5/23/2025
1 CITY OF BELLFLOWER
HARASSMENT PREVENTION TRAINING
SUPERVISORY EMPLOYEES AND LOCAL GOVERNMENT OFFICIALS
N. Richard Shreiba
Richard Shreiba is a Partner in Burke’s
Orange County office where he provides
advice and counsel to public and private
entities on labor and employment matters.
[email protected]
CRD Charge statistics for 2021
14,982 Employment Related CLAIMS
Filed with the crd in California
in 2023
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2 EEOC select task force on
the study of harassment in the workplace
81% of Americans believe that sexual
harassment occurs in most workplaces
today
November 30, 2017 nbc news/survey monkey
But 90% believe it is not a
problem in their workplace
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TRAINING IS REQUIRED
California law requires all employers of 5 or more
employees to provide training to its supervisory and
nonsupervisory employees on sexual harassment and
abusive conduct prevention.
Every two years, nonsupervisory employees must receive at least one hour of training and supervisory employees must receive at least two hours of training.
The law requires the training to include practical examples of harassment based on gender identity, gender expression, and sexual orientation.
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Federal
•Title VII of the Civil Rights Act
of 1964 (“Title VII”)
•Americans with Disabilities Act
(“ADA”)
•Age Discrimination in
Employment Act (“ADEA”)
•Genetic Information Non-
Discrimination Act (“GINA”)
•Equal Pay Act (“EPA”)
•Administered by the Equal
Employment Opportunity
Commission (“EEOC”)
[ www.eeoc.gov]
Legal Foundation
State of California
•Fair Employment and
Housing Act (“FEHA”)
•Administered by the
California Civil Rights
Department (“CRD”)
(formerly the “DFEH”)
[ www.calcivilrights.ca.gov]
RESOLUTION 23-12 – A RESOLUTION
PROHIBITING DISCRIMINATION,
HARASSMENT, AND RETALIATION IN THE
WORKPLACE
CITY OF BELLFLOWER POLICY
Section 1.A. provides: “The City is
committed to preventing
discrimination and retaliation in the
workplace.
Section 1.B. provides: “The City has
zero tolerance of any conduct that
violates this policy. Conduct need not
violate either federal or state law to
constitute violation under this policy.”
www.bwslaw.com
RESOLUTION 25-12 – A RESOLUTION
ESTABLISHING A CODE OF CONDUCT IN
ACCORDANCE WITH GOVERNMENT CODE
SECTION 36813
CITY OF BELLFLOWER POLICY
Section 4 “Anti-Harassment Policy” –
prohibits harassment of an applicant
or an employee by a public official
based on a protected category.
www.bwslaw.com
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4 RESPONSIBILITIES UNDER THE
LAW
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Supervisors’, Officials’ and Managers’
Responsibilities
•Report complaints of discrimination,
harassment, and /or retaliation to Human
Resources to initiate Investigation.
THE BASICS: WHAT IS UNLAWFUL HARASSMENT?
HARASSED; HARASSING; HARASSES
M ERRIAM -WEBSTER SAY S…
EXHAUST,FATIGUE
(1):to annoy persistently
(2):to create an unpleasant
or hostile situation especially by uninvited
and unwelcome verbal or physical conduct
(3):to worry and impede by repeated raids
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5 1 + 2 = HARASSM ENT
(Unwelcomed conduct, including
disrespectful or unprofessional conduct)
+
(Based on a protected category)
= Harassment
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BECAUSE OF LEGALLY PROTECTED CHARACTERISTICS
According to the law & City policy…
Race
National Origin
Religious Creed
Ancestry
Color
Sex
Gender
Sexual
Orientation
Age (Over 40)
Mental Disability
Physical Disability
Genetic
Information
Medical Condition
Military or
Veteran’s Status
Pregnancy
Gender Identity
Gender
Expression
Marital Status
Reproductive
Health Decision-
making
IS PROTECTED FROM UNLAWFUL
HARASSMENT?
WHO
In California, the law protects:
•Applicants
•Employees
•Unpaid Interns
•Volunteers
•Contractors
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6 IS LIABLE FOR UNLAWFUL
HARASSMENT?
