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HomeMy WebLinkAbout2019-07-24 e-packet@4:00Wednesday, July 24, 2019 4:00 PM City of South San Francisco P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA Municipal Services Building, Council Chambers 33 Arroyo Drive, South San Francisco, CA Special City Council Special Meeting Agenda July 24, 2019Special City Council Special Meeting Agenda NOTICE IS HEREBY GIVEN, pursuant to Section 54956 of the Government Code of the State of California, the City Council of the City of South San Francisco will hold a Special Meeting on Wednesday, July 24, 2019, at 4:00 p.m., in the City Council Chambers, Municipal Services Building, 33 Arroyo Drive, South San Francisco, California. Purpose of the meeting: Call to Order. Roll Call. Agenda Review. Public Comments - comments are limited to items on the Special Meeting Agenda. PRESENTATIONS Sexual Harassment and Abusive Conduct Prevention Training (AB 1825/AB 2053) (Leah Lockhart, Human Resources Director and Camille Hamilton Pating, Meyers Nave) 1. Adjournment. Page 2 City of South San Francisco Printed on 8/14/2019 City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:19-615 Agenda Date:7/24/2019 Version:1 Item #:1. Sexual Harassment and Abusive Conduct Prevention Training (AB 1825/AB 2053) (Leah Lockhart, Human Resources Director and Camille Hamilton Pating, Meyers Nave) City of South San Francisco Printed on 8/14/2019Page 1 of 1 powered by Legistar™ Sexual Harassment & Abusive Conduct Prevention Training Camille Hamilton Pating Chair, Workplace Investigations Labor and Employment Practice Group July 24, 2019 Objectives •Identify Discriminatory Harassment and Abusive Conduct (Bullying) after #MeToo •Minimize Impacts of Harassment, Bias and Bullying in Daily Interactions Lessons Learned Respect & Civility Focus on Workplace Culture •Hypotheticals/Discussions 2 •Commit to learning, not debating •Use “I” Statements •Respect Confidentiality •“Oops” & “Ouch” •Listen respectfully, without interrupting •Avoid blame, speculation, inflammatory language •Step up, Step back •“Yes, and” 3 Guidelines: Talking About Harassment, Bullying & Bias 4 •“In 1997, I met a young girl who had been sexually abused by her mother's boyfriend. I couldn’t find the strength to say the words that were ringing in my head over and over again as she tried to tell me what she had endured…I couldn't even bring myself to whisper...'me too.' " -Tarana Burke (2006) •“If you’ve been sexually harassed or assaulted, write ‘me too’ as a reply to this tweet.” -Alyssa Milano (October 15, 2017) “#MeToo” #MeToo –Revealing The Crisis 5 •Fear of retaliation, damage to future employment •Shame •Won’t be believed •Nothing will change •Don’t want to be seen as a complainer or “weak” Lesson Learned #1: Silence is Critical 6 •“We’re not looking at the real problem. It isn’t that someone doesn’t know a specific law; the problem is the whole place just isn’t civil. There’s no feeling of respect, courtesy or fairness [at work]. And it’s the little things that people say and do, not just the big things.” Lesson Learned #2: Non-Respectful Workplace 7 •“Employees [want to] address incivility and work environments [that are] rude, harassing and bullying... Respect is the number one complaint among employees. They do not feel respected by colleagues, bosses and the [organization] itself.” 8 Lesson Learned #3: Why Harassment Prevention Training Didn’t Work… Compliance vs.Building respectful, inclusive workplace culture Literal translations of law vs.Breaking the silence/Failure to report Didn’t address how to have honest conversations about what’s not OK Reactive vs.Proactive 9 Goals: •Create a workplace of choice: thriving, diverse, and inclusive •Don’t just deal with problems after they happen •Employees are less likely to resort to courts •Harassment and discrimination are unlikely to occur A New Approach To Risk Management Respect & Civility Intent vs. Impact When In Doubt, Ask #IsItOK? The New Golden Rules 10 11 Costs of Harassment & Abusive Conduct •Workplace disruption •Gossip/damaged reputations •Lower morale •Employee turnover 16623297 •Lost productivity/absenteeism •Personal liability •Workers’ comp claims •$$$$$* •Bad publicity 12 Social Media Backlash! Every business decision, communication, action or failure to act is subject to instant judgment, often without an investigation. 13 AB 1825 •Codified at Cal Gov’t Code §12950.1(a) •By January 1, 2020 –Employers of 5+ employees shall provide –At least two hours of classroom or interactive training sexual harassment training to all supervisory employees and at least one hour of classroom or interactive training sexual harassment training to all nonsupervisory employees –Training must include practical examples aimed at instructing supervisors to prevent harassment, discrimination and retaliation –Are Local Officials “Employees” subject to mandatory training requirements? Requirement for Harassment Prevention Training 14 Is Harassment Prevention Training Required? 