Sample Sexual Harassment and Abusive Conduct Prevention Training

 
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Sample Sexual Harassment and
Abusive Conduct Prevention
Training
 
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During this training we will:
 
1.
Review the elements of sexual harassment and the
remedies available to victims of sexual harassment
under both California and federal laws.
2.
Discuss other forms of unlawful harassment.
3.
Consider strategies for preventing and responding to
unlawful harassment.
4.
Address concerns regarding abusive conduct in the
workplace.
 
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1.
Individuals can be personally liable for sexual
harassment. True/False
2.
Volunteers and unpaid Interns are not protected against
sexual harassment. True/False
 
 
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1.
Individuals  can be personally liable for sexual
harassment. 
TRUE
2.
Volunteers and unpaid Interns are not protected against
sexual harassment. 
FALSE
 
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Employees
Applicants
Contractors
Volunteers
Unpaid Interns
 
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Every employer or prospective employer.
Every person in the workplace: supervisor,
subordinate, or co-worker found liable for sexual
harassment is personally liable for the damages
caused by the unlawful harassment.
 
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The individual harasser is personally liable for the damages
caused by his or her unlawful actions.
 
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An employer is strictly liable for the unlawful harassment
by its supervisors and agents.
 
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A person qualifies as a supervisor for purposes of the
California Fair Employment and Housing Act (FEHA) if
they had the discretion and authority (a) to hire, transfer,
promote, assign, reward, discipline, or discharge other
employees, or effectively recommend any of these
actions; (b) to act on the grievances of other employees
or to effectively recommend action on grievances; or (c)
to direct the claimant’s daily work activities.
 
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Employers can be liable for harassment by non-supervisory
employees if the employer knew or should have known
about the harassing behavior and failed to take immediate
and effective corrective action.
 
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Sexual harassment is defined by case law in two ways:
 
1.
Quid Pro Quo
A.
Demanding sexual favors in exchange for
employment benefits
B.
Demanding sexual favors by threatening negative
employment actions; OR
 
2.
Hostile Work Environment
A.
Harassing behavior directed toward the complainant
B.
Harassing behavior witnessed by the complainant
C.
Widespread sexual favoritism that infects the
workplace creating a hostile or abusive environment
 
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Injunctive Relief
Training
Development or changes in policies/procedures
Economic Damages
Lost wages
Medical expenses
Job search expenses
Non-Economic Damages
Emotional Distress
Loss of Enjoyment of Life
Punitive Damages
 
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1.
The promise of reward or threat of punishment in
exchange for sexual favors must be explicit in order to
constitute quid pro quo sexual harassment. True/False
2.
An employee who gives in to the demand for sex in
order to avoid negative consequences forfeits his or her
claim for quid pro quo sexual harassment. True/False
3.
If the alleged harasser denies the charge, a claim for
sexual harassment cannot be successful without a
neutral witness or documentary evidence supporting
the complainant’s accusations. True/False
 
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1.
The promise of reward or threat of punishment in
exchange for sexual favors must be explicit in order to
constitute quid pro quo sexual harassment. 
FALSE
2.
An employee who gives in to the demand for sex in
order to avoid negative consequences forfeits his or her
claim for quid pro quo sexual harassment. 
FALSE
3.
If the alleged harasser denies the charge, a claim for
sexual harassment cannot be successful without a
neutral witness or documentary evidence supporting
the complainant’s accusations. 
FALSE
 
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The essence of a quid pro quo sexual harassment
claim is that a supervisor relies on his or her
apparent or actual authority to extort sexual
favors from an employee.
The threat may be expressed or implied.
 
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Blake, the sole proprietor of Acme Co., has decided to
expand and compete for state contracts. Blake hires Jack,
an independent contractor, to install a computer network.
Jill responds to Blake’s Craigslist ad for an office manager.
Blake threatens to sue Jack for breach of contract unless
Jack agrees to engage in sexual activity.
Blake also tells Jill the job is hers if she agrees to have sex.
 
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Choose the best answer:
 
A.
Jack can’t sue Blake because he is an independent
contractor.
B.
Jill can’t sue Blake because Acme Co. has fewer than five
employees.
C.
Jack can’t sue Blake because he is a man.
D.
Jack and Jill can sue Blake for quid pro quo sexual
harassment.
E.
Jack can sue Blake for quid pro quo sexual harassment
but Jill cannot.
 
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Jack and Jill can sue Blake for quid pro quo sexual harassment.
 
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Sara is the Deputy Director of a state agency. She approaches
Nancy, an office technician, and says, “Hi Nancy. I’ve seen you
at the gym. You seem to have a great time in Zumba! And so
sexy! Nancy, I’d love to take you to Tahoe this weekend. Just
the two of us.” Nancy is stunned and intimidated by the
attention. She says, “Well Sara, I’m flattered, but I’m not
interested.” Sara smiles wanly and says, “Well, I had to ask.
You are just so sexy. But I get it. I’ll leave you alone.” Sara does
not proposition or engage in any unwelcome conduct toward
Nancy again. Three months later Nancy is late to work for
three days and her supervisor threatens to deny her MSA if
she is late again.
 
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Choose the best answer:
 
A.
Nancy can establish a claim for quid pro quo sexual
harassment because Sara should never have asked a
subordinate on a date.
B.
Nancy cannot establish a claim for quid pro quo sexual
harassment because there is no evidence that she is a
lesbian.
C.
Nancy’s claim for quid pro quo sexual harassment is
weak because there is no evidence that Sara was
offering job benefits if Nancy said yes, or threatening
punishment if Nancy said no.
 
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C.
 
Nancy’s claim for quid pro quo sexual harassment is weak
because there is no evidence that Sara was offering job
benefits if Nancy said yes, or threatening punishment if
Nancy said no.
 
