment decisions Hostile Environment Conduct which unreasonably interferes with work performance; creates intimidating, hostile, offensive environment; is severe and pervasive. Employer is always liable Employer liable if knew or should have known and failed to take appropriate action Most Harassment Not Reported Of those harassed do not report it! Why Doesn t It Get Reported? I can handle it myself I don t want to make matters worse I m afraid manager will overreact I m afraid others will call me prude or uptight I might be seen as not being a team player I m afraid harasser might be treated severely
9 Ways People Harass Physical Verbal Non- Verbal Touching Hugging Brushing up against Blocking a person s path Shoulder/back rubbing Invading personal space Physical Contact Scenario A Board Member is interested in the new receptionist at Sparkle Water District. He comes in and sits at her desk often. When she was in the copy room, he blocked her path, not letting her through until she agreed to a date. Harassment? YES or NO or NOT SURE
10 Verbal Contact Flirting Demeaning names Sexual propositions Inappropriate humor Threats Remarks about sexuality Continual requests for dates Non-Verbal Contact Staring Sexually suggestive glances Suggestive noises Printed calendars or posters Inappropriate letters or email; Facebook, Twitter, videos, etc. Sexual content on computer displays Scenario A Manager has daily meetings with some staff first thing in the morning. They convene in his office with the door closed. The Manager s assistant becomes aware that inappropriate pictures and pornography are being shared in these meetings. She confronts the Manager, who just laughs it off. Could this be sexual harassment? YES or NO or NOT SURE
11 Digital Harassment Face-to-face versus digital contact Encourage employees to use care with: Email and instant messaging Forums, discussion boards and blogs Social networking sites Photo and video sharing Text messaging Scenario A General Manager was sending sexually explicit jokes to an employee at another agency, after work hours on his personal computer. Could this be sexual harassment? YES or NO or NOT SURE Scenario Katrina frequently comes to work dressed in tight miniskirts and low-cut tops. She files a harassment complaint against a co-worker who has been making sexuallycharged comments to her and about her for months. Are her dressing habits a factor in determining whether she is victim of sexual harassment? YES or NO or NOT SURE
12 Harassment by non-employee Suppliers and vendors Contractors Customers and visitors Others Who May Harass Take complaints seriously, and raise the concern with the third party directly Scenario Field worker asked to be excused from a job site in a neighborhood because he felt uncomfortable when a woman continued to show off for the crew, dancing in her yard with no clothing on. Could this be sexual harassment? YES or NO or NOT SURE Reasonable Person Standard Frequency and Severity judged by reasonable standard Reasonable victim s perspective
13 Reasonable Person Standard Factors Frequency Severity Physically threatening vs minor utterance Interferes with employee s work Think Before You Act 1. Would you tell your family about this activity? 2. Would you be angry or distressed if one of your family members were subjected to this conduct? 3. Would you be comfortable testifying under oath in a courtroom that you engaged in this activity and see nothing wrong with it? Employer s Liability Employer vicariously liable
14 Employer s Liability Employer liable if knew and did nothing Employee s Liability Can be held personally liable Impact
15 AB2053: Abusive Conduct 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 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. Discrimination, Harassment & Abusive Conduct Protected Classes Abusive Conduct Discrimination Harassment
16 What Can We Do? Clear Policy is Critical Addresses all electronic communication Employees understand even off duty actions can be punishable Reminds that all forms of harassment and discrimination are illegal Follow Your Policies No expectation of privacy in employer-related communication (no matter devise used) Address inappropriate conduct immediately even if not level of illegal harassment Distribute policy regularly to all staff
17 Act Board Responsibilities If you witness it, take steps to stop it Government code states employer liable if knew or should have known Understand organization policy Inform GM, HR, legal counsel or Board President Board Responsibilities If someone comes to you Tell employee who to report it to Remind employee to follow employee manual/policy Make note of conversation Communicate info to proper staff person
18 Management Responsibilities If You Witness It Address harasser immediately Explain zero tolerance Explain district policy Ensure harasser receives policy Follow up Refer to handout Management Responsibilities If Someone Complains Management Responsibilities If Someone Complains Give undivided attention immediately Take careful notes Allow person to talk Refrain from offering opinions or judgment Ask open-ended questions to get facts Assure no retaliation
19 Investigate Promptly Alert GM or Human Resources Document all phases of investigation Do You Know Your Role? When was the last time you personally reviewed your district s sexual harassment policy? Your Role Understand your role Understand district s policy and procedure Take all complaints seriously Know what to do Document, document Get help
20 Retaliation Protected Activity Adverse Action Retaliation Protected Activity Filing a good faith complaint Testifying in proceedings Opposing an act Adverse Action perceived as unlawful Defending yourself against a charge Refusing to follow discriminatory order Providing witness info Retaliation Termination Demotion Failure to promote Refusal to hire Protected Activity Denial of privileges Denial of equipment Exclusion from normal work activities Ostracism Adverse Action
21 Claims SH Claim Retaliation Common Mistakes to Avoid Not following own policies and procedures Taking actions against the complaining party that are perceived as punitive Not keeping complaining party informed Failing to take remedial actions to stop harassment Delays in responding to complaints Prevent Discrimination/ Harassment Provide each employee with copy of policy Train employees on discrimination/harassment and document all training Strong policy that is enforced and modeled Well known procedure for reporting and resolving complaints
22 You are trained, so now it s up to you You have tools and information to prevent harassment. Thank You for Attending For further questions email Patricia pslaven@acwajpia.com
23 ACWA JPIA Sample Sexual Harassment Investigation Guidelines For the Complainant For the Accused For Witnesses Give immediate undivided attention Listen carefully and document Allow person to talk Refrain from offering opinions/judgment Ask open-ended question Reiterate this is a serious matter Describe next steps Questions: Who was involved? What exactly occurred? Where/when did it occur? Is it still happening? How did it affect you? How did you react? Was there anyone present? Is there any documentation or evidence? How would you like this resolved? State purpose of the meeting Explain complaint specifics Listen carefully and document Reiterate this is a serious matter Refrain from offering opinions/judgment Describe next steps Ask open-ended question Questions: What is your response to these allegations? If claims false, ask why the accuser might lie? Are there any persons who have relevant information? Is there any documentation or evidence? Do you have any further information? Meet privately State reason for meeting Don t provide details of claim Ask questions to get the facts Include observations Questions: What do you know about this situation? What have you seen, heard, or experienced? Do you have any further information? What to tell complainant: Investigation will be conducted Complainant, accused and witnesses will be questioned Keep confidential District will determine if violation Appropriate action will be taken Will be informed of outcome No retaliation What to tell accused: Investigation will be conducted Complainant, accused and witnesses will be questioned Keep confidential District will determine if violation Appropriate action will be taken Will be informed of outcome No retaliation What to tell witnesses: Thank them for their time District will determine if violation Appropriate action will be taken Keep confidential No retaliation October 2010