SELF-HELP IN THE WORKPLACE

Alexander Henry, Staff CounselDepartment of Fair Employment & Housing (DFEH)

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Developing policies that help prevent discrimination.

Responding to complaints of discrimination.

Preventing complaints from becoming lawsuits.

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The most important rule is also the most basic: Treat people in the fashion that you

would expect to be treated with:▪ Respect;▪ Open mind; and ▪ Good-faith & compromise.

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It’s the law. (Gov. Code, § 12940, subd. (k).)

Improves working environments. Increased morale, efficiency, productivity.

Protects employers. Avoidable consequences doctrine. (State

Dept. of Health Services v. Superior Court (McGinnis) (2003) 31 Cal.4th 1026, 1044.)

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Taking all reasonable steps to prevent discrimination… (Gov. Code, § 12940, subd. (k).)

What does that mean? Raise issue of discrimination thru

training; Develop written policy; How to report discrimination; and Discipline for discrimination.

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Define prohibited conduct – examples! Give examples of conduct to employees.

Establish Employer/Employee Responsibilities. Employee: Report harassment. Employer: Investigate / Punish / Inform affected

parties. Communicated & Comprehensible to

Employees. Live training and Posters. ¿Como se dice eso en espanol? (EEOC v. V&J Foods

(7th Cir. 2007) 507 F.3d 575. )

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Employer’s action as a whole establish a reasonable mechanism for prevention and correction. (Holly D. v California Inst. of Technology (9th Cir. 2003) F.3d 1158.)

Avoidable Consequences: Not obligated to use ineffective or unreasonable policies.

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Example of reasonable failure to use preventative measures: Female lifeguards subjected to unwanted

touching and advances by supervisors that had “unchecked” authority. Employer did not have any anti-discrimination policy. Reasonable not to report. (Faragher v. City of Boca Raton, (1998) 524 U.S. 775.)

Male bartender sexually harassed by male coworker that later became supervisor. Anti-discrimination policy existed, but no explicit procedure for bypassing supervisor. Unreasonable not to report. (Cooke v. Stefani Management Services, Inc. (7th Cir. 2001) 250 F.3d 564.)

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“The employer is committed to providing a work environment that is free of discrimination. In keeping with this commitment, the employer maintains a strict policy prohibiting unlawful harassment of any kind. This includes verbal, physical, or visual harassment.”

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It is the policy of Henry, Inc., the largest and most successful company ever, to provide a work environment free from harassment. Unlawful harassment can take many forms, including: Verbal Conduct: Epithets, derogatory

comments, slurs, or unwanted sexual advances, comments, or invitations;

Visual Conduct: Derogatory posters, cartoons, drawings, or gestures;

Physical Conduct: Assault, unwanted touching, interference with normal movement or work…

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Define harassment / discrimination. Identify who should be contacted to

report. Ensure harassers can be bypassed. Describe discipline for violations. State confidentiality to extent

possible. Statement that retaliation not

tolerated. Distribute to employees, display at

workplace.11

Pre-employment Inquiries. Identify protected group. Screen out a protected group.

Advertisements and/or Recruiting. Can’t express preferences.

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Establish clear procedures enabling employees to file complaints: How and with whom to file a complaint; What happens when complaint is filed.

Communicate that retaliation is prohibited. Safe environment to report harassment; Complaints protect employer in litigation, and

promote more productive work environment.

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Complaint of discrimination filed, now what?

Goal is to conduct a prompt and thorough investigation. Need not investigate exhaustively. Goal is good-faith, reasonable effort to

stop discriminatory conduct. (Holly D. v. California Inst. Of Technology (9th Cir. 2003) 339 F.3d 1158.)

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Goal of any investigation is two-fold: End past harassment; Deter future harassment.

Once harassment or discrimination identified: Public disapproval to convey gravity; Discipline to deter harasser and other potential

harassers. McGinest v. GTE Service Corp. (9th Cir.

2004) 360 F.3d 1103.

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Responding and investigating. Ensure alleged conduct no longer taking

place. Objective and impartial investigation. Open mind: its serious already if an

employee is utilizing complaint procedures. Remain committed to disciplinary policies.

▪ Departure from written policies may raise an inference of discrimination. (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33. )

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Goal isn’t to be right, goal is to accommodate. Proving yourself “right” can be costly:

DFEH investigation. Prosecution before FEHC or in superior court. Potential embarrassment. Being proven wrong even more costly.

▪ Front pay, back pay, reinstatement, punitive damages, emotional distress damages, attorney’s fees.

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Goal of IP is to facilitate communication. Honest and open dialogue with employee will

foster cooperation, not conflict. Gather information.

▪ Nature of accommodation / complaint

Explore possibilities.▪ What can be done? Creativity a plus. Accommodation

means bending the rules.

Compromise.▪ You don’t always get what you want, just get what you need.

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Inflexibility with “necessary” rules or requirements.

Ask yourself: 1) Is it absolutely necessary, AND 2) the only method for achieving your

goal. If you have any doubt, its not.

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The goal of the FEHA is to ensure that the only relevant consideration for an employer is whether an employee can do the job. Do you need to grow up speaking a

language to be fluent? Do you need to be at the office to

perform work related functions?

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If you do decide to deny a request for accommodation or act upon a protected characteristic: Make sure it is based upon verified, scientific,

or medical data. Explanation for decision.

▪ Make sure it is in writing so that it cannot be challenged later.

Opportunity to respond.▪ Good-faith discussion requires exchange of ideas.

Review of decision.▪ Future events may make it possible.

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Physical weight and fitness standards were reasonable requirement for paramedics in light of statistical studies showing their need and use. (Hegwer v. Board of Civil Service Comm’rs (1992) 5 Cal.3th 1011.)

Employer’s unsupported rule that employees with congenital low-back problems (scoliosis) could not be truck drivers despite employees present ability to do so. (Sterling Transit Co. v. Fair Employment Practice Comm’n (1981) 121 Cal.3d 791.)

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Approach employee complaints and requests in good-faith;

Clear policies;Consistent discipline;Willingness to compromise.

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www.dfeh.ca.govcontact.center@dfeh.ca.gov

(800) 884-1684Videophone (916) 226-5285