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1.
To prove hostile work environment sexual harassment,
the complaining party does not need to show that they
suffered an adverse employment action. True/False
2.
To prove hostile work environment sexual harassment,
the complaining party must show that they were
subjected to unwanted sexual attention that was both
severe and pervasive. True/False
 
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1.
To prove hostile work environment sexual harassment,
the complaining party does not need to show that they
suffered an adverse employment action. 
TRUE
2.
To prove hostile work environment sexual harassment,
the complaining party must show that they were
subjected to unwanted sexual attention that was both
severe and pervasive. 
FALSE
 
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The courts have recognized three varieties of hostile work
environment sexual harassment:
 
1.
Hostile Work Environment – Conduct Directed at
Claimant.
2.
Hostile Work Environment – Conduct Directed at Others.
3.
Hostile Work Environment – Widespread Sexual
Favoritism.
 
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Harassing conduct includes unwanted sexual advances that
can be:
 
Verbal
Visual
Physical
 
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Foul or obscene language
Derogatory comments
Explicit discussions about sexual activities
Comments about other people’s physical attributes
 
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Leering
Staring
Making sexual gestures
Displaying sexually explicit objects, pictures, cartoons,
graffiti, or posters
Sending graphic emails, text messages, or jokes
 
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Kissing
Hugging
Grabbing
Impeding or blocking movement
Assault
 
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Tamika starts as a supervisor for the Commission in Yuba
County. The other four supervisors and all the field crews at
the Yuba County office are men. Eve, the District
Administrator does not think women should be field
supervisors and resents that headquarters is “forcing an
affirmative action case” on her office.
Eve tells the other supervisors and crew members, “the field
is no place for a woman.” She  tells Tamika’s crew to “keep
an eye on her” and “use your own judgment in the field.”
During office meetings, around the office, and in emails, Eve
consistently refers to Tamika as “little one,” “Wonder Girl,”
“Oprah Jr.,” and similar names.
Tamika tells Eve she is undermining her but Eve tells her to
“grow a pair or you’ll never make it out there.”
 
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Choose the best answer:
 
A.
Eve’s use of diminutive nicknames and undermining of
Tamika’s authority is OK because Tamika needs to
demonstrate the ability to supervise men in what can be
an inherently crude environment.
B.
Eve’s nicknames and statements undermining Tamika’s
authority have created a hostile work environment.
C.
Because Eve has no interest in Tamika sexually, her hostile
behavior is not actionable as sexual harassment.
 
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Eve’s nicknames and statements undermining Tamika’s
authority have created a hostile work environment.
 
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Warren, a member of Tamika’s crew, frequently refuses to
follow her orders, saying, “your boss told me to use my own
judgment.” Warren and Ben routinely interrupt team
meetings by burping, talking and laughing. They insincerely
offer “apologies to your ladyship.”
Frank tells Warren and Ben, “leave my gal alone.” Frank
repeatedly comments on Tamika’s appearance saying things
like, “you are the hottest boss I’ve ever had, ” and, “dollface,
you can tell me what to do whenever and wherever you
want.” He repeatedly asks her out even though Tamika makes
clear she is happily married.
Tamika is afraid to call Eve on her behavior, but complains
about the treatment by her crew. Eve takes her written
complaint but takes no action.
 
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Choose the best answer:
 
A.
Frank cannot be found liable for hostile work
environment sexual harassment because he is defending
Tamika.
B.
Warren and Ben are not liable for sexual harassment
because there is no evidence that their disruptive actions
are substantially motivated by Tamika’s sex. Besides, their
actions are neither severe nor pervasive.
C.
The Commission is liable for the sexual harassment of
Warren, Ben and Frank because management knew or
should have known of their behavior.
 
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C.
 
The Commission is liable for the sexual harassment of Warren,
Ben and Frank because management knew or should have
known of their behavior.
 
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To be actionable, the unwanted behavior must be “severe
or pervasive” and alter the conditions of employment to
the extent that it creates a hostile or abusive work
environment.
 
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The nature of the conduct.
The frequency of the conduct.
The period of time over which it occurred.
Whether the conduct was physically threatening or
humiliating.
The extent to which the conduct unreasonably interfered
with an employee’s work performance.
 
39
 
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Cody is a unit supervisor for the Board.
Drew, an office technician, sits in a row of five open
workstations right outside Cody’s office.
On Drew’s first day, Cody gives Logan, another office
technician, a lingering hug and kiss on the lips. Cody says,
while looking Drew up and down, “welcome to Cody’s World.
If you remember just one rule: what Cody wants, Cody gets,
you’ll have a bright future here.” The next day, Logan arrives
early to work to be seated before Cody arrives, but Cody
starts rubbing Logan’s shoulders and says, “you can’t stay
seated forever.” Drew sees and hears these interactions.
Logan tells Drew what is happening and Drew says, “just get
over it.”  Drew starts losing sleep and misses work because of
Cody’s mistreatment of Logan.
 
 
40
 
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Choose the Best Answer:
 
A.
Drew cannot state a claim for hostile work environment
because Drew told Logan not to complain.
B.
Drew has personally witnessed Cody’s harassment of
Logan and, therefore, can sue Cody and the Board for
sexual harassment due to a hostile work environment.
 
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B.
 
Drew has personally witnessed Cody’s harassment of
Logan and, therefore, can sue Cody and the Board for
sexual harassment due to a hostile work environment.
 
42
 
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Cody and two office technicians, Parker and Rachel, are
openly in a sexual relationship. Cody regularly calls them to
the office for “special consultations.” Their sexual congress is
audible through the door.
Cody gives Parker and Rachel preferred shifts, bonuses, and
training denied to others. Cody allows Parker and Rachel to
use Drew, Logan, and Timothy, another office technician, to
do their work and run personal errands for them.
Drew, Logan, and Timothy are disgusted but work together to
make sure they excel at all assignments.
 
