Anti-HarassmentAnti-HarassmentNon-discriminationNon-discrimination

Reasonable Accommodation Reasonable Accommodation PolicyPolicy

Office of Equity and Diversity

Location: USU 301

Telephone ext.: 5-8256

California State University, Long Beach

FEHAFEHA Fair Employment and Housing Act

(State Statute) Applies to discriminatory speech and conduct on the basis of:

– Age– Ancestry– Color– Creed– Denial of Family and Medical Care Leave– Disability (mental and physical) includes HIV & AIDS– Marital Status– Medical Condition– National Origin– Race– Religion– Sex– Sexual Orientation

UNRUH CIVIL RIGHTS ACTUNRUH CIVIL RIGHTS ACT

State law provides protection from discrimination by all business establishments in California, including public agencies– On the basis of:

Age Ancestry Color Disability National Origin Race Religion Sex Sexual Orientation

Applicable State StatutesApplicable State Statutes

Students and visitors of the campus (i.e. vendors and contractors) may file state

claims under the Unruh Civil Rights Act

Employees may file state claims under FEHA

These claims may be filed through the Department of Fair Employment and Housing (DFEH)

Civil Rights Act of 1964 Civil Rights Act of 1964

Applies to employers with 15 or more employees

Title VII prohibits discrimination based on:– Race– Religion– Color– National Origin– Sex

EEOC HARASSMENT EEOC HARASSMENT REGULATIONSREGULATIONS

– Unwelcome conduct– On the basis of protected category– Unreasonably interferes with job– Creates hostile work environment

Most Common ClaimsMost Common Claims Given the power relations in the workplace,

women have been the primary victims of sexual harassment.

Male claims of sexual harassment against their female supervisors have increased significantly.

Claims based may also be filed on grounds of disability, national origin, race, ethnicity, religion, or gender identity.

More recently increasing numbers of claims have been filed based on disability and/or national origin.

Same Sex HarassmentSame Sex Harassment

Same sex harassment is prohibited regardless of whether the parties involved are heterosexuals or homosexuals.

TYPES OF HARASSMENTTYPES OF HARASSMENT

Quid Pro Quo (this for that)Today: ‘tangible employment action’

has replaced ‘quid pro quo’ standard

Hostile Work Environment:must be severe or ongoing and pervasive

with or without economic impact.

HOSTILE ENVIRONMENTHOSTILE ENVIRONMENT

Various forms of workplace conduct can lead to a hostile work environment:– Physical and/or verbal derogatory or

aggressive treatment– Baiting, ridicule, banter or hazing

based upon any protected category.

HOSTILE ENVIRONMENT HOSTILE ENVIRONMENT continued:continued:

Use of crude or vulgar languageName-calling, discussions, references

of derogatory naturePresence of offensive material based

upon protected categoryIntimidation or hostility

STRICT LIABILITYSTRICT LIABILITY

Employer is automatically liable for supervisor’s actions or failure to prevent the harm

Fault is irrelevant

EMPLOYERS DAMAGESEMPLOYERS DAMAGES

May be limited under the doctrine of avoidable consequences

Liability will be reduced if the injured party could have avoided the harm by reasonable effort or expense

Through taking advantage of the institution’s complaint processes

EMPLOYER’S POLICYEMPLOYER’S POLICY

Supervisors must communicate the University’s non-discrimination, anti-harassment and reasonable accommodation policy to their employees in an effort to avoid liability!

Supervisors/managers must take immediate and appropriate action.

PERSONAL LIABILITYPERSONAL LIABILITY

Employees who engage in harassment may be sued in civil court by the injured party and be subject to monetary liability if the court finds that, it is more likely than not, the harassment occurred.

Supervisor ResponsibilitiesSupervisor ResponsibilitiesSupervisors/Managers must discuss the concerns or complaints of discrimination, harassment and/or denial of reasonable accommodation in private with each party separately. KEEP RECORDS of all discussions.

They must report the concern or complaint and action taken with the Office of Equity & Diversity.

Full & complete complaint procedures are at Office of Equity & Diversity: www.csulb.edu/oed

.

Supervisor ResponsibilitiesSupervisor Responsibilities

Confidentiality must be maintained on a need to know basis.

It’s ALWAYS best to resolve concerns early & at the lowest possible level.

Complaint ProceduresComplaint ProceduresInformation is available: www.csulb.edu/oed.Discuss your concern first with your

supervisor or Staff Human Resources or Faculty Affairs.

