Discrimination, Harassment, and Retaliation: How to Prevent the “Big 3” in California and Reduce Your Legal Risks Thursday, July 28, 2011 Presented by the Employer Resource Institute © 2011 Employer Resource Institute. All rights reserved. These materials may not be reproduced in part or in whole by any process without written permission.

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© 2010 Employer Resource Institute. All Rights Reserved About Our Speaker Laura E. Innes, Esq., is a partner in the California-based law firm Simpson, Garrity, Innes & Jacuzzi. She is engaged exclusively in the practice of labor and employment law, combining preventive counseling for employers with civil and administrative litigation defense. Also, she is an experienced mediator and alternative dispute resolution practitioner, and she regularly conducts in-house training programs for her employer clients. Since 2004, Laura has been named annually as a "Super Lawyer" - within the top 5 percent of lawyers in northern California - in the employment law arena, and she speaks and writes very frequently on labor and employment law matters (including numerous sessions for ERI each year). Laura earned her law degree from the University of California at Berkeley, Boalt Hall School of Law.

Discrimination, Harassment, and Retaliation: How to Prevent the “Big 3” in California and Reduce Your Legal Risks Laura E. Innes, Esq. Simpson, Garrity, Innes & Jacuzzi

Discrimination: The Basics Copyright 2011 BLR Inc. What characteristics/statuses are protected by law? Race Color National origin Religion Sex Age Disability Genetic information

California Department of Fair Employment and Housing Calendar Year: 2009 Accusations Filed: by Bases (All Laws)

Discrimination: The Basics Copyright 2011 BLR Inc. Which laws prohibit workplace discrimination? Title VII Pregnancy Discrimination Act Equal Pay Act Americans with Disabilities Act Genetic Information Nondiscrimination Act Age Discrimination in Employment Act State laws (California’s FEHA)

Discrimination: The Basics Copyright 2011 BLR Inc. What is prohibited by these laws? Basing employment decisions on anything other than an individual’s qualifications and abilities Applying different standards to different individuals Allowing or engaging in harassment Retaliating against individuals for engaging in protected activities

Discrimination: The Basics Copyright 2011 BLR Inc. What is prohibited by these laws? Organizations also can’t discriminate in: o Recruiting, hiring, and testing o Firing o Promotions, transfers, layoffs, recalls o Discipline o Training and apprenticeship programs o Compensation and benefits

Discrimination: The Basics Copyright 2011 BLR Inc. Key differences between federal and California laws 1. How many employees must you have to be covered? Federal: 15 (race, color, religion, disability, gender, national origin) or 20 (age) California: 5 (discrimination in general) or 1 (harassment) 2. What characteristics/statuses are protected? Federal: Race, color, religion, gender, national origin, age, and disability (generally) California: The federal categories, plus many others (political affiliation, marital status, sexual orientation, gender appearance, medical conditions [impairments related to cancer and genetic characteristics], veteran status, HIV-positive status, and various types of whistle-blowing and claims filing)

Discrimination: The Basics Copyright 2011 BLR Inc. Key differences between federal and California laws 3. Are there caps on damages? Federal: Yes (under Title VII, caps vary from $50,000 to $300,000, depending on the employer's size) California: No (plaintiffs who win employment tort suits in CA are entitled to recover all types of damages, including uncapped economic damages, non-economic damages, punitive damages, and costs [including attorneys' fees and expert witness fees])

Discrimination: The Basics Copyright 2011 BLR Inc. Key differences between federal and California laws 4. Is there individual liability for harassment by a supervisor or co-worker? Federal: No California: Yes 5. Are you automatically liable for a hostile environment created by a supervisor? Federal: Yes (if you fail to show that (a) you took reasonable steps to prevent/correct harassment and (b) the employee unreasonably failed to take advantage of the steps you offered) California: Yes (you can take similar steps above to limit damages, but not avoid them)

Discrimination: The Basics Copyright 2011 BLR Inc. Intentional and unintentional discrimination Intentional discrimination Unintentional discrimination Adverse impact Class action suits

Discrimination: The Basics Copyright 2011 BLR Inc. Race/color discrimination Basic protection Stereotypes Marriage or association Race-related characteristics Harassment Segregation and classification of employees Preemployment inquiries

Discrimination: The Basics Copyright 2011 BLR Inc. National origin discrimination Birthplace, ancestry, culture Accent Marriage or association Surname English-only rules Harassment Employment verification for immigration

Discrimination: The Basics Copyright 2011 BLR Inc. Religious discrimination Reasonable accommodation Undue hardship Union dues Common accommodations include: Sabbath observance Religious holidays Leaving work early Time off for prayers Dress and grooming

Discrimination: The Basics Copyright 2011 BLR Inc. Sex discrimination Basic protections Sexual harassment Pregnancy Equal pay for equal work

Discrimination: The Basics Copyright 2011 BLR Inc. Disability discrimination Discrimination prohibited against individuals with disabilities who are qualified for the job Disability may involve physical or mental impairment Law emphasizes ability, not disability Reasonable accommodation required

Discrimination: The Basics Copyright 2011 BLR Inc. Genetic discrimination Information about genetic tests Whether an individual has undergone genetic testing Genetic tests of family members Family medical history