15 AB 1661 •Basics of regulations –Clarifies that local agency officials must complete at least 2 hours of sexual harassment prevention and correctionlike any other public employee. –Local agency officials who receive any compensation must now receive sexual harassment prevention training.A local agency may require any of its employees to receive sexual harassment prevention training. –A “local agency” for the purpose of this law includes cities, counties, special districts, and charter cities and counties.A “local agency official” means any member of the agency’s legislative body and any elected official of the agency. AB 1661 Mandates Harassment Prevention Training 16 Sexual Harassment What is Sexual Harassment? (Federal -EEOC) 17 Unwelcome sexual advances, requests for sexual favors, and other verbal, physical or visual conduct of a sexual nature constitute unlawful harassment when: •Submission is made an explicit or implicit term or condition of employment •Submission to or rejection used as the basis for employment decisions affecting an individual; or •Conduct unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive working environment 18 What is Sexual Harassment? (State –FEHA) •“[U]nwanted sexual advances, or visual, verbal or physical conduct of a sexual nature.” Section 7291.1(f) •Partial list of violations: –Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures –Verbal conduct: making or using derogatory comments, epithets, slurs and jokes –Verbal sexual advances or propositions –Physical conduct: touching, assault, impeding or blocking movements 19 •1 in 3 women between ages 18-34 report experiencing some form of sexual harassment at work* –81% experienced verbal harassment –44% experienced unwanted touching and sexual advances –25% received unwanted texts or emails of sexual nature, or offensive comments through social media How Common is Sexual Harassment ? Source: Huffington Post 2015 *numbers are higher than 100% due to overlapping reports •Federal –Title VII –ADA –ADEA –FMLA 20 •State –FEHA –CFRA –PDL The Broader Universe of Discrimination Laws •Back pay •Reinstatement •Other injunctive relief •Front pay •Damages for emotional distress •Other compensatory damages •Attorney fees •Punitive damages NOTE: Supervisors may be individually liable What Relief Can Court Provide? 21 Culture supports fear of: •Retribution •Harming future career prospects •Perception of weakness or over-sensitivity •Won’t be believed or taken seriously •Nothing will change 22 For lawyers who are sexually harassed at work, there’s a tremendous pressure not to make a complaint against a powerful attorney, “If they say something about sexual harassment, they’ve signed their death warrant at that firm.” Why Targeted Employees Don’t Complain SSF POLICY AGAINST HARASSMENT, DISCRIMINATION & RETALIATION •Race •Sex •Color •Religion or Creed •National Origin •Mental or Physical Disability •Genetic Information •Citizenship Status •Marital Status •Protected Medical Leaves •Domestic Violence Victim •Medical Condition •Age •Pregnancy •Sexual Orientation •Ancestry •Gender Identity or Expression •Political Affiliation or Belief •Military or VeteranStatus •*any other status protected by state or federal law 23 Harassment prohibited based on: SB 396: What Is Gender Identity 24 •Gender Identity is a person's perception of having a particular gender, which may or may not correspond with their gender assigned at birth. SB 396: What is Gender Expression? 25 •Gender Expression –The way in which a person expresses their gender identity, typically through their appearance, mannerisms, dress and behavior –Usually reflects a person’s gender identity [masculine or feminine] but this isn’t always the case –Separate and independent both from sexual orientation and gender assigned at birth SB 396: What is Gender Expression? 26 •For Men and Boys –“typical” or masculine gender expression is manly, “atypical” or feminine expression is effeminate •For Women and Girls –“typical” gender expression is called feminine, atypical is tomboyish •For Lesbian/Queer women –masculine and feminine expression are called butch and femme SB 396: What is Transgender? 27 •Transgender people have a gender identity or gender expression that differs from their assigned sex. •Transgender people are sometimes called transsexual if they desire medical assistance to transition from one sex to another. Work -Related Changes that May Happen For Transgender Employees 28 •Some transgender people make or want to make legal changes as part of their transition, like: –changing their pronouns –changing their name on paycheck, CDL, other identity documents –updating the gender marker on their identity documents –Not all transgender people need or want to change their identity documents. If you have questions, ASK. SB 396: Non-Binary Gender Expression 29 How To Be Respectful Regarding Gender Expression 30 •Most people consider themselves to be either male or female gender. •Most transgender people have a male or female gender identity and should be treated like any other man or woman. •People whose experience of gender that is not simply “male” or “female” may describe themselves as: –Non-binary –Genderqueer –Gender fluid –Agender Speech (verbal): name calling, insults, epithets, derogatory comments, slurs, lewd propositioning [because of protected class status]. Includes sex-oriented comments about appearance, dress or physical features…stories or jokes that demean or mock protected