Prevent Sexual Harassment & Abusive Conduct Training
This training presentation covers legal definitions, examples of prohibited conduct, and the required impact on victims. It also delves into legal authorities and the importance of knowing how to prevent and address sexual harassment in the workplace.
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TRAINING ON THE PREVENTION OF SEXUAL HARASSMENT AND ABUSIVE CONDUCT ADMINISTRATORSAND MANAGERS April 22, 2022 . Presented by: Rex Randall Erickson Erickson Law Firm A.P.C. Presented for: West Hills Community College District
Disclaimers Training discussions may include potentially offensive words, descriptions of sexual situations, etc. The examples of inappropriate behavior discussed herein are representative, not exhaustive. Behavior not specifically referenced herein may still constitute sexual harassment. Any examples from actual investigations/complaints were not taken from West Hills College. 2
Basic Overview of Training Presentation What is sexual harassment? Legal definition Analytical categories Examples of prohibited conduct How much offensive behavior is too much? Who can be a harasser / victim? What is the required impact on the victim? How to respond to allegations? Is there harassment which is not illegal sexual harassment? 3
Legal Authority Federal Title VII of the Federal Civil Rights Act Title IX of the Education Amendments of 1972 Department of Education - Office of Civil Rights Regulations, Guidance, and Dear Colleague Letters State California Education Code Title 5 of California Code of Regulations Fair Employment and Housing Act (FEHA) Board Policies 4
Why Do I Need To Know This? Recent surveys show that 42 90% of all working women report experiencing some fashion of sexual harassment. High costs in terms of absenteeism, decreased work performance and health costs. The U.S. Department of Education has increased enforcement of discrimination and harassment based on sex, gender, sexual orientation, gender identity, and gender expression. The Fair Employment and Housing Act requires that employers take reasonable steps to prevent and correct wrongful behavior in the workplace. (Cal. Govt. Code 12940(k)). 5
Why Do I Need To Know This? By January 1, 2021, an employer having five or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees and at least one hour of classroom or other effective interactive training and education regarding sexual harassment to all nonsupervisory employees in California within six months of their assumption of a position. This training must be provided once every two years and include training on the prevention of abusive conduct. (Gov. Code 12950.1.) 6
Why Do I Need To Know This? You may be held personally liable Harassment, is defined to potentially include slurs or derogatory drawings, [physical interference] with freedom of movement [or] unwanted sexual advances. (See Cal. Gov. Code, 12940(j)); (Reno v. Baird (1998) 18 Cal. 4th 640, 646.) None of these types of actions are necessary to the management of personnel for the benefit of an employer. As such, a supervisor acting in the course and scope of his or her employment when the harassment occurs may be held personally liable. (Myers v. Trendwest Resorts Inc. (2007) 148 Cal. App. 4th 1403; Gov. Code, 12940(j)(1), 12940(j)(3).) 7
Basic Facts Anyone faculty, staff, administrator or student can be a victim of sexual harassment, and anybody can be a harasser. Sexual harassment victims can be male, female, or transgendered, and so can their harassers. A man can sexually harass another man, and a woman can sexually harass another woman. In the workplace, conduct would be considered sexual harassment if it's unwelcome, based on a person's sex or gender, and interferes with that person's ability to do his or her job. In an educational setting, the conduct must interfere with the student's ability to get an education. 8
What is Sexual Harassment? Legal Definition Federal Law Academic Title IX of the Education Amendments of 1972 (Title IX) prohibits sex discrimination, including sexual harassment. Primary enforcement of these provisions is vested with the U.S. Department of Education, Office for Civil Rights. Title IX protects students from unlawful sexual harassment in all of a school s programs or activities, whether they take place in the facilities of the school, on a school bus, at a class or training program sponsored by the school at another location, or elsewhere. Title IX also protects male, female, and transgendered students from sexual harassment, regardless of who the harasser is. 9
What is Sexual Harassment? Legal Definition Federal Law Employment Under federal law sexual harassment is defined as: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. (29 C.F.R. 1604.11.) 10
