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sexual harassment in california

 
 
The Bill Cosby publicity & many others, have ignited the #MeToo movement, providing women with a forum grounded by social media sharing their sexual harassment abuses in the workplace.
Sexual harassment and Discrimination are simply illegal under both Ca.state and federal law.
Sexual harassment has a broad category of negative areas, from unwelcome conduct, lewd jokes, gropingand suggesting promises in exchange for sexual favors.
 
The California Fair Employment and Housing Act bans sexual harassment in the workplace. 
Applicants, employees, independent contractors, unpaid interns, and those with which an employer has a professional relationship (such as clients and vendors) are all protected by this law.
Under federal law, Title VII of the Civil Right Act of 1964 forbids sexual harassment. This law applies to companies with 15 or more employees.

 

SEXUAL HARASSMENT TRAINING . . . . 

It is a requirement for California since 2005 for employers to provide training sexual harassment education and provide employees with the tools to prevent workplace harassment issues.
This training ( 2 hrs. ),is required every two years for managers working for employers with 50 or more employees anindependent contractors.Starting in 2019 all employees must receive preventive Harassment educational training.The training must take place within 6 months of being hired. SB 1343 which passed in Ca., Oct. 2018, changes  existing training laws, & now requires employers with five or more employees to provide non-supervisory employees with a minimum of one-hour of Harassment prevention training every two years, in addition to requiring employers to provide two hours of the bi-annual management training for sexual harassment and bullying.

    

DIFFERENT CATEGORIES OF SEXUAL HARASSMENT IN CALIFORNIA . . . 

Hostile work environment . . . . 

Hostile work environment issues occur when an employee is subjected to frequent sexual comments, groping or unwelcome conduct, of a persistent nature. This may include off color jokes, offensive computer material, groping, and social media exploitation. One time events or isolated frequency, does not necessarily count as sexual harassment. The bottom line is that the abusive actions must be pervasive, frequent, and unwanted.

 

Quid pro quo . . . . 

Quid pro quo typically occurs between a owner, or manager and the office employee. The manager may ask the hourly employee for sexual favors in exchange for employment benefits, such as promotions. This most frequently is between a person with business related leverage , or "power", with a high level of influence, targeting and attempting to seduce ,or intimate a lessor employee. The Hollywood movie environment would be a perfect example, of this power structure.

 

CALIFORNIA SEXUAL HARASSMENT  LIABILITY . . . . 

Employees owners, or managers can initiate sexual harassment. If a workplace employee causes the sexual harassment, the employer will be held legally responsible, if the manager did not take immediate and appropriate action to remedy the situation.
If the manager causes the sexual harassment, the employer faces strict liability under California law.  
Title VII of the Civil Rights Act of 1964 allows the employer to escape liability if the following situations have occurred:
  • No tangible employment actions were taken against the victim;
  • The employer took reasonable and appropriate action to prevent and correct the abusive behavior.
  • The victim, who had knowledge of the complaint process, and Ca. preventive training, did not take advantage of the complaint process and the opportunities available to correct the situation.
 

 DAMAGES IN SEXUAL HARASSMENT CASES . . . .

