Preventing Discrimination, Harassment, and Retaliation in ... › files › ao-1825-presentation-11618_33710.pdfChanges in California Discrimination and Harassment Law • SB 1300

Agenda•Introductions-background•Filing complaints•Protected classifications•District Policy Prohibits:

• Discrimination• Harassment• Retaliation

•Prevention•Bullying

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How Widespread is Unlawful Discrimination?

•According to the EEOC, there were 91,503 charges of workplace discrimination in 2016

•Retaliation 45.9% •Race 35.3%•Disability 30.7%•Sex 29.4%•$482 million for victims of discrimination 2016Percentages add up to more than 100% because some charges allege multiple bases

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Sources of lawFederal Law• Title VI and VII of the 1964 Civil

Rights Act

• Americans with Disabilities Act (ADA)

• Age Discrimination in Employment Act (ADEA)

• Title IX of the Education Amendments of 1972

California Law• Fair Employment and

Housing Act (FEHA)

• Education Code

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Where Can I File A Discrimination Or Retaliation Complaint?

• Use the District’s complaint procedure (Employee & Student)

https://www.nocccd.edu/equity-and-diversity-265/283/how-to-file-a-complaint

• The U.S. Equal Employment Opportunity Commission (Employee)

• The California Department of Fair Employment & Housing (Employee)

• The Office of Civil Rights USDE (Student & Title IX)

• Lawsuit in federal or state court

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How To File A Formal Complaint With The District

• Step 1:Review the NOCCCD Unlawful Discrimination Administrative Procedures AP-3410. This document contains written procedures for filing and processing complaints of unlawful discrimination and sexual harassment.

• Step 2:Complete the Unlawful Discrimination Complaint Formhttps://www.nocccd.edu/files/discrimination_complaint_form_95912.pdf

• Step 3:Submit the Unlawful Discrimination Complaint Form to:

Irma RamosNOCCCD Vice Chancellor, Human Resources

1830 W. Romneya Dr.Anaheim, CA 92801, (714) 808-4822

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FormalComplaint

FormChancellor’s Office

California Community Collegeshttps://www.nocccd.edu/files/discrimination_complai

nt_form_95912.pdf

Complaints must be addressed once we are on notice of

discriminatory behavior – Even if the form is not submitted

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NOCCCD Discrimination Board Policies & Procedures

• BP 3410 Unlawful Discrimination

• BP 3430 Prohibition of Harassment

• BP 3540 Sexual Assault/Misconduct*

• AP 3410 (Discrimination, Harassment, Sexual Assault) • AP 3410 are the Administrative Procedures for filing administrative discrimination

complaints under BP 3410, 3430 and 3540.

(See also Student Code of Conduct for complaints against students)

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* Sexual Harassment/MisconductReporting Sexual Assault/Misconduct• In addition to the complaint procedures above, victims of

sexual assault should contact the campus Title IXCoordinator, contact law enforcement, and Campus HealthServices. They should also be provided with resourcesavailable to them.

https://www.nocccd.edu/reporting/820/community-resources

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Sexual Harassment/Misconduct: Title IX Coordinators

• Cypress College: Executive Vice President, Educational Programs and Support Services (714) 484-7330

• Fullerton College: Dean Student Support Services (714) 992-7088

• NOCE Anaheim Campus: Office of the Provost of the School of Continuing Education (714) 808-4670

• District Services: District Director, Diversity and Compliance (714) 808-4820

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PROTECTED CLASSIFICATIONS• RELIGIOUS CREED

• MARITAL STATUS

• RACE

• NATIONAL ORIGIN

• ETHNICITY

• ANCESTRY

• COLOR

• DISABILITY (Physical, Mental)

• MEDICAL CONDITION

• GENETIC INFORMATION

• SEX (GENDER, PREGNANCY, GENDER EXPRESSION, GENDER IDENTITY)