What is Sexual Harassment? Legal Definition California Education Code The Education Code definition of sexual harassment is consistent with federal law governing academic matters. Sexual harassment in the California community college environment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, and under the following conductions: 11
What is Sexual Harassment? Legal Definition California Education Code Where submission to the conduct is explicitly or implicitly made a term or condition of an individual s employment, academic status, or progress. Where submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual. Where the conduct has the purpose or effect of having a negative impact upon the individual s work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment. Where submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution. (Educ. Code 212.5.) 12
What is Sexual Harassment? Legal Definition District Policy Board Policy 3433 is consistent with applicable state and federal law: BP 3433 reads in part: All forms of sexual harassment are contrary to basic standards of conduct between individuals. State and federal law and this policy prohibit sexual harassment and the District will not tolerate sexual harassment. The District is committed to providing an academic and work environment that respects the dignity of individuals and groups. The District shall be free of sexual harassment and all forms of sexual intimidation and exploitation including acts of sexual violence. The Chancellor shall establish procedures that define sexual harassment on campus. The Chancellor shall further establish procedures for employees, students, and other members of the campus community that provide for the investigation and resolution of complaints regarding sexual harassment in violation of this policy, and procedures to resolve complaints of sexual harassment in violation of this policy. State and federal law and this policy prohibit retaliatory acts against all participants by the District, its employees, students, and agents. 13
What is Sexual Harassment? Legal Definition District Policy West Hills District policy defines sexual harassment consistent with state and federal law: Conduct that satisfies one or more of the following: A District employee conditions the provision of an aid, benefit, or service of the District on an individual s participation in unwelcome sexual conduct (quid pro quo harassment); Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the District s education program or activity (hostile environment sexual harassment); Sexual assault, including Sex Offenses, Rape, Sodomy, Sexual Assault with an Object, Fondling, Statutory Rape, Incest, Dating Violence, Domestic Violence, and Stalking. (AP-3433) 14
What is Sexual Harassment? Analytical Categories Two Types There are two basic types of unlawful sexual harassment: 1. Quid Pro Quo Sexual Harassment 2. Hostile environment sexual harassment Both involve unwelcome conduct of a sexual or gender-related nature. 15
What is Sexual Harassment? Analytical Categories Two Types 1. Quid Pro Quo This for that or one thing in exchange for another Examples Sleep with me and you will get a good evaluation. You must submit to my sexual requests or you won t pass your probationary period. You must go on a date with me or you will lose your job. Let me look down your shirt and you will get a better grade. 16
What is Sexual Harassment? Analytical Categories Two Types 1. Quid Pro Quo For both employee and for students, the harassment is unlawful if it is unwelcome. It is not necessary for the victim to say no as a victim may give in and say yes to advances for fear of being harmed in some way. Or a victim may object and then be harmed in some way. Either way, it is still considered sexual harassment. 17
What is Sexual Harassment? Analytical Categories Two Types 2.Hostile environment Under California law, a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff s work performance or created an intimidating, hostile, or offensive working environment. (Govt. Code 12923 (b).) Depends upon the totality of the circumstances, a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecision maker, may be relevant, circumstantial evidence of discrimination. (Govt. Code 12923 (c); Reid v. Google, Inc. (2010) 50 Cal.4th 512.) 18
What is Sexual Harassment? Analytical Categories Two Types 2. Hostile environment (Cont.) Hostile environment harassment may also include intimidating or harassing conduct of a non-sexual nature that is directed at an individual (or group of individuals) because of gender. It is only necessary to show that gender is a substantial factor in the discrimination and that if the plaintiff had been a man she would not have been treated in the same manner. (Accardi v. Sup. Ct. (1998) 17 Cal.App.4th 341, 348.) 19