In the perfect workplacethe employer will take a harassment claim seriously and work quickly to resolve it, which is certainly in the companies best interest.However, if the employer does nothing and the harassment continues, the environment may become so stressful, creating a "hostile work environment" , which multiplies the issues.
The employee could easily suffer physical discomfort, and mental anguish from the harassment. 
 It is quite possible that the employee could recover damages from the harassment endured, such as mental anguish, job loss, and lost wages. 
No employee should be afraid to come to work because of sexual harassment. A workplace with a "Zero Tolerance" for abuses is the only solution. If you are a victim of harassment, it's important that you inform your manager, so that the appropriate steps can be taken to remedy the situation immediately.
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Remember when the rule in the military about gays serving was “don’t ask, don’t tell”?  Now that gay men and women serve openly in the armed services, the rule seems to apply to workers who have major depression or another mood disorder.  “Jim” (not his real name) called me recently about his struggle with major depression and how his employer treated him after he disclosed it to his supervisor. “Jim” is retired military and currently works as a civilian contractor for one of the service branches. “I can’t concentrate,” he told me, “and I have to miss a lot of work.”  Jim” said in order to keep his job he decided to tell his supervisor that his frequent absences were due to depression and he was going to get help.  “I didn’t get much sympathy,” he said, “in fact my flight authorizations were stopped, which had an impact on my job because it requires a lot of traveling.”  Why were his flight authorizations cancelled? Maybe the boss thought “Jim” would hijack the plane or bomb it to commit suicide and still get life insurance for his family.  Instead of helping a hard-working, experienced employee, the supervisor hurt not only the employee but also the company they both serve. There are two lessons to learn from this story: 1. Negative disclosure consequences could have been avoided had the employer implemented a mental health friendly workplace beginning with educating all supervisors about mental illness; 2. “Jim” needed his own education about depression, too. He had avoided seeing a psychiatrist his primary care doctor recommended perhaps out of fear of more stigma. He didn’t say. “Jim” chose to disclose and get help to restore his productivity, but the supervisor did what far too many supervisors do by stigmatizing him. According to one study conducted by Dr. Carolyn Dewa, Psychiatry professor at the University of Toronto, one-third of workers would hide mental health problems from their manager, with many worried about how it would affect their careers. The survey also found that 64% of people said they would be ‘concerned’ about the performance of a co-worker with mental health problems. Nevertheless, research suggests that workers with a mental health issue perform better if they disclose the issue than if they hide it.  Being honest with managers, for instance, will help to explain absences for treatment, which may be difficult to account for otherwise. Should you disclose your depression? First, ask yourself what you are trying to accomplish by telling your boss, advises Clare Miller, the director of the American Psychiatric Foundation’s Partnership for Workplace Mental Health. The program helps employers develop effective approaches to mental health. For instance, disclosure may be in your best interest if you need special accommodations to do your job, such as the option of starting later in the day because you're on a new medication that makes you sleepy in the morning or taking sick leave if you are having a particularly tough time emotionally. “Disclosure is probably also a good idea if depression if causing your job performance to suffer noticeably”, said Miller. "But try to do it early in the game as opposed to waiting until you get a bad performance review," she added.  Another important consideration for self-disclosure is the atmosphere of your workplace.  Stigma isn’t as bad as it used to be, but it still exists. Former Chairman and President of Highsmith Inc, now part of Demco), employed only 1,000 people, but he implemented a plan to address the mental health of his employees to retain them and keep them productive. The company’s Employee Assistance Program (EAP)  provides tools to balance an employee’s work and life. The EAP provides an orientation session for new employees that includes a class called “First Aid Kit for the Mind,” which describes signs of mental illnesses, stress, and substance use disorders and how to maintain mental fitness. An Intranet section that links employees to information on depression and anxiety, relationships, and domestic abuse. Another section, “Leader’s Edge,” features resources for line managers, including “Your Role and the EAP.”  Highsmith strived to make mental health on a par with physical health.  Major depressive disorder is the leading cause of disability among adults 15 to 44 years old, affecting nearly 7 percent of adults in the U.S. each year, according to the National Institute of Mental Health. Depression causes an estimated $23 billion in lost productivity in the U.S. each year. " Thirty-four percent of lost productivity is caused by depression and stress disorders, yet 86% of employees with stress or depression prefer to suffer in silence and businesses pay the price,” according to Graeme Cowan, author of  Back from the Brink: True Stories and Practical Help for Overcoming Depression and Bipolar Disorder (New Harbinger Publications 2013).  Depression disclosure in the workplace is a matter of dollars and cents. It makes good sense, too, but it is a two-way street between employee and employer.  
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Rob Lachenauer, the CEO and a co-founder of Banyan Family Business Advisors, wrote in the Harvard Business Review:
 “The Americans with Disabilities Act of 1990 prevents employers from discriminating against people who have a mental illness, but my experience as a consultant at a very large strategy firm whose clients are giant corporations had been that if someone admitted that he or she struggled with depression or mental illness, that would often be career suicide. Indeed, a former vice president of a major investment banking firm, when told about this blog, warned me against publishing it: ‘Clients are afraid to work with firms that have mentally ill people on the professional staff.’ “
Is non-discrimination toward anyone with a mental illness the last great struggle for equality? I have two neurological disorders, for example, that affect my work-related skills. One is a physical disability caused by multiple sclerosis, a disease of the central nervous system. It left me vision-impaired and with cognitive limitations that that left me with an inability to learn new skills and bipolar disorder, which is a genetic mental illness and affects mood, concentration and interpersonal relationships. People with MS do not face the same discrimination as one with a mental illness. They are afforded reasonable accommodations to help them succeed in their job assignment. People with MS are not victimized by stigma; mental illness victims face stigma in all areas of their lives and when it affects their livelihood it is understandable why they are reticent about letting employers know they need specific accommodations to succeed.
