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Slide 1: Training Kit California Mandatory Training Law Summary Does your learning make a difference?® 2675 Paces Ferry Road • Suite 470 Atlanta • Georgia 30339 Tel: 800.497.7654 • Fax: 770.319.7905 • www.eliinc.com
Slide 2: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Does the law apply to my organization? California requires organizations with 50 or more employees to provide two hours of sexual harassment prevention training every two years to their supervisors and managers located in California. Additionally, new managers must receive sexual harassment training within six months of assuming a supervisory position. What should the content of the training be? The training must include the following elements: • A definition of sexual harassment under federal and California state law • Federal and California state law provisions and case law principles concerning the prevention of unlawful sexual harassment, discrimination, and retaliation • The types of conduct that constitute sexual harassment • Remedies available to victims • Strategies to prevent sexual harassment in the workplace • Realistic examples of sexual harassment • The limited confidentiality of the complaint process • Resources available to victims of sexual harassment • The employer’s obligation to investigate • What to do if the supervisor is personally accused of harassment • The essential elements of an anti-harassment policy and its utilization It is a good idea to make sure that your training also includes all the protected categories, not just sex. How will I deliver the training? After you have determined what your training will consist of, the next obstacle is to figure out how you will deliver the training to your managers and supervisors. Luckily, the law is fairly flexible in what it considers “effective and interactive” training. The training may be deployed in the following ways: • Instructor-led training should be delivered by an attorney, human resource professional, harassment prevention consultant, or law professor with at least two years of experience in the field of sexual harassment. • Online training must provide a link so managers can ask questions. In the context of e-learning, a trainer must be available to answer questions within two business days after the question is asked. Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 3: CALIFORNIA MANDATORY TRAINING LAW SUMMARY How will I deliver the training? (continued) • Webinars are also an acceptable form of training as long as the employer can prove that the manager actively participated in the session and was able to ask the trainer questions. No matter how the training is delivered, the instruction must include questions that assess learning, skill-building activities that assess the supervisor’s understanding of content learned, and many hypothetical scenarios about harassment. How will I document the training? Keep in mind that documenting this training is very important. The following information must be kept for two years after the training to track compliance with California state law: name of the supervisory employee trained, the date of training, the type of training, and the name of the training provider. Are there other considerations I should take into account? In many cases, organizations choose to only provide sexual harassment training for their managers in California, but this ignores federal law that encourages organizations to provide harassment training to everyone in the organization. By training all your managers, you create a consistent message and minimize risks. The second mistake organizations frequently make is only providing harassment training to managers and neglecting to train their employees. As mentioned earlier, federal law encourages organizations to provide harassment training to all employees. More specifically, however, California Government Code requires employers to take “reasonable steps necessary to prevent discrimination and harassment from occurring.” Providing training for employees is one of those reasonable steps, and it shows that the organization is serious about creating a professional work environment that is free of harassment, discrimination, and retaliation. Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 4: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Frequently Asked Questions How does an employer determine it has 50 employees? Having 50 or more employees means employing or engaging 50 or more employees or contractors for each working day in any 20 consecutive weeks in the current calendar year or preceding calendar year. There is no requirement that the 50 employees or contractors work at the same location or reside in California. Who is a supervisor? The definition of supervisor is broad under the law. It includes anyone with the authority to make or recommend employment actions. Employers must look closely at the job responsibilities of each individual rather than relying on titles. In many organizations, people who are in lead roles will be considered supervisors under this law. Do managers who are outside the state but manage employees in the state have to take mandatory training? No, they are not required to take the training under AB1825. Federal law, however, encourages organizations to provide harassment training to everyone in the organization. Are contractors of the company required to take the training? No, they are not. Are employees required to take the training? No, they are not. Federal law, however, encourages organizations to provide harassment training to all employees. More specifically, however, California Government Code requires employers to take “reasonable steps necessary to prevent discrimination and harassment from occurring.” Providing training for employees is one of those reasonable steps, and it shows that the organization is serious about creating a professional work environment that is free of harassment, discrimination, and retaliation. How long after a manager is promoted does he/she have to attend training? The new manager/supervisor must take the training within six months of being promoted. Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 5: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Frequently Asked Questions (continued) How often is the mandatory training required, and how is this calculated? Every two years. The time is calculated by the employer’s choice of either (a) two years from the date of training, or (b) two calendar years following the calendar year in which the employee was trained. How long must the training be? The training must be two hours of classroom, webinar, or e-learning training. In the case of e-learning training, the program must take the supervisor no less than two hours to complete. The training does not need to be completed in two consecutive hours. For classroom training or webinars, the minimum duration of a training segment shall be no less than half an hour. E-learning courses may include bookmarking features which allow a supervisor to pause his/her individual training so long as the actual e-learning program is two hours. Who can deliver the classroom training? All training must be delivered by a qualified trainer. A trainer is an attorney, human resource professional, harassment prevention consultant, or law school or college professor who has knowledge and experience in the prevention and/or handling of harassment, discrimination, and retaliation claims. What kind of documentation is required for the classroom training? Documentation must include the following: • Name of person trained • Date of training • Type of training • Name of training provider The documentation must be maintained for two years. What are the additional requirements for webinar/webcast training? The training must be interactive and must provide participants with the opportunity to ask questions and have them answered. Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 6: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Frequently Asked Questions (continued) Who can deliver the webinar/webcast training? All training must be delivered by a qualified trainer. A trainer is an attorney, human resource professional, harassment prevention consultant, or law school or college professor who has knowledge and experience in the prevention and/or handling of harassment, discrimination, and retaliation claims. What documentation is required for the webcast training? Documentation must include the following: • Name of person trained • Date of training • Type of training • Name of training provider The documentation must be maintained for two years. What are the additional requirements for the online training? The training must be interactive and provide a link or directions on how to contact a trainer to answer questions or provide guidance about the training within no more than two business days after the question is asked. What documentation is required for the online training? Documentation must include the following: • Name of person trained • Date of training • Type of training • Name of training provider The documentation must be maintained for two years. Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 7: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Frequently Asked Questions (continued) What remedies exist for a failure to comply with the training requirement? Technically, violation of the law may result in an order issued by the Fair Employment and Housing Commission to comply. In addition and as a practical matter, there are other consequences for failing to provide the required training: • Sends a message to the workforce that prevention of sexual harassment is not a priority • Discourages reporting of sexual harassment • Does not provide alternative avenues for complaint • Could translate into punitive damages or administrative fines if the case goes to trial and training has not been done The focus of the statute is sexual harassment. Should the training go beyond this requirement? While the statute only requires two hours of training on sexual harassment, it is a minimum requirement. The Department encourages organizations to provide training on all types of harassment, discrimination, and retaliation that could occur in the workplace. Furthermore, an organization that trains only on sexual harassment and fails to train on other forms of harassment or discrimination would have a difficult time defending a lawsuit based on racial or other forms of harassment or discrimination. What are the protected categories in California? The Fair Employment and Housing Act prohibits discrimination and harassment of employees, applicants, and contractors based on race, religion, creed, sex, color, national origin (including language use restrictions), ancestry, physical or mental disability (including HIV and AIDS), political orientation, gender identity, medical condition (cancer/genetic characteristics), marital status, pregnancy, sexual orientation, or age (40+ for all employers and any age for state civil service). Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 8: CALIFORNIA MANDATORY TRAINING LAW SUMMARY How Can CT Impact®: Managing a Harassment-Free Workplace Help You Comply with California’s Mandatory Sexual Harassment Training Laws? CT Impact®: Managing a Harassment-Free Workplace is a two-hour program that gives managers specific skills and tools they can apply on the job to prevent, detect, and correct sexual harassment in the workplace. Available in online and classroom delivery formats, the course is designed to help organizations comply with state laws mandating training on sexual harassment prevention. Using an interactive, skills-based approach, it provides managers with information and practical guidance on federal and state harassment laws, remedies available to victims, and the roles and responsibilities of everyone to maintain a lawful, respectful work environment. The program is specifically designed to incorporate state legal information, which ELI® can provide to help organizations ensure compliance. The following overview describes the instructor-led program in more detail: Introduction (40 minutes) • Effectively communicating organizational policy • Organization’s anti-harassment policy • Where to report instances of sexual harassment • Roles and responsibilities of the organization, managers, and employees in preventing sexual harassment • Definition of sexual harassment • Types of sexual harassment (Quid Pro Quo, Hostile Work Environment) • Examples of sexual harassment • Federal and state laws prohibiting sexual harassment • Strategies to prevent sexual harassment in the workplace • Applicable federal and state cases Welcoming Concerns (40 minutes) • Creating a welcoming environment • Definition of the workplace environment • Review of same-sex harassment and application exercise • Review of third-party harassment and examples • Organization’s open door policy addressing avenues for employees to speak up about their concerns • Applicable federal and state cases Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 9: CALIFORNIA MANDATORY TRAINING LAW SUMMARY How Can CT Impact®: Managing a Harassment-Free Workplace Help You Comply with California’s Mandatory Sexual Harassment Training Laws? (continued) Duty to Act (20 minutes) • Review of a manager’s duty to act and application exercise • Federal and state remedies available for sexual harassment • Overview of retaliation with examples • Organization’s anti-retaliation policy • Ways to prevent retaliation in the workplace • What to do if a supervisor is accused of harassment • Applicable federal and state cases Business Decisions (15 minutes) • Maintaining business relationships with employees • Romantic relationships in the workplace • Objective vs. subjective criteria • Performance management discussions • Applicable federal and state cases Concerns Resolved (5 minutes) • Tips for addressing inappropriate third-party behavior • Action planning activity Reference Materials • Federal and state laws preventing sexual harassment • Federal and state cases • Sample sexual harassment policy Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 10: CALIFORNIA MANDATORY TRAINING LAW SUMMARY How Can Civil Treatment® for Managers Help You Comply with California’s Mandatory Sexual Harassment Training Laws? ELI’s Civil Treatment® for Managers program includes more than two hours of sexual harassment content and includes significant information about federal laws prohibiting harassment, discrimination, and retaliation. If supplemented with some specific information about California law provided in this toolkit in the form of a handout to be used in the classroom, it can help employers comply with this requirement. The following modules include content addressing the subjects required under the law: Introduction (45 minutes) • Introduction to the workplace environment and Prescriptive Rules® • Definition of harassment and discrimination • Risks of inappropriate behavior in the workplace “Some meeting...” (45 minutes) • Definition of sexual harassment • Necessary steps to take to prevent harassment in the workplace • Employer, manager, and employee responsibilities in minimizing risk of harassment • Review of organization’s anti-harassment policy and appropriate complaint procedure “What am I supposed to say?” (40 minutes) • Definition of sex-based discrimination • Definition and discussion of retaliation • How to handle a complaint that is filed against the manager or the organization “What’s on your mind?” (35 minutes) • Discussion of a manager’s Duty to Act • Managers should Get Help from Human Resources • Organizations have an obligation to investigate complaints of harassment and discrimination Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 11: CALIFORNIA MANDATORY TRAINING LAW SUMMARY How Can Civil Treatment® for Managers Help You Comply with California’s Mandatory Sexual Harassment Training Laws? (continued) AD HOC MODULES These are optional modules that are included in the course materials and can be added to the Civil Treatment® for Managers program if desired: “Strictly business.” (20 minutes) • Risks of engaging in interoffice relationships • Actions managers should take if they believe a relationship may taint their objectivity • Preventing perceptions of bias and discrimination in decision-making In addition to covering the above modules, facilitators should also make sure to cover the following information in the handouts provided in this toolkit. • Review how the California definition of sexual harassment differs from the federal definition. • Distribute and discuss the organization’s anti-harassment policy and complaint procedure. If the organization does not have a policy available, ELI® has provided a sample policy that can be used during the training session. This is typically covered during the “Some meeting…” module. • Discuss other forms of harassment and discrimination under both federal and California law. This is covered throughout Civil Treatment® for Managers, but a facilitator should also point participants to the federal and California comparison chart provided in this toolkit. • Review federal and California case law. Federal cases are throughout the Civil Treatment® for Managers program. Additional federal and California cases have been provided in this toolkit. • Discuss the remedies available for sexual harassment claims. This information is provided in the federal and California comparison chart as well as in the Department of Fair Employment and Housing pamphlet. • Remind participants that all complaints of harassment and discrimination must be investigated by the organization, so they should Get Help from Human Resources if an employee comes to them with a concern. Managers should also let employees know about the limited confidentiality of the complaint process. Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 12: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Federal and State Laws Prohibiting Harassment Overview Sexual harassment violates Title VII of the Civil Rights Act of 1964, a federal law. This statute prohibits harassment, discrimination, and retaliation based on sex, race, religion, national origin, and color. The Equal Employment Opportunity Commission (EEOC), which enforces the statute, defines sexual harassment1 as unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature when the following occur: • Submitting to the conduct is explicitly or implicitly made a condition of employment • Submitting to or rejecting the conduct becomes the basis for decisions affecting an employee • Sexual conduct interferes with an individual’s work performance or creates an intimidating, hostile, or offensive environment Many states, such as Connecticut and Maine, have adopted this definition of sexual harassment. However, California state law expands the federal categories of harassment to include the following2: • Verbal harassment, including epithets, derogatory comments, or slurs • Physical harassment, including assault, impeding or blocking movement, or any physical interference with normal work or movement, when directed at an individual • Visual harassment, including derogatory posters, cartoons, or drawings • Sexual favors, including unwanted sexual advances, which condition an employment benefit upon an exchange of sexual favors When an employee raises a complaint of sexual harassment or discrimination, managers should let the employee know how the complaint will be handled and that the process has limited confidentiality because other departments, such as Human Resources, may have to be involved. Human Resources or Employee Relations are typically involved because they handle investigations in most organizations. When an organization is made aware of potential harassment or discrimination, it has a responsibility to investigate the claim and take appropriate action. 1 2 29 C.F.R. §1604.11. 2 CCR 7287.6 Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 13: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Federal and State Laws Prohibiting Harassment: California Law Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 14: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Federal and State Laws Prohibiting Harassment: California Law Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 15: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Federal and State Laws Prohibiting Harassment: California Law Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 16: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Federal and State Laws Prohibiting Harassment: California Law Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 17: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Comparison of United States/Federal and California Laws UNITED STATES/FEDERAL Title VII of the Civil Rights Act of 1964 Prohibits discrimination and harassment of employees and applicants based on: • race • color • sex • religion (including the requirement to accommodate religious beliefs) • national origin Prohibits retaliation for exercising rights under the law Enforcement: Equal Employment Opportunity Commission Remedies Available: back pay, lost benefits, front pay, compensatory and punitive damages of up to $300,000 per occurrence of discrimination, and attorneys’ fees and costs. CALIFORNIA Fair Employment and Housing Act Prohibits discrimination and harassment of employees, applicants and contractors based on: • race • religious creed (including the requirement to accommodate religious beliefs) • color • national origin • ancestry • physical or mental disability (including the requirement to accommodate disabilities) • medical condition (including genetic characteristics) • marital status • sex (including discrimination based on pregnancy, childbirth and related medical conditions) • age • sexual orientation Sexual harassment is defined as harassment based on sex or of a sexual nature; gender harassment; and harassment based on pregnancy, childbirth, or related medical conditions. The law also prohibits discrimination in the payment of compensation based on all of the categories listed above, and prohibits retaliation for exercising rights under the statute. Enforcement: Fair Employment and Housing Commission Remedies Available: back pay, lost benefits, front pay, compensatory damages of up to $150,000 per claimant per violation and of up to $150,000 more for violations of the Act that also violate the Civil Code’s guarantee of the personal right to freedom from violence, punitive damages, and attorneys’ fees and costs Additional remedies, including administrative fines, civil penalties and license revocation, can be imposed by the Fair Employment and Housing Commission in administrative proceedings. Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 18: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Comparison of United States/Federal and California Laws UNITED STATES/FEDERAL Pregnancy Discrimination Act (PDA) Prohibits discrimination and harassment in employment based on pregnancy, childbirth and related medical conditions, and requires equal treatment of pregnant women for all purposes, including the provision of benefits. See Title VII for available remedies. CALIFORNIA See Fair Employment and Housing Act (preceding page) The prohibition of harassment and discrimination does not provide additional remedies beyond those provided in Title VII to employees of employers covered by Title VII. In addition to prohibiting harassment and discrimination, the act requires equal treatment for all purposes, including specifically the provision of benefits (which must be the same as for any other employee