• SEXUAL ORIENTATION

• AGE

• MILITARY AND VETERAN STATUS

• ASSOCIATION/PERCEPTION

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3 Types Of DiscriminationDiscrimination

Different treatment because of protected status

(Employment or Education)

1. Disparate Treatment

2. Disparate Impact (No intent required)

Griggs v. Duke

3. Harassment

(No intent required)

Hostile Work/Educational Environment

1. Protected Status

2. Physical, Verbal or Visual

Behavior

3. Objectively & Subjectively

Offensive (Unwelcome)

4. Severe or Pervasive

5. Unreasonably interferes with

work or education

RetaliationProtected activity

Adverse actionCasual connection

Quid Pro QuoBenefits in exchange for sexual favors (not always limited to sex)

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True or False• You must have the intent to discriminate to violate the District’s

non-discrimination policy.

• We may be required to accommodate someone’s religiouspractices.

• Gender expression discrimination occurs when someone isdiscriminated against because they are attracted to persons ofthe same sex.

• Having a foreign accent is not a protected category.

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General Definition of HarassmentGenerally: A hostile work/educational environmentexists when the environment becomes so offensive,hostile, intimidating, or oppressive that itunreasonably interferes with ones ability to work orstudy or to access District programs and activities.

• Must be linked to protected status

• Two types of Harassment:• Quid Pro Quo• Hostile Work/Education Environment

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Changes in California Discrimination and Harassment Law

• SB 1300 • Liability standard lowered for

failure to prevent discrimination or harassment.

• “severe or pervasive” standard is rejected for – “single incident”

• “Tangible productivity” rejected for “altered working conditions so as to make it more difficult to work.”

• Type of workplace in sexual harassment standard changed

• SB 1343 • One hour of sexual harassment

training to nonsupervisory employees, including seasonal employees, temporary employees, within 30 calendar days or first 100 hours worked, by Jan.1 2020

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OCAMPO

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HARASSMENT: 1) Elements Of “Quid Pro Quo”

•Job/Education Benefits Promised;•Explicitly or Implicitly;• In Exchange for:

• Sexual Favors; or• Denied if Sexual Favors are Not Given

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Harassment: 2) Elements of Hostile Work/Education

Environment1. Protected Classification2. Physical, Verbal, or Visual Behavior3. Objectively and Subjectively Offensive

(Unwelcome)4. Severe or Pervasive (1.1.19 One incident is sufficient)5. Unreasonably Interferes with Work or

Learning Opportunities

Legal elements above, finding a violation of District Policy should require a standard slightly lower than the legal standardThese elements are applicable to harassment complaints, not disparate treatment or impact complaints, or retaliation complaints17

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Elements of Hostile Work/Education Environment

1. Harassment Must Be Based on a Protected Status (sex, race, disability, age, religion etc.)

• Includes association with protected class or perceived membership in protected class.

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Elements of Hostile Education/Work Environment

2. Verbal, Visual, or Physical Behavior • Massage/Hugs• Physical Intimidation• Ethnic Jokes/Racial Cartoons• Sexual Comments• Mocking Accent• Teasing• Slurs• Posters, Calendars• Staring/Leering

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Elements of Hostile Education/Work Environment

3. Behavior must be Unwelcome and Offensive

• Subjective: Harassment must be unwelcome to the extentthat the student/employee does not solicit or incite it, andconsiders it undesirable or offensive.

• Objective: Judged by a reasonable person standard. Mustbe offensive to a reasonable person “similarly situated”.

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Elements of Hostile Education/Work Environment

4. Behavior Must be Severe or PervasiveMust be judged by looking at all the circumstances, including:

• The frequency of the discriminatory conduct. Its severity. The more severe the conduct the less frequent it must be. One minor slight or offensive utterance; is usually not enough.

New Law Jan. 1, 2019

• A single incident of harassing conduct is now sufficient to create a triable issue of fact regarding the existence of a hostile work environment.

