SEXual Harassment... The BIG Issue in the Workplace, part 7

Sunday, February 26, 2006 | 0

By Jamie Charter, M.S., CPDM

For readers of this article series, we are continuing in our discussion of this very vital subject in the workplace.

Since our last article, part 6, the public hearings in California regarding the proposed regulations concerning AB 1825 conducted on February 1 and 10 have now concluded and the Fair Employment Housing Commission (FEHC) has taken the public comments under consideration. They will revise the proposed regulations and vote to adopt them at the next meeting scheduled in Fresno, California on April 25.

It is anticipated that the regulations will then be available for a 15-day public comment period and they will be posted on the Commissions website: www.fehc.ca.gov.

For details about the specific agenda and meeting location, information can be obtained on the website, once posted, as well as through contacting the Commission at (415) 557-2325.

The mission of The Fair Employment and Housing Commission is to "promote and enforce the civil rights of the people of California to be free from unlawful discrimination in employment, housing, and public accommodations, and to be free from hate violence and threats of violence, pursuant to the Fair Employment and Housing Act (FEHA, Gov. Code, section12900).

The FEHC enforces California civil rights laws regarding discrimination in employment, housing, and public accommodations; pregnancy disability leave; family and medical leave; and hate violence.

The California Chamber of Commerce has voiced concern about the proposed regulations and is seeking technical amendments to clarify the definition of employees covered by the sexual harassment prevention-training requirement.

They have also issued some recommendations to ensure that the regulations will give employers the opportunity to provide the type of training that will meet the specific needs of their companies and employees.

The Northern California Human Resources Association, in which I maintain membership, has also issued recommendations forwarded via a letter on February 10, addressed to the FEHCs Acting Executive and Legal Affairs Secretary.

The gist of this communication is that the NCHRA commends the efforts of the Commission in drafting the proposed regulations, resolving many of the issues unspecified in AB 1825.

One of the primary points is the determination of whether an employer has 50 employees. They contend that: " it appears reasonable to include all employees of an employer, wherever located, in determining whether an employer has 50 employees."

The NCHRA contents then that an employer would have difficulty in tracking contract workers when computing whether they are an employer "employing 50 or more employees for each working day in any twenty consecutive weeks in the current calendar year or preceding calendar year".

Prior components of this article series have stressed the importance of effective workplace investigations for harassment complaints. While this series has dealt primarily with sexual harassment, the importance of other types of anti-discrimination training in the workplace is of paramount importance. Future planned article series will address these other areas, as will training programs which will be offered with in the near future through the WorkComp School. As a faculty member, it is my goal to offer assistance in understanding the impact of these issues.

Lawsuits are on the rise and the cost is great for these types of lawsuits by employees.

Therefore, as stressed before, you, as an employer, are taking steps to protect your company by offering training in all forms of anti discrimination.

The DFECs regulations, section 12935(2) address the standards for trainers and I have excerpted information in this regard, to follow.

Desirable qualities for an effective trainer or educator are specified and include one who:

1. Can use of various training methodologies

2 Can facilitate large and small group discussion

3. Is an effective listener

4. Has a credible professional reputation

5.Continues to enhance their knowledge of cultural and gender issues and concerns

Those trainers who are considered warm and fuzzy, a "hugger", sexual, flirtatious, aggressive, arrogant, abusive, demeaning to employees, male and female, those who engage in sexual, racial, religious, or sexual orientation type of humor and offensive jokes...would not be considered desirable qualities.

As far as the specific areas for training components that meet the standards of AB 1825:

The training must be conducted via "classroom or other effective interactive training" and include the following topics:

* Information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention of sexual harassment.

* Information about the correction of sexual harassment and the remedies available to victims of sexual harassment in employment.

* Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation.

Employers need to be certain they are providing a comprehensive program that meets all Federal expectations, including preventive education for your employees. Such a program can include:

* Supervisor and management training.
* Prevention compliance to meet Federal recommendations (EEOC) and state regulations.
* Interactive discussions regarding less-than-obvious harassment.
* Presentation of clear on-the-job rules for both male and female employees.
* How to prevent sexual harassment.
* Investigation of employee complaints of harassment.
* Take all issues brought to your attention seriously, no matter how seeming insignificant they appear.
* Zero tolerance policy for sexual harassment!

By lengthening the training program by a half hour, employers have the opportunity to cover harassment prevention training based on the other protected categories outlined above under state and federal law. By including some of these areas, via a customized training program, workplace disputes may be limited and a stronger defense provided against future liability.

AND NOW, PRESENTING TRUE STORIES!