43
 
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Choose the best answer:
 
A.
Drew and Logan can successfully maintain a sexual
harassment/hostile work environment – widespread
sexual favoritism claim against Parker and Rachel but
not Cody.
B.
Timothy, who has never been harassed by Cody,
cannot maintain a successful action for sexual
harassment/hostile work environment – widespread
sexual favoritism.
C.
Drew, Logan and Timothy can successfully sue Cody,
Parker, Rachel and the Board for sexual harassment/
hostile work environment – widespread sexual
favoritism.
 
 
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C.
 
Drew, Logan, and Timothy can successfully sue Cody, Parker,
Rachel, and the Board for sexual harassment/ hostile work
environment – widespread sexual favoritism.
 
45
 
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1.
Sexual desire is a key element to any claim for sexual
harassment.  True/False.
2.
An employee can file a claim for sexual harassment even if
the supervisor took no adverse employment action (e.g.,
termination, failure to hire, demotion), against the
employee. True/False.
 
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1.
Sexual desire is a key element to any claim for sexual
harassment. 
FALSE
2.
An employee can file a claim for sexual harassment
even if the supervisor took no adverse employment
action (e.g., termination, failure to hire, demotion),
against the employee. 
TRUE
 
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It has been settled law for some time that “same sex”
sexual harassment is actionable under the FEHA.
 
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Recent legislation clarified existing law by expressly stating
that “Sexually harassing conduct need not be motivated by
sexual desire.” The legislation, SB 292 (Corbett) was
passed to repudiate the contrary decision in 
Kelley v.
Conco Companies 
(2011) 196 Cal.App.4th 191.
 
50
 
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The complainant does not have to have a tangible
economic loss or other adverse employment action.
The crux of a harassment claim is the assault on the
complainant’s personal sense of dignity and well-being.
 
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In California, if the employee does not take advantage of
the established internal complaint process, the employer
has a complete defense to an action for sexual
harassment. True/False
 
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In California, if the employee does not take advantage of the
established internal complaint process, the employer has a
complete defense to an action for sexual harassment. 
FALSE
 
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The common response to charges of sexual harassment is a
denial of the charges:
“It never happened.”
“There are no witnesses.”
“Look at how she dresses!”
“I am a hugger.”
“Ever hear of a woman scorned? If I don’t say she’s hot,
she’s not going to get the job done.”
 
 
 
 
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Sam, a senior supervisor for the Department calls Maggie
into his office. He tells her that if she’d like to avoid a bad
review she must perform a sexual act with him. He grabs
her and pushes her to the ground. Maggie manages to
escape Sam’s grasp and flees.
Jose sees Maggie running out of Sam’s office in distress
and thinks her blouse may have been partially off. Katie
sees Maggie in the restroom crying and fixing a tear in her
blouse. Maggie tells Katie about the attack. Sam abruptly
promotes Maggie.
Katie and Jose tell the Equal Employment Opportunity
(EEO) Officer what they saw and heard. Sam denies
anything happened. Maggie files a complaint with the
California Department of Fair Employment and Housing
alleging quid pro quo sexual harassment.
 
56
 
E
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G
 
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Choose the best answer:
A.
Sam is a senior executive and no one witnessed the
alleged unwelcome conduct so no one will believe
Maggie.
B.
Because Maggie was promoted she suffered no damages,
so there can be no claim for quid pro quo harassment.
C.
A reasonable investigator would conclude, based on
circumstantial evidence and credibility assessments, that
quid pro quo sexual harassment did occur.
 
57
 
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C.
 
A reasonable investigator would conclude, based on
circumstantial evidence and credibility assessments, that
quid pro quo sexual harassment did occur.
 
58
 
D
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L
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A
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t
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b
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t
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V
i
c
t
i
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1.
The victim could have avoided part or most of the harm if
they had taken advantage of the employer’s procedures
for addressing sexual harassment (Avoidable
Consequences Doctrine)
2.
The amount of harm to the victim could have been less if
the employee had taken action (Failure to Mitigate
Damages)
 
59
 
E
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H
 
ABC Co. provides all employees a handbook that details ABC’s
“zero tolerance” sexual harassment policy, and instructs
employees to call ABC’s HR Department immediately if they
experience or witness any sexual harassment.
Quinn, an ABC supervisor, walks by Pat’s desk and whispers to
Pat that he should “forget” to wear undergarments the next
day. Pat, shocked, pretends not to have heard. From then on,
Quinn whispers similar comments to Pat every opportunity
they are alone in the office. Pat does nothing, thinking it is
only a matter of time before Quinn, who is an incompetent
supervisor, is replaced. After six months, Quinn is terminated
for poor performance, at which point Pat recounts all of
Quinn’s past actions to a senior executive and asks the
manager to make sure the next supervisor is “less disgusting.”
 
E
x
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H
 
T
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s
t
 
Choose the best answer:
A.
Pat cannot sue anyone for sexual harassment because
six months have gone by and Pat waited until Quinn
was fired before anything was shared with
management.
B.
Pat can sue both Quinn and ABC, but ABC can try to
reduce the amount it must pay by arguing that the
harassment would have stopped if Pat called HR after
Quinn’s first comment.
C.
Pat can only bring a claim against Quinn. ABC is not
liable because Pat chose not to follow the instructions
in the employee handbook.
 
61
 
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A
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B.
 
Pat can sue both Quinn and ABC, but ABC can try to reduce
the amount it must pay by arguing that the harassment would
have stopped if Pat called HR after Quinn’s first comment.
 