“Today, according to the National Alliance on Mental Illness, some 60% to 80% of people with mental illness are unemployed. In part, this is the crippling nature of the disease. But a large part of the problem that we have in hiring people who have some mental disorder is that we lack the sophisticated vocabulary to talk and act regarding these illnesses” Rob Lachenauer wrote.
The definition of disability under the ADA was expanded by the ADA Amendments Act of 2008 to: (A) a physical or mental impairment that substantially limits one or more major life activities of an individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major life activities also include major bodily functions, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The ADA is a civil rights law that prohibits discrimination based on disability. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications.
Over the past decade, we have all noticed the increasing impact of mental ill health in the workplace. Stress, anxiety and depression, albeit not all work-related, have led to higher rates of absenteeism and lost productivity due to presenteeism (working while sick).
Managing mental health should hold no fear for managers – whether they realize it or not, they already have many of the skills needed to look after their employees’ wellbeing. Sometimes all it takes is an open mind. Mental health is the mental and emotional state in which we feel able to cope with the normal stresses of everyday life. If we are feeling good about ourselves we often work productively, interact well with colleagues and make a valuable contribution to our team or workplace. The good news is that line managers already have many of the skills needed to promote positive mental health at work. They are usually well-versed in the importance of effective communication and consultation, and the need to draw up practical workplace policies and procedures. Add to these skills an open mind and a willingness to try and understanding mental health problems, and organizations can make real progress in tackling the stigma often associated with mental health.
Here is the dilemma faced by all of us with a mental illness trying to get and keep a job: "From the outside looking in, it's hard to understand. From the inside looking out, it's hard to explain."
Until the perception of mental illness changes, nothing changes.
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Suppose you are the hiring manager at Terrific Trucking Firm and you are hiring drivers. Aside from checking your applicants' driving records, you interview them, run drug tests, background checks, and generally make sure you feel confident that they are a good fit for your company. In walks a candidate whose application you liked, and whose driving record and other qualifications seemed perfect for the job. Then you see him. He has a long beard and he wears a turban. You don't want to pre-judge though. You speak with him, and all seems on the up-and-up. Then you tell him you are ready to offer him a job, on one condition. He, like all other candidates, must provide a hair sample for drug testing. He says no, because he is an observant Sikh, and therefore he cannot cut his hair or remove his turban in public. You apologize and tell him that safety concerns mandate that every applicant undergo a drug test and you therefore reject him for the job -- and then he files and EEOC charge or a religious discrimination suit based on state laws. Are you liable for trying to keep the public safe? Quite possibly yes.  Click here to read the entire post on The EmpLawyerologist.
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“The Americans with Disabilities Act of 1990 prevents employers from discriminating against people who have a mental illness, but my experience as a consultant at a very large strategy firm whose clients are giant corporations had been that if someone admitted that he or she struggled with depression or mental illness, that would often be career suicide. Indeed, a former vice president of a major investment banking firm, when told about this blog, warned me against publishing it: ‘Clients are afraid to work with firms that have mentally ill people on the professional staff.’ “ Is non-discrimination toward anyone with a mental illness the last great struggle for equality? I have two neurological disorders, for example, that affect my work-related skills. One is a physical disability caused by multiple sclerosis, a disease of the central nervous system. It left me vision-impaired and with cognitive limitations that that left me with an inability to learn new skills and bipolar disorder, which is a genetic mental illness and affects mood, concentration and interpersonal relationships. People with MS do not face the same discrimination as one with a mental illness. They are afforded reasonable accommodations to help them succeed in their job assignment. People with MS are not victimized by stigma; mental illness victims face stigma in all areas of their lives and when it affects their livelihood it is understandable why they are reticent about letting employers know they need specific accommodations to succeed. “Today, according to the National Alliance on Mental Illness, some 60% to 80% of people with mental illness are unemployed. In part, this is the crippling nature of the disease. But a large part of the problem that we have in hiring people who have some mental disorder is that we lack the sophisticated vocabulary to talk and act regarding these illnesses” Rob Lachenauer wrote. The definition of disability under the ADA was expanded by the ADA Amendments Act of 2008 to: (A) a physical or mental impairment that substantially limits one or more major life activities of an individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major life activities also include major bodily functions, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The ADA is a civil rights law that prohibits discrimination based on disability. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications. Over the past decade, we have all noticed the increasing impact of mental ill health in the workplace. Stress, anxiety and depression, albeit not all work-related, have led to higher rates of absenteeism and lost productivity due to presenteeism (working while sick). Managing mental health should hold no fear for managers – whether they realize it or not, they already have many of the skills needed to look after their employees’ wellbeing. Sometimes all it takes is an open mind. Mental health is the mental and emotional state in which we feel able to cope with the normal stresses of everyday life. If we are feeling good about ourselves we often work productively, interact well with colleagues and make a valuable contribution to our team or workplace. The good news is that line managers already have many of the skills needed to promote positive mental health at work. They are usually well-versed in the importance of effective communication and consultation, and the need to draw up practical workplace policies and procedures. Add to these skills an open mind and a willingness to try and understanding mental health problems, and organizations can make real progress in tackling the stigma often associated with mental health. Here is the dilemma faced by all of us with a mental illness trying to get and keep a job: "From the outside looking in, it's hard to understand. From the inside looking out, it's hard to explain." Until the perception of mental illness changes, nothing changes.    
Read More →