Discrimination: The Basics Copyright 2011 BLR Inc. How can you prevent workplace discrimination? Understand and follow the organization’s discrimination policy Recognize each person as an individual Treat everyone with respect and courtesy Be aware of and try to correct your biases Stop people when you hear them joke about or put down others

Harassment: The Basics Copyright 2011 BLR Inc. What is harassment? Harassment is unwelcome behavior directed at a member of a protected group Harassment usually involves a pattern of behavior Harassment is a form of illegal discrimination Harassment is often blatant Harassment can also be subtle Behavior short of illegal discrimination

Harassment: The Basics Copyright 2011 BLR Inc. What is NOT harassment? Occasional teasing Offhand comments Isolated incidents that are not extremely serious

Harassment: The Basics Copyright 2011 BLR Inc. When is it harassment? One extremely serious incident Intimidating, hostile, offensive environment Unreasonable interference with work performance Negative effect on an individual’s employment opportunities Harassment of those who do not conform

Harassment: The Basics Copyright 2011 BLR Inc. When does harassment lead to employer liability? Preventing liability Conduct of supervisors and managers Conduct of co-workers Conduct of nonemployees

Harassment: The Basics Copyright 2011 BLR Inc. Verbal harassment Threats Intimidation Offensive language, slurs, or derogatory comments Graffiti Jokes Circulating insulting stories or rumors about a person

Harassment: The Basics Copyright 2011 BLR Inc. Nonverbal harassment Staring Standing over someone in an intimidating manner Displaying or circulating offensive pictures, cartoons, or objects Singling out members of protected groups for unfavorable treatment

What You Should Do Copyright 2011 BLR Inc. Handling employee complaints Encourage reporting Never ignore a complaint Report complaints to your boss and/or designated person Understand that employees are allowed to bypass the normal chain of command Strike a balance between the need for confidentiality and the need to investigate Protect everyone’s rights

What You Should Do Copyright 2011 BLR Inc. Dealing with minor incidents Determine the exact nature of the incident Counsel the alleged harasser informally Reassure the victim Monitor the situation carefully

What You Should Do Copyright 2011 BLR Inc. Participating in an investigation Is an investigation necessary? How long will it take? What intermediate measures may be necessary? How should the investigation be conducted?

What You Should Do Copyright 2011 BLR Inc. Questions during the investigation Questions to ask the person making the complaint Questions to ask the alleged harasser Questions to ask witnesses

What You Should Do Copyright 2011 BLR Inc. Assessing credibility Plausibility Demeanor Motive to falsify Corroboration Past record

What You Should Do Copyright 2011 BLR Inc. Has harassment occurred? Making a determination When no determination is possible Filing a report Informing the parties

What You Should Do Copyright 2011 BLR Inc. Taking corrective action Implement effective remedial measures Balance competing concerns Make certain the victim is not adversely affected Stop the harassment and ensure that it does not recur Correct the effects of the harassment Follow up to make sure the problem is solved

Retaliation Issues in CA Copyright 2011 BLR Inc. Under federal law, your employees claiming retaliation must show that they engaged in "protected activity" (that is, they were involved in a discrimination complaint or lawsuit, or they openly opposed what they thought was unlawful discrimination by you as the employer). In California, the standards are much more pro-employee. Your employees who oppose workplace activities or policies they deem discriminatory don't have to express their positions – they must simply show that you as the employer knew they felt this way. In Yanowitz v. L'Oreal USA, Inc. (36 Cal. 4th 1028 (2005)), the California Supreme Court allowed a female manager's retaliation claim to proceed when she refused to carry out a male manager's order to fire a female cosmetic sales clerk for not being pretty enough; though the female manager did not report or protest the offensive order, the court ruled that she believed reasonably that the order was discriminatory and that the employer was aware of this belief.

Retaliation Issues in CA Copyright 2011 BLR Inc. Even if your employees can't show a really obvious job detriment resulting from your alleged retaliation, the California Supreme Court has ruled (in the Yanowitz case mentioned earlier) that "the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career" may be treated as an adverse employment action. In this case, the court recognized a pattern of supervisory decisions – from refusing to allow the employee to respond to allegedly unwarranted criticism in performance appraisals to another manager's solicitation of negative feedback from the employee's staff – as a "totality of the circumstances."

Retaliation Issues in CA Copyright 2011 BLR Inc. For many years, supervisors in California faced personal liability for retaliating against employees who opposed unlawful discriminatory or harassing acts on the job. They might face no personal liability with respect to claims for discrimination and wrongful discharge, for example, but they could be on the hook for retaliation claims resulting from the same complaint. In 2008, though, the California Supreme Court ruled 4-3 (Jones v. The Lodge at Torrey Pines Partnership, 42 Cal. 4th 1158 (2008)) that, while employers may be held liable for discrimination and retaliation actions, non-employer individuals cannot be personally held liable for retaliation (just as they cannot be held liable for discriminatory actions).

Laura E. Innes, Esq. Simpson, Garrity, Innes & Jacuzzi, P.C. 601 Gateway Blvd., Suite 950 South San Francisco, CA (phone) (fax) Copyright 2011 BLR Inc. Questions?

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