62
 
63
 
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F
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L
A
W
S
 
T
r
u
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o
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F
a
l
s
e
 
Q
u
i
z
 
#
6
 
1.
Unpaid interns and volunteers are protected under
federal laws against sexual harassment. True/False
2.
California law is broader than federal law in providing
protection against sexual harassment. True/False
 
A
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s
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t
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o
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F
a
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Q
u
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#
6
 
1.
Unpaid interns and volunteers are protected under
federal laws against sexual harassment. 
FALSE
2.
California law is broader than federal law in providing
protection against sexual harassment. 
TRUE
 
F
e
d
e
r
a
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T
I
T
L
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V
I
I
 
Negligence theory only
[Employer not automatically
liable].
Employer not liable if:
Employer exercised
reasonable care; and
Employee unreasonably
failed to take advantage of
opportunities to avoid harm.
15 employees or more.
No application to
independent contractors,
volunteers and unpaid
interns.
 
C
a
l
i
f
o
r
n
i
a
 
F
E
H
A
 
Strict liability [Employer
automatically liable for
harassment by managers
and supervisors].
Employer has no defense if
manager or supervisor is
harasser.
All employers, even those
employing one person or
sole proprietors.
Includes independent
contractors, volunteers and
unpaid interns.
 
 
66
 
67
 
O
T
H
E
R
 
T
Y
P
E
S
 
O
F
 
H
A
R
A
S
S
M
E
N
T
 
T
r
u
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o
r
 
F
a
l
s
e
 
Q
u
i
z
 
#
7
 
1.
California law identifies 17 specific protected bases for
employment discrimination, harassment and retaliation.
True/False
2.
Sex, sexual orientation, gender, gender identity and
gender expression are all protected bases under the
FEHA. True/False
 
A
n
s
w
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t
o
 
T
r
u
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o
r
 
F
a
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Q
u
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z
 
#
7
 
1.
California law identifies 17 specific protected bases for
employment discrimination, harassment and retaliation.
TRUE
2.
Sex, sexual orientation, gender, gender identity and
gender expression are all protected bases under the
FEHA. 
TRUE
 
H
a
r
a
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s
m
e
n
t
 
B
a
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o
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A
n
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o
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T
h
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C
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e
r
i
s
t
i
c
s
 
i
s
 
I
l
l
e
g
a
l
 
1.
 
Race
2.
 
Color
3.
 
National Origin
4.
 
Sex
5.
 
Sexual Orientation
6.
 
Gender
7.
 
Gender Identity
8.
 
Gender Expression
9.
 
Religious Creed
 
10.
 
Mental Disability
11.
 
Physical Disability
12.
 
Medical Condition
13.
 
Military/Veteran
 
Status
14.
 
Marital Status
15.
 
Age
16.
 
Genetic Characteristics
17.
 
Ancestry
 
70
 
E
x
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I
 
Carl has been a manager for the Board for 5 years. Carl
approaches another manager, Terry, and tells him that she
identifies as a transgender woman and is beginning the process
of transitioning at work. From now on, Carl would like to be
called Kay, will be wearing clothing consistent with an identity
as a woman, and prefers the use of feminine pronouns.
As the weeks pass, Kay’s coworkers become accustomed to her
new name and appearance, but some of them inadvertently
refer to Kay as “Carl” and use the masculine pronoun “he,”
especially when telling stories about things that happened
before Kay’s transition. Usually, the coworkers quickly correct
themselves when this happens. Terry, however, pointedly says
“good morning, Carl,” when Kay passes by, and makes
comments like “nice dress, dude.”
Kay, embarrassed, says nothing to Terry or anyone else about
these comments for months.
 
71
 
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What advice would you give Kay?
A.
Kay should keep her head down and try to focus on
work. Not everyone is going to be comfortable with her
gender transition and she should expect some negative
comments and remarks.
B.
Kay has a claim for discrimination and harassment
because of gender identity and gender expression
against the Board because of Terry’s treatment of her, as
well as because of her coworkers’ occasional use of the
wrong name and pronoun. Those coworkers should be
reprimanded and notes placed in their files.
C.
Kay has a claim against Terry and the Board because of
Terry’s negative comments and purposeful, repeated
use of the wrong name and pronouns. Her coworkers’
occasional and accidental mistakes do not create a
situation of discrimination or harassment.
 
 
72
 
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C.
 
Kay has a claim against Terry and the Board because of
Terry’s negative comments and purposeful, repeated use of
the wrong name and pronouns. Her coworkers’ occasional
and accidental mistakes do not create a situation of
discrimination or harassment.
 
73
 
74
 
P
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M
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N
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T
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a
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Q
u
i
z
 
#
8
 
1.
The DFEH can seek injunctive relief to compel employers
to take all reasonable steps to prevent unlawful
discrimination without proving an underlying violation of
the FEHA. True/False
2.
The employer’s duty to take immediate, effective action in
response to a claim of sexual harassment only applies
where there is a credible report or threat of unwanted
physical contact. True/False
 
A
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F
a
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Q
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#
8
 
1.
The DFEH can seek injunctive relief to compel employers
to take all reasonable steps to prevent unlawful
discrimination without proving an underlying violation of
the FEHA. 
TRUE
2.
The employer’s duty to take immediate, effective action in
response to a claim of sexual harassment only applies
where there is a credible report or threat of unwanted
physical contact. 
FALSE
 
E
m
p
l
o
y
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s
 
M
u
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T
a
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e
 
A
l
l
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a
s
o
n
a
b
l
e
 
S
t
e
p
s
 
It is unlawful for employers to fail to take all reasonable
steps to prevent discrimination, harassment and
retaliation. A determination as to whether an employer
has complied with Government Code section 12940(k)
includes an individualized assessment dependent upon
numerous factors sometimes unique to the particular
employer, including, but not limited to: workforce size,
budget, nature of the business, and the facts of the case.
 
77
 
P
o
l
i
c
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&
 
P
r
o
c
e
d
u
r
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s
:
B
a
s
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S
t
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p
s
 
i
n
 
a
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I
n
v
e
s
t
i
g
a
t
i
o
n
 
The employer is obligated to conduct an effective workplace
investigation of a harassment complaint, and should:
Conduct a thorough interview with the complaining
party.
Give the accused party a chance to share their
perspective of the events.
Interview relevant witnesses.
 