WHO
Under California 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 unlawful
harassment.
www.bwslaw.com
What is Sexual Harassment?
In California, harassment laws are part of the Fair Employment and Housing Act (FEHA).
Harassment is defined to include:
•Verbal harassment, such as epithets, derogatory comments or slurs; •Physical harassment, such as assault or physical interference with movement or work;
•Visual harassment, such as derogatory cartoons, drawings or posters; and •Sexual favors, e.g., employment benefits in exchange for unwanted sexual advances (quid pro quo harassment).
FEHA prohibits sexual harassment because of a person’s:
•Gender;
•Pregnancy;
•Childbirth, breastfeeding (and related medical conditions); •Sexual orientation;
•Gender identity;
•Gender expression; and
•Transgender status.
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7 SEXUAL DESIRE
NOT REQUIRED
Under FEHA, sexually harassing conduct
does not need to be motivated by sexual
desire to be considered unlawful.
For instance, in some harassment
situations, the perpetrator acts out of
hostility toward the individual because of
the individual’s gender or sexual
orientation, not out of sexual desire.
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Tom tells racist and sexist jokes at work, but he has done that for 15 years. Now employees are complaining. Can tom be disciplined after so long? A. Nope. The City lost the chance to discipline when it allowed the behavior to continue unchecked for so long. Plus, Tom is really good at his job.
B. Sure he can. And why has it taken 15 years? Also, it doesn’t matter that Tom is a really good performer.
UNDERSTANDING GENDER IDENTITY, GENDER
EXPRESSION, AND SEXUAL ORIENTATION
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8 Gender Identity
Gender Expression
Non-binary
Pansexual
Cisgender
Gender Nonconforming
Mis-gender
WHAT DOES THAT MEAN?
STACY IS A TRANSGENDER WOMAN.
HER EMPLOYER SENT HER HOME FROM
WORK FOR WEARING MAKE-UP. STACY
WAS TOLD THAT SHE CANNOT WEAR
MAKEUP ALTHOUGH HER EMPLOYER’S
DRESS/GROOMING CODE ALLOWS
FEMALE EMPLOYEES TO WEAR MAKE-
UP. WAS STACY’S EMPLOYER
JUSTIFIED?
A.No, a transgender woman who
presents as female has a right to dress
according to the gender-specific
dress/grooming code for women.
B.Yes, the employer’s policy is justified in
order to avoid office gossip and
potential harassment against Stacy.
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9 •A plaintiff does not have to prove
declined tangible productivity; only
that the harassment altered the job
to make it more difficult
•A single incident of harassment that
unreasonably interferes with
performance or created a hostile
work environment is actionable
Me Too
California responds
•Stray remarks by non-decision-
makers are relevant
•Industry culture is irrelevant
•Summary judgment is rarely
appropriate
Me Too
California responds
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10 CATEGORIES OF SEXUAL HARASSMENT
Offering employment benefits or giving preferential treatment in exchange for sexual favors; and/or retaliating against or getting back at someone who turns down sexual advances
QUID PRO QUO SEXUAL HARASSMENT
Quid Pro Quo
True or False Quiz
1.The promise of reward or threat of punishment in exchange for sexual favors must be explicit to constitute quid pro quo sexual harassment. True/False?
2.An employee who gives in to the demand for sex to avoid negative consequences forfeits their 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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11 Hostile work environment harassment occurs when offensive conduct that is based on a protected characteristic is severe or pervasive enough to alter the conditions of an employee’s job and create an abusive working environment
HOSTILE WORK ENVIRONMENT HARASSMENT
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Examples of Hostile Work Environment
Verbal Conduct: Jokes or
comments about a protected
characteristic Public accusations
or comments about protected
characteristics Talking about
sexual conquests, preferences,
experiences and values
Spreading rumors or gossip
about a person’s personal or sex
life Verbal abuse
Physical Conduct: Hugging,
kissing, pinching, massaging,
rubbing Brushing up against
someone Leering
Sniffing Invading
someone’s space Staring
Visual Conduct: Social
media posts Calendars
Screensavers Electronic
Images
Correspondence: Email
Text messages Instant
messages Social
networking and social media
Sexual advances or
propositions: Repeatedly
asking someone on a date
Romantic relationships
Former romantic
relationships
www.bwslaw.com
Hostile Work Environment Sexual Harassment
“Severe or Pervasive” Explained
To be actionable, the unwanted behavior must be “severe or pervasive” to alter the conditions of employment to the extent that it creates a hostile or abusive work environment.