I promised last week to cover one more Hot Button employment law issue to look for in 2017. Of course I didn't tell you what it would be. I doubt you will be surprised to hear it though. The last Hot Button issue revolves around the rights of LGBT employees. Yes, I know I already wrote about that here and here among other places. At the same time though, we all know that in our ever-changing world, nothing remains static, and this issue is no exception. Click here to read the entire post on The EmpLAWyerologist...  
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Most employers are aware that Title I of The Americans with Disabilities Act (ADA) and the Americans with Disabilities Act Amendments Act (ADAAA),  prohibit employers from discriminating against applicants and employees on the basis of an actual, perceived, or record of disability.  Many employers are also aware that the ADA/ADAAA requires them to provide reasonable accommodations to applicants and employees with disabilities. Often however, employers focus on the physical conditions, and may forget that the ADA also protects persons with mental impairments. Well, fear not, the EEOC is here to remind you of that fact in its new resource documents on the rights of individuals with mental health impairments under the ADA.  What are these documents? What do they say? Has anything with the ADA or its interpretation changed recently? If not, why did the EEOC issue them? Let's find out... Click here to read the entire post on The EmpLAWyerologist...
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You probably know that if you have 15 or more employees, then under the Americans with Disabilities Act, you: a) cannot treat an employee adversely on the basis of a disability; and b) must make reasonable accommodations for employees with disabilities.  What if you have a disabled employee who is now unable to perform the essential functions of his/her current job, and you cannot come up with a reasonable accommodation for him/her to continue in that job? Do you have to re-assign the employee to another position? Maybe, but not necessarily. So what do you do? It's not an easy question. I mean it's probably a waste of your time to read a post answering a question if you already know the answer, and I'm not looking to waste your time any more than I might have just now. So let's plunge right in and see if we can't get you some kind of answers... Click here to read the entire post on The EmpLAWyerologist...
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Most employers know that it's illegal to discriminate on the basis of an applicant or employee's national origin. It's been illegal at least on the federal level since July 2, 1964, under Title VII. Has anything really changed? Well, sort of.  The issue has come to the forefront again, as charges of national origin discrimination are again on the rise. The EEOC therefore specifically included protection of migrant and foreign workers among its top priorities in its Strategic Enforcement Plan for 2017 - 2021.  That's not all, though. Last month, for the first time since 2002, the EEOC also issued an updated Enforcement Guidance on National Origin Discrimination in the Workpnationalorigin-blog-hrusa-comlace. What's changed since then? Now, I wouldn't bother you with a whole post on the topic if I didn't think there were points worthy of our attention. So, let's take a look and see what you should be paying attention to... Click here to read the entire post on The EmpLAWyerologist...
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As of April 1, 2016, California employers will be subject to new anti-discrimination and anti-harassment regulations,  which are intended to conform the existing regulations however, several critical differences have been determined in recent court decisions:

 

Differences to Include:

1.     Develop and distribute anti-harassment policy and anti discrimination policy

2.     To include specific required elements AND

3.     Create a formal internal complaint processes to address employee concerns.

 

Is in writing;

·       Lists all current protected categories covered under the FEHA;[4]

·       Indicates that managers, supervisors, coworkers and third parties with whom employees come into contact are prohibited from engaging in unlawful conduct under the FEHA;

·       Creates a complaint process to ensure that complaints receive: (a) a designation of confidentiality, to the extent possible; (b) timely responses; (c) impartial and timely investigations by qualified personnel; (d) documentation and tracking for reasonable progress; (e) appropriate options for remedial actions and resolutions; and (f) timely closure;

·       Provides a complaint mechanism that permits employees to complain to someone other than his or her immediate supervisor, such as a designated company representative (including a human resources manager, EEO officer, or other supervisor), a complaint hotline, an ombudsperson, or identification of the California Department of Fair Employment and Housing (“DFEH”) and the U.S. Equal Employment Opportunity Commission as additional avenues for employees to lodge complaints;

·       Assures employees that if the employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation in a manner that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected;

·       States that confidentiality will be kept by the employer to the extent possible, but not that an investigation will be completely confidential;

·       Instructs supervisors to report complaints of misconduct to a designated company representative, such as a human resources manager;

·       Indicates that if misconduct is found after investigation, appropriate remedial measures shall be taken; and

·       Confirms that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.    

Employers must disseminate this written policy to employees by one or more of the following methods: (1) providing a printed copy to all employees with an acknowledgement form for the employee to sign and return; (2) sending the policy via email to all employees with an acknowledgement return form; (3) posting the current versions of the policies on a company intranet with a tracking system to ensure that all employees have read and acknowledged receipt of the policies; (4) discussing the policy upon hire and/or during a new hire orientation session; and/or (5) any other way that ensures employees receive and understand the policy.[5] Employers must translate the written policy into every language that is used as the “spoken language” by at least 10 percent of the workforce at any facility or establishment.[6]

These dissemination requirements are in addition to employers’ continuing obligation to distribute to employees the DFEH’s brochure on sexualharassment (DFEH-185), or an alternative writing compliant with the FEHA.[7]

 

Training Requirements

Since 2004, California has required that employers with 50 or more employees provide biennial and continual sexual harassment prevention training.[8] The regulations impose new training and record-keeping requirements for those employers.

Such training must now also:

·       Instruct supervisors of their obligation to report sexual harassment, discrimination, and retaliation of which they become aware;[9]

·       Cover appropriate remedial measures to correct harassing behavior;[10] and

·       Review the definition of “abusive conduct,” explain the negative impact of abusive conduct, specifically discuss the elements of abusive conduct, provide examples of abusive conduct, and emphasize that, unless the act is especially severe or egregious, a single act shall not constitute abusive conduct. Although the new regulations still do not identify the amount of time that must be dedicated specifically to the subject of “abusive conduct,” they make clear that the subject should be covered “in a meaningful manner.”[11]

Employers must maintain for two years all written or recorded materials that comprise the training, including copies of all webinars, all written questions and responses from webinars and e-learning, all sign-in sheets, and all certificates of attendance or completion issued, in addition to the already-required names of supervisory employees trained, the date of the training, the type of training and the name of the training provider.[12]

Enforcement

The regulations track existing case law and confirm that there is no stand-alone private cause of action for failure to prevent harassment or discrimination under the FEHA.

A private claimant must also plead and prevail on an underlying claim of discrimination, harassment, or retaliation.[13]

The DFEH, however, may independently seek non-monetary preventative remedies for a violation—regardless of whether the DFEH prevails on an underlying claim for discrimination, harassment, or retaliation.[14]

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