Anti-Harassment Non-discrimination Reasonable Accommodation Policy

Anti-HarassmentNon-discriminationReasonable Accommodation Policy • Office of Equity and Diversity Location: USU 301 Telephone ext.: 5-8256 California State University, Long Beach

FEHA • Fair Employment and Housing Act (State Statute) • Applies to discriminatory speech and conduct on the basis of: • Age • Ancestry • Color • Creed • Denial of Family and Medical Care Leave • Disability (mental and physical) includes HIV & AIDS • Marital Status • Medical Condition • National Origin • Race • Religion • Sex • Sexual Orientation

UNRUH CIVIL RIGHTS ACT • State law provides protection from discrimination by all business establishments in California, including public agencies • On the basis of: • Age • Ancestry • Color • Disability • National Origin • Race • Religion • Sex • Sexual Orientation

Applicable State Statutes • Students and visitors of the campus (i.e. vendors and contractors) may file state claims under the Unruh Civil Rights Act • Employees may file state claims under FEHA • These claims may be filed through the Department of Fair Employment and Housing (DFEH)

Civil Rights Act of 1964 • Applies to employers with 15 or more employees • Title VII prohibits discrimination based on: • Race • Religion • Color • National Origin • Sex

EEOC HARASSMENT REGULATIONS • Unwelcome conduct • On the basis of protected category • Unreasonably interferes with job • Creates hostile work environment

Most Common Claims • Given the power relations in the workplace, women have been the primary victims of sexual harassment. • Male claims of sexual harassment against their female supervisors have increased significantly. • Claims based may also be filed on grounds of disability, national origin, race, ethnicity, religion, or gender identity. • More recently increasing numbers of claims have been filed based on disability and/or national origin.

Same Sex Harassment • Same sex harassment is prohibited regardless of whether the parties involved are heterosexuals or homosexuals.

TYPES OF HARASSMENT • Quid Pro Quo (this for that) • Today: ‘tangible employment action’ has replaced ‘quid pro quo’ standard • Hostile Work Environment: must be severe or ongoing and pervasive with or without economic impact.

HOSTILE ENVIRONMENT • Various forms of workplace conduct can lead to a hostile work environment: • Physical and/or verbal derogatory or aggressive treatment • Baiting, ridicule, banter or hazing based upon any protected category.

HOSTILE ENVIRONMENT continued: • Use of crude or vulgar language • Name-calling, discussions, references of derogatory nature • Presence of offensive material based upon protected category • Intimidation or hostility

STRICT LIABILITY • Employer is automatically liable for supervisor’s actions or failure to prevent the harm • Fault is irrelevant

EMPLOYERS DAMAGES • May be limited under the doctrine of avoidable consequences • Liability will be reduced if the injured party could have avoided the harm by reasonable effort or expense • Through taking advantage of the institution’s complaint processes

EMPLOYER’S POLICY • Supervisors must communicate the University’s non-discrimination, anti-harassment and reasonable accommodation policy to their employees in an effort to avoid liability! • Supervisors/managers must take immediate and appropriate action.

PERSONAL LIABILITY • Employees who engage in harassment may be sued in civil court by the injured party and be subject to monetary liability if the court finds that, it is more likely than not, the harassment occurred.

Supervisor Responsibilities Supervisors/Managers must discuss the concerns or complaints of discrimination, harassment and/or denial of reasonable accommodation in private with each party separately. KEEP RECORDS of all discussions. They must report the concern or complaint and action taken with the Office of Equity & Diversity. Full & complete complaint procedures are at Office of Equity & Diversity: www.csulb.edu/oed .

Supervisor Responsibilities Confidentiality must be maintained on a need to know basis. It’s ALWAYS best to resolve concerns early & at the lowest possible level.