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
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12 Dating in the Workplace – Good idea?
A chance at eternal love?
“but this person is my soul mate”
Not a violation of City policy per se, however, just because it may be permissible, does not mean it is a good idea
Persistence is not encouraged (you only get 1 chance)
“unavailable” means “no.”
What is the exit strategy?
“it won’t happen to me”
But, when it does, how will this impact me professionally? What if there are sour grapes, will I behave in accordance with policy? www.bwslaw.com
A. No, the conduct never occurred at work.
B. Yes, if Alicia’s conduct negatively impacted Damon’s work environment.
ALICIA AND DAMON ARE CO-WORKERS AND FACEBOOK/INSTA FRIENDS. ALICIA HAS
REPEATEDLY EXPRESSED HER ROMANTIC INTEREST IN DAMON IN INSTAGRAM DIRECT MESSAGES TO HIM. COULD THIS BE AN EXAMPLE OF SEXUAL HARASSMENT?
ABUSIVE CONDUCT
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•Not harassment
•Not motivated by a protected
characteristic
•Not unlawful
•But:
•Can violate City rules and policies
•Can be grounds for discipline
ABUSIVE CONDUCT
Conduct of an employer or
employee that:
•Is undertaken with malice;
•A reasonable person would find
hostile or offensive; and
•Is unrelated to an employer’s
legitimate business interests
(including performance
standards).
SO, WHAT IS ABUSIVE
CONDUCT?
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•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.
•But there are possible non-FEHA claims:
assault, battery, or intentional infliction of
emotional distress.
NO INDEPENDENT CAUSE
OF ACTION
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CONDUCT THAT CAN* BE WORKPLACE
BULLYING
Hostile Glares
Malicious Teasing
Withholding Information
Spreading
Malicious Rumors
Yelling
Creating Undue
Pressure
Insults and Put-
Downs
Intimidation
Demeaning Work
Abilities
Silent Treatment
Personal Attacks
Aggressive
Behavior
Unwarranted
Criticism
Not Giving Credit
Constant
Reminding of Old
Mistakes
Exclusion
Undermining Employees
Overworking
Employees
Isolation
Giving Impossible
Deadlines
Threats
*Not that always is workplace bullying
IS NOT BULLYING
WHAT
•Differences of opinion
•Valid Disagreements
•Legitimate managerial actions, such as:
•Appropriate, fair, and reasonable
feedback on performance
•Managing performance or
underperformance
•Discipline
•Reasonable directives about work
allocation
•Ensuring that policies and procedures
are followed
TO ADDRESS ABUSIVE CONDUCT
HOW
•Civility and professionalism matter
•Bullying can frequently lead to
attrition, reduction in productivity, low
morale, and workplace violence
•Any employee who believes that they
are being subjected to abusive
conduct should report that to a
supervisor or to Human Resources
•Any supervisor who is aware of
potential abusive conduct in the
workplace should report that to
Human Resources
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Abusive Conduct
Exercise
Mercedes’ supervisor, Anna, expects perfection
from her subordinates. Anna reprimands Mercedes
on a daily basis for minor typos, slight tardiness,
and chatting with her co-workers. Is this an
example of abusive conduct?
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Abusive Conduct
Exercise
Choose the best answer:
A.It depends on how Anna reprimands Mercedes.
B.Yes, Anna is causing a high stress environment and her expectations are out of line.
www.bwslaw.com
Abusive Conduct
Exercise
Best Answer: A
It depends on how Anna reprimands Mercedes.