78
 
P
o
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&
 
P
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:
B
a
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S
t
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p
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i
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a
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I
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s
t
i
g
a
t
i
o
n
 
Obtain all relevant documents.
Investigate all relevant avenues applicable to the
allegations.
Reach a reasonable and fair conclusion based on
the facts.
 
Supervisory Note:
Supervisors should be provided specific protocols
to follow should they be accused of harassment.
 
79
 
T
r
a
i
n
i
n
g
 
1.
Provide training as required by the law.
2.
Provide training even if it is not required by the law.
Implicit bias training
Interaction with certain groups
Bystander intervention
3.
Keep training records.
4.
Keep materials readily available in multiple formats
        (e.g., paper, online).
 
80
 
L
e
a
d
e
r
s
h
i
p
 
Policies and training must be reinforced by leadership.
The managers and supervisors must understand that their
adherence to the standards of the law and internal
policies is required.
Top management should model desired behavior and
provide appropriate support to managers and supervisors
on the front lines.
 
81
 
R
e
s
o
u
r
c
e
s
 
1.
California Department of Fair Employment and Housing –
www.dfeh.ca.gov
2.
Federal Equal Employment Opportunity Commission –
www.eeoc.gov
 
82
 
L
e
g
a
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R
e
f
e
r
e
n
c
e
s
 
(
1
 
o
f
 
4
)
 
California Government Code:
12940(j)(1):
Unlawful for an employer, labor organization,
employment agency, apprenticeship training program
or any training program leading to employment, or
any other person, because of race, religious creed,
color, national origin, ancestry, physical disability,
mental disability, medical condition, genetic
information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or
military and veteran status, to harass an employee, an
applicant, an unpaid intern or volunteer, or a person
providing services pursuant to a contract.
 
L
e
g
a
l
 
R
e
f
e
r
e
n
c
e
s
 
(
2
 
o
f
 
4
)
 
 12940(j)(4)(A):
For purposes of this subdivision only, “employer” means
any person regularly employing one or more persons or
regularly receiving the services of one or more persons
providing services pursuant to a contract, or any person
acting as an agent of an employer, directly or indirectly,
the state, or any political or civil subdivision of the state,
and cities.
 
L
e
g
a
l
 
R
e
f
e
r
e
n
c
e
s
 
(
3
 
o
f
 
4
)
 
California Government Code:
 12940(j)(4)(C):
For purposes of this subdivision, “harassment” because of
sex includes sexual harassment, gender harassment, and
harassment based on pregnancy, childbirth, or related
medical conditions. Sexually harassing conduct need not be
motivated by sexual desire.
 
L
e
g
a
l
 
R
e
f
e
r
e
n
c
e
s
 
(
4
 
o
f
 
4
)
 
 12940(k):
Unlawful for an employer, labor organization, employment
agency, apprenticeship training program, or any training
program leading to employment, to fail to take all
reasonable steps necessary to prevent discrimination and
harassment from occurring.
2 CCR 11203: Harassment and Discrimination Prevention and
Correction
 
87
 
A
B
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W
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C
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a
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Q
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#
9
 
1.
The Fair Employment and Housing Act makes it unlawful
to engage in behavior that a reasonable person in the
employee’s place would find demeaning. True/False
 
A
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t
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o
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a
l
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Q
u
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#
9
 
The Fair Employment and Housing Act makes it unlawful
to engage in behavior that a reasonable person in the
employee’s place would find demeaning. 
FALSE
 
A
b
u
s
i
v
e
 
C
o
n
d
u
c
t
 
Conduct in the workplace that a reasonable person would
find hostile, offensive and unrelated to an employer’s
legitimate business interests, including:
Repeated infliction of verbal abuse, such as the use of
derogatory remarks, insults, and epithets.
Verbal or physical conduct that a reasonable person
would find threatening, intimidating, or humiliating.
The gratuitous sabotage or undermining of a person’s
work performance.
 
A single act shall not constitute abusive conduct, unless
especially severe and egregious.
 
90
 
E
x
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i
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J
 
Jason is a new employee at the Authority and having difficulty
learning the office protocols. He asks his supervisor Ming for
assistance. In a loud, sarcastic voice, audible throughout the
open work station area, Ming tells Jason: “I’ve showed you
how to do this simple, simple, simply simple three simple step
procedure over and over and over. You should have been
paying attention. I won’t show you again!”
 
91
 
E
x
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i
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J
 
T
e
s
t
 
Choose the best answer:
A.
Jason can sue Ming for abusive conduct.
B.
Jason should have paid better attention earlier.
C.
Ming’s actions constitute abusive workplace conduct,
and can likely be disciplined for violation of workplace
behavior policies.
D.
Ming’s conduct exposes the Authority to liability for
unlawful discrimination.
 
92
 
E
x
e
r
c
i
s
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J
:
 
B
e
s
t
 
A
n
s
w
e
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C.
 
Ming’s actions constitute abusive workplace conduct, and can
likely be disciplined for violation of workplace behavior
policies.
 
93
 
E
x
e
r
c
i
s
e
 
K
 
Ming writes an email to Jason which reads:
“Jason, are all Irish mutts as stupid as you? What is it about
that thick potato head of yours that you can’t understand
the most simple, simple, simple instructions?”
 
94
 
E
x
e
r
c
i
s
e
 
K
 
T
e
s
t
 
Choose the best answer:
A.
Ming would likely be found personally liable for
harassment based on race, ancestry, national origin.
B.
The Authority is strictly liable for the harassment by
Ming, its supervisor.
C.
Jason can recover damages from Ming, personally.
D.
All of the above.
 
95
 
E
x
e
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c
i
s
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K
:
 
B
e
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t
 
A
n
s
w
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D.
 
All of the above.
 
