Yesterday, we looked at the first 5 of Lyne Richardson and Jolina Abrena’s tips for minimizing potential liability for discrimination and harassment at your workplace. Today, the rest of the top 10, plus an introduction to a streamlined, yet comprehensive, A.B. 1825 training resource.
Richardson and Abrena are attorneys at the Los Angeles office of Ford & Harrison, LLP
6. Know what retaliation is
Unlawful retaliation occurs when an employer discriminates against a person for opposing any practice that is prohibited by the FEHA or because he has filed a complaint or has testified or assisted in any proceeding under the Act. Further, the FEHA prohibits you from preemptively discharging or otherwise discriminating against an employee who threatens to file a discrimination complaint.
An employee isn’t required to use legal terms or buzzwords when opposing discrimination. An employee also opposes unlawful conduct when he reasonably and in good faith believes the conduct is discriminatory. However, a complaint about personal grievances or vague remarks that don’t put you on notice of what alleged discriminatory or harassing conduct you should investigate doesn’t rise to the level of activity protected under the FEHA.
In Yanowitz v. L’Oreal USA, Inc., the California Supreme Court noted the FEHA doesn’t require an employer’s retaliatory act to be taken in one swift blow. Rather, it can be a series of subtle yet damaging injuries. The court found that a series of separate retaliatory acts collectively may constitute an adverse employment action even if some of the individual injuries might not be enough to sustain a retaliation lawsuit.
7. Know how disabled employees are protected
The FEHA prohibits two types of disability discrimination: (1) disparate treatment discrimination, in which an employee is treated differently because of his disability or medical condition, and (2) disparate impact discrimination, in which an employer’s facially neutral practice or policy has a disproportionate effect on disabled employees.
For example, in Roby v. McKesson Corp ., to permit advance planning by supervisors and ensure adequate staffing on a daily basis, the employer adopted an attendance policy that required 24-hour advance notice for all absences. Charlene Roby, a customer service liaison, suffered from unpredictable panic attacks that temporarily restricted her ability to do her job. McKesson strictly applied the attendance policy and terminated Roby because she missed work 11 times over 15 months without the required 24-hour notice.
The court noted that the employer’s wrongdoing was a failure to prevent the foreseeable discriminatory consequences flowing from its otherwise appropriate attendance policy.
8. Know about the interactive process, reasonable accommodations
The FEHA also requires you to timely engage in a good-faith interactive process in response to a disabled applicant or employee’s request for accommodation. You are also required to provide a reasonable accommodation for the known disability unless it would cause an undue hardship.
A simple, affordable solution to your A.B. 1825 training obligations.
The burden is on the disabled employee to initiate the interactive process and request an accommodation. However, he isn’t required to use any “magic” words or specifically ask for a “reasonable accommodation.”
No exhaustive list of reasonable accommodations exists. You may satisfy your duty to reasonably accommodate by restructuring a job, modifying a work schedule, providing a leave of absence, or reassigning the employee to an open position for which he is qualified.
In addition, you must reasonably accommodate an employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program. You aren’t required, however, to provide accommodations such as excusing or waiving a positive drug screen for an employee who uses medical marijuana.
You may choose between effective accommodations, i.e., the less expensive accommodation or the accommodation that is easier to provide. Further, you aren’t required to create a new position or promote the disabled employee. You also aren’t required to make a temporary position permanent.
In Milan v. City of Holtville, the employer wasn’t liable for failing to either engage in the interactive process or offer a reasonable accommodation because the injured employee didn’t inform it that she wanted to keep her job during an 18-month leave and she accepted rehabilitation and retraining benefits from its workers’ compensation administrator during those months.
9. Know what is at stake
If you are found liable for harassment or discrimination under the FEHA, the successful employee may receive economic damages (i.e., back pay and front pay), noneconomic damages (e.g., for emotional distress), reasonable attorneys’ fees, interest, and costs incurred in filing the civil lawsuit.
Also, he or she may potentially receive a punitive damages award in connection with her FEHA claim if she proves you acted with malice, oppression, or fraud under California Civil Code Section 3294.
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10. Know how to minimize potential liability
To prevent harassment and discrimination, you should maintain an antiharassment/antidiscrimination policy and complaint procedures and distribute them to all employees. You also should provide harassment training to supervisors. In addition, prominently display the California Department of Fair Employment and Housing poster regarding harassment and discrimination in an easily accessible area in the workplace.
In response to a harassment complaint, you should promptly investigate the matter, insulate the employee from further contact with the alleged harasser, take corrective action (if appropriate), and inform the employee that appropriate action was taken.
For an adequate investigation, you must act in good faith and listen fairly to both sides. If the proof of harassment is weak and disputed, however, you aren’t required to take formal disciplinary action simply to prove that you are serious about stopping sexual harassment in the workplace.
Stop Sexual Harassment: Training for California Supervisors
The U.S. Supreme Court has identified prevention training as an affirmative defense for employers facing sexual harassment claims. And, the state of California has mandated harassment prevention training for supervisors.
But what’s the smart way to train your organization’s supervisors without a huge investment of time, money, and preparation?
The answer is Stop Sexual Harassment: Interactive Training for Supervisors. This complete training program gives you everything you need to conduct training that’s authoritative, attention-grabbing, and best of all, helps you protect your organization against devastating lawsuits.
To conduct training with Stop Sexual Harassment, you only need a DVD player and TV, or a computer capable of playing DVDs. What makes the fully revised and updated Second Edition of Stop Sexual Harassment your best resource for maintaining a safe and productive workplace? Unlike other training programs, the comprehensive kit is:
- Simple. For you and your staff. In just two hours, your team learns what constitutes harassment, why they need to stay vigilant, and how to react if they are approached with a complaint. And you’ll meet your training obligations under California law.
- Engaging. Professional actors depict real scenarios from the workplace, not the unrealistic, wooden or even absurd vignettes used in other programs.
- Authoritative. Each scenario is followed by frank and easily understood commentary from leading employment law authorities Mark Schickman and Linda Walton, each with over 20 years of experience counseling employers.
- Cost-effective. The complete turnkey training solution lets you train as many supervisors as you need to for one low price, then as needed as your operation expands and your management team changes. No per-user cost or expensive annual fee.
- Convenient. Conduct training as it fits your organization’s schedule, not that of some busy consultant.
Click here to view a sample vignette from the program.
As with all of our products, your satisfaction is 100% guaranteed, so order this valuable training resource today.
Download your free copy of Training Your New Supervisors: 11 Practical Lessons today!