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16 DISCRIMINATION & RETALIATION
•Employees have a right to seek,
obtain, and hold employment without
discrimination
•An employer may not discriminate
against any job applicant or
employee in hiring, promotions,
assignments, termination, or any
term, condition, or privilege of
employment based on a person’s
actual or perceived protected
characteristic(s)
WHAT IS
DISCRIMINATION?
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Identifying Discrimination:
REAL WORLD EXAMPLES
Failure to Hire: Preferring
job applicants of a certain race
when making hiring decisions
Failure to Promote: Making
promotion decisions based on
favoritism instead of merit
Termination: When conducting
a reduction in force, only
terminating employees over the
age of 60
Subpar Work Assignments:
Assigning less favored
shifts and/or job duties to
women
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17 TOM HAS BEEN A STRONG PERFORMER FOR SEVERAL YEARS. TOM ALSO USES A CANE AND OCCASIONALLY A WHEELCHAIR FOR HIS DISABILITY. TOM HAS NEVER BEEN INVITED TO
MARKETING EVENTS LIKE DINNERS AND/OR CHARITY GOLF OUTINGS, YET LESS TENURED EMPLOYEES ATTEND SUCH EVENTS. IS TOM BEING DISCRIMINATED AGAINST DUE TO HIS DISABILITY?
A.Absolutely. Tom has been a strong performer for several years. Why else would he be excluded?
B.Maybe, but more information is needed.
Taking adverse action against an
employee who engages in
protected activity
WHAT IS RETALIATION?
WHAT IS RETALIATION?
Adverse action Taken Because of
•Termination
•Demotion
•Failure to promote
•Refusal to hire
•Poor evaluation
•Unwarranted criticism
or ostracism
•Denial of privileges,
such as overtime
Protected Activity
•Filing a good faith complaint
•Testify, assist or participate in
proceedings, hearings, or
investigations
•Opposing an act the
employee reasonably
believes is unlawful
•Defending yourself against a
charge
•Reasonably refusing to follow
a discriminatory order (if
Employer is aware of belief)
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18 •Statements by the supervisor
taking discipline
•Employer’s knowledge of
protected activity
•Proximity of time between
protected activity and
adverse employment action
Direct Evidence
Establishing “Taken Because Of”
Circumstantial Evidence
•Action was justified by a legitimate,
non-retaliatory reason
•Employee can defeat by showing
the stated reason was a pretext
•Reason was false or
unpersuasive
•Similarly situated employees
were treated differently
•Effective documentation is key to
defense
•Documentation should be
consistent
•Documentation should be fair
and unbiased
Defense to Retaliation
NIA IS A MOM TO AN INFANT SON. NIA WAS AWARDED “SALESPERSON OF THE YEAR – 2022” BEFORE HER SON WAS BORN. NIA HAS RETURNED TO WORK, BUT HE R SUPERVISOR
IS NOT PROVIDING HER THE SAME QUANTITY AND QUALITY OF LEADS, THU S HER SALES HAVE SUFFERED. IS NIA BEING DISCRIMINATED AGAINST FOR BEING A MOM? A.Of course not. Nia’s supervisor respects her parental obligations and doesn’t want to burden her with more responsibilities.
B.It could be discrimination, but more information is needed. Nia should speak to her supervisor and/or Human Resources to state her concerns. 52 53
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19 EFFECTIVE DOCUMENTATION:
A SUPERVISOR’S DUTY
WHAT IS EFFECTIVE
DOCUMENTATION?
•Tells the story of an employee’s
employment from start to finish
•It’s the employer’s line of defense in the
event an employee sues for wrongful
termination, discrimination, etc.
•Serves as an assurance that the employer
is in compliance with applicable law
If you don’t write it down, it didn’t happen
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THE BASICS
CREATING EFFECTIVE DOCUMENTATION
Simultaneously
Created
Believable
Accurate
Factual
Unbiased
Professional
Proofread
Spell Check
Identify,
Quote and
Attach
Policies or
Support
Date
Author
Meeting
Attendees
Provide
Context
Outline
Consequences
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20 WHAT IS EFFECTIVE
DOCUMENTATION?
•Did you provide sufficient information
and context?
•Will the employee understand?