What is Sexual Harassment? Analytical Categories Two Types Hostile environment (Cont.) Because hostile environment harassment does not require that the behavior be of a sexual nature, the reasoning in Accardi is applicable to claims of harassment based on other related protected categories such as gender identity, gender expression, or sexual orientation. Accordingly, a plaintiff must show that his/her/their actual or perceived gender identity, gender expression, or sexual orientation was a substantial factor in the discrimination. 20
What is Sexual Harassment? Analytical Categories Two Types Hostile environment (Cont.) E.g. Gender The Supreme Court has recognized that employment discrimination based on sex stereotypes (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under Title VII. (Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).) 21
What is Sexual Harassment? Analytical Categories Two Types Hostile environment (Cont.) E. g. Gender Expression / Gender Identity Citing Title VII case law, the 9th Circuit Court of Appeals concluded that a transgender woman stated a claim of sex discrimination under the Gender Motivated Violence Act based on the perception that she was a "man who 'failed to act like one.'" The court noted that "the initial approach" taken in earlier federal appellate Title VII cases rejecting claims by transgender plaintiffs "has been overruled by the language and logic of Price Waterhouse." (Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000).) 22
What is Sexual Harassment? Analytical Categories Two Types Hostile environment (Cont.) Important Supreme Court case regarding hostile environment sexual harassment: Meritor Saving Bank v. Vinson (1986) Vinson engaged in voluntary sexual relationship with supervisor, after relationship ended, she was terminated for time and attendance issues. Court held voluntarydoes not necessarily mean welcome. For sexual harassment to be actionable, it must be unwelcome and (until Govt. Code 12923 (b) went into effect), sufficiently severe or pervasive to alter the conditions of the victim s employment and create an abusive working environment. 23
What is Sexual Harassment? Analytical Categories Two Types Hostile environment (Cont.) Important Supreme Court case regarding employer liability Burlington Industries v. Ellerth Ellerth quit her job - alleged supervisor made numerous threats to retaliate against her if she denied him sexual liberties. The threats were not carried out. Ellerth knew that Burlington had an anti-harassment policy - but did not tell anyone in authority about the harassment. Faragher v. City of Boca Raton Faragher resigned as a lifeguard - alleged that her two immediate male supervisors created a sexually hostile atmosphere at work. Repeatedly subjected her and other female lifeguards to uninvited and offensive touching , lewd remarks, and speaking of women in offensive terms. Faragher failed to complain about the harassment during her employment. 24
What is Sexual Harassment? Analytical Categories Two Types Hostile environment (Cont.) Principles of Cases: When sexual harassment by a supervisor results in tangible employment action against an employee, employer is automatically liable. If no tangible action taken, an affirmative defense is available, if the employer excised reasonable care to prevent and correct promptly and sexually harassing behavior (has anti-harassment policy and complaint avenues). The employee unreasonably failed to take preventive or corrective opportunities provided by employer (failed to take advantage of complaint process). 25
What is Sexual Harassment? Analytical Categories Two Types Hostile environment (Cont.) The U.S. Equal Employment Opportunity Commission (EEOC) adopted the principles the Supreme Court set forth in Ellerth and Faragher. Additionally, the Commission stated that while the Ellerth and Faragher decisions addressed sexual harassment, the same basic standard of liability apply to all forms of unlawful harassment. 26
What is Sexual Harassment? Analytical Categories Two Types Hostile environment (Cont.) Employers are liable for a management official s harassment that results a significant change in an individual s employment status (e.g., hiring, firing, promotion, failure to promote, demotion, undesirable reassignment). An employer is automatically liable for this type of harassment regardless of whether upper management had knowledge of it. 27
What is Sexual Harassment? Analytical Categories Two Types 2. Hostile environment (Cont.) Examples Locker room environment Pervasive sexuality in workplace speech Frequent sexually oriented jokes Sexually explicit materials in plain view, sent through email, or shared on personal electronic devices Unwanted sexual advances Repeated unwanted sexual invitations, insistent requests for dinner, drinks or dates, persistent letters, giving personal gifts, phone calls Frequent sexist remarks (gender-based harassment) 28