Employees may file informally or formally.A list of campus contacts is at:

www.csulb.edu/depts/oed/resources/contacts.html

Union representation is your choice (if covered). Others may utilize E.O. 928

http://www.calstate.edu/eo/EO-928.html

RETALIATIONRETALIATION

Retaliation against a complainant is prohibited by federal and state law

It is a distinct actionable claim Harassment does not need to have occurred

beforehand in order to prevail in a separate claim of retaliation

DISABILITYDISABILITY

LEGAL CONTEXTRehabilitation Act of 1973

Section 503 – EmploymentSection 504 – Programs/Services

Americans with Disabilities Act of 1991

Unruh Act – SB 2222 – State of California

LEGAL PROTECTIONSLEGAL PROTECTIONS

Unruh Act Impairment that

“limits a major life activity”

Without regard to mitigating measures

ADA Impairment that

“substantially limits one or more major life activities”

With or without mitigating measures.

LEGAL PROTECTIONS 2.LEGAL PROTECTIONS 2.

Unruh Act Physical Mental History of Regarded as having Medical Condition

ADA Physical Mental Record of Regarded as

Pre-EmploymentPre-Employment

Unruh Act

No general questions Specific questions of

present illness, condition, history IF “directly related” to the job in question

ADA

No inquiry of the existence, nature or severity of a disability

Inquiries permitted of the ability to perform job-related duties

DEFINING DISABILITYDEFINING DISABILITY

No definitive checklist (Note explicit State coverage for cancer as a medical condition)

Note inclusion of mental or psychological disorder, such as emotional or mental illness:

Major depression, bipolar disorder, anxiety disorders (panic, obsessive compulsive and post-traumatic stress disorders), schizophrenia and personality disorders.

REASONABLE REASONABLE ACCOMMODATIONACCOMMODATION

Who: Case by case evaluation for a particular individual employee

What: Any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities (EEOC)

Where: In a private setting. When: After it is known that the employee has a

disability. How: By discussion with the employee through an

“interactive process” in “good faith.”

Timing of AccommodationTiming of Accommodation

Reasonable accommodation is always prospective.

An employer is not required to excuse past misconduct.

GuidelinesGuidelines

Document—When the disability becomes known.Note an employee’s references to his/her

difficulty/inability to perform required duties – NO MAGIC WORDS

Document—When an employee requests accommodation

Document every conversation (telephone, voicemail, electronic mail) regarding the need for accommodation.

Document consideration of request and the universe of possible accommodations—including those that are ultimately unreasonable and those that are refused.

Document the provision of accommodations.

Possible AccommodationsPossible Accommodations

Job restructuring Part-time work Modified work, modified scheduling Reassignment or transfer Leave of absence Modification of equipment or devices Elimination of non-essential job functions or

duties Retraining

Essential FunctionsEssential Functions

Duties/tasks that are critical to the job.Primary job duties typically established by

a job analysis and recorded in the job description.

The ability to perform these WITH or WITHOUT accommodation determines if an individual is QUALIFIED

Unreasonable AccommodationUnreasonable Accommodation

ExtensiveSubstantialDisruptiveFundamentally alters the business’ nature or

operation

Costly – Use extreme care!!

Unreasonable Accommodation Unreasonable Accommodation ExamplesExamples

Eliminating essential functions.Eliminating (as opposed to reducing) job

stress.Requiring employee to take medication or

monitoring their doing so.Switching supervisors.Lowering uniformly applied job

performance standards.

ConfidentialityConfidentialityEmployers must keep all information concerning the medical condition or history of its applicants or employees, including information about psychiatric disability confidential. This includes medical information that an individual voluntarily tells his/her employer.

Employers must collect and maintain such information on separate forms and in separate medical files, apart from the usual personnel files.

References to medical condition or diagnoses must be kept out of performance appraisals, and all other materials that could be used to consider the employee or permanent status, advancement, transfer, or promotion.

ExceptionsExceptions

Supervisors and managers may be told on a need-to-know basis about necessary restrictions on the work or duties of the employee and about necessary accommodations.

First aid and safety personnel may be told if the disability might require emergency treatment; and

Government officials investigating compliance with the ADA must be given relevant information on request.

Disclosure to Co-workersDisclosure to Co-workers

The employer must not disclose any medical information to questions from co-workers.

An employer may not tell employees whether it is providing a reasonable accommodation for a particular individual. Doing so discloses that the individual probably has a disability

MisconductMisconduct

Rule—Apply discipline based on rules that are job-related for the position in question and consistent with business necessity and past practice.