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Home My WebLink About2025-03-04; City Council; 01; AB 1661 TRAINING - WORKPLACE HARASSMENT PREVENTION TRAINING AND EDUCATIONLiebert Cassidy Whitmore City of Carlsbad Preventing Workplace Harassment, Discrimination and Retaliation Presented By: Stephanie J. Lowe / February 27, 2025 & March 4 & 12, 2025 Liebert Cassidy Whitmore Agenda •Overview of Laws and Policies Related to Discrimination, Harassment, and Retaliation •Protected Classifications •What is Unlawful Discrimination, Harassment, and Retaliation? •Types of Unlawful Harassment •Bullying/Abusive Conduct in the Workplace •Duties of a Supervisor •Addressing Unlawful Discrimination, Harassment, and Retaliation in the Workplace Liebert Cassidy Whitmore Preventing Workplace Discrimination, Harassment and Retaliation Training Why Are We Doing This Training? Liebert Cassidy Whitmore Administrative Order No. 45 - EEO and Workplace Civility Policy •“[T]he city is committed to maintaining a workplace that provides equal employment opportunity (EEO), is free from discrimination, harassment and retaliation in any form and fosters diversity, equity, inclusion (DEI) and respect for all individuals.” Liebert Cassidy Whitmore Unlawful Harassment Unfortunately Still Takes Place…. Liebert Cassidy Whitmore Preventing Workplace Discrimination, Harassment and Retaliation Training So, What Do We Need to Know? & What Can We Do to Prevent It? Liebert Cassidy Whitmore True or False?… Harassment can be based upon any protected classification. TRUE Liebert Cassidy Whitmore True or False?… Anti-harassment laws do not apply to volunteers and interns. FALSE Liebert Cassidy Whitmore True or False?… Employees who report harassment must put their complaint in writing. FALSE Liebert Cassidy Whitmore True or False?… Unlawful discrimination generally does not occur when a supervisor applies work rules uniformly. TRUE Liebert Cassidy Whitmore True or False?… If an employee’s religious beliefs preclude the employee from working with any gay, lesbian, or transgender employees, the employer has to reasonably accommodate the employee. FALSE Liebert Cassidy Whitmore True or False?… If the employer is investigating a claim of harassment and the harassment stops, the employer may discontinue the investigation? FALSE Overview of Laws and Policies Related to Discrimination, Harassment, and Retaliation Liebert Cassidy Whitmore Sources of Law •Federal Law Equal Pay Act of 1963 Title VII of the 1964 Civil Rights Act Age Discrimination in Employment Act (ADEA) Americans with Disabilities Act (ADA) 42 U.S.C. §§ 1981 and 1983 •California Law Fair Employment and Housing Act (FEHA) California Equal Pay Act Liebert Cassidy Whitmore Administrative Agencies •U.S. Equal Employment Opportunity Commission (EEOC) Federal Agency Administering Title VII, ADA, and ADEA Employment Discrimination Laws •Civil Rights Department of the State of California https://calcivilrights.ca.gov State Agency Administering FEHA Employment Discrimination Laws Liebert Cassidy Whitmore City Policy •The City’s Policy Against Harassment, Discrimination and Retaliation Prohibits employees and non-employees from discriminating, harassing and retaliating based on any protected status (all must be listed) Protects applicants, volunteers, independent contractors and employees from being subject to prohibited conduct Provides a complaint procedure for employees to report violations for the City to Investigate Identifies Civil Rights Department (formerly the Department of Fair Employment and Housing)/EEOC resources including website or link to training Provides confidentiality to extent possible Appropriate remedies for sustained violations Liebert Cassidy Whitmore City Policy •Zero Tolerance Single violation of City’s policy can subject employee to appropriate disciplinary action even if violation would not establish liability or be a violation of state/federal law •Distribution of Policy Review with and provide to new and current employees with acknowledgement form to ensure receipt Post in the workplace/intranet Update policy when appropriate and notify employees of update Protected Classifications Liebert Cassidy Whitmore Unlawful Harassment? What is Unlawful Harassment? Is There Such a Thing as Lawful Harassment? Liebert Cassidy Whitmore Protected Classifications •Sex/Gender/Gender Identity/Gender Expression •Sexual Orientation •Race/National Origin/Color •Disability/Medical Condition •Genetic Information/Characteristics •Religious Creed •Marital Status •Military/Veteran Status •Age (40 Years of Age and Older) •Reproductive Health Decisionmaking •Opposition to Discrimination/Harassment •Association/Perception •Based on a Combination of Any Two or More Protected Characteristics *Note NEW protections for cannabis use (when off the job and away from the workplace) Liebert Cassidy Whitmore Gender Identity / Expression Employers Must: Permit employees to use the restroom that corresponds to the employee’s gender identity/expression Refer to employees using the employee’s preferred name, gender, and pronouns Designate single occupancy facilities using gender- neutral signage Liebert Cassidy Whitmore Gender Identity / Expression Employers Must Not: Enforce dress codes more harshly against an employee based on their gender identity/expression Discriminate against an applicant for failing to designate a gender