What is Sexual Harassment? Examples of Prohibited Conduct - Categories Pursuant to the relevant laws regarding sexual harassment, conduct which may constitute sexual harassment will fall in one or more of the following categories of behavior: 1) Physical 2) Verbal 3) Visual/Non-verbal 29
What is Sexual Harassment? Examples of Prohibited Conduct Physical Hugging, kissing, patting Grabbing, groping, pinching Giving a massage around the neck or shoulders Touching clothing, hair, or body Brushing up against a person in a sexual way Blocking movement to or from a work location Exposing sexual organs or body parts Overt sexual touching Forcing physical contact of a sexual nature 30
What is Sexual Harassment? Examples of Prohibited Conduct - Verbal Referring to a student or coworker as a girl, doll, babe, hunk, stud, honey, etc. Whistling, cat calls, suggestive sounds (e.g. construction site stereotype) Turning otherwise appropriate work discussion to sexual topics Telling sexual jokes or stories Asking personal questions about a person s sex life or dating life Making sexual comments about clothing, anatomy or looks (continued) 31
What is Sexual Harassment? Examples of Prohibited Conduct - Verbal Continuing to ask a person out for a date after being turned down Telling lies or spreading rumors about a person s sex life Talking about one s own sex life Abusive, vulgar or profane language of a sexual nature Innuendoes clever, quick-witted double meaning comment, with sexual meaning hidden within the statement (continued) 32
What is Sexual Harassment? Examples of Prohibited Conduct - Verbal Hey baby, you look good in that skirt. You got a boyfriend? Does he satisfy you? You have resting b***h face , smile more. You need a real man. When is the last time you got laid? Avoid this type of behavior at all cost 33
What is Sexual Harassment? Examples of Prohibited Conduct - Visual Posting sexually explicit or suggestive materials. Sharing sexually explicit or suggestive materials on your phone Invading a person s space Winking, throwing kisses, licking lips Making sexual gestures with hands or body movements Computer images of a sexual nature Sending e-mail of a sexual nature Sending suggestive or obscene letters, notes, etc. Leering at or looking a person up and down e.g., undressing someone with your eyes 34
Other forms of Harassment Examples of Prohibited Conduct - General Remember that unlawful harassment is any harassing behavior based on the victims actual or perceived membership to a protected class. Accordingly, the following examples are also unlawful hostile environment harassment: Comments about an individual s skin color or other racial/ethnic characteristics; Negative comments about an employee s religious beliefs; Negative stereotypes regarding an employee s birthplace or ancestry; Negative comments an employee s age when referring to employees 40 and over; Derogatory or intimidating references to an employee s mental or physical impairment. 35
Hypothetical #1 Bill has an 8 person staff. For the past six months, Bill has reserved the first ten minutes of each staff meeting for what he calls a "morale builder," during which the staff exchanges the latest jokes. The jokes are almost always of a sexual nature. Terri never participates in the "morale builders" and generally avoids them by arriving ten minutes late to staff meetings. Bill tells Terri arriving late is unacceptable and warns her that she will receive a written reprimand the next time she is late. Terri says she arrives late because the dirty joke sessions are offensive. Bill repeats his warning. Quid pro quo, hostile environment, both, or neither? 36
Hypothetical #1 This could be an example of both quid pro quo and hostile environment sexual harassment. Boss Bill is essentially requiring Timid Terri to cooperate with him in conducting inappropriate joke sessions and has threatened her with an adverse action (the letter of reprimand) if she doesn't cooperate. Such conduct may be considered quid pro quo sexual harassment. It could also be an example of hostile environment sexual harassment because the joke sessions have occurred regularly over a period of six months, they are offensive to Timid Terri, and they interfere with her attendance at required meeting. 37
How much offensive behavior is too much? 1. Quid Pro Quo A single incident is enough to constitute sexual harassment. A plaintiff must show that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands. A claim involving only unfulfilled threats must be categorized as a hostile work environment claim. 38
