Del Mar Joint Special Meeting Agenda
City of Del Mar Town Hall
1050 Camino del Mar, Del Mar, California
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us Civility Works: The Del Mar Code of Civil Discourse: Together we will promote inclusion; listen to understand; show respect; be clear and fair; and focus on the issue.
NOTICE AND CALL OF A
JOINT-SPECIAL MEETING/TRAINING
OF THE DEL MAR CITY COUNCIL, PLANNING
COMMISSION, DESIGN REVIEW BOARD, AND
FINANCE COMMITTEE
Tuesday, September 9, 2025, 10:00 a.m.
City of Del Mar Town Hall
1050 Camino del Mar, Del Mar, California
*********************************************
NOTICE IS HEREBY GIVEN that the Mayor of the City of Del Mar has called a Special Meeting at the time and place listed above to consider the following: Please refer to the attached agenda.
CERTIFICATION
I, Sarah Krietor, Administrative Services Manager/City Clerk of the City of Del Mar, hereby certify that a copy of this notice was posted at City Hall and distributed to the City Council on September 8, 2025, at approximately 9:00 a.m.
Sarah Krietor, Administrative Services
Manager/City Clerk
Terry Gaasterland
Mayor
Tracy Martinez
Deputy Mayor
Dan Quirk
Council Member
John W. Spelich
Council Member
Ashley Jones
City Manager
Leslie E. Devaney
City Attorney
Sarah Krietor
Administrative
Services
Manager/City Clerk
Del Mar Joint Special Meeting September 9, 2025
Agenda Page 2
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us I. CALL TO ORDER/ROLL CALL
II. INTRODUCTION
III. MUNICIPAL ANTI-HARASSMENT TRAINING
In accordance with Senate Bill 1343, sexual harassment training will be provided to members of the City Council; Del Mar Planning Commission; Design Review Board; Finance Committee; and City staff by Assistant City Attorney Wendy House and Attorney Jeffery Morris from Devaney, Pate, Morris, & Cameron Law, LLP. This meeting is for the purpose of training only. There will be no action taken by any legislative body at this meeting.
IV. ADJOURNMENT
Preventing Sexual Harassment,
Discrimination, Retaliation, and
Abusive Conduct in the Workplace
City of Del Mar Biennial Training
September 9, 2025
Presented by:
Jeffery A. Morris & Wendy L. House
TRAINING FOR ALL EMPLOYEES
LEARNING OBJECTIVES
Review Sexual Harassment elements / remedies
Discuss other forms of Harassment / Discrimination
Consider Harassment response / prevention strategies
Address Abusive Conduct concerns
KNOW YOUR RIGHTS:
Harassment and Discrimination
in the Workplace is
ILLEGAL
OVERVIEW OF LAWS
AGAINST SEXUAL HARASSMENT
WHAT IS SEXUAL HARASSMENT?
Sexual harassment is discrimination based on sex / gender Includes harassment based on sex (including pregnancy, childbirth or related medical conditions), gender identity, gender expression, or sexual orientation)
Can target individuals of any gender
Can occur between people of the same gender
Does not have to be motivated by sexual desire or sexual in nature Intent can be humorous or a joke
NO MEANS NO!
Do not have to tell someone to stop for sexual harassment to occur
Can use:
Body language
Excuses
Tone of voice
HTTPS://YOUTUBE.COM/CLIP/UGKX1XBAVWGTUGFAS1X0UN_VBUTMEE3PCVS?SI=P5CL1NIFIMY3GHE2
QUIZ #1
True OR False?
1. Employees can be personally liable for sexual harassment
2. Unpaid interns are not protected against sexual harassment
3. Vendors are not protected against sexual harassment
WHO IS PROTECTED BY THE LAW?
Federal & California
Employees
Applicants
California ONLY
Contractors
Vendors
Volunteers
Interns
WHO IS LIABLE UNDER THE LAW?
Employers
Prospective Employers
Individual Employees
EMPLOYEE PERSONAL LIABILITY
Individual Employees are personally liable for damages caused by their unlawful actions
Personal liability may include compensation from the individual Employee’s personal assets
Personal liability is in addition to any employment action an Employer can take against the harasser
EMPLOYER LIABILITY
Harassment by Supervisors
Employer may be liable even if Employer is unaware of harassment Harassment by (non-supervisory) Employees
Employer may be liable if Employer knew or should have known about harassment and failed to take immediate corrective action WHO IS A SUPERVISOR?
Supervisors have discretion and authority to:
Hire, transfer, promote, assign, reward, discipline, discharge employees Effectively recommend any of the above actions
Take action based on grievances / complaints from employees Direct the daily work activities of employees
TYPES OF SEXUAL HARASSMENT
QUID PRO QUO
Supervisor demands sexual favors:
In exchange for employment benefits OR
By threatening adverse employment actions
HOSTILE WORK ENVIRONMENT
Unwelcome (pervasive/severe) behavior
Related to a protected class
Unreasonably interferes with ability to do job
Can be:
Directed towards Complainant
Witnessed by Complainant OR
Widespread sexual favoritism
HTTPS://WWW.GLAMOUR.COM/VIDEO/WATCH/HUMAN-RESOURCES-EXPERT-FACTCHECKS-THE-OFFICE-LEGALLY-BLONDE-MORE
QUID PRO QUO
SEXUAL HARASSMENT
QUIZ #2
True OR False?
1. Promise of reward or threat of punishment in exchange for sexual favors must be explicit to constitute Quid Pro Quo sexual harassment.
2. Employee demanding sex to avoid negative consequences forfeits a claim for Quid Pro Quo sexual harassment.
3. Quid Pro Quo sexual harassment claim cannot be successful without a witness or documentary evidence to support the claim.
QUID PRO QUO - ELEMENTS
Harassment is sexually motivated
Unwelcome sexual advances / conduct / comments
Supervisor uses their authority (actual or apparent) to extort sexual favors Employee’s response to harassment directly affects their employment Ex: compensation, promotion, hiring, etc.
EXERCISE A
Alan is the sole owner of a new company in California with no employees called Acme Construction. To help generate business, Alan retains Eddie as an independent contractor to create a website for Acme Construction. Alan also posts a job advertisement on LinkedIn for a secretary position, and Martha submits her resume in response to the ad.
Alan threatens to sue Eddie for breach of contract unless Eddie has sex with him. Alan tells Martha the secretary job is hers if she agrees to have sex with him.
After she declines, he tells her he was joking and is only interested in men.
Is this Quid Pro Quo Sexual Harassment?
EXERCISE A - TEST
Choose the BEST answer:
A. Martha can’t sue Alan because Acme doesn’t have any employees B. Eddie can’t sue Alan because they are both men
C. Martha can’t sue Alan because he immediately told her he was joking D. Both Eddie and Martha can sue Alan for Quid Pro Quo sexual harassment E. Eddie can’t sue Alan because he is an independent contractor HTTPS://YOUTUBE.COM/CLIP/UGKXJYJ3VVLLEYWM_YEMTY7YQQR79IDMUON7?SI=HC OQ4BVN9YM1WOUM
EXERCISE B
Sandy is the Deputy Director of Engineering for the Town of Smithville. One day while at work, Sandy approaches Claudia, an entry level Analyst in the Finance Department, and says: “Hi, Claudia. I’ve noticed you working out in Zumba class at the gym. You always seem like you’re having a great time! I would love to take you on a date for dinner and drinks after work on Friday if you’re free.” Claudia is caught off guard by the comments from Sandy and responds, “Thank you for the offer, but I’m not interested.” Sandy then replies, “No problem, I understand. Have a great rest of your week!” Sandy does not further proposition Claudia or engage in unwelcome conduct towards her.
Four months later, Claudia fails to show up for work and is placed on probation by her supervisor, the Director of Finance.
Is this Quid Pro Quo Sexual Harassment?
EXERCISE B - TEST
Choose the BEST answer:
A. Claudia has a claim for Quid Pro Quo sexual harassment because Sandy asked a subordinate employee on a date.
B. Claudia does not have a claim for Quid Pro Quo sexual harassment because there is no evidence that she is a lesbian.
C. Claudia’s claim for Quid Pro Quo sexual harassment against Sandy is weak because there is no evidence that Sandy was offering job benefits if Claudia said yes to a date or threatening punishment if Claudia said no to a date.
HOSTILE
WORK ENVIRONMENT
QUIZ #3
True OR False?
1. To prove hostile work environment sexual harassment, an Employee does not need to show they suffered an adverse employment action
2. To prove hostile work environment sexual harassment, an Employee must show the sexual harassment was both severe and pervasive
HOSTILE WORK ENVIRONMENT - ELEMENTS
Harassment is sexually motivated
Unwelcome sexual advances / conduct / comments
Harassment is so severe or pervasive that it creates a hostile, abusive or intimidating work environment
Interferes with individual’s ability to perform their job Types:
Directed at claimant or others
Widespread sexual favoritism
“HARASSING CONDUCT”
Unwanted sexual advances can be:
Verbal
Visual
Physical
HTTPS://YOUTUBE.COM/CLIP/UGKXFMA5IM0JCGHFBQBOWOO7WBISJYRCGRJD?SI=AU -IZOCUB_UYWPKR
VERBAL HARASSMENT
Foul or obscene language
Derogatory comments
Explicit discussions about sexual activities
Comments about other people’s physical attributes
VISUAL HARASSMENT
Leering
Staring
Making sexual gestures
Displaying sexually explicit objects, pictures, cartoons, graffiti, or posters Sending graphic emails, text messages, or jokes
PHYSICAL HARASSMENT
Kissing
Hugging
Grabbing
Impeding or blocking movement
Assault
EXERCISE C
Rhonda works as a Field Supervisor in the Public Works Department. The other Field Supervisors are all men. Anita, who is Rhonda’s boss, doesn’t believe that women should work as Field Supervisors in a male-dominated field.
Anita tells others in the Department, “the field is NO place for women.” She also tells Rhonda’s crew members to “keep an eye” on Rhonda and “don’t feel obligated to do what she says.” During Department-wide meetings, Anita refers to Rhonda as “honey” and “sweetie”.
When Rhonda politely asks Anita to stop undermining her authority, Anita tells her to “grow a pair or you’ll never make it out there!”
Is this Hostile Work Environment Sexual Harassment?
EXERCISE C - TEST
Choose the BEST answer:
A. Anita’s nicknames and statements undermining Rhonda’s authority are acceptable because Rhonda needs to prove she has the ability to supervise men in what could be an inherently crude environment.
B. Anita’s nicknames and statements undermining Rhonda’s authority have created a hostile work environment.
C. Since Anita has no interest in Rhonda sexually, her hostile behavior is not actionable as sexual harassment.
EXERCISE D
Men in Rhonda’s field crew, including Josh and Matt, frequently refuse to follow her orders.
They also routinely interrupt her during Department-wide meetings by talking, laughing and making awkward noises. Afterwards, they insincerely offer “apologies to your ladyship”.
Anderson, another crew member, tells Josh and Matt to “leave my lady alone”. He also comments on Rhonda’s appearance by saying, “you’re the hottest boss to ever work in the field!” Anderson repeatedly asks Rhonda on dates even though she tells him she’s happily married.
Rhonda is afraid to complain about Anita’s behavior to anyone. Rhonda files a complaint with Anita regarding the treatment by her crew – Josh, Matt and Anderson. Anita accepts Rhonda’s written complaint, but takes no action against Josh, Matt or Anderson.
Is this Hostile Work Environment Sexual Harassment?
EXERCISE D - TEST
Choose the BEST answer:
A. Anderson cannot be found liable for hostile work environment sexual harassment because he defends Rhonda against Josh and Matt.
B. Josh and Matt are not liable for sexual harassment because there is no evidence that their disruptive actions are substantially motivated by Rhonda’s sex.
Besides, their actions are neither severe nor pervasive.
C. The employer is liable for the sexual harassment of Josh, Matt and Anderson because management knew about their behavior.
“SEVERE OR PERVASIVE”
Unwanted sexual behavior must be severe OR pervasive and Alter employment conditions by creating a hostile or abusive work environment Considerations:
Nature of conduct
Frequency of conduct
Period of time over which conduct occurred
Whether conduct was physically threatening or humiliating Extent conduct unreasonably interfered with work performance
EXERCISE E
Corey is a Supervisor in the City’s Finance Department. Jamal and Nate are both Office Technicians in the Finance Department.
On Nate’s first day of work, he observes Corey giving Jamal a lingering hug and a kiss on the cheek.
Corey then turns to Nate and says, “Welcome to Corey’s World where the #1 rule is: what Corey wants, Corey gets. Remember that and you’ll have a bright future here!” The next morning, Jamal arrives early and tells Nate he comes early to avoid interacting with Corey because Corey makes him uncomfortable. Once Corey arrives, he approaches Jamal, rubs his shoulders and tells him, “you can’t hide from me forever!” Nate observes and hears these interactions.
That night, Nate loses sleep thinking about Corey’s mistreatment of Jamal and ends up missing work the following day because of it.
Is this Hostile Work Environment Sexual Harassment?
EXERCISE E - TEST
Choose the BEST answer:
A. Nate cannot file a claim for hostile work environment because Jamal has not yet filed a complaint against Corey.
B. Nate has personally witnessed Corey’s harassment of Jamal and therefore, can sue Corey and the City for sexual harassment due to a hostile work environment.
C. Nate cannot file a claim for hostile work environment because he has only been employed by the City for a few days.
REMEDIES FOR SEXUAL HARASSMENT
TYPES OF REMEDIES
Injunctive Relief
• Training
• Changes in Policies/Procedures
Economic Damages
• Lost Wages
• Medical Expenses
• Job Search Expenses
Non-Economic Damages
• Emotional Distress
• Loss of Enjoyment of Life
Punitive Damages • To Punish / Deter Egregious Behavior
OTHER TYPES OF HARASSMENT
QUIZ #4
True OR False?
1. Age (40 years and older) is a protected class for employment discrimination, harassment and retaliation.
2. Reproductive health choices is a protected class for employment discrimination, harassment and retaliation.
3. Color, as a protected class for employment discrimination, harassment and retaliation, includes hair style and texture.
PROTECTED CATEGORIES
Race
Color
National Origin
Sex
Sexual Orientation
Gender
Gender Identity
Gender Expression
Religious Creed
Mental Disability
Physical Disability
Medical Condition
Military /Veteran Status
Marital Status
Age (40+)
Genetic Characteristics
Ancestry
Reproductive Health Choices
“Every individual matters. Every individual has a role to play. Every individual makes a difference.” – Jane Goodall
EXERCISE F
Robert is an employee for the City of Brownstown. Robert tells his co-worker, Chad, that she now identifies as a transgender woman and is beginning the process of transitioning. Robert tells Chad that she now wants to be called Roberta, will be wearing women’s clothing, and will use feminine pronouns.
A month passes and Roberta’s co-workers are used to Roberta’s new name and appearance. However, some of them still accidentally refer to Roberta as “Robert” and use masculine pronouns, especially when talking about things that happened before Roberta’s transition. The co-workers typically correct themselves when this happens and apologize to Roberta – except for Chad.
When Chad sees Roberta, he says things like: “what’s up Robert!” and “nice dress, dude!” Roberta is embarrassed by Chad’s comments, but doesn’t say anything to Chad or complain to anyone about Chad’s behavior, which makes her feel uncomfortable.
Is this Discrimination / Harassment based on a Protected Class?
EXERCISE F - TEST
Choose the BEST answer:
A. Roberta should keep her head down and focus on work. Not everyone will be comfortable with or used to her gender transition, and she should expect some negative comments in the beginning stage of her transition.
B. Roberta has a claim for discrimination/harassment based on gender identity and gender expression against the City because of Chad’s treatment of her, and because of her other co-workers’ occasional use of the wrong name and pronouns, even if accidental.
C. Roberta has a claim for discrimination/harassment based on gender identity and gender expression against the City because of Chad’s treatment of her, but not because of her other co-workers’ occasional and accidental use of the wrong name and pronouns.
HARASSMENT BASED ON
GENDER IDENTITY /EXPRESSION
Dead-naming is considered harassment
Examples:
Intentionally using the incorrect pronoun
Intentionally calling a transgender person the name they used prior to transition Demanding an employee use a bathroom that doesn’t correspond to their gender identity Objecting to an employee using a bathroom that corresponds to their gender identity
ABUSIVE WORKPLACE
CONDUCT
QUIZ #5
True OR False?
1. Federal law makes it unlawful to engage in behavior that a reasonable person in the employee’s workplace would find demeaning.
ABUSIVE CONDUCT - ELEMENTS
Conduct in the workplace that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests, including:
Repeated infliction of verbal abuse (e.g. derogatory remarks, insults, epithets) Verbal or physical conduct (e.g. threatening, intimidating, humiliating) Sabotage or undermining a person’s work performance
A single act is not abusive conduct – unless especially severe and egregious “Bullying” by itself is not a violation of Federal law unless it is shown to have been substantially motivated by a protected class.
EXERCISE G
Mercedes is a new employee at the Water Authority and is having difficulty learning the office protocols. She asks her Supervisor, Maria, for assistance.
In a very loud and sarcastic voice that everyone around the office could hear, Maria tells Mercedes: “I’ve shown you a million times how to do this very simple procedure! You should have paid better attention to me because I’m not showing you again. You need to figure it out for yourself!” Is this Abusive Workplace Conduct?
EXERCISE G - TEST
Choose the BEST answer:
A. Mercedes can sue Maria for abusive workplace conduct.
B. Mercedes should have paid better attention to Maria the first few times Maria showed her how to perform the procedure.
C. Maria’s actions constitute abusive workplace conduct and she can likely be disciplined for violation of workplace behavior policies.
D. Maria’s conduct exposes the Water Authority to liability for unlawful discrimination against Mercedes.
EXERCISE H
Maria writes an email to Mercedes which reads:
“Mercedes, are all Irish mutts as stupid as you? What is it about that thick potato head of yours that you can’t understand the most basic instructions I give you?”
Is this Abusive Workplace Conduct?
EXERCISE H - TEST
Choose the BEST answer:
A. Maria would likely be found personally liable for harassment based on race, ancestry and national origin.
B. The Water Authority is strictly liable for the harassment by Maria, as supervisor of the Water Authority.
C. Mercedes can recover damages from Maria, personally.
D. All of the above.
REPORTING
HARASSMENT &
DISCRIMINATION
IN THE
WORKPLACE
HOW TO REPORT
HARASSMENT / DISCRIMINATION
Tell a Supervisor and / or File a Complaint
Employees can file a claim with:
Employer
State – Civil Rights Department (within 3 years of harassment) Federal – Equal Employment Opportunity Commission (within 300 days of harassment)
File a private lawsuit
WHAT TO DO IF YOU OBSERVE
HARASSMENT/ DISCRIMINATION
Distract – change the subject
Direct conversation – tell the harasser the behavior must stop Support – offer support to the person being harassed
Report – talk to a Supervisor or Human Resources Department
LEARNING OBJECTIVES REVISITED
Elements of sexual harassment and the remedies available to victims Other forms of unlawful discrimination, harassment, and retaliation Strategies for preventing and responding to unlawful discrimination, harassment and retaliation
Abusive conduct in the workplace
QUIZ #6
True OR False?
1. Sexual desire is a key element to any claim for sexual harassment.
2. Sexual harassment can occur between individuals of the same sex.
3. An employee can file a claim for sexual harassment even if the supervisor took no adverse employment action (e.g., termination, demotion, loss of pay, etc.) against the employee.
4. An Employer is strictly liable for sexual harassment committed by a Supervisor.
HTTPS://VIMEO.COM/501089626
Basic Rule of Thumb –
“Let’s just act
every day like
Pam’s mom is coming in.”
ADDITIONAL RESOURCES
DISRUPTIVE BEHAVIOR
California Civil RightsDepartment (formerly FEHA)
https://calcivilrights.ca.gov/
Federal Equal Employment Opportunity Commission
https://www.eeoc.gov/
QUESTIONS?
Jeffery A. Morris
[email protected]
(951) 262-4492
Wendy L. House
TRAINING FOR SUPERVISORS
HTTPS://WWW.DOL.GOV/AGENCIES/ETA/APPRENTICESHIP/EEO/HARASSMENT/VIDEO “Every employee has the right to work in an environment that is free of unlawful harassment, intimidation, and retaliation.” QUIZ #7
True OR False?
1. Only Employers with 5 or more employees are liable for sexual harassment under Federal law.
2. Unpaid interns and volunteers are protected under Federal laws against sexual harassment.
3. California law is broader than Federal law in providing protection against sexual harassment.
COMPARING
FEDERAL & STATE
SEXUAL HARASSMENT LAWS
SEXUAL HARASSMENT LAWS
FEDERAL
Negligence theory only
Employer not automatically liable
Employer not liable if:
Employer exercised reasonable care and
Employee unreasonably failed to take
advantage of opportunities to avoid harm
15 or more employees
Does not apply to independent
contractors, volunteers, unpaid interns
CALIFORNIA
Strict liability
Employer automatically liable for harassment by
Supervisors / Managers
Employer has no defense if harasser is the
Supervisor / Manager
Applies to all Employers
Includes harassment against independent
contractors, volunteers, unpaid interns
PREVENTING & RESPONDING TO
SEXUAL HARASSMENT
QUIZ #8
True OR False?
1. Under Federal law, injunctive relief can be sought to compel Employers to take all reasonable steps to prevent unlawful discrimination without providing an underlying violation of Federal law.
2. The Employer’s duty to take immediate, effective action in response to a claim of sexual harassment only applies where there is a credible report or threat of unwanted physical contact.
EMPLOYER’S DUTY – PREVENTION
Take ALL reasonable steps to prevent discrimination, harassment and retaliation (Gov. Code § 12940(k))
To determine whether an Employer has complied with this duty, certain factors will be evaluated, including, but not limited to:
# of employees
Budget
Nature of the business
Facts of the case
EMPLOYER’S DUTY – INVESTIGATION
Conduct effective investigation of harassment complaints, including:
Interview complaining party, accused party and relevant witnesses Obtain relevant documents and evidence
Gather necessary facts
Investigate all allegations
Reach a reasonable and fair conclusion based on facts Note: Supervisors should be provided specific protocols to follow if they are accused of harassment
INVESTIGATION STANDARD
Preponderance of the Evidence
More Likely Than Not
EMPLOYER’S DUTY – TRAINING
Provide training as required by law
Provide training even if not required by law
Implicit bias training
Interaction with certain groups
Bystander intervention
Keep training records
Keep materials readily available in multiple formats (e.g., paper, online) EMPLOYER’S DUTY – LEADERSHIP
Employer policies and training must be reinforced by leadership Supervisors / Managers must understand they are required to adhere to the standards of the law and Employer policies
Top management should model desired behavior and provide appropriate support to Supervisors / Managers
QUIZ #9
True OR False?
1. Supervisors and Managers have an obligation to put a stop to any harassment or discriminating behavior they personally observe or have knowledge about.
2. A Manager who receives a complaint for discrimination and believes she can handle it on her own does not need to notify anyone else.
SUPERVISOR DUTIES
Stop harassment and discrimination that is occurring
Give complaints top priority and take them seriously
Report complaints to Human Resources to determine whether a formal investigation is necessary
Comply with the investigation
Comply with any orders/changes in work assignment during investigation Do not retaliate against complainant
RETALIATION
QUIZ #10
True OR False?
1. Rebecca files a complaint with her employer and then quits her job. Since Rebecca is no longer employed with the company, it is not possible for the company to retaliate against Rebecca.
2. Ronan sincerely believes his employer discriminates against men and files a complaint with the EEOC. An investigation finds no discrimination. Ronan’s Supervisor is embarrassed by the investigation and cuts back Ronan’s hours as a result. Ronan has a valid claim for retaliation.
NO RETALIATION
Punishment for speaking up about harassment / discrimination Might occur after someone:
Objects to harassment / discrimination
Refuses to engage in harassment / discrimination of others Reports / files a claim
Assists a co-worker in filing a claim
Participates in investigation
EXAMPLES OF RETALIATION
Demotion
Postponing a promotion
Changes in job assignments
Docking hours or pay
Threats
Poor performance review
Targeting complainant
Getting fewer perks and benefits
DENIALS & DEFENSES
QUIZ #11
True OR False?
1. In California, if the Employee does not take advantage of the established internal Employer complaint process, the Employer has a complete defense to an action for sexual harassment.
DENIALS
The most common response to charges of sexual harassment is denial:
“It never happened”
“There are no witnesses”
“Look at how she dresses! She caused it!”
“I am a hugger.”
“Ever hear of a woman scorned? If I don’t tell her she’s hot, she will never get the job done!”
EXERCISE I
Rocco, a Supervisor, calls Ming into his office, shuts the door behind her, and quietly tells her that if she doesn’t want a bad performance review, she better have sex with him. Ming refuses, and Rocco grabs her arm and throws her to the ground. Ming manages to escape and flees from Rocco’s office.
Oliver sees Ming running out of Rocco’s office in distress and thinks her blouse may be partially unbuttoned. Claudia sees Ming in the restroom crying and fixing a tear in her blouse. Ming tells Claudia about the attack in Rocco’s office. Rocco abruptly promotes Ming.
Oliver and Claudia tell the Federal Equal Employe Opportunity Commission Officer what they observed. Rocco denies anything happened. Ming files a complaint with the California Civil Rights Department alleging quid pro quo sexual harassment by Rocco.
Is this Quid Pro Quo Sexual Harassment?
EXERCISE I - TEST
Choose the BEST answer:
A. Rocco is a Supervisor and because no one actually witnesses the alleged harassment, no one will believe Ming.
B. Since Ming was promoted, she suffered no damages, and therefore, there can be no claim for quid pro quo sexual harassment.
C. A reasonable investigator would conclude, based on circumstantial evidence and credibility of those interviewed, that quid pro quo sexual harassment did occur.
DEFENSES
Lack of action by the Victim:
Avoidable Consequences Doctrine
Victim could have avoided part or most of the harm if they had taken advantage of the Employer’s internal Policies & Procedures for addressing sexual harassment Failure to Mitigate Damages
Amount of harm to the victim could have been less if the Employee had taken action
EXERCISE J
Power Utility Plant provides all of its employees with a handbook containing a “zero tolerance” policy against sexual harassment. The handbook instructs employees to notify Human Resources immediately if they experience or witness any sexual harassment.
Jennifer, a Supervisor for Power Utility Plant, walks by her assistant Mario’s desk and whispers to Mario that he should forget to wear underwear to work tomorrow. Mario is shocked and pretends not to hear Jennifer. Over the next few months, Jennifer continues to whisper similar comments to Mario whenever they are alone in the office. Mario does nothing about it, thinking it is only a matter of time before Jennifer, who he thinks is incompetent, is replaced.
Six months later, Jennifer is terminated by Power Utility Plant for poor performance. Upon being informed of Jennifer’s termination, Mario tells Louise in Human Resources all about Jennifer’s past actions and makes a request for the next supervisor to be “less disgusting.” Is this Sexual Harassment?
EXERCISE J - TEST
Choose the BEST answer:
A. Mario cannot sue for sexual harassment because 6 months have passed and Mario waited until Jennifer was fire before sharing anything with Human Resources about her behavior.
B. Mario can sue both Jennifer and Power Utility Plant, but Power can try to reduce the amount of damages it must pay Mario by arguing that the harassment would have stopped if Mario had told Human Resources after Jennifer’s first comment to him.
C. Mario can only bring a claim against Jennifer. Power Utility Plant is not liable since Mario chose not to follow the sexual harassment policy in its Employer Handbook.
HTTPS://WWW.YOUTUBE.COM/WATCH?V=X3LW4M6OEKE
QUESTIONS?
Jeffery A. Morris
[email protected]
(951) 262-4492
Wendy L. House