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Elements of Hostile Education/Work Environment

5. Unreasonably Interferes with Work or Education• Does the behavior impact the victim emotionally, physically or

psychologically so as to make it more difficult to learn or participate in educational opportunities and programs or make it more difficult to do one’s work, showing a tangible decline in productivity.

New Law Jan. 1, 2019• A reasonable person subject to the alleged discriminatory conduct would

find the harassment altered working conditions so as to make it more difficult to work.

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True or False• An element of a hostile work environment includes

behavior that is both severe and pervasive.

• In 2019 the complainant must be able to show their work productivity has declined.

• It’s not harassment if someone was just joking.

• There is no need to investigate a matter if its not put in writing.

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Small Group ScenariosScenario 1

You’re the coach of the basketball team. As the team is practicing one of the players keeps saying, “That’s so gay,” every time he doesn’t like or disagrees with something. No one complains or appears annoyed.

Scenario 2

During down time in your history class two students start talking to each other in Spanish. After class, as students are leaving, another student complains saying he is offended by the students speaking Spanish. He says the students should speak English in class, otherwise how does he know whether they are talking about him. He states loudly even wetbacks should assimilate.

Scenario 3

The manager in your office asks Joe, who works in a different department out for a date. Joe, however, refuses to go out with her. The manager sends Joe four emails asking why he won’t date her. Joe ignores the emails. The manager gives Joe hugs each time she sees him which is about 3x a week. Joe would prefer not to be hugged.

Are there any violations of District policy in these scenarios? how would handle the above scenarios if you had to investigate and address the concerns raised?

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Scenarios• John is the facilities manager at Fullerton and is always

yelling at his staff. He calls them morons, lazy bums, andoften uses profanity. Is he creating a hostile environment?

• Susan is well liked by her staff. She frequently makes jokesabout men. One of her staff members Andy has a very highpitched voice and on one occasion she tells him, “with thatmanly voice how can I resist?” on a few occasions she tellshim, “not bad for a girly man.” Is Andy being harassed?

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ScenarioIn the first week of class Professor Boor callson Mahmoud, a student in his class, andjokingly refers to him as “the terrorist.”Mahmoud complains and Boor stops. However,Professor Boor begins calling him Manny,saying his name is too hard to pronounce.Although Mahmoud objects, Prof Boorcontinues calling him Manny and says it’s agood American name.

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ScenarioProfessor Zena Fobec tells students in her mathclass that she is glad to hear that illegal aliens arebeing deported in high numbers. She states thatthey are all criminals and should be dealt with likecriminals. She continues saying its not fair illegalshave more rights than citizens and that they arealmost all on welfare. Is there harassment here?Would it matter if this was a political science class?

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HARASSMENT: “Gray” (Borderline) Areas

•“Private” and “consensual” relationships between supervisors and subordinates or educators/students?

•Invitations to lunch, drinks or dinner •References to appearance or dress•“Casual” touching of non-intimate parts of the

body

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Hostile Work/Educational Environment: Additional

Considerations• A third party can make a complaint of

discrimination or harassment.

• A hostile educational environment can be created by anyone including a visitor to the College/work place.

• The law does not protect overly sensitive people from hurt feelings.

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Hostile Work/Educational Environment: Additional

Considerations The District is not required to provide a stress free

environment or required to avoid difficult conversations.

Repeated Microaggressions can create a hostile work environment.

Employees in some instances may be held personally liable for harassment.

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Small Group Discussion

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Retaliation• Protected Activity – Broad StandardReporting discrimination or harassmentParticipating in an investigationRefusing to follow order reasonably believed to be

discriminatory

• Adverse Action -- Broad StandardThreats, transfer, firing, demotion, shunning

• Causal ConnectionBetween protected activity and adverse action

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Retaliation ScenarioOn July 1, 2016, IT Director Ms. Mac contacts HR torequest advice on how to prepare a PersonalImprovement Plan (PIP) because her direct report,Andy, has been showing up late to work and isconstantly missing deadlines. On July 10 Andy files asexual harassment complaint against Ms. Mac. OnJuly 15 Ms. Mac meets with Andy and gives him a PIPand tells him if he doesn’t improve he will be fired.Andy files a retaliation complaint against Ms. Mac onJuly 16, 2016.

