SEXual Harassment..the BIG Issue in the Workplace, Part 6

Monday, February 13, 2006 | 0

SEXual Harassment.........the BIG issue in the workplace, part 6
By Jamie Charter, M.S., CPDM

This segment of the sexual harassment information article series will continue our discussion of the topic of sexual harassment. In the last article, part 5, we discussed the different requirements or suggestions for training in 15 states across the country. In reference to the state of Connecticut, information was also provided about diversity training.

While this installment will focus primarily on California and Connecticut because of specific state law mandated training, it is essential for all readers to recognize the law on the Federal level, pursuant to the United States Equal Employment Opportunity Commission.

As a refresher, here is what the EEOC states:

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

It is also essential to recognize that the training requirements or suggestions are intended to serve as a minimum threshold, only. In addition, as discussed in previous articles of this series, it is important to acknowledge the other forms that discrimination can take and offer training in those specific areas (such as age, race, ancestry, etc.).

CONNECTICUT:

In Connecticut, the calendar year for training refers to the period from October 1 in any calendar year through September 30 in the following calendar year. For employers having three or more employees, employers must post notices to employees concerning the illegality of sexual harassment and remedies available to victims of sexual harassment.

The information for the poster is to consist of the statutory definition of the following:

Definition of sexual harassment, including examples
Notice that sexual harassment is prohibited by the State of Connecticut's Discriminatory Practice Law
Notice that sexual harassment is prohibited by Title VII of the 1964 Civil Rights Act

Remedies available, including but not limited to:

*Cease and desist orders
*Back pay
*Compensatory damages
*Hiring, promotion, or reinstatement
*Language advising that persons who commit sexual harassment may be subject to civil or criminal penalties
*The address and telephone number of the Connecticut Commission on Human Rights and Opportunities
*Statement that Connecticut law requires that a formal written complaint be filed with the Commission within one hundred and eighty days of the date when the alleged sexual harassment occurred
*Poster in large, bold-faced type with the heading: SEXUAL HARASSMENT IS ILLEGAL".

While not required by the commission, it is strongly recommended that the poster also include:
A statement concerning the policies and procedures of the employer regarding sexual harassment
Statement concerning the disciplinary action that may be taken if sexual harassment has been committed
The name of a contact person in the workplace to whom a victim can report complaints of sexual harassment or direct their concerns.

The poster is required to be placed in a prominent and accessible location where other employee notices are displayed and will afford all employees the opportunity to see the poster.

For those employers having 50 or more employees, section 46a-54-204 describes details of the nature of the two-hour mandatory training and the content.
The training must be experiential and include role-playing exercises, group discussions, and behavior modeling to facilitate understanding of what constitutes sexual harassment and how to prevent it.

CALIFORNIA:

The California Fair Employment and housing Commission recently issued proposed regulations on harassment training and education. These regulations were issued for public comment and the meetings have now transpired.

The Commission's proposed regulations provide that an employer can use one of the following methods to train employees:
1.classroom training
2.webinar
3.e-learning

The primary key is that the program is "interactive" requiring active participation of the supervisor being trained to insure the supervisor is engaged and learning the material.

Such training according to the Fair Employment and Housing Commission's proposed regulations must include the opportunity to ask questions and have them answered and testing that measures progress and acquisition of the subject matter. E-learning and webinars shall incorporate feedback or a participation component at least every 15 minutes, so that employees are measurably engaged.

In addition, for those California employers who might have missed the compliance deadlines, comments were obtained from DFEH's Administrative Director, Ms. Suzanne Ambrose, Director, Department of Fair Employment, and Housing:

"As to AB 1825, any employer who missed the January 1 compliance deadline should provide the training as soon as possible since there is no process for obtaining an extension of time or grace period built into the statute. For every day that passes, the employer runs the risk that an employee will file a complaint with the DFEH or the EEOC and, during the course of the investigation, the noncompliance will be revealed. So it is better that the employer provide the training sooner than later. Additionally, complying as quickly as possible shows good faith on the employer's part of a desire to get into a posture of compliance, albeit a tardy one."

How is your company sexual harassment prevention policy? Is it in order? Do those within your company know the procedure for filing a complaint?
Your company can minimize the number of sexual harassment claims by:

1. Drafting and publicizing an anti sexual harassment policy;
2. Implementing a procedure for employees to follow if they feel they have been the victim of sexual harassment; and
3. Conducting company wide sexual harassment prevention trainings.

Does AB 1825 require training only to California Supervisors? The answer is no.

For those employers based outside of California, they may have mistakenly assumed the law did not apply to them. The proposed regulations clarify the scope of the California law sees to imply that supervisors need not be in California. If they supervise California employees, those supervisors physically located outside of California must be trained!

Case study: courtesy of the DFEH:

Workplace Harassment: Court Upholds $1.9 Million Jury Verdict for Gay Employee

Bruce Hope, a gay man, who was diagnosed as HIV-positive, began work as a cook at the California Youth Authority's Fred C. Nelles Youth Correctional Facility (Nelles) in Whittier. As the diagnosis did not affect his job performance, and he took medication, this was not disclosed at the time of hire.

Over the next five years, Hope was continually harassed and he was subjected to offensive names, none of which will be mentioned here, by an array of supervisors. The harassment continued and the harasser was relentless. Although Mr. Hope complained, the supervisor taunted him and did not take seriously any of his verbal or written complaints.

Although Bruce Hope complained to many supervisors, and several of them witnessed the name-calling and harassment, no action was taken. When confronted, the harasser denied Mr. Hope's charges. Besides the name-calling and threats, Mr. Hope was also subjected to adverse personnel actions, including having a promotion revoked and being denied a raise, because his working relationship with staff and wards was allegedly "substandard."

Eventually, however, as the harassment continued from the supervisor and the wards, Bruce Hope was placed on a medical leave of absence. Bruce Hope sued the California Youth Authority (CYA), for harassment based on his sexual orientation. A jury returned a $1,917,000 verdict, plus attorney's fees, for Hope. CYA appealed, arguing there was not enough evidence to support the jury's verdict.

A California appeals court has now upheld the entire verdict. The court pointed to evidence of name-calling by Hope's immediate supervisor. Mr. Hope's supervisor called him names on hundreds of occasions, encouraged the wards to harass him, and treated Hope cruelly. Hope had reason to fear a physical attack by the wards, said the court, because the supervisor's conduct-including tearing up Hope's written complaints conveyed to them that Hope was not protected by the system. In addition, Hope was denied a merit raise because he had disagreements with two supervisors, who, said the court, were the specific individuals who were calling him names.

The court went on to find extensive evidence that CYA knew about the harassment-from Hope's complaints and the witnessing of the harassment by certain supervisors-but failed to take immediate corrective action to stop it.

The case of Bruce Hope demonstrates the fact that employers need to view training as critical. Conduct antiharassment training if you have not yet done so. Make sure that this training makes clear that all forms of harassment in your workplace is prohibited, ZERO TOLERANCE!

Require all workers to attend refresher training sessions periodically, or as prescribed by state law. Also, make sure employees and managers know they can be held personally liable for harassment.

************************************************************************ 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.