Complaint Procedures Information is available: www.csulb.edu/oed. Discuss your concern first with your supervisor or Staff Human Resources or Faculty Affairs. Employees may file informally or formally. A list of campus contacts is at: www.csulb.edu/depts/oed/resources/contacts.html Union representation is your choice (if covered). Others may utilize E.O. 928 http://www.calstate.edu/eo/EO-928.html

RETALIATION • Retaliation against a complainant is prohibited by federal and state law • It is a distinct actionable claim • Harassment does not need to have occurred beforehand in order to prevail in a separate claim of retaliation

DISABILITY • LEGAL CONTEXT Rehabilitation Act of 1973 Section 503 – Employment Section 504 – Programs/Services Americans with Disabilities Act of 1991 Unruh Act – SB 2222 – State of California

Unruh Act Impairment that “limits a major life activity” Without regard to mitigating measures ADA Impairment that “substantially limits one or more major life activities” With or without mitigating measures. LEGAL PROTECTIONS

Unruh Act Physical Mental History of Regarded as having Medical Condition ADA Physical Mental Record of Regarded as LEGAL PROTECTIONS 2.

Unruh Act No general questions Specific questions of present illness, condition, history IF “directly related” to the job in question ADA No inquiry of the existence, nature or severity of a disability Inquiries permitted of the ability to perform job-related duties Pre-Employment

DEFINING DISABILITY • No definitive checklist (Note explicit State coverage for cancer as a medical condition) • Note inclusion of mental or psychological disorder, such as emotional or mental illness: • Major depression, bipolar disorder, anxiety disorders (panic, obsessive compulsive and post-traumatic stress disorders), schizophrenia and personality disorders.

REASONABLE ACCOMMODATION • Who: Case by case evaluation for a particular individual employee • What: Any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities (EEOC) • Where: In a private setting. • When: After it is known that the employee has a disability. • How: By discussion with the employee through an “interactive process” in “good faith.”

Timing of Accommodation Reasonable accommodation is always prospective. An employer is not required to excuse past misconduct.

Guidelines • Document—When the disability becomes known. Note an employee’s references to his/her difficulty/inability to perform required duties – NO MAGIC WORDS • Document—When an employee requests accommodation • Document every conversation (telephone, voicemail, electronic mail) regarding the need for accommodation. • Document consideration of request and the universe of possible accommodations—including those that are ultimately unreasonable and those that are refused. • Document the provision of accommodations.

Possible Accommodations • Job restructuring • Part-time work • Modified work, modified scheduling • Reassignment or transfer • Leave of absence • Modification of equipment or devices • Elimination of non-essential job functions or duties • Retraining

Essential Functions • Duties/tasks that are critical to the job. • Primary job duties typically established by a job analysis and recorded in the job description. • The ability to perform these WITH or WITHOUT accommodation determines if an individual is QUALIFIED

Unreasonable Accommodation • Extensive • Substantial • Disruptive • Fundamentally alters the business’ nature or operation • Costly – Use extreme care!!

Unreasonable Accommodation Examples • Eliminating essential functions. • Eliminating (as opposed to reducing) job stress. • Requiring employee to take medication or monitoring their doing so. • Switching supervisors. • Lowering uniformly applied job performance standards.

Employers must keep all information concerning the medical condition or history of its applicants or employees, including information about psychiatric disability confidential. This includes medical information that an individual voluntarily tells his/her employer. Employers must collect and maintain such information on separate forms and in separate medical files, apart from the usual personnel files. References to medical condition or diagnoses must be kept out of performance appraisals, and all other materials that could be used to consider the employee or permanent status, advancement, transfer, or promotion. Confidentiality

Exceptions Supervisors and managers may be told on a need-to-know basis about necessary restrictions on the work or duties of the employee and about necessary accommodations. First aid and safety personnel may be told if the disability might require emergency treatment; and Government officials investigating compliance with the ADA must be given relevant information on request.

Disclosure to Co-workers The employer must not disclose any medical information to questions from co-workers. An employer may not tell employees whether it is providing a reasonable accommodation for a particular individual. Doing so discloses that the individual probably has a disability

Misconduct Rule—Apply discipline based on rules that are job-related for the position in question and consistent with business necessity and past practice.

Anti-Harassment Non-discrimination Reasonable Accommodation Policy