September 16, 2014
Final Reports

2003-2004 Report:

Workplace Relationship Policies

Summary | Issue | Background | Findings | Conclusions | Recommendations | Responses

Summary:

Sexual harassment at work remains a pervasive problem in American workplaces. The number of harassment complaints filed with the Federal Equal Employment Opportunity Commission (EEOC) and the State Department of Fair Employment and Housing (DFEH) has risen significantly in recent years. Average settlement costs related to such complaints are very high and the negative effect they have on workplace staff morale is significant.

The U.S. and California Supreme Courts have imposed on employers the duty to take positive steps to prevent and correct promptly sexually harassing behavior. These steps include establishing, publicizing and enforcing anti-harassment polices and implementing effective training programs.

The 2003-2004 San Mateo Grand Jury reviewed the sexual harassment and discrimination policies and practices of the County and all cities in the County. It found that not all policies and practices are in compliance with current Federal and State laws or follow guidelines suggested by the EEOC and DFEH, or advisory management and legal specialists. Policies throughout the County vary considerably in content and comprehensiveness and practices in depth and consistency of application.

Issue:
Do workplace relationship policies and their implementation adequately protect the County and the cities within the County from legal liability exposure under laws covering harassment?
 
Background:

The Grand Jury received an anonymous complaint of sexual harassment and reviewed the sexual harassment and practices of the city named in the complaint. This city provides detailed information to employees regarding the filing of a sexual harassment complaint with the U. S. Equal Employment Opportunity Commission (EEOC) and the California State Department of Fair Employment and Housing (DFEH). The anonymous nature of the complaint precluded further investigation of that specific complaint, but suggested a broader issue, which the Grand Jury pursued.

Information about sexual harassment laws and employer responsibilities and liabilities obtained while researching the complaint prompted the Grand Jury to initiate a study of the current discrimination and sexual harassment policies and practices of San Mateo County and the cities within the County. The County and each city within the County were sent a questionnaire. The Grand Jury reviewed policies and training procedures related to discrimination, sexual harassment, nepotism, and romantic relationship in the workplace, along with documents provided by the EEOC, the DFEH and many professional, legal, and employment organizations. In addition, the Grand Jury interviewed management from the County and three cities of varied sizes.

Findings:

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.

Conclusions:

Some cities have a substantial discrimination/sexual harassment liability risk because they do not have adequate discrimination/sexual harassment policies, and do not provide regular employee awareness and supervisor training.

Not all city policies reflect current state and federal laws and recommendations of the EEOC, the DFEH and legal and professional personnel specialists.

Regular reviews of harassment policies and practices are not made by all cities in the County.

Neither the County nor all cities have developed a comprehensive single document covering discrimination/sexual harassment. Many cities do not provide training at regular intervals. Some city policies and practices are not likely to encourage employees to report incidents of harassment or discrimination.


Recommendations:

The Board of Supervisors and the City Councils of each city in San Mateo County, should:

1. By July 1, 2004, review and update all policies related to discrimination/sexual harassment, taking in to consideration recent court decisions and new State laws.

2. Before September 1, 2004, adopt policies to provide, if current policies do not already do so,

  • annual policy reviews;
  • harassment awareness training to all employees within six months of hire and not less than each three years thereafter;
  • harassment response training to supervisors within six months of hire and not less than each two years thereafter.

3. Include the date of creation and any revision on each page of its harassment policies.

4. Include a requirement that employees be notified of all substantive changes in any harassment policy within 30 days of the effective date of the change.

5. Before September 1, 2004, formalize into written policy any unwritten, informal expectations and practices related to nepotism and romantic relationships.

6. Before September 1, 2004, to the extent not presently in existing policies, consider incorporating explicit language into current discrimination/sexual harassment policies that reflect the "best practice" recommendations referred to in this report, particularly those that promote trust and lessen anxiety and provide employees reason to believe that complaints will be handled promptly and fairly.

Response
© 2014 Superior Court of San Mateo County