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Sexual & Discrimination Prevention in the

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Disclaimer

The AgSafe Board of Directors reserves the right to impose limitations on the participation of members, member's employees, sponsors, participants, attendees or their guests at any AgSafe function as the result of conduct or the manner or mode of participation which is unlawful, offensive, objectionable or contrary to AgSafe's mission or values. Such limitations can include but are not limited to rejection or ejection of a member, member's employee, participant, sponsor or guest or other reasonable methods that are consistent with this policy including refusal of admittance where deemed in the best interest of AgSafe or its members or guests.

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1 Disclaimer Continued

The content of this training is based on publicly available information. Such information is subject to change without notice, may be incomplete or condensed. Except where otherwise indicated, the information provided is based on matters as they exist as of the date of presentation. Such information is provided as general information on the topics presented. Nothing presented constitutes legal advice or opinion to participants or others attending or reviewing this material and is not a substitute for professional services from an attorney. Every situation is different and subject to legislative activity and administrative or judicial changes in the law. You should also note that the views or opinions expressed by the presenters do not necessarily reflect the views or opinions of AgSafe.

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Learning Objectives By the end of the session you will be able to: I. Define the term II. Understand harassment, discrimination, retaliation and abusive conduct law III. Establish an effective Anti-Harassment Policy IV. Define prohibited conduct and strategies to prevent it V. Understand the remedies and resources for victims VI. Understand the complaint process and limited confidentiality VII. Understand how to conduct an effective workplace investigation VIII. Understand what a supervisor should know

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I. Define the Term Sexual Harassment

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2 US Equal Opportunity Commission (EEOC) Definition

“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when…” a) submission to conduct is made either explicitly or implicitly as a term of employment b) submission to or rejection of conduct is used as a basis for employment decisions or c) such conduct has the purpose of interfering with work performance or creates a hostile work environment

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California Department Fair Employment and Housing (DFEH) Definition

Sexual harassment is defined as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. It includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser.

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California Department Fair Employment and Housing (DFEH) Definition • Offering employment benefits in exchange for sexual favors • Making or threatening reprisals after a negative response to sexual advances • Visual conduct • Verbal conduct • Verbal abuse • Physical conduct

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3 II. Understand Harassment, Discrimination, Retaliation & Abusive Conduct Law

California State SB 1343 Now requires training for all companies with 5 or more employees (AB 1825/AB2053/SB396)

vs.

Title VII of the Civil Rights Act

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Role of California Department of Fair Employment and Housing (DFEH)

Accept complaints of discrimination, Investigate those complaints, Issue accusations and Prosecute those cases both before the Fair Employment and Housing Commission and in court

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Role of the Division of Labor Standards Enforcement (DLSE) • SB 306 authorizes DLSE to investigate an employer when retaliation or discrimination is suspected, with or without a filed complaint. • Employees can also seek an injunction to prohibit an employer from terminating an employee if the allegation of retaliation is made before completing an investigation.

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4 Role of US Equal Employment Opportunity Commission (EEOC) To investigate charges of discrimination against employers

If they discover discrimination has occurred they will try to settle the charge

If unsuccessful, they have authority to file a lawsuit if they deem it necessary

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Minimum Prevention To Be Compliant:

• SB 1343 training (as of Jan. 2020), that includes complying with AB 1825, AB 2053 and SB 396 elements • Create and distribute anti-harassment policy per the Fair Employment and Housing Act (FEHA) provisions (4/2016) • Train all employees in a language they understand (SB 295) • Post DFEH “CA Law Prohibits Workplace Discrimination and Harassment” flyer in languages understood by all employees • Provide and post DFEH 185 or DFEH 185P “Sexual Harassment” pamphlet or poster • Post DFEH E04P “Transgender Rights in the Workplace” • Post “Equal Opportunity is the Law” Poster (Federal requirement)

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DFEH – Workplace Discrimination and Harassment Updated 12/2018

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5 Sexual Harassment Pamphlet Updated 12/2018

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Transgender Rights in the Workplace

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6 Scenario #1

You are a supervisor in a packing house and have been noticing that during breaks some employees are having sexually explicit conversations, they are sharing inappropriate jokes and even videos of a sexual nature. No employee has come to you with a complaint.

As a supervisor what should you do, please be specific? What kind of issues could arise from this conduct?

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Sex Based Discrimination • Sex discrimination involves treating someone unfavorably because of that person's sex. • Discrimination against an individual because that person is transgender is sex discrimination. This is also known as gender identity and gender expression discrimination. Additionally, lesbian, gay and bisexual individuals may bring sex discrimination claims against and employer. Examples of these would include allegations of sexual harassment or other kinds of sex discrimination, such as adverse actions taken because of the person's non-conformance with sex-stereotypes.

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Retaliation • Retaliation against an employee after he or she has complained about harassment or participated in an investigation of harassment is unlawful and can lead to serious consequences, including liability.

• Retaliation generally is the act of seeking revenge upon another. Various federal and state laws protect certain persons who seek to assert their legal rights from retaliation. An employer is prohibited from any type of retaliation, such as, discharging, demoting, suspending or harassing the employee.

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7 Abusive Conduct (Bullying)

• “Abusive conduct” conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. • “Abusive conduct may include 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, or the gratuitous or undermining of a person’s work performance”.

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Other Discriminatory Harassment • All forms of discriminatory harassment are unlawful under applicable local, state, and federal law.

– Some examples include: ancestry, age, color, physical and/or mental disability (including HIV and AIDS), genetic information, gender, gender identity, gender expression, marital status, medical condition, military and/or veteran status, national origin, race, religious creed, sex (childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding) and sexual orientation

• Extension of national origin protections to undocumented immigrants who hold special AB 60 driver licenses issued by the State of California

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Scenario #2 Mario and Lily met at work and began dating. Lily has never had any issues at work. Everything was great until Lily’s co-workers found out she was dating their supervisor (Mario). Her co-workers began to feel that she is being given preferential treatment because of this relationship. They are making her life impossible and she tells Mario to put a stop to it. Mario tells her he can’t do anything because they will turn against him and he doesn’t want to lose his job. • What issues exist here? • What can you say about their relationship? • What recommendations do you have for Mario in addressing Lily’s concerns?

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8 Tangible Employment Action

#1. When the harassment leads to a tangible employment action, such as demotion, decreased compensation, significantly different work assignments, or termination, the employer’s liability is absolute.

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No Tangible Action

#2. When there has been no tangible employment action, the employer is liable unless he/she can prove … a) He/she has taken reasonable care to prevent and correct any sexually harassing behavior and b) The employee “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.”

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Co-worker/3rd Party Harassment Liability

Employers are liable only if they knew or reasonably should have known of the sexually harassing behavior and failed to take immediate and appropriate corrective action.

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9 III. Establishing An Effective Anti-Harassment Policy (Under Provisions of FEHA)  Policy should be written and disseminated to all employees in the language in which you communicate with them  Protect employees who submit a complaint or participate in a workplace investigation against retaliation  Define the following terms: , gender expression, gender identity, sex stereotype and transgender  Include a list of all protected groups (ex. race, color, gender, religion, national origin, age, ancestry, physical and/or mental disability and protected activity)

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Establishing An Effective Anti- Harassment Policy Cont.