How much offensive behavior is too much? 2. Hostile Work Environment Formerly a pattern of repeated conduct was usually required, this is no longer the case. As of Jan. 1, 2019, the California legislature specifically made a single incident sufficient to create a triable issue regarding a hostile work environment if the harassing conduct unreasonably interfered with the plaintiff s work performance or created an intimidating, hostile, or offensive working environment. (Govt. Code 12923(b).) 39
How much offensive behavior is too much? The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecision maker, may be relevant, circumstantial evidence of discrimination. (Govt. Code 12923(c).) In a workplace harassment suit, the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job. (Govt Code 12923; rejecting the standard in Brooks v. City of San Mateo (2000) 229 F.3d 917, and expressly affirming the concurrence of Justice Ruth Bader Ginsburg in Harris v. Forklift Systems (1993) 510 U.S. 17.) 40
How much offensive behavior is too much? Hostile Work Environment 2. Factors to consider: Whether the conduct unreasonably interfered with the victim's work or academic performance. Would a reasonable person subjected to the discriminatory conduct find, that the harassment so altered working conditions as to make it more difficult to do the job. The totality of the circumstances surrounding the behavior. 41
How much offensive behavior is too much? There is no set time period in which a hostile environment needs to be established. A single incident is sufficient. However, a series of incidents will also suffice to establish a hostile work environment. 42
How much offensive behavior is too much? A single comment from Plaintiff's supervisor "I have good news for you. You're gonna want to suck my d**k. - established a triable issue regarding hostile environment sexual harassment. (Doe v. Wells Fargo Bank, N.A., 2019 U.S. Dist. LEXIS 142287.) A 54-year old director of operations for Google was terminated and reported comments that he was not a cultural fit, was an old fuddy- duddy, his ideas were too old to matter and he was obsolete. (Reid v. Google, Inc. (2010) 50 Cal.4th 512) 43
How much offensive behavior is too much? A prominently displayed workplace sign reading sexual harassment will be graded on a 1 to 10 basis - proved that the company knew of its hostile workplace and failed to act after receiving complaints. (Dysert v. Whirlpool Corp. (N.D. Ohio (Sept., 2001).) When informed of sexual harassment inflicted by a city manager, the mayor joked Heck, if I believe all these rumors, then he has a heck of a libido, and I want some of what he s taking! - $500,000 punitive damages. (Griffin v. City of Opa-Loca (11th Cir., 2001).) 44
Who can be a harasser? Managers and supervisors Delivery persons Repairpersons Co-employees Members of the public Students Other non-employees Visitors Salespersons 45
Who can be a victim? Sex of the harasser and victim does not matter: Male harasser, female victim Female harasser, male victim Same sex harassment is also unlawful Harassment based on transgender status is also unlawful Status of the victim: Supervisor to subordinate Faculty to student Student to student Employee to employee (same position level) Student to employee Vendor to employee [NOTE: Employer can be liable to employee due to the conduct of third-party, non- employees.] 46
Who can be a victim? Unintentional Victims: Employees who witness harassment directed at others. Employees who are subjected to consenting behavior between others. This is the type of conduct that can lead to a claim of a hostile work environment, even though the sexual conduct is not directed towards these individuals. 47
Who can be a victim? NOTE: The California Supreme Court found that an employee may establish an actionable claim of sexual harassment by demonstrating that there was sufficiently widespread sexual favoritism in which the demeaning message is conveyed to female employees that the way for women to get ahead in the workplace is to engage in sexual conduct with their supervisors or the management. (Miller v. Department of Corrections, 36 Cal. 4th 446.) 48
Who can be a victim? Accordingly, a plaintiff may establish a hostile work environment sexual harassment claim without demonstrating the existence of coercive sexual conduct directed at the plaintiff or even conduct of a sexual nature directed towards the plaintiff. 49
Who can be a victim? The conduct of the victim is generally not relevant. Victim s appearance (e.g., tight clothing) is generally not relevant. Victim s sexual conduct towards persons other than the harasser is generally not relevant. Consensual office romance presents most difficult situation: relationship which is consensual can very easily later be characterized as coerced. 50