96
 
N
o
 
I
n
d
e
p
e
n
d
e
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t
 
C
a
u
s
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o
f
 
A
c
t
i
o
n
 
Abusive conduct: “bullying” in and of itself is not a
violation of the FEHA unless it can be shown to have
been substantially motivated by a protected
characteristic.
Possible Ralph Act claim if violence or the threat of
violence is involved.  If so, DFEH does have jurisdiction
to investigate and litigate.
Possible non-FEHA claims: assault, battery, or
intentional infliction of emotional distress.
 
97
 
98
 
R
E
V
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W
 
L
e
a
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n
i
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O
b
j
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t
i
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e
s
 
R
e
v
i
s
i
t
e
d
 
We appreciate your participation and hope that we have
provided useful information regarding:
1.
The elements of sexual harassment and the remedies
available to victims of sexual harassment under
California and federal law.
2.
Other forms of unlawful discrimination, harassment,
and retaliation under the FEHA and other statutes
enforced by DFEH.
3.
Strategies for preventing and responding to unlawful
discrimination, harassment and retaliation.
4.
Abusive conduct in the workplace.
 
99
 
T
r
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e
 
o
r
 
F
a
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s
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Q
u
i
z
 
#
1
0
 
1.
An employer is strictly liable for sexual harassment
committed by a supervisor or agent. True/False.
2.
Only employers with 5 or more employees are liable
for sexual harassment under the FEHA. True/False.
3.
Sexual desire is a required element of a sexual
harassment claim. True/False.
 
 
100
 
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o
r
 
F
a
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Q
u
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#
1
0
 
1.
An employer is strictly liable for sexual harassment
committed by a supervisor or agent. 
TRUE
2.
Only employers with 5 or more employees are liable
for sexual harassment under the FEHA. 
FALSE
3.
Sexual desire is a required element of a sexual
harassment claim. 
FALSE
 
 
101
 
102
 
Q
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T
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S
/
D
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C
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I
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p
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a
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103
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This training focuses on understanding sexual harassment, unlawful harassment, and abusive conduct in the workplace. It covers legal aspects, learning objectives, laws against sexual harassment, quizzes, and information on who is protected and liable under the law.

  • Sexual Harassment Prevention
  • Abusive Conduct Training
  • Workplace Harassment
  • Legal Awareness
  • Employee Rights

Uploaded on Jul 27, 2024 | 0 Views


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  1. Sample Sexual Harassment and Abusive Conduct Prevention Training Note that this training is intended to be presented in Note that this training is intended to be presented in an interactive fashion by a qualified trainer. Trainer an interactive fashion by a qualified trainer. Trainer qualifications are listed at qualifications are listed at 2 CCR 11024 2 CCR 11024. . 1

  2. Learning Objectives Learning Objectives During this training we will: 1. Review the elements of sexual harassment and the remedies available to victims of sexual harassment under both California and federal laws. Discuss other forms of unlawful harassment. Consider strategies for preventing and responding to unlawful harassment. Address concerns regarding abusive conduct in the workplace. 2. 3. 4. 2

  3. OVERVIEW OF LAWS OVERVIEW OF LAWS AGAINST SEXUAL HARASSMENT AGAINST SEXUAL HARASSMENT 3

  4. True or False Quiz #1 True or False Quiz #1 1. Individuals can be personally liable for sexual harassment. True/False Volunteers and unpaid Interns are not protected against sexual harassment. True/False 2. 4

  5. Answer to True or False Quiz #1 Answer to True or False Quiz #1 1. Individuals can be personally liable for sexual harassment. TRUE Volunteers and unpaid Interns are not protected against sexual harassment. FALSE 2. 5

  6. Who is Protected by the Law? Who is Protected by the Law? Employees Applicants Contractors Volunteers Unpaid Interns 6

  7. Who is Liable Under the Law? Who is Liable Under the Law? Every employer or prospective employer. Every person in the workplace: supervisor, subordinate, or co-worker found liable for sexual harassment is personally liable for the damages caused by the unlawful harassment. 7

  8. Personal Liability of Harasser Personal Liability of Harasser The individual harasser is personally liable for the damages caused by his or her unlawful actions. 8

  9. Liability of Employer Liability of Employer An employer is strictly liable for the unlawful harassment by its supervisors and agents. 9

  10. Supervisor Explained Supervisor Explained A person qualifies as a supervisor for purposes of the California Fair Employment and Housing Act (FEHA) if they had the discretion and authority (a) to hire, transfer, promote, assign, reward, discipline, or discharge other employees, or effectively recommend any of these actions; (b) to act on the grievances of other employees or to effectively recommend action on grievances; or (c) to direct the claimant s daily work activities. 10

  11. Harassment by non Harassment by non- -supervisory employees employees supervisory Employers can be liable for harassment by non-supervisory employees if the employer knew or should have known about the harassing behavior and failed to take immediate and effective corrective action. 11

  12. Two Forms of Sexual Harassment Two Forms of Sexual Harassment Sexual harassment is defined by case law in two ways: 1. Quid Pro Quo A. Demanding sexual favors in exchange for employment benefits B. Demanding sexual favors by threatening negative employment actions; OR 2. Hostile Work Environment A. Harassing behavior directed toward the complainant B. Harassing behavior witnessed by the complainant C. Widespread sexual favoritism that infects the workplace creating a hostile or abusive environment 12

  13. Remedies Remedies Injunctive Relief Training Development or changes in policies/procedures Economic Damages Lost wages Medical expenses Job search expenses Non-Economic Damages Emotional Distress Loss of Enjoyment of Life Punitive Damages 13

  14. CLOSER ANALYSIS: QUID PRO QUO CLOSER ANALYSIS: QUID PRO QUO 14

  15. True or False Quiz #2 True or False Quiz #2 1. The promise of reward or threat of punishment in exchange for sexual favors must be explicit in order to constitute quid pro quo sexual harassment. True/False 2. An employee who gives in to the demand for sex in order to avoid negative consequences forfeits his or her claim for quid pro quo sexual harassment. True/False 3. If the alleged harasser denies the charge, a claim for sexual harassment cannot be successful without a neutral witness or documentary evidence supporting the complainant s accusations. True/False 15