 Cover harassment by anyone in the workplace – supervisors, managers, co-workers, or non- employees, and third parties  Encourage employees to report harassment before it becomes severe or pervasive  Ensure confidentiality to the extent possible (no guarantee of complete confidentiality can be made)  Clarify that the employer will stop harassment  Clearly define roles and responsibilities

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Establishing An Effective Anti-Harassment Policy Cont.  Establish a thorough complaint process- Create multiple impartial paths to complain about harassment, including a path outside the supervisory chain of command  Require supervisors to report all complaints to a company representative  Provide for prompt, fair, and complete investigations  Assure that a report is created and reviewed promptly by appropriate impartial management officials that need to know of the report  Assure that immediate and appropriate corrective action, including discipline, will be taken if harassment is found by impartial management officials, or if the harassment policy was otherwise violated (e.g., second level supervisor failed to timely inform HR of allegation of harassment)

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10 IV. Prohibited Conduct Examples

• Verbal

• Non-Verbal

• Physical

• Visual

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Appropriate Workplace Behavior

• Respect the people around you • Think before acting • Exercise common courtesy • Imagine how other people might be feeling • Be sensitive to diverse perspectives • Think twice before making a joke (any joke) • Have a company code of conduct and post it

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Scenario #3 Marcos recently began working in a harvest crew where are all of the other members have known each other for quite some time. The crew uses inappropriate language and jokes around quite a bit. Marcos began to feel uncomfortable so he distanced himself from them. The crew noticed and began to talk about him loud enough so he can hear. Marcos decided to ignore their behavior but the crew members continued to pick on him, call him derogatory names and make inappropriate jokes/comments. Marcos then decided to speak to his supervisor. The supervisor gave the entire crew a verbal warning, including Marcos, and told them they all need to stop the inappropriate behavior. • What is happening in this situation? • What types of issues are we dealing with? • If you were the supervisor, what would you have done differently?

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11 If YOU offend someone…… • Apologize for your behavior

• Stop the behavior immediately

• Take harassment seriously; the consequences could affect you, your job and your family

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V. Remedies & Resources for Victims

• Report it to your employer (supervisor or HR) • Report it to DFEH *The statute of limitations to report has been extended to 3 years. • Report to EEOC • Obtain an attorney

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VI. Complaint Process & Limited Confidentiality

• The employee may file a complaint with any supervisor or manager • The employee may go directly to HR to make a complaint • The employee is not obligated to go with immediate supervisor if he/she is the aggressor • Confidentiality is limited

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12 VII. Effective Workplace Investigation

The investigation must be thorough, objective, and complete. • Take immediate action • Interview the person making the accusation • Interview any witnesses • Interview the accused • Review supporting evidence • Review all the information • Make a determination and communicate the results to the complainant, to the alleged harasser and, as appropriate, to all others directly concerned • Keep all notes, documentation for 3 years. AB 9 extends the statute of limitation to 3 years to file a complaint with DFEH includes all forms of prohibited harassment, discrimination and retaliation involving protected categories.

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Corrective Action

Examples include:

• Oral or written warning or reprimand • Transfer or reassignment • Demotion • Suspension or discharge • Training or counseling • Monitoring behavior

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Corrective Action Cont.

• Measures to correct the effects of harassment include:

• Restoration of leave (annual, sick, AWOL, etc.) • Expungement of negative evaluations • Reinstatement • Apology from harasser • Compensation for losses

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13 Intent vs. Impact

• Intent is not relevant in determining whether or not a behavior is sexual harassment. • Impact of the behavior is what matters

Regardless of the intent, the behavior will be judged on its impact.

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VIII.Supervisor’s Responsibilities

• First, all supervisors must exercise their authority to ensure that their workplace is free of sexual harassment. • Second, all supervisors must take every complaint seriously and respond promptly to an employees request for help. • Third, supervisors can also be held personally liable for harassment. • Fourth, all supervisors must report all complaints to a company representative

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What is NOT sexual harassment?

Insisting that people be at work on time and perform their job duties.

Being a grouch to all people, regardless of sex.

Periodic profanity.

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14 Let’s Review

• Conduct that may not be offensive to you may be offensive to someone else. • Even if you do not intend your actions to be harassing, it may be perceived as offensive. • Respect cultural differences. What may be complimentary in one culture may be offensive in another.

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