or designating a gender that is inconsistent with the applicant’s sex assigned at birth Inquire about or require documentation or proof of an individual’s sex or gender What is Unlawful Discrimination, Harassment, and Retaliation? Liebert Cassidy Whitmore Unlawful Discrimination, Harassment and Retaliation Discrimination RetaliationHarassment Liebert Cassidy Whitmore Unlawful Discrimination Elements of Unlawful Discrimination •An adverse employment action taken based on a protected classification Adverse Employment Action = •Action taken within the course and scope of employment Hiring, firing, demotion, failure to promote, assignment of job duties, etc. Liebert Cassidy Whitmore Unlawful Harassment •Harassment is NOT within the course and scope of employment •Verbal, visual, or physical actions that are unwelcome and directed to or related to an employee’s protected classification •Includes actions by/towards employees, independent contractors, vendors, and other non- employees Liebert Cassidy Whitmore Unlawful Retaliation Elements of Unlawful 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 Liebert Cassidy Whitmore Case Study Daisy files a sexual harassment claim against her supervisor John. Susie, who is also supervised by John, participates in the investigation of this claim. John expresses annoyance with the investigation and complains to the other employees in the department that Susie is “looking for attention” and tells their higher-level supervisor that she is “difficult to work with,” resulting in Susie’s demotion to a lower position. Has Susie been subjected to unlawful retaliation? While this is going on, what if John ignores Daisy at work following the harassment complaint and leaves the room when she comes in because he does not want her to accuse him of anything else? Liebert Cassidy Whitmore What If You Are Accused? •Refer the accuser to a superior, human resources, or upper management •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/upper management •Cooperate in the investigation •Follow the City’s policy Types of Unlawful Harassment Liebert Cassidy Whitmore Two Types of Harassment 1. Quid Pro Quo (“Economic”) 2. Hostile Work Environment (“Environmental”) Liebert Cassidy Whitmore Quid Pro Quo Sexual Harassment (“Economic”Harassment) Classic Example: “Sleep with me and I'll make sure you get that promotion…” Liebert Cassidy Whitmore Quid Pro Quo Sexual Harassment (“Economic”Harassment) Elements of “Economic”Harassment: •Job benefits promised; •Explicitly or implicitly; •In exchange for: Sexual favors; or Denied if sexual favors are not given Liebert Cassidy Whitmore Case Study Natalie is an Accountant within the City’s Finance Department. One day in the Department’s break room while getting her lunch, she confides to Chris, a Finance Manager, that she has applied for a Senior Accountant position, and that she desperately wants to get the promotion. Chris excitedly responds: “That’s great! I’m actually on the interview panel for that recruitment, and I’m good friends with the other members of the panel. I can put in a good word for you!” She thanks him. Towards the end of the workday, Natalie gets a text message from Chris, asking her if she wants to grab a drink with him after work. Chris and Natalie have never socialized outside of work before. Is Chris guilty of quid pro quo sexual harassment? Liebert Cassidy Whitmore Case Study Pete and Dan both work as Entry Level Dispatchers at the Police Department. They have worked together for a year and have the same level of experience at the Department. One day, Pete turns to Dan and says, “I know you’ve been wanting that extra overtime. Sleep with me and I’ll make sure your overtime request gets approved.” Has Pete Engaged in Quid Pro Quo Sexual Harassment? Liebert Cassidy Whitmore Hostile Work Environment (“Environmental”Harassment) Elements of “Environmental”Harassment: •Protected Classification •Physical, Verbal, or Visual Conduct •Objectively and Subjectively Offensive (Unwelcome) •Severe or Pervasive Single Incident May Establish Liability Under FEHA •Unreasonably Interferes With Work Liebert Cassidy Whitmore Hostile Work Environment (“Environmental”Harassment) 2019 Changes to California Law: •Decline in productivity not required to establish harassment – it is sufficient that the conduct “so altered working conditions as to make it more difficult to do the job.” •A single incident of harassing conduct may be sufficient to create a hostile work environment •Totality of the circumstances matter, including “stray remarks” by nondecisionmakers •Standards do not vary by workplace •Rarely determinable “on paper” alone Liebert Cassidy Whitmore Physical Conduct Obvious Examples: •Sexual assault •Touching/Groping •Physical intimidation Less Obvious Examples: •Massages •Hugging Liebert Cassidy Whitmore Case Study – Verbal Conduct Although Daniela was assigned at birth as a male, she recently began presenting as a female, consistent with her gender identity. She notified her co-workers of her new changed presentation as she previously presented as male, named Daniel. John and Ashley refuse to refer to Daniela by her name or female pronouns and still call her “Daniel” and frequently ask “him” why “he” uses the Women’s Restroom and wears skirts. Have John and Ashley created a hostile work environment? Liebert Cassidy Whitmore Verbal Conduct •Sexual comments •Jokes •Mocking accent •Teasing •Slurs Liebert Cassidy Whitmore Visual Conduct •Social media posts/images •Emails •Cartoons or drawings •Gestures •Staring/leering •Sexual conduct/Affection between other employees at work Liebert Cassidy Whitmore “Gray”(Borderline) Areas •“Private”and “consensual”relationships between supervisors and subordinates? (Warning:not for long!) •Off-duty conduct •Invitations to lunch, drinks or dinner •References to appearance or dress •Casual touching of non-intimate body parts Hands on shoulders Hands on waist Hand on arm or leg Bullying/Abusive Conduct Liebert Cassidy Whitmore Bullying/Abusive Conduct? What About Bullying and Abusive Conduct in the Workplace? Liebert Cassidy Whitmore Bullying/Abusive Conduct Is Improper In The Workplace •“Bullying/abusive conduct” Conduct in the workplace with malice that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests Includes verbal abuse, derogatory remarks/insults, threatening/intimidating/humiliating physical or verbal conduct, or undermining of a person’s work performance •Bullying/abusive conduct issues are generally covered by the City’s policy and standards of conduct rules and such rules should be enforced Liebert Cassidy Whitmore Bullying v. Unlawful Harassment Both unlawful harassment and bullying consist of offensive conduct that is either pervasive or severe, and thus goes beyond mere incivility... So, what’s the difference? Liebert Cassidy Whitmore Bullying v. Unlawful Harassment Protected Classification Liebert Cassidy Whitmore Difference Between Unlawful Harassment and Bullying •Unlawful harassment is directed at membership in a protected classification Therefore, it is unlawful •Bullying is NOT necessarily directed at membership in a protected classification Therefore, bullying is NOT unlawful •While not necessarily unlawful, bullying/abusive conduct towards employees in the workplace is entirely inappropriate and should not be tolerated Duties of a Supervisor Liebert Cassidy Whitmore Who is a “Supervisor”? •Anyone who has any responsibility or discretion to lead others Government Code Section 12926(t) Liebert Cassidy Whitmore Supervisor’s Duty to Respond •“Harassment… Shall be Unlawful if the Entity, or its Agents or Supervisors, Knows or Should Have Known of This Conduct and Fails to Take Immediate and Appropriate Corrective Action.” Government Code Section 12940(j)(1) Supervisors have an obligation to report harassment, discrimination, and retaliation of which they become aware. Liebert Cassidy Whitmore Case Study Lauren supervises a team of five employees, four of whom are male, and one of whom is female. Today, Lauren overheard the male employees standing around a food truck at lunch speculating on how their female colleague must be “in bed.” The female colleague was not in the office and did not overhear the discussion. Does Lauren have an obligation to take action even though the female employee was not there to overhear the discussion? Liebert Cassidy Whitmore Supervisor’s Duty to Respond •Report observed/overheard conduct •Forward complaints/issues to management and Human Resources promptly, including: Third-party complaints Verbal complaints Rumors Remember: The word “harassment”need not be used to trigger your duty to act Liebert Cassidy Whitmore Supervisor’s Duty to Respond Don’t Ignore the Response! •Take immediate action and report/ follow-up on any harassment, discrimination, or retaliation complaints received •Cooperate in the investigation •Prevent further harassment •Assure no retaliation Addressing Unlawful Discrimination, Harassment, and Retaliation in the Workplace Liebert Cassidy Whitmore What Can the City Do? •Appropriate corrective action Conduct prompt and thorough investigation o (Confidentiality is limited) Keep the victim informed Discipline perpetrator appropriately Preventative training to prevent future violations Re-publish/update City policy Liebert Cassidy Whitmore Options for Resolution •Follow the City’s harassment policy complaint procedure •The alleged victim can also take the following actions: Report to the U.S. Equal Employment Opportunity Commission (EEOC) Report to the Civil Rights Department of the State of California https://calcivilrights.ca.gov Lawsuits in State or Federal Court Liebert Cassidy Whitmore Consequences – Employer Liability •The Employer is liable for: The conduct of supervisors who engage in unlawful harassment, discrimination, or retaliation Failing to take all reasonable steps necessary to prevent harassment from occurring Liebert Cassidy Whitmore Consequences – Personal Liability •ALL employees can be personally liable for engaging in unlawful harassment •Supervisors can also be personally liable for condoning unlawful harassment or failing to act in response to an unlawful harassment complaint Liebert Cassidy Whitmore Consequences – Damages Damages Can Include: •Back pay •Emotional distress •Punitive damages (individual employees) Liebert Cassidy Whitmore Prevention •Never play favorites •Report all complaints immediately •Take all complaints seriously •Monitor the workplace •Follow the City’s policy •Be a good role model! The Ultimate Goal is to Establish a Workplace Defined By Courtesy, Sensitivity, and Respect Liebert Cassidy Whitmore Thank you! Stephanie J. Lowe Senior Counsel | San Diego 619.481.5900 | slowe@lcwlegal.com www.lcwlegal.com/our-people/stephanie-lowe