•Will future “You” remember what
you meant?
•Would the comments make sense
to an outsider (i.e., Civil Service
Commission, jury)?
•Will your documentation help or
harm your credibility?
WHAT IS EFFECTIVE
DOCUMENTATION?
Keep documentation for:
•Performance management
•Documentation related to complaints
by or against employees and
investigations into those complaints
•Attendance issues
•Violation of Employer’s Policies
•Medical documentation
•Disability accommodations
I WAS HARASSED. WHAT
SHOULD I DO NOW?
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•City Policies: Employees do NOT have to follow their chain of command
•Complaints can be submitted to any supervisor, manager, department head, human resources, or the City Manager
•By law: always option to report to Outside Administrative Agencies:
An employee has the option to report harassment discrimination or retaliation to the EEOC or the CRD
COMPLAINT PROCEDURES
AVAIL YOURSELF OF THE CITY’S COMPLAINT PROCEDURES
•Complaints should be made as soon as
possible
•Complaints should be as specific and
detailed as possible
•Complaints can be verbal or written
•Potential adverse consequences in
litigation if the employee does not follow
internal procedures
COMPLAINT PROCEDURES
AVAIL YOURSELF OF THE CITY’S
COMPLAINT PROCEDURES AND ALWAYS
REMEMBER:
AN EMPLOYEE HAS LODGED A COMPLAINT
WHAT DO I DO NEXT?
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22 •Oral or written
communication alleging
complaint
•General statement about
poor or unfair treatment
•No “magic words”
required
•Anonymous is
discouraged but sufficient
What is a Complaint?
•Any supervisory employee who
receives a complaint OR who has
reason to believe that harassment,
discrimination, or retaliation may
have occurred MUST notify Human
Resources immediately
•All other employees are strongly
encouraged to report potential
harassment, discrimination, or
retaliation immediately
SUPERVISORS’
REPORTING OBLIGATION
RECEIVING A COMPLAINT
1 •Listen actively
2 LET THE EMPLOYEE
TELL THEIR STORY
•Do not guarantee
confidentiality or
make other
promises
DO NOT MAKE PROMISES
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23 3
•Reassure the employee that
they did the right thing in
bringing the complaint forward
4 PROVIDE REASSURANCE
•Do not discourage the
employee from making the
complaint
KEEP YOUR OPINION TO
YOURSELF
5 •Do not attempt to mediate the
problem yourself
•Consider keeping the parties
separate (work with HR)
UNDERSTAND THE
PROCEDURE
6 •Immediately report the
matter to Human
Resources
7CALL FOR REINFORCEMENTS
•Advise the employee
what may happen next
EXPLAIN PROCESS TO
EMPLOYEE
A manager comes to work to find a typed, unsigned letter alleging harassment in the workplace. Does the city have to investigate this? A.No – you cannot investigate an anonymous complaint
B.Yes – but it’s not the best way to complain about harassment 67 68
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24 What Happens After a
Complaint is Filed?
•The City will conduct (or oversee) a
prompt and impartial investigation of
all complaints
•The City will take appropriate interim
actions, including, but not limited to:
•Leave of absence
•Reassignment
•No contact orders
Investigation of complaints
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A L EG AL DUTY TO INVESTIG ATE
DUTY
FEHA:
“Take all reasonable steps to prevent
discrimination and harassment from
occurring.” Gov. Code § 12940(j)(1) and (k)
Title VII:
“Take all steps necessary to prevent
harassment from occurring.” 29 C.F.R. §
1604.11(f)
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25 •The City will endeavor to keep
the reporting employee’s
concerns confidential to the
extent possible
•Complete confidentiality
cannot be guaranteed
•The City will take steps to
protect confidentiality to the
extent practical, such as
limiting disclosure
Investigation of complaints
Confidentiality
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SHOULD INVESTIGATE?