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PREVENTION: Discrimination, Harassment, Retaliation

• Make respect and inclusion a core value

• Never play favorites-watch for implicit bias

• Avoid compromising situations

• Report all complaints immediately

• Take all complaints seriously

• Address inappropriate behavior immediately

• Monitor the educational setting and/or workplace

• Follow District procedure

• Be culturally competent and inclusive

• Be a good role model

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PREVENTION: Discrimination, Harassment, Retaliation

How do you prevent discrimination, harassment, and/or retaliation?

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What If You Are Accused?•Refer the accuser to a superior, or to District

Human Resources •Report the accusation to your supervisor and

to District Human Resources•Refrain from taking any action that could be

interpreted as retaliation•Seek constructive consultation from Human

Resources •Cooperate in the investigation•Follow our District’s Policies and Procedures

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Who Is Liable?•Any employee can be held personally liable for

harassment, discrimination, or retaliation, depending on the statute at issue:California FEHA: Individuals may be liable for

harassment only, not for discrimination or retaliationFederal laws: Individuals can be liable for

harassment and discrimination, and retaliation, depending on the statute.

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Who Is Liable?•The employer is liable for:DiscriminationRetaliationHarassment committed by a supervisorHarassment not committed by a supervisor, but only if the

District knew, or should have known about it, and failed to take appropriate action.Failure to prevent harassment or discriminationLiability can include:

o Back payo Damages o Compensatory & Punitive

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BYSTANDER INTERVENTIONSeveral types of intervention•Direct•Distract•Reporting•Assist/Address after the fact

• https://www.youtube.com/watch?v=sSFN_wPKuhM

• https://vimeo.com/200088572

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Defusing a Situation• Remain Calm

Maintain your composure

• Remember Safety FirstAlways consider your safety and the safety of others

• Keep It SimpleBe clear, direct, and respectful in your message, avoid giving complex choices.

• Watch Your Body LanguageBe aware of your posture and gestures, and personal space

• Use SilenceSilence on your part allows time for to clarify and restate a viewpoint

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Diffusing a Situation• Empathize and Listen Actively

• Make sure you hear the underlying message

• Use Reflective QuestioningParaphrase and restate what you think the person is saying

• Remember your Paraverbal communication speaks volumes (30%) -how we say the words we say, for example do we seem happy, sad, angry, determined or forceful. Two identical statements can have different meanings depending on the tone, volume, and cadence of your voice. Make sure your vocal inflection is consistent with the words you use.

• Gather the facts and Document

• Contact Campus Safety , if necessary

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“ABUSIVE CONDUCT”

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“ABUSIVE CONDUCT”Definition of “Abusive Conduct”:•Malicious conduct•Objectively and Subjectively Hostile or

Offensive •Unrelated to employer’s legitimate business

interests•Conduct not based on a protected category

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Examples of “ABUSIVE CONDUCT”•Repeated verbal abuse

•Threatening, intimidating, or humiliating verbal or physical conduct

•Gratuitous sabotage or undermining of person’s work

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What is Not “ABUSIVE CONDUCT”

•A supervisor holding a subordinate accountable for his/her performance

•An isolated incident of inappropriate behavior

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Prevention: “ABUSIVE CONDUCT”• Make respect a core value

• Create a respectful workplace policyApply to all, not just protected classesDefine abusive conduct Consequences for violators

• Anti-retaliation provisions

• Pay attention and investigate

• Do not ignore or make excuses

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Prevention: “ABUSIVE CONDUCT”•Do not require an employee to confront a bully

alone

•Discipline

•Training

•Performance Improvement Plan

•Last chance agreement

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