who is temporarily disabled) and the availability of transfers to less strenuous or hazardous positions if such transfers are available to others who are temporarily disabled. The act also requires employers: • to allow employees to take up to four months of leave for any period of time during which the employee is disable due to pregnancy, childbirth, or related medical conditions (with reasonable notice to the employer and the option to use accrued vacation time) • to provide reasonable accommodation to employees for conditions related to pregnancy, childbirth, or related medical conditions Americans With Disabilities Act (ADA) Prohibits discrimination and harassment in employment based on an actual or perceived disability, or having a record (past history) of having a disability; a person is disabled if he or she suffers from a physical or mental impairment that substantially limits a major life activity; the law requires reasonable accommodation to allow a disabled employee to perform the essential functions of the job. See Title VII for available remedies. See Fair Employment and Housing Act The act prohibits discrimination and harassment based on an actual or perceived disability or having a record (past history) of having a disability; the standard for proving disability is different under the California law than under federal law: A person is disabled if he or she suffers from a physical or mental impairment that limits (not substantially limits) the individual’s ability to perform a major life activity; like federal law, the act also requires reasonable accommodation to allow a disabled employee to perform the essential functions of the job. Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 19: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Comparison of United States/Federal and California Laws UNITED STATES/FEDERAL Age Discrimination in Employment Act (ADEA) Prohibits discrimination and harassment based on age (40 and over). Remedies Available: back pay, front pay, lost benefits, liquidated damages equal to the amount of back pay, attorneys’ fees Equal Pay Act (EPA) Requires equal pay for men and women for equal work. CALIFORNIA See Fair Employment and Housing Act Prohibits discrimination and harassment based on age (40 and over). Equal Pay Act Prohibits the payment of a lower rate to one gender than to the other for equal work. California Family Rights Act Requires employers to provide up to 12 weeks of unpaid leave during a 12-month period for: • birth, adoption, or foster placement of a child • care for child, parent, or spouse with a serious health condition • the employee’s own serious health condition The amount of leave entitlement is pro-rated for part-time employees Leave may be taken intermittently or on a reduced work schedule. Employees must be reinstated to the same job at the same pay after the leave is over. Paid Family Leave Law: Under this law, unemployment benefits are paid to employees who have any loss of income because they take leave under the Family Rights Act for a reason other than their own serious health condition. School Leave Law: Employers may not discharge or discriminate against any employee for taking time off to attend day care or school activities. This leave time is protected for up to 40 hours per year (up to 8 hours in any month) for parents, guardians, or grandparents of children in kindergarten through grade 12. Reasonable notice is required and written documentation from the school or day care facility may be required. Family and Medical Leave Act (FMLA) Requires employers to provide up to 12 weeks of unpaid leave during a 12-month period for: • birth, adoption, or foster placement of a child • care for child, parent, or spouse with a serious health condition • the employee’s own serious health condition Leave may be taken intermittently or on a reduced work schedule. Employees must be reinstated to the same job at the same pay after the leave is over. Employees may elect or employers may require the substitution of available paid leave for FMLA leave. Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 20: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Sample Sexual Harassment and Discrimination Policy Discrimination This organization is an equal opportunity employer. The organization will not discriminate in regard to any term, condition, or privilege of employment against any employee or job applicant on the bases of race, color, religion, sex, national origin, disability, age, or any other legally protected characteristic. Harassment The organization is committed to providing a work environment that is free from unlawful harassment. Harassment based upon an individual's race, religion, sex, national origin, disability, age, or any other legally protected characteristics will not be tolerated. All employees, including supervisors and other management personnel, are expected and required to abide by this policy. Retaliation No person will be adversely affected in employment with the organization as a result of bringing a good faith complaint of unlawful harassment or discrimination, or participating in good faith in an investigation under this policy. Sexual Harassment Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. This behavior constitutes harassment when (1) submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of an individual's employment; (2) submission to or rejection of such conduct by an individual is used as the basis for decisions about employment, promotion, transfer, selection for training, performance evaluations, benefits, or other terms and conditions of employment; or (3) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive work environment or substantially interferes with an employee's work performance. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. The following is a partial list of violations: • Unwanted sexual advances • Offering employment benefits in exchange for sexual favors • Threatening reprisals after a negative response to sexual advances • Leering, making sexual gestures, or displaying sexually suggestive objects, pictures, cartoon, or posters • Making or using derogatory comments, epithets, slurs, or jokes • Inappropriate touching or assault Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 21: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Sample Sexual Harassment and Discrimination Policy (continued) Reporting Procedure If an employee feels that he or she has been harassed on the basis of his or her race, color, religion, sex, national origin, or any other legally protected characteristic, the employee should immediately report the matter to his or her supervisor. Managers who receive a complaint of harassment or discrimination, or have reason to know that behavior which might constitute prohibited harassment or discrimination is occurring, must immediately report the matter to Human Resources and/or the EEO Office. If the employee’s supervisor is not available, or if the employee is uncomfortable speaking with his or her manager, the employee should immediately contact Human Resources and/or the EEO Office. Once the matter has been reported, it will be promptly investigated, and any necessary corrective action will be taken where appropriate. All complaints of unlawful harassment will be handled in as discreet and confidential a manner as is possible under the circumstances. The organization takes all allegations of harassment and discrimination seriously. Accordingly, if the organization finds an employee has knowingly and willingly filed a false claim of harassment or discrimination, the organization will take disciplinary action against the employee, up to and including termination. Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 22: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Federal Cases Supreme Court Establishes Affirmative Defense A lifeguard prevailed on her sexual harassment complaint against her employer even though she did not report the harassment. The lifeguard contended she was subjected to a sexually hostile work environment when her supervisors engaged in activities such as touching the lifeguard’s buttock, commenting on her shape, suggesting the lifeguard submit to a sexual relationship, and making other and numerous sexual comments. The Court recognized that an employer may avoid liability for sexual harassment that does not result in a tangible employment action if it can show that it exercised reasonable care to prevent and promptly correct sexually harassing behavior and that the employee failed to take advantage of any preventive or corrective opportunities provided by the employer. In this case, however, the Court found the employer had not exercised reasonable care to prevent the supervisor’s harassing conduct because it had not disseminated its sexual harassment policy to lifeguards, the policy did not provide a reporting mechanism to bypass the offending supervisors, and the employer failed to keep track of the conduct of its supervisors. Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998). A female salesperson resigned and sued her employer for sexual harassment. The plaintiff alleged that on three occasions a supervisor threatened to make her life harder if she did not succumb to his sexual advances. The plaintiff refused the supervisor’s advances, but the supervisor did not follow through on his threats. Although the plaintiff was aware of the company’s policy against sexual harassment, she did not report the harassment until three weeks after she resigned. The Court found that an employer can be liable for a hostile work environment where a supervisor makes explicit threats to alter a subordinate’s terms or conditions of employment, but does not fulfill the threats. However, as in the Faragher case, the Court found that such an employer may avoid liability if it can show that it exercised reasonable care to prevent and promptly correct sexually harassing behavior and that the employee failed to take advantage of any preventive or corrective opportunities provided by the employer. The Court remanded the case to the trial court for a determination as to whether the employer could avoid liability by proving the affirmative defense. Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998). Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 23: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Federal Cases (continued) Sexual Harassment Case Results in Reasonable Woman Standard A woman who worked for the Internal Revenue Service alleged a co-worker sexually harassed her by repeatedly asking her out for lunch and writing her notes that she found shocking and frightening. In determining whether the co-worker’s conduct was sufficiently severe or pervasive to alter the conditions of the woman’s employment and create an abusive working environment, the Court determined that the co-worker’s conduct must be judged from the viewpoint of a reasonable third person who shares the same gender characteristic of the plaintiff – in this case, a reasonable woman. In establishing the “reasonable woman” standard, the Court recognized that there are differences between the sexes in how the co-worker’s conduct would be perceived. The Court found it most appropriate to view the conduct as would a reasonable person of the same gender of the plaintiff. Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 24: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Federal Cases (continued) Jury Finds for Plaintiff in Hostile Work Environment Case A female school bus driver was sexually harassed by her male supervisor over a period of six months. In one instance, the supervisor handed her his pubic hairs. As a result of the harassment, the plaintiff suffered psychological problems for the next year and a half. The plaintiff brought a hostile environment sexual harassment lawsuit against the school district and her supervisor. A jury found that the plaintiff had been subjected to a sexually hostile work environment. The jury awarded the plaintiff $400,000 in compensatory damages and $32,500 in punitive damages. An appeals court later upheld the award. Sornia v. El Centro Elementary School, 2008 U.S. App. LEXIS 8345 (9th Cir. 2008). Female Employee Wins Sexual Harassment and Retaliation Lawsuit A female plaintiff was sexually harassed by her supervisor, an operations manager. The plaintiff alleges that at weekly work meetings the supervisor kissed her and asked her questions of a sexual nature. She also alleges that she was treated unfavorably after rejecting his advances. For example, she was denied days off, experienced delays in receiving her paycheck, and had her shift changed to a less desirable time. The plaintiff complained to her supervisor and an upper level manager. The upper level manager reportedly told her, “Do you want really to do this? Because you’re going to get [the supervisor] in trouble.” The plaintiff filed a sexual harassment and retaliation lawsuit against her employer. The jury found for the plaintiff and awarded her $3 million, which the court reduced to $850,000 due to statutory caps on certain kinds of damages. Alvarado v. Fed. Express Corp., 2008 U.S. Dist. LEXIS 21269 (N.D. Cal. 2008). Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 25: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Federal Cases (continued) Employer Found Liable for Harassment and Retaliation A female bar manager at a hotel was sexually harassed by her direct supervisor, who was the hotel’s general manager, throughout her employment. The sexual harassment included comments by the general manager about his and the plaintiff’s bodies, details of his sexual escapades with other women, and descriptions of his pornography collection. The general manager also touched and grabbed the plaintiff’s hips, genital area, and breasts. He even sexually propositioned her during work hours. The plaintiff eventually complained of sexual harassment to the owner/operator of the hotel, who did not investigate the complaint and took no action to stop the harassment. Finally, the general manager terminated the plaintiff’s employment on Christmas Eve because she would not succumb to his propositions. The plaintiff sued the hotel for a variety of reasons, including sexual harassment and retaliation. The court found that the employer was liable and awarded the plaintiff around $268,000 in damages and attorney’s fees. Merrifield v. Miner’s Inn Rest. & Lounge, 2006 U.S. Dist. LEXIS 68841 (E.D. Cal. 2006). Police Officer Awarded Over $1 Million After Complaints Ignored A police officer in Puerto Rico was awarded more than $1 million by a federal jury based on her claims that she was subjected to sexual harassment, retaliation, and violation of due process. The officer claimed that she was sexually harassed by a fellow officer. Although her initial report stopped the harassment briefly, subsequent reports resulted in continued inappropriate conduct and retaliation, including reassignment to less favorable posts and threats of being laid off. The jury award included compensatory damages under federal law of $250,000 and compensatory damages under state law of $250,000, plus damages against the individual alleged harasser of $80,000. Under state law, the compensatory damages were doubled to raise the total amount to just over $1 million. The officer was also reinstated to her former position. The jury award was affirmed on appeal by the United States Court of Appeals for the First Circuit. Valentin-Almeya v. Municipality of Aguadilla, 447 F.3d 85 (1st Cir. 2006). Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 26: CALIFORNIA MANDATORY TRAINING LAW SUMMARY Federal Cases (continued) Employer Retaliates Against Plaintiff for Participating in a Discrimination Claim A male police officer worked for the same department for over 30 years. At one point, he made a written complaint about numerous problems he perceived within the police department, including his allegation that coworkers were sexually harassing a female officer. Several years later, the female officer filed a sexual harassment lawsuit against the police department. The plaintiff sent the female officer a copy of the written complaint he made about the harassment. The female officer then submitted the plaintiff’s complaint as evidence at a hearing held by the state commission investigating the lawsuit. Shortly after the hearing, the plaintiff was reassigned to a different position. The new position involved less compensation and no supervisory responsibility. The police department eventually placed the plaintiff on administrative leave. The plaintiff filed a lawsuit claiming that the police department retaliated against him because of his participation in an employment discrimination claim. The jury agreed and awarded him $300,000 for lost wages and emotional distress. McDonough v. City of Quincy, 452 F.3d 8 (1st Cir. 2006). Plaintiff Fired After Filing Sexual Harassment Claim Against Supervisor A female account manager at a consulting firm was repeatedly harassed by her male supervisor. For example, her supervisor invited her to his home and to join him on vacations. He also gave her jewelry, in violation of a company policy against such gifts. He spent excessive amounts of time in her office watching her work and once arranged an “urgent” early-morning meeting with her but then could not explain the reason for the meeting. The plaintiff complained to upper management about the harassment. The company launched an investigation, pursuant to which it contacted the supervisor. The supervisor then attempted to contact the plaintiff directly. The company eventually called a meeting between the plaintiff and her supervisor, as well as other employees, to discuss the plaintiff’s allegations. The plaintiff refused to attend a meeting with the supervisor, and the company terminated her employment for insubordination. The plaintiff brought a lawsuit against her employer claiming she was retaliated against because of her sexual harassment complaint. The jury found for the plaintiff on her retaliation claim and awarded her over $77,000. Pappas v. Watson Wyatt & Co., 2008 U.S. Dist. LEXIS 21996 (D. Conn. 2008). Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 27: CALIFORNIA MANDATORY TRAINING LAW SUMMARY California State Court Cases Favoritism May Lead to Hostile Work Environment Claim The California Supreme Court held that individuals who had not themselves been sexually propositioned could still assert a hostile work environment claim under California law when there was widespread favoritism of employees engaged in consensual sexual affairs with a manager. Two former prison employees brought claims of sexual harassment alleging that they were subjected to a hostile work environment and treated less favorably than other female employees because the prison warden demonstrated favoritism to other female employees with whom he had affairs. The Court found that “although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’ or that the way required for women to get ahead in the workplace is to engage in sexual conduct with their supervisors or the management.” Miller v. Dept. of Corrections, 36 Cal. 4th 446 (2005). Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 28: CALIFORNIA MANDATORY TRAINING LAW SUMMARY California State Court Cases (continued) Sales Manager Sues Employer for Retaliation A sales manager sued her employer for retaliation when she was criticized in front of her direct reports and received negative performance evaluations after refusing to comply with a supervisor’s order to fire a female sales associate because she was insufficiently attractive. To support a claim of retaliation, the California Supreme Court found that an employee must show that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment. The sales manager was allowed to move forward with her retaliation claim because her employer’s conduct was meant to punish her for failing to carry out the supervisor’s orders and placed her career in jeopardy. Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028 (2005). Employee’s Failure to Report Harassment Does Not Bar Liability The California Supreme Court has held that while no affirmative defense can be raised to sexual harassment by a supervisor, an employer may be able to reduce the damages it pays under the “avoidable consequences doctrine”. An employee sued her employer under California state law claiming that she had been sexually harassed by her supervisor. She claimed her supervisor made inappropriate comments and engaged in unwelcome physical touching. The employee did not report the alleged harassment to a supervisor until more than a year after it began. The California Supreme Court found that, unlike federal law, the employee's failure to report would not bar liability. Strict liability applies in California; however, the California Supreme Court did find that the “avoidable consequences doctrine” could be applied to limit damages. An employer can limit damages if it can show that it has taken reasonable steps to prevent and correct harassment, that an employee could have taken advantage of these without undue risk, expense, or humiliation and unreasonably failed to take advantage of them, and that using them would have prevented some of the harm the employee experienced. Therefore, the employee's failure to timely report the harassment to management, if unreasonable, could be considered in reducing a damages award. State Dept. of Health Services v. McGinnis, 31 Cal. 4th 1026 (2003). Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA
Slide 29: CALIFORNIA MANDATORY TRAINING LAW SUMMARY California State Court Cases (continued) Male Employee Recovers $1.62 Million in Sexual Harassment Case A jury in California awarded a male employee $1.62 million based on his claims of sexual harassment and retaliation. The male employee alleged that he was subjected to repeated sexual harassment by his male supervisor. The supervisor’s alleged behavior included requiring the employee to go to strip clubs and attend events with prostitutes, showing him pornographic pictures, and describing to the employee sexual acts he wanted to engage in with various female employees and his daughter’s friends. The employee claimed that he raised internal complaints about the behavior, but the company ignored his complaints. His employment was subsequently terminated. Astor v. Rent-A-Center, 2007 Cal. App. Unpub. LEXIS 621 (Cal. Ct. App. Jan. 25, 2007). Plaintiff Wins $3.9 Million Because of Employer’s Outrageous Conduct A female plaintiff worked as a hostess at a restaurant owned by a married couple. The husband frequently harassed the plaintiff by rubbing his body against hers, attempting to kiss her, and making comments of a sexual nature to her. The plaintiff complained, but the employer did not investigate her complaint. On one occasion, the husband attacked the plaintiff. He trapped her in his office, removed his clothes, and placed her hand on his sexual parts. After this attack, the plaintiff suffered from depression and was diagnosed with post-traumatic stress disorder. The plaintiff complained to a manager about the attack and refused to return to work. The wife, who served as Human Resources director, investigated but allowed her husband to sit in on the employee interviews. The plaintiff filed a lawsuit against the restaurant and male owner for, among other things, sexual harassment. A jury awarded the plaintiff over $3.9 million. An appeals court later ruled that the award was reasonable given the husband’s outrageous conduct. Leontaritis v. Koursasis, 2008-CA-0924.014 (Ca. App. 2008). Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA