Liebert Cassidy Whitmore
City of Carlsbad
Preventing Workplace Harassment,
Discrimination and Retaliation
Presented By:
Stephanie J. Lowe / February 27, 2025 & March 4 & 12, 2025 Liebert Cassidy Whitmore
Agenda
• Overview of Laws and Policies Related to
Discrimination, Harassment, and Retaliation
• Protected Classifications
• What is Unlawful Discrimination, Harassment,
and Retaliation?
• Types of Unlawful Harassment
• Bullying/Abusive Conduct in the Workplace
• Duties of a Supervisor
• Addressing Unlawful Discrimination,
Harassment, and Retaliation in the Workplace
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Preventing Workplace Discrimination,
Harassment and Retaliation Training
Why Are We Doing
This Training?
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Administrative Order No. 45 - EEO
and Workplace Civility Policy
• “[T]he city is committed to maintaining a
workplace that provides equal employment
opportunity (EEO), is free from discrimination,
harassment and retaliation in any form and fosters
diversity, equity, inclusion (DEI) and respect for all
individuals.”
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Unlawful Harassment
Unfortunately Still Takes Place….
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Preventing Workplace Discrimination,
Harassment and Retaliation Training
So, What Do We Need to Know?
&
What Can We Do to Prevent It?
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True or False?…
Harassment can be based upon any
protected classification.
TRUE
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True or False?…
Anti-harassment laws do not apply to
volunteers and interns.
FALSE
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True or False?…
Employees who report harassment
must put their complaint in writing.
FALSE
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True or False?…
Unlawful discrimination generally
does not occur when a supervisor
applies work rules uniformly.
TRUE
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True or False?…
If an employee’s religious beliefs preclude
the employee from working with any gay,
lesbian, or transgender employees, the
employer has to reasonably
accommodate the employee.
FALSE
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True or False?…
If the employer is investigating a
claim of harassment and the
harassment stops, the employer may
discontinue the investigation?
FALSE
Overview of Laws and Policies Related to
Discrimination, Harassment, and
Retaliation
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Sources of Law
• Federal Law
Equal Pay Act of 1963
Title VII of the 1964 Civil Rights Act
Age Discrimination in Employment Act (ADEA)
Americans with Disabilities Act (ADA)
42 U.S.C. §§ 1981 and 1983
• California Law
Fair Employment and Housing Act (FEHA)
California Equal Pay Act
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Administrative Agencies
• U.S. Equal Employment Opportunity Commission
(EEOC)
Federal Agency Administering Title VII, ADA, and ADEA Employment Discrimination Laws
• Civil Rights Department of the State of California
https://calcivilrights.ca.gov
State Agency Administering FEHA Employment
Discrimination Laws
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City Policy
• The City’s Policy Against Harassment, Discrimination and Retaliation
Prohibits employees and non-employees from discriminating, harassing and retaliating based on any protected status (all must be listed) Protects applicants, volunteers, independent contractors and employees from being subject to prohibited conduct
Provides a complaint procedure for employees to report violations for the City to Investigate
Identifies Civil Rights Department (formerly the Department of Fair Employment and Housing)/EEOC resources including website or link to training
Provides confidentiality to extent possible
Appropriate remedies for sustained violations
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City Policy
• Zero Tolerance
Single violation of City’s policy can subject employee to appropriate disciplinary action even if violation would not establish liability or be a violation of state/federal law • Distribution of Policy
Review with and provide to new and current employees with acknowledgement form to ensure receipt
Post in the workplace/intranet
Update policy when appropriate and notify employees of update
Protected Classifications
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Unlawful Harassment?
What is Unlawful Harassment?
Is There Such a Thing as Lawful
Harassment?
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Protected Classifications
• Sex/Gender/Gender Identity/Gender
Expression
• Sexual Orientation
• Race/National Origin/Color
• Disability/Medical Condition
• Genetic Information/Characteristics
• Religious Creed
• Marital Status
• Military/Veteran Status
• Age (40 Years of Age and Older)
• Reproductive Health Decisionmaking
• Opposition to
Discrimination/Harassment
• Association/Perception
• Based on a Combination of Any Two
or More Protected Characteristics
*Note NEW protections for cannabis use
(when off the job and away from the
workplace)
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Gender Identity / Expression
Employers Must:
Permit employees to use the restroom that corresponds to the employee’s gender identity/expression
Refer to employees using the employee’s preferred
name, gender, and pronouns
Designate single occupancy facilities using gender-
neutral signage
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Gender Identity / Expression
Employers Must Not:
Enforce dress codes more harshly against an employee
based on their gender identity/expression
Discriminate against an applicant for failing to
designate a gender or designating a gender that is
inconsistent with the applicant’s sex assigned at birth Inquire about or require documentation or proof of an individual’s sex or gender
What is Unlawful Discrimination,
Harassment, and Retaliation?
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Unlawful Discrimination,
Harassment and Retaliation
Discrimination
Retaliation
Harassment
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Unlawful Discrimination
Elements of Unlawful Discrimination
• An adverse employment action taken based on a
protected classification
Adverse Employment Action =
• Action taken within the course and scope of employment Hiring, firing, demotion, failure to promote, assignment of job duties, etc.
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Unlawful Harassment
• Harassment is NOT within the course and scope of
employment
• Verbal, visual, or physical actions that are
unwelcome and directed to or related to an
employee’s protected classification
• Includes actions by/towards employees,
independent contractors, vendors, and other non-
employees
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Unlawful Retaliation
Elements of Unlawful Retaliation
• Protected activity – broad standard
Reporting discrimination or harassment
Participating in an investigation
Refusing to follow order reasonably believed to be
discriminatory
• Adverse action – broad standard
• Causal connection
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Case Study
Daisy files a sexual harassment claim against her supervisor John. Susie, who is also supervised by John, participates in the investigation of this claim. John expresses annoyance with the investigation and complains to the other employees in the department that Susie is “looking for attention” and tells their higher-level supervisor that she is “difficult to work with,” resulting in Susie’s demotion to a lower position.
Has Susie been subjected to unlawful retaliation?
While this is going on, what if John ignores Daisy at work following the harassment complaint and leaves the room when she comes in because he does not want her to accuse him of anything else?
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What If You Are Accused?
• Refer the accuser to a superior, human resources, or upper management
• Report the accusation to your supervisor and to human resources • Refrain from ANY action that could be interpreted as retaliation • Seek constructive counseling from human resources/upper management
• Cooperate in the investigation
• Follow the City’s policy
Types of Unlawful Harassment
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Two Types of Harassment
1. Quid Pro Quo
(“Economic”)
2. Hostile Work
Environment
(“Environmental”)
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Quid Pro Quo Sexual Harassment
(“Economic” Harassment)
Classic Example:
“Sleep with me and I'll make sure you get
that promotion… ”
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Quid Pro Quo Sexual Harassment
(“Economic” Harassment)
Elements of “Economic” Harassment:
• Job benefits promised;
• Explicitly or implicitly;
• In exchange for:
Sexual favors; or
Denied if sexual favors are not given
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Case Study
Natalie is an Accountant within the City’s Finance Department. One day in the Department’s break room while getting her lunch, she confides to Chris, a Finance Manager, that she has applied for a Senior Accountant position, and that she desperately wants to get the promotion. Chris excitedly responds: “That’s great! I’m actually on the interview panel for that recruitment, and I’m good friends with the other members of the panel. I can put in a good word for you!” She thanks him. Towards the end of the workday, Natalie gets a text message from Chris, asking her if she wants to grab a drink with him after work. Chris and Natalie have never socialized outside of work before.
Is Chris guilty of quid pro quo sexual harassment?
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Case Study
Pete and Dan both work as Entry Level Dispatchers at
the Police Department. They have worked together for
a year and have the same level of experience at the
Department. One day, Pete turns to Dan and says, “I
know you’ve been wanting that extra overtime. Sleep
with me and I’ll make sure your overtime request gets
approved.”
Has Pete Engaged in Quid Pro Quo Sexual
Harassment?
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Hostile Work Environment
(“Environmental” Harassment)
Elements of “Environmental” Harassment:
• Protected Classification
• Physical, Verbal, or Visual Conduct
• Objectively and Subjectively Offensive (Unwelcome)
• Severe or Pervasive
Single Incident May Establish Liability Under FEHA
• Unreasonably Interferes With Work
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Hostile Work Environment
(“Environmental” Harassment)
2019 Changes to California Law:
• Decline in productivity not required to establish harassment – it is sufficient that the conduct “so altered working conditions as to make it more difficult to do the job.”
• A single incident of harassing conduct may be sufficient to create a hostile work environment
• Totality of the circumstances matter, including “stray remarks” by nondecisionmakers
• Standards do not vary by workplace
• Rarely determinable “on paper” alone
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Physical Conduct
Obvious Examples:
• Sexual assault
• Touching/Groping
• Physical intimidation
Less Obvious Examples:
• Massages
• Hugging
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Case Study – Verbal Conduct
Although Daniela was assigned at birth as a male, she recently began presenting as a female, consistent with her gender identity.
She notified her co-workers of her new changed presentation as she previously presented as male, named Daniel. John and Ashley refuse to refer to Daniela by her name or female pronouns and still call her “Daniel” and frequently ask “him” why “he” uses the Women’s Restroom and wears skirts.
Have John and Ashley created a hostile work environment? Liebert Cassidy Whitmore
Verbal Conduct
• Sexual comments
• Jokes
• Mocking accent
• Teasing
• Slurs
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Visual Conduct
• Social media posts/images
• Emails
• Cartoons or drawings
• Gestures
• Staring/leering
• Sexual conduct/Affection between other
employees at work
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“Gray” (Borderline) Areas
• “Private” and “consensual” relationships between supervisors and subordinates? (Warning: not for long!)
• Off-duty conduct
• Invitations to lunch, drinks or dinner
• References to appearance or dress
• Casual touching of non-intimate body parts
Hands on shoulders
Hands on waist
Hand on arm or leg
Bullying/Abusive Conduct
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Bullying/Abusive Conduct?
What About Bullying and Abusive
Conduct in the Workplace?
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Bullying/Abusive Conduct Is
Improper In The Workplace
• “Bullying/abusive conduct”
Conduct in the workplace with malice that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests
Includes verbal abuse, derogatory remarks/insults,
threatening/intimidating/humiliating physical or verbal conduct, or undermining of a person’s work performance
• Bullying/abusive conduct issues are generally covered by the City’s policy and standards of conduct rules and such rules should be enforced
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Bullying v. Unlawful Harassment
Both unlawful harassment and bullying consist of
offensive conduct that is either pervasive or severe,
and thus goes beyond mere incivility...
So, what’s the difference?
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Bullying v. Unlawful Harassment
Protected
Classification
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Difference Between Unlawful
Harassment and Bullying
• Unlawful harassment is directed at membership in a protected classification
Therefore, it is unlawful
• Bullying is NOT necessarily directed at membership in a protected classification
Therefore, bullying is NOT unlawful
• While not necessarily unlawful, bullying/abusive conduct towards employees in the workplace is entirely inappropriate and should not be tolerated
Duties of a Supervisor
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Who is a “Supervisor”?
• Anyone who has any responsibility or discretion to
lead others
Government Code Section 12926(t)
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Supervisor’s Duty to Respond
•“Harassment… Shall be Unlawful if the Entity, or its Agents or Supervisors, Knows or Should Have Known of This
Conduct and Fails to Take Immediate and Appropriate
Corrective Action.
”
Government Code Section 12940(j)(1)
Supervisors have an obligation to report harassment,
discrimination, and retaliation of which they become
aware.
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Case Study
Lauren supervises a team of five employees, four of
whom are male, and one of whom is female. Today,
Lauren overheard the male employees standing around a
food truck at lunch speculating on how their female
colleague must be “in bed.” The female colleague was
not in the office and did not overhear the discussion.
Does Lauren have an obligation to take action even
though the female employee was not there to overhear
the discussion?
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Supervisor’s Duty to Respond
• Report observed/overheard conduct
• Forward complaints/issues to management and Human
Resources promptly, including:
Third-party complaints
Verbal complaints
Rumors
Remember:
The word “harassment” need not be used to trigger your
duty to act
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Supervisor’s Duty to Respond
Don’t Ignore the Response!
• Take immediate action and report/ follow-up on any
harassment, discrimination, or retaliation complaints
received
• Cooperate in the investigation
• Prevent further harassment
• Assure no retaliation
Addressing Unlawful Discrimination,
Harassment, and Retaliation in the
Workplace
Liebert Cassidy Whitmore
What Can the City Do?
• Appropriate corrective action
Conduct prompt and thorough investigation
o (Confidentiality is limited)
Keep the victim informed
Discipline perpetrator appropriately
Preventative training to prevent future violations
Re-publish/update City policy
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Options for Resolution
• Follow the City’s harassment policy complaint
procedure
• The alleged victim can also take the following
actions:
Report to the U.S. Equal Employment Opportunity
Commission (EEOC)
Report to the Civil Rights Department of the State of California https://calcivilrights.ca.gov
Lawsuits in State or Federal Court
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Consequences – Employer Liability
• The Employer is liable for:
The conduct of supervisors who engage in unlawful
harassment, discrimination, or retaliation
Failing to take all reasonable steps necessary to
prevent harassment from occurring
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Consequences – Personal
Liability
• ALL employees can be personally liable for
engaging in unlawful harassment
• Supervisors can also be personally liable for
condoning unlawful harassment or failing to act in
response to an unlawful harassment complaint
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Consequences – Damages
Damages Can Include:
• Back pay
• Emotional distress
• Punitive damages (individual employees)
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Prevention
• Never play favorites
• Report all complaints immediately
• Take all complaints seriously
• Monitor the workplace
• Follow the City’s policy
• Be a good role model!
The Ultimate Goal is to Establish a
Workplace Defined By Courtesy,
Sensitivity, and Respect
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Thank you!
Stephanie J. Lowe
Senior Counsel | San Diego
619.481.5900 | [email protected]
www.lcwlegal.com/our-people/stephanie-lowe