  16. Answer to True or False Quiz #2 Answer to True or False Quiz #2 1. The promise of reward or threat of punishment in exchange for sexual favors must be explicit in order to constitute quid pro quo sexual harassment. FALSE 2. An employee who gives in to the demand for sex in order to avoid negative consequences forfeits his or her claim for quid pro quo sexual harassment. FALSE 3. If the alleged harasser denies the charge, a claim for sexual harassment cannot be successful without a neutral witness or documentary evidence supporting the complainant s accusations. FALSE 16

  17. Quid Pro Quo Explained Quid Pro Quo Explained The essence of a quid pro quo sexual harassment claim is that a supervisor relies on his or her apparent or actual authority to extort sexual favors from an employee. The threat may be expressed or implied. 17

  18. Exercise A Exercise A Blake, the sole proprietor of Acme Co., has decided to expand and compete for state contracts. Blake hires Jack, an independent contractor, to install a computer network. Jill responds to Blake s Craigslist ad for an office manager. Blake threatens to sue Jack for breach of contract unless Jack agrees to engage in sexual activity. Blake also tells Jill the job is hers if she agrees to have sex. 18

  19. Exercise A Test Exercise A Test Choose the best answer: A. Jack can t sue Blake because he is an independent contractor. B. Jill can t sue Blake because Acme Co. has fewer than five employees. C. Jack can t sue Blake because he is a man. D. Jack and Jill can sue Blake for quid pro quo sexual harassment. E. Jack can sue Blake for quid pro quo sexual harassment but Jill cannot. 19

  20. Exercise A: Best Answer Exercise A: Best Answer D. Jack and Jill can sue Blake for quid pro quo sexual harassment. 20

  21. Exercise B Exercise B Sara is the Deputy Director of a state agency. She approaches Nancy, an office technician, and says, Hi Nancy. I ve seen you at the gym. You seem to have a great time in Zumba! And so sexy! Nancy, I d love to take you to Tahoe this weekend. Just the two of us. Nancy is stunned and intimidated by the attention. She says, Well Sara, I m flattered, but I m not interested. Sara smiles wanly and says, Well, I had to ask. You are just so sexy. But I get it. I ll leave you alone. Sara does not proposition or engage in any unwelcome conduct toward Nancy again. Three months later Nancy is late to work for three days and her supervisor threatens to deny her MSA if she is late again. 21

  22. Exercise B Test Exercise B Test Choose the best answer: A. Nancy can establish a claim for quid pro quo sexual harassment because Sara should never have asked a subordinate on a date. B. Nancy cannot establish a claim for quid pro quo sexual harassment because there is no evidence that she is a lesbian. C. Nancy s claim for quid pro quo sexual harassment is weak because there is no evidence that Sara was offering job benefits if Nancy said yes, or threatening punishment if Nancy said no. 22

  23. Exercise B: Best Answer Exercise B: Best Answer C. Nancy s claim for quid pro quo sexual harassment is weak because there is no evidence that Sara was offering job benefits if Nancy said yes, or threatening punishment if Nancy said no. 23

  24. CLOSER ANALYSIS: CLOSER ANALYSIS: HOSTILE WORK ENVIRONMENT HOSTILE WORK ENVIRONMENT 24

  25. True or False Quiz #3 True or False Quiz #3 1. To prove hostile work environment sexual harassment, the complaining party does not need to show that they suffered an adverse employment action. True/False 2. To prove hostile work environment sexual harassment, the complaining party must show that they were subjected to unwanted sexual attention that was both severe and pervasive. True/False 25

  26. Answer to True or False Quiz #3 Answer to True or False Quiz #3 1. To prove hostile work environment sexual harassment, the complaining party does not need to show that they suffered an adverse employment action. TRUE 2. To prove hostile work environment sexual harassment, the complaining party must show that they were subjected to unwanted sexual attention that was both severe and pervasive. FALSE 26

  27. Three Varieties of Hostile Work Three Varieties of Hostile Work Environment Sexual Harassment Environment Sexual Harassment The courts have recognized three varieties of hostile work environment sexual harassment: 1. Hostile Work Environment Conduct Directed at Claimant. Hostile Work Environment Conduct Directed at Others. Hostile Work Environment Widespread Sexual Favoritism. 2. 3. 27

  28. Harassing Conduct Explained Harassing Conduct Explained Harassing conduct includes unwanted sexual advances that can be: Verbal Visual Physical 28

  29. Hostile Work Environment: Verbal Hostile Work Environment: Verbal Foul or obscene language Derogatory comments Explicit discussions about sexual activities Comments about other people s physical attributes 29

  30. Hostile Work Environment: Visual Hostile Work Environment: Visual Leering Staring Making sexual gestures Displaying sexually explicit objects, pictures, cartoons, graffiti, or posters Sending graphic emails, text messages, or jokes 30

  31. Hostile Work Environment: Physical Hostile Work Environment: Physical Kissing Hugging Grabbing Impeding or blocking movement Assault 31

  32. Exercise C Exercise C Tamika starts as a supervisor for the Commission in Yuba County. The other four supervisors and all the field crews at the Yuba County office are men. Eve, the District Administrator does not think women should be field supervisors and resents that headquarters is forcing an affirmative action case on her office. Eve tells the other supervisors and crew members, the field is no place for a woman. She tells Tamika s crew to keep an eye on her and use your own judgment in the field. During office meetings, around the office, and in emails, Eve consistently refers to Tamika as little one, Wonder Girl, Oprah Jr., and similar names. Tamika tells Eve she is undermining her but Eve tells her to grow a pair or you ll never make it out there. 32