characteristics, making explicit or implied job threats or promises. Physical Acts: such as assault, interfering with work, impeding or blocking movements, unwelcome or offensive touching, pinching, grabbing, patting, any physical interference. Visual Insults: such as staring or leering, derogatory posters, cartoons or drawings because of protected class status. This includes inappropriate emails, viewing pornography, displaying nude or scantily clad men or women; derogatory or obscene notes, letters, emails, or other literature. Unwanted Sexual Advances: such as requests for sexual favors where Submission to or rejection of is made an explicit or implicit term or condition of employment, is used as the basis for employment decisions; or where conduct is intended or actually does unreasonably interfere with an individual’s work performance or creates an intimidating, hostile or offensive working environment 31 SSF POLICY RE: PROHIBITED DISCRIMINATION & HARASSMENT 32 Physical Conduct •Blocking egress •Leering, staring, “elevator eyes” •Obscene/hostile gestures •Physical assault 32 •Unwanted “massage” •Bumping, patting, grabbing, pinching, touching, rubbing Intent vs. Impact 33 Intent No one knows your intention – your intent is irrelevant. “I didn’t mean it the way you took it.” “If you were offended, I’m sorry.” Impact Focus on consequences of behavior for recipient 34 Hypothetical 1: The Hugger •City Manager Pamela –Warm personality –Enjoys engaging with staff and the public –Greets staff daily by giving hugs to staffers, female and male –Rationale: “I love my Team and I’m just a hugger” •Is Pamela’s behavior OK under South San Francisco’s policy? •Report the incident to HR Director (may do so without resorting to formal Grievance Procedure) •Report to Supervisor, any Supervisor or Manager within the City •Employees NOT required to report to Supervisor if Supervisor is the subject of the complaint •HR will investigate the incident and take corrective action. Interim relief measures may be taken •Retaliation is prohibited. 35 SSF POLICYCOMPLAINT & INVESTIGATION PROCEDURES •Human Resources or designee will investigate the incident •Complaint will be kept as confidential to the extent possible •Allegations against an elected or appointed official shall be handled per policy or as appropriate following consultation with City Attorney •Allegations against HR Director shall be handled by Assistant City Manager per policy or as appropriate following consultation with City Attorney 36 SSF POLICYCOMPLAINT & INVESTIGATION PROCEDURES •Is reporting of harassment MANDATORY –YES for Supervisors/Managers only •Is reporting of harassment MANDATORY for employees NO, but it is Strongly Encouraged 37 SSF POLICYSEXUAL HARASSMENT COMPLAINT PROCEDURE 38 Supervisor’s Role Take all complaints seriously Notify and get guidance from HR Document everything Respect confidentiality 38 RESPONDING TO HARASSMENT PLAN ACTION Quid pro quo Types of Harassment 39 40 Quid Pro Quo: “This for That” Federal statute: •Submission is made an explicit or implicit term or condition of employment •Submission to or rejection is used as the basis for employment decisions affecting an individual 41 Quid Pro Quo: “This for That” •How do the participants experience the conduct? •Consensual conduct is not harassment •Harassment arises from lack of consent Hypo 2: Relationship Quid Pro Quo? 42 43 Best Practice Takeaway •Supervisors and direct reports should NOT be in dating relationships •If a relationship develops, the Supervisor should immediately disclose to HR. •Necessary reporting adjustments will be made. •Must not be in a direct supervisory relationship or otherwise pose difficulties for supervision, security, safety or morale. •If a relationship develops between employees in a direct supervisory relationship, City will attempt reassignment. •If no suitable reassignment is available, one of the employees must terminate employment. 44 GENERAL PRACTICE: WORKPLACE DATING 45 Takeaway: Best Practices •Report at the first indication of coercive, questionable behavior. •Even if conduct doesn’t rise to quid pro quo, training or corrective action may be appropriate. •Always alert Human Resources. HOSTILE WORK ENVIRONMENT Types of Harassment 46 47 Types of Harassment •Conduct is based on sex or protected status •Severe or pervasive enough to create an environment that a reasonable person would find abusive •Unwelcome conduct •Perception of abusive environment by victim 48 Objective Standard •Considered abusive by “reasonable person” in the same position as victim •Law doesn’t create a “general civility code” Oncale v. Sundowner, 523 U.S. 75 (1997) •Consider social context 49 Best Practice: Conduct Based On Sex •DO consider context in displaying visual items, sending emails and messages at work •DO keep conversations at work especially about subordinates and co-workers professional •DON’T make sexualized comments about appearance, clothing and body parts •DO consider whether off-duty conduct violates policy or has a “nexus” to work •When in doubt, consult City Attorney or Human Resources 50 Severe or Pervasive Conduct •Look at totality of circumstances •Frequency of conduct •Period of time over whichconduct occurred •Context in which