WHO
•Department Heads/ Supervisors
•HR Department
•Outside counsel
•Licensed P.I. specializing in
investigations
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OF FAILING TO
INVESTIGATE
C O N S E Q U E N C E S
•Violates employer policy and state
and federal law
•Employer policies will be perceived
as meaningless among employees
•Discourages complaints
•Denies employer opportunity to
resolve issues before litigation
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26 CONCLUDING THE
INVESTIGATION
If the investigator sustained findings of
wrongdoing, it may be appropriate for the
employer to take remedial action against
the respondent.
•The City will take appropriate
corrective action if internal policies
were violated
•Remedies can include, but are not
limited to:
•Termination
•Lesser discipline
•Transfer/reassignment
•No contact orders
•Training and education
Available Remedies
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One of my co-workers just complained at work about some comments I posted on my Facebook wall. Is it okay for the city to be investigating me for this? A. Absolutely not – everything you say on Facebook is protected by the First Amendment
B. It depends on the comments and other circumstances
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27 I AM ACCUSED! NOW WHAT?!
HOW CAN I BE ACCUSED?
•Three ways:
(1) Internal complaint
(2) Charge filed with the EEOC/CRD
(3) Named in litigation
•The City must investigate upon first
receipt of complaint or knowledge
www.bwslaw.com
WHAT SHOULD I DO IF I AM
ACCUSED?
•Fully participate in the investigation
•Be patient
•Be cooperative
•Be honest
•Maintain confidentiality
•Do not retaliate
•Address questions about the
process to Human Resources
www.bwslaw.com
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28 JUDGMENT DAY:
LEGAL CONSEQUENCES OF HARASSMENT
THE CITY’S LIABILITY FOR
HARASSMENT
Supervisors
Supervisors:
•The City is vicariously liable
Non-supervisory Employees or Third Parties:
•If the City knows or has reason to know
that the harassing conduct occurred
Officials
•If the harassment arose from and was directly related
to the official’s performance of their
official duties
INDIVIDUAL & CITY
LIABILITY FOR HARASSMENT
Supervisors
•Compensatory Damages
•Emotional distress
•Lost wages
•Punitive Damages (Against Individual Defendant)
•Unlimited under FEHA if the defendant is
shown by clear and convincing evidence to
have acted with oppression, fraud, or malice
•Limited under Title VII if the defendant acted
with malice or reckless indifference
•Attorney’s Fees
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29 •Any supervisory employee who receives a
complaint OR who has reason to believe that
harassment, discrimination, or retaliation may
have occurred MUST notify Human Resources
immediately
•Officials are strongly encouraged to report any
potential harassment, discrimination, or
retaliation to the City Manager immediately
Supervisor’s Obligation
An elected official can be personally liable
for harassment (as an intentional tort).
Plaintiff must recover against the official
first before recovering against the City (but
the City can sue the official for
reimbursement).
Official’s Liability for
Harassment
IMPLICIT BIAS
AND MINIMIZING ITS EFFECTS
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30 •A bias is an inflexible conscious or
unconscious belief about a
particular category of people
•A bias can be positive or negative
•Having a bias does not make us
bad people – its what we do about
our biases that matters
WHAT IS IMPLICIT BIAS?
GENERAL MEANING
•Recruitment
•Interpersonal relationships
•Professional development
•Advancement
THE IMPACT OF IMPLICIT
BIAS?
AFFECT ON THE WORKPLACE
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31 MINIMIZING THE INFLUENCE
OF IMPLICIT BIAS
•Focus on seeing people as
individuals
•Work on consciously changing
your stereotypes
•Take time to pause and reflect
•Adjust your perspective
•Increase your exposure
IT TAKES A VILLAGE:
HARASSMENT PREVENTION
•Work is not the same as
your private life
•Remember that the
workplace is a diverse place,
filled with people who have
different life experiences,
values, perspectives,
opinions, etc. from you
be mindful
Consider the environment
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32 •A bystander is a person
who observes or learns of
a conflict or unacceptable
behavior
•An active bystander takes
steps to try to make a
difference
If you see something, say
something
BE AN ACTIVE BYSTANDER
WHAT IS A BYSTANDER?
1.Direct
2.Delegate
3.Distract
4.Delay
5.Document
THE 5 D’S
SOME WAYS TO INTERVENE
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ANY QUESTIONS?
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