  33. Exercise C Test Exercise C Test Choose the best answer: A. Eve s use of diminutive nicknames and undermining of Tamika s authority is OK because Tamika needs to demonstrate the ability to supervise men in what can be an inherently crude environment. B. Eve s nicknames and statements undermining Tamika s authority have created a hostile work environment. C. Because Eve has no interest in Tamika sexually, her hostile behavior is not actionable as sexual harassment. 33

  34. Exercise C: Best Answer Exercise C: Best Answer B. Eve s nicknames and statements undermining Tamika s authority have created a hostile work environment. 34

  35. Exercise D Exercise D Warren, a member of Tamika s crew, frequently refuses to follow her orders, saying, your boss told me to use my own judgment. Warren and Ben routinely interrupt team meetings by burping, talking and laughing. They insincerely offer apologies to your ladyship. Frank tells Warren and Ben, leave my gal alone. Frank repeatedly comments on Tamika s appearance saying things like, you are the hottest boss I ve ever had, and, dollface, you can tell me what to do whenever and wherever you want. He repeatedly asks her out even though Tamika makes clear she is happily married. Tamika is afraid to call Eve on her behavior, but complains about the treatment by her crew. Eve takes her written complaint but takes no action. 35

  36. Exercise D Test Exercise D Test Choose the best answer: A. Frank cannot be found liable for hostile work environment sexual harassment because he is defending Tamika. B. Warren and Ben are not liable for sexual harassment because there is no evidence that their disruptive actions are substantially motivated by Tamika s sex. Besides, their actions are neither severe nor pervasive. C. The Commission is liable for the sexual harassment of Warren, Ben and Frank because management knew or should have known of their behavior. 36

  37. Exercise D: Best Answer Exercise D: Best Answer C. The Commission is liable for the sexual harassment of Warren, Ben and Frank because management knew or should have known of their behavior. 37

  38. Severe or Pervasive Explained Severe or Pervasive Explained To be actionable, the unwanted behavior must be severe or pervasive and alter the conditions of employment to the extent that it creates a hostile or abusive work environment. 38

  39. Considerations Considerations The nature of the conduct. The frequency of the conduct. The period of time over which it occurred. Whether the conduct was physically threatening or humiliating. The extent to which the conduct unreasonably interfered with an employee s work performance. 39

  40. Exercise E Exercise E Cody is a unit supervisor for the Board. Drew, an office technician, sits in a row of five open workstations right outside Cody s office. On Drew s first day, Cody gives Logan, another office technician, a lingering hug and kiss on the lips. Cody says, while looking Drew up and down, welcome to Cody s World. If you remember just one rule: what Cody wants, Cody gets, you ll have a bright future here. The next day, Logan arrives early to work to be seated before Cody arrives, but Cody starts rubbing Logan s shoulders and says, you can t stay seated forever. Drew sees and hears these interactions. Logan tells Drew what is happening and Drew says, just get over it. Drew starts losing sleep and misses work because of Cody s mistreatment of Logan. 40

  41. Exercise E Test Exercise E Test Choose the Best Answer: A. Drew cannot state a claim for hostile work environment because Drew told Logan not to complain. B. Drew has personally witnessed Cody s harassment of Logan and, therefore, can sue Cody and the Board for sexual harassment due to a hostile work environment. 41

  42. Exercise E: Best Answer Exercise E: Best Answer B. Drew has personally witnessed Cody s harassment of Logan and, therefore, can sue Cody and the Board for sexual harassment due to a hostile work environment. 42

  43. Exercise F Exercise F Cody and two office technicians, Parker and Rachel, are openly in a sexual relationship. Cody regularly calls them to the office for special consultations. Their sexual congress is audible through the door. Cody gives Parker and Rachel preferred shifts, bonuses, and training denied to others. Cody allows Parker and Rachel to use Drew, Logan, and Timothy, another office technician, to do their work and run personal errands for them. Drew, Logan, and Timothy are disgusted but work together to make sure they excel at all assignments. 43

  44. Exercise F Test Exercise F Test Choose the best answer: A. Drew and Logan can successfully maintain a sexual harassment/hostile work environment widespread sexual favoritism claim against Parker and Rachel but not Cody. B. Timothy, who has never been harassed by Cody, cannot maintain a successful action for sexual harassment/hostile work environment widespread sexual favoritism. C. Drew, Logan and Timothy can successfully sue Cody, Parker, Rachel and the Board for sexual harassment/ hostile work environment widespread sexual favoritism. 44

  45. Exercise F: Best Answer Exercise F: Best Answer C. Drew, Logan, and Timothy can successfully sue Cody, Parker, Rachel, and the Board for sexual harassment/ hostile work environment widespread sexual favoritism. 45

  46. KEY CONCEPTS KEY CONCEPTS 46

  47. True or False Quiz #4 True or False Quiz #4 1. Sexual desire is a key element to any claim for sexual harassment. True/False. 2. An employee can file a claim for sexual harassment even if the supervisor took no adverse employment action (e.g., termination, failure to hire, demotion), against the employee. True/False. 47

  48. Answer to True or False Quiz #4 Answer to True or False Quiz #4 1. Sexual desire is a key element to any claim for sexual harassment. FALSE 2. An employee can file a claim for sexual harassment even if the supervisor took no adverse employment action (e.g., termination, failure to hire, demotion), against the employee. TRUE 48

  49. Sexual Harassment Can Occur Sexual Harassment Can Occur Between Individuals of the Same Sex Between Individuals of the Same Sex It has been settled law for some time that same sex sexual harassment is actionable under the FEHA. 49

  50. Sexual Desire is NOT Required Sexual Desire is NOT Required Recent legislation clarified existing law by expressly stating that Sexually harassing conduct need not be motivated by sexual desire. The legislation, SB 292 (Corbett) was passed to repudiate the contrary decision in Kelley v. Conco Companies (2011) 196 Cal.App.4th 191. 50

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