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Though differences exist in the categories each identifies, Federal and
State laws, as well as local ordinances, collectively prohibit discrimination
in employment because of the following: sex, sexual orientation, race,
color, religious creed, marital status (domestic partner), national origin
(including language limitations), ancestry, medical conditions (cancer/genetic
characteristics), age (40 and above), disability (mental and physical,
including HIV and AIDS.)
Sexual harassment, a form of sex discrimination, violates Title VII of
the Civil Rights Act of 1964, the California Fair Employment and Housing
Act and the Unruh Civil Rights Act. Employers may be held liable for illegal
discriminatory behavior of their employees, particularly of their supervisory
personnel.
The following changes in the California law became effective
January 1, 2004:
- The State's definition of "sex" includes "gender," and extends that definition to include the employer's perception of the employee's sex, identity, appearance or behavior, whether or not these differ from that traditionally associated with sex at birth.
- Employers may be
liable for harassment of their employees committed by non-employees,
such as vendors or clients.
The following changes in the California law become effective January 1, 2005:
- Domestic partners are to be granted most rights and responsibilities of married spouses.
- Distinctions
between spouses and registered domestic partners in employer policies
must be eliminated, particularly in policies that relate to nepotism or
romantic relationships, or policies that cite (the word) "marriage."
The 175,000 member Society for Human Resource Mangement stated in their Legal
Report, July-August 2002 that: "Sexual harassment claims filed in
the last decade exploded in number. In 1990, employees filed over 6,000
claims. By 2000, the annual number of claims filed skyrocketed to almost
16,000. . . . In the face of the these trends, attention-grabbing headlines
of lotto-like, multi-million dollar settlements and judgments due to harassment,
discrimination, and other employment law violations are a weekly occurrence."
To comply with the law and to lessen exposure to monetary damages due
to harassment, conflict of interest, exploitation, favoritism and bias,
employers have developed policies and practices to discourage and/or prohibit
inappropriate behavior related to discrimination and sexual harassment,
to nepotism and to consensual, romantic relations between supervisors
and subordinate employees. The law provides employers considerable discretion
to structure policies as they wish.
The EEOC, the DFEH, as well as legal and personnel management firms with
extensive experience in providing advice and training to employers, believe
comprehensive, strong and consistently enforced policies against sexual
and other forms of harassment along with a well defined, regularly implemented
training program for all employees, particularly supervisors, will foster
trust and build a harmonious and productive work environment. Further
benefits may include improved morale, decreased turnover, and a lessening
of employers' risk of a potentially devastating punitive damage award
for failure to comply with the law.
To accomplish these ends, the EEOC, the DFEH, and employment consultants
suggest that employers utilize information available to develop and implement
clearly written, well organized anti-harassment policies and practices
that:
- reflect current law;
- convey strong employer disapproval of discriminatory behavior against anyone in the workplace (co-workers, supervisors or non-employees);
- express strong disapproval of retaliatory behavior;
- define harassment and provide examples of prohibited conduct;
- describe obligations and responsibilities of non-employees and employees, particularly supervisory employees;
- indicate how policies will be communicated, reviewed, and updated with employees;
- define employees'
right to a fair hearing, confidentiality, notification and
representation.
In addition, these policies should identify two sets of clear and comprehensive procedures. The first set of procedures set forth in the policies available to employees should cover complaints, including:
- how and with whom to file a complaint;
- appropriate timelines;
- provisions for an informal, early resolution of a complaint;
- alternative points of management contact for the initial complaint;
- the requirement that upper management be made aware of all complaints;
- opportunities to obtain advice and counseling;
- alternative
filing options with EEOC and DFEH.
The second set of procedures should specify investigation and resolution procedures for the prompt handling of complaints, including:
- appropriate timelines;
- the manner in which data will be gathered and findings determined;
- remedies and discipline that might be applied;
- when and how findings and recommended actions will be communicated to the complainant and the accused;
- how findings and decisions can be appealed;
- how records of the investigation and outcomes will be maintained;
- follow-up
procedures.
Employers should provide anti-harassment training to all employees
at all levels in the workplace. Employers should also be aware of the
potential for actual or perceived conflict of interest, sexual harassment,
exploitation, favoritism or bias that can occur as a result of supervisory
relationships in the workplace between romantically involved employees,
relatives, domestic partners and significant others.
San Mateo County and each city within the County have
the required discrimination/sexual harassment policies. However, County
and city information related to discrimination and sexual harassment (complaints
and the process of responding to them) does not always appear in a single
document. The tone, content and comprehensiveness of the policies vary
considerably. Collectively, policies incorporate some of the suggestions
referenced above, Individually, some policies add additional language
to include:
- vendors, consultants and volunteers involved in County or city activities;
- protection of employees from harassment by non-employees;
- a more descriptive delineation of those protected by statute from discriminatory treatment, (i.e., race, color, sex, religion, etc.);
- responsibilities of employees, as they may differ by job title to reduce, eliminate, and respond to inappropriate harassing behavior;
- complaint reporting, particularly when concerns involve an individual's direct supervisor;
- investigation procedures and issue resolution;
- how complaints can be filed with state and federal agencies;
- employees' rights (confidentiality, fair hearing, representation, appeal, notification, non-retaliation);
- notice of when
policies were created and/or updated.
Of the policies reviewed, the Grand Jury found only a few that:
- describe how employees can obtain anonymous counseling or advice through employee programs and independent third parties;
- delineate in detail a process for the early and informal resolution of complaints;
- provide reporting and investigation timelines;
- require employees, at the time of employment, to verify they have read the employer's harassment policies and will abide by its conditions;
- include complaint filing forms;
- discourage
romantic or sexual relationships between supervisors and subordinate
employees.
Brisbane, Foster City and San Carlos have comprehensive anti-harassment policies. The County and half of the cities have policies covering nepotism. Only the nepotism policies of Redwood City and Portola Valley include references to domestic partners. The County's EEO Policy affirms the right to speak another language freely without threat of discrimination or reprisal.
The County and a number of cities indicate they discourage and take steps to restrict consensual romantic relationships between supervisors and the employees they supervise, but have not adopted policies in this regard. The County and all but two cities provide harassment awareness training at varying time intervals for all employees. Not all cities provide additional training for supervisors.
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