conduct occurred •Whether conduct is physically threatening •Whether conduct unreasonably interferedwith employee’s work performance 51 Severe or Pervasive Conduct •Must be severe OR pervasive enough –“to alter the conditions of employment” •Single incident may qualify if severe –including physical violence or threat thereof •Not “occasional, isolated, sporadic, or trivial” 51 52 Who Can Make A Claim of Sexual Harassment? •All Genders •Opposite gender and same sex interactions •Employees who observed the conduct (Third Parties) •Contractors/Vendors •Volunteers/Interns •Members of the public 53 Third Party Harassment •Employees and persons who perceive offensive conduct *conversations *media *jokes *music *physical items •Sexual favoritism 54 Is this Sexual Harassment? •Is this conduct of a sexual nature? •Is this conduct directed at a particular gender? •How often is this sort of behavior happening? •Is this conduct offensive to persons who witnessed it? •Is the person to whom it was directed offended? •Does the employee have to tolerate that type of conduct in order to keep his or her job? What Is Workplace Bullying …and Why Should Employers Care? 5555 56 •“Abusive conduct” is conduct in the workplace, perpetrated with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. •Like harassment, AB 2053 provides that a single act is not abusive “unless especially severe and egregious.” Abusive Conduct Defined 57 •Harassment is abusive conduct based on protected status that is illegal employment discrimination •Retaliation is adverse employment action based on protected conduct that is illegal employment discrimination •Bullying is repeated abusive conduct occurring in the workplace that is not based on protected status and is not illegal •Bullying & Harassment have similar impacts on victims and work environment Bullying vs. Harassment 58 Hypo 2: Trouble in The Office Robert, the City Manager of the mid-size City, is known for his “salty” demeanor. He becomes upset when his administrative assistant Angela doesn’t do her work correctly. During one week, Angela arrives late, forgets to notify Robert of several urgent constituent requests, and incorrectly calendars an important meeting. Robert yells at her in the office: “What the f*** is wrong with you? Pull your head out of your @$$!” The next day, Angela forgets to pick up lunch for Robert’s meeting with a Council Member. Robert comes out of his office, throws money on her desk, goes back into his office and slams the door. The Council Member watches silently. After this incident, Angela calls in sick for a week. She now says she is afraid of Robert. Robert says his conduct isn’t abusive -he was just “frustrated” that her work “wasn’t done right.” He says he holds his staff to the same high standard as himself. Appropriately resolve any issues that are presented by this scenario using the California standard for Abusive Conduct. Source: Pantoja v. Anton, 198 Cal. App. 4th 87 (2011) 59 Reasonable Person in Target’s Position “Careful consideration [must be given] to the social context in which particular behavior occurs and how it is experienced by its target… Common sense, and appropriate sensitivity to social context will enable courts and juries to distinguish ... conduct which a reasonable person in the plaintiffs' position would find severely hostile and abusive.” Citing Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75, at 81-82, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). 60 Is this Abusive? 61 Is this Abusive? 62 Recognize Bullying 63 Best Practice: Identify Objective Red Flags Such as repeated instances of: •Personalized, demeaning comments or insults •Criticism in public •Verbal and physical outburst behavior (swearing, shouting, slamming doors) •Verbal and nonverbal threats and intimidation •Inappropriate criticism of another’s work •Rumors •Ostracism and exclusion •Questions? Consult Human Resources or City Attorney 64 Abusive Conduct: Be Sure To Consider •Abusive conduct is to be avoided, but is not yet illegal Look to intention Conduct –context, severity •Abusive behavior is different from –Someone who is simply not liked by others –Persons who just don’t get along •Distinguish proper supervision and discipline When in doubt, consult City Attorney/Human Resources 65 A.OK to look, but don’t touch B.OK to look, if they want you to look C.Don’t look and don’t touch D.All of the above E.None of the above Bonus: #IsItOK If You Feel Attracted To Someone at Work? 66 Unintended Consequences of #MeToo 66 Prediction “Excuse me, sir, would you please take this out of my line of sight until my wife gets here? It just would not be right for me to sit here alone with a woman-shaped container, particularly one as shapely as this.” “In fact, I would advise you to do the same for the man sitting over there—I see he is sitting very close to Mrs. Butterworth even though he appears to be wearing a wedding ring.” Source: “Mike Pence Asks Waiter To Remove Mrs. Butterworth From Table Until Wife Arrives,” The Onion, 3/30/17 67 67 68 Presenter 68 Camille Hamilton Pating Principal Chair, Workplace Investigations Labor and Employment Practice Group Oakland Office 555 12th Street, Suite 1500 Oakland, CA 94607 (510) 808-2000 [email protected]