$3.5 Million:

The world's largest law firm must pay up for creating a sexually hostile work environment. Former secretary Rena Weeks accused partner Martin Greenstein and Baker & McKenzie of creating a hostile work environment and failing to take steps to prevent Greenstein's misconduct. The court found that at the time Weeks was hired, Baker & McKenzie and its relevant managing agents were aware that Greenstein was likely to create such a hostile environment. A series of women had already complained to supervisors that Greenstein harassed them; however, the firm took no action and did not even enter the complaints in his personnel file. The firm actually transferred several of the complainants and fired one of them. If a lower-level employee complained, the firm ignored or dismissed the complaint.

$350,000:

Barbara Davis won $300,000 in back wages and $50,000 for emotional distress because her boss in the New Jersey attorney generals office had sexually harassed her. Davis claimed that Richard Carley, former deputy director of the Criminal Justice Division of the attorney generals office, asked her for oral sex, grabbed her breasts and buttocks, and continually made crude sexual comments to her for four years. Davis also complained that New Jersey failed to stop Carley's behavior after she complained.

$235,000:

Mobile Radiology, a Clearwater, Florida medical services company, will pay $235,000 to settle a lawsuit brought by the Equal Employment Opportunity Commission alleging that its president sexually harassed six female employees. The lawsuit alleged that Earle Hoaglin created a hostile environment with making graphically explicit remarks, touching several of the plaintiffs, requesting sexual favors, and threatening termination for failure to comply. On one occasion, Hoaglin told one woman they would be attending a business meeting together, yet he took her for drinks and to a hotel room. The settlement requires him to personally file written reports to the EEOC to allow it to monitor the company and any future business he may operate.

$107 Million:

"Lucky" food store chain in California recently paid $107.25 million to settle a sexual harassment lawsuit.

$34 Million:

Mitsubishi's agreement to pay $34 million is the biggest sexual-harassment settlement ever obtained by the U.S. government. The Equal Employment Opportunity Commission sued Mitsubishi's North American division in 1996, contending that women on the assembly line at its Illinois factory were groped, insulted, and subjected to raunchy insults. 350 women who alleged that male co-workers and supervisors kissed and fondled them, demanded sexual favors, and retaliated against those who refused will share the record-breaking settlement.

$5.5 Million:

A jury awarded $5.5 million to the family of a woman who was driven to suicide by what she claimed was harassment and discrimination by her bosses and underlings at the Postal Service. Judith Coflin's family accused her co-workers of calling her "ugly as a dog," circulating a caricature of her and leaving a suggestive poem for her at her job at a processing center. They accused her co-workers of intentionally botching jobs or missing deadlines to sabotage her career because she was a woman. Ms. Coflin, a diabetic, overdosed on insulin in 1995, leaving a suicide note blaming the Postal Service. The jury awarded her family $500,000 in compensatory damages and $5 million in punitive damages.

$23 Million:

A Los Angeles jury awarded a former employee at Johnson Controls more than $23 million in a wrongful termination suit. The employee claimed he had been targeted for sexual harassment after he reported unethical business practices at the company, a Milwaukee-based thermostat control maker. Jurors awarded him $6 million in compensatory damages and $17 million in punitive damages.

What does this mean then to employers? There is a huge price tag attached to discriminatory lawsuits! Therefore, train, train and train some more!

It will behoove employers in all states, including California and Connecticut, to expand the training program from the required two-hour format, to encompass other types of discrimination in the workplace to avoid the perception of a lack of respect or importance in other areas (see below). Training limited exclusively to sexual harassment will have little to no value in defense of other forms of a disability harassment claim, including:

Race
Color
Religion
National origin
Sex
Age
Disability
Pregnancy, Childbirth, or related medical conditions
Marital status
Sexual orientation

Retaliation for filing claims regarding the above areas.



************************************************************************ WorkCompSchool and Jamie Charter are proud to announce the development of a partnership to provide both in-house as well as on-line employment training.

Jamie is certified as a Professional in Disability Management, (CPDM) and is a State of California Independent Vocational Evaluator (IVE). Jamie holds a Masters Degree in Counseling and has been a vocational consultant for 22 years, with a comprehensive knowledge base in workers' compensation and employment related arenas.

As a member of WorkCompSchool's faculty, Jamie's first on-line course will address mandatory Sexual Harassment training for employers, as well as all interested industry professionals.

On-line training courses addressing the EEOC and AB 1825 will be available for release in March of 2006, and Jamie will also be available for customized live training seminars. Both on-line and live training requests can be arranged by calling the WorkCompSchool Sales Department at (805) 484-0333 or (866) 975-266, or e-mail sales@workcompcentral.com.

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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.