501 p.m. Please join me in the Pledge of Allegiance
Madam clerk would you please take a roll?
Councilmember Aguilar present councilmember Azaveta
President
Councilmember bolt
present
Council member Simon present
Vice mayor viveros Walton present
Councilmember Bowen present and mayor Gonzalez present the city of San Leandro connects orderly meetings to fill its mandate
Discriminatory statements for conduct that would potentially violate the Federal Civil Rights Act 1964 and
or the California Fair Employment and Housing Act
California penal code sections for three or four fifteen are per se disruptive to a meeting and will not be tolerated
Please see the City Council handbook and City Council meeting rules of decorum for more information
Madam Clerk your announcement please if you would like to make a public comment regarding the special meeting agenda item
You can do so in person or via zoom if you are present at the meeting
Please complete a speaker card and submit it to the city clerk before the item is presented if you wish to participate in public comment via
and Zoom, please raise your hand when the item is called.
During the public comment session,
speakers will be invited to speak
and will have a set time to share their comments.
A countdown timer will appear for their convenience
and when the time is up, the microphone will be muted.
All raised hands outside of public comment
will be lowered to avoid confusion.
Once public comment is opened, hands may be raised to speak.
Okay, before jumping into our full training,
which is our one item for this special meeting,
just checking to see if we've got any public commenters on the training that
we are about to receive. Mayor we have not received any cards and there are no
hands raised online. Okay so we will close public comment on this item and
then proceed with our presentation. I know City Attorney I think you are
introducing this item. Yes thank you Mayor and good evening City Council. I'd
like to it's my pleasure to introduce Neha Shah, she's a senior of council at
Redwood Public Law. She has significant experience in a broad range of labor
and employment matters with an emphasis on traditional labor relations, advice
and counsel, and workplace investigations. Relevant to us here today,
she's a frequent presenter and trainer and regularly speaks at conferences and
seminars on public sector labor law, practices before PERB, harassment
prevention, equity and inclusion, and human resources best practices. I'll hand
over to Neha to commence with the training. Thank you. Thank you for the
introduction Rich and nice to meet all of you. So today's training is being
rendered in accordance with the California Government Code 12-950. As
Rich shared my background I want to provide a little bit more context. I
started my career as a workplace investigator doing discrimination
harassment retaliation and Title IX investigations and since then the focus
of my practice has been processing, discrimination, harassment, retaliation claims, both in civil
proceedings, EEOC and the Department of Fair Employment and Housing, which is now referred
to as the Civil Rights Department.
Today's agenda is to we're going to help you identify what constitutes inappropriate
behavior in the workplace and how that behavior can impact the people around you.
we're going to talk about how to create a safe and respectful workplace that is free
from harassment. We're going to help you understand the rights and responsibilities regarding
discrimination, harassment, retaliation, and abusive conduct and help you identify behaviors
that might be considered inappropriate or unlawful. We'll deeper dive into the nuances
of gender identity, gender expression, and sexual orientation. Our focus on abusive conduct
is also pursuant to the government code,
which requires that in California
we provide training specifically on abusive conduct.
So just for some housekeeping,
this presentation will be about an hour long,
and then we're gonna break out into groups
to go over some hypothetical group exercises.
I'll ask that if you could please try
and save your questions until the end
of the presentation, just for time's sake.
And I'll take the temperature in about an hour
to see if anyone needs to take a bio break.
but we'd like to, the requirement is two hours.
So I'd like to try and fit everything within the two hours.
All right, so I think in order to have
a comprehensive discussion about discrimination,
harassment, retaliation, and abusive conduct,
it's really important to understand the context
of where we're at today and how we got here.
In the past five years, social movements
have significantly informed how labor laws have changed.
and also what rights and responsibilities
that employees' employers have.
For example, in 2017, the Me Too movement
made significant contributions
to both federal and state law,
specifically sexual harassment-related laws.
In 2020, the COVID-19 pandemic changed the way
that employees show up to work.
We moved to an entirely remote environment,
now a hybrid environment,
and employers are now experiencing an increase of surge
return-to-work requests, remote workplaces, that became a well-known
phrase because as we learned through the pandemic that your workplace can be
extended beyond the physical location of your employer, there's been an increase
in social media use as well between employers and their employees and as
you've seen the number of social media outlets have also increased and these
These communications are happening off hours as well,
which begs the question of what is the workplace
and what are other forms where discrimination harassment
and retaliation can occur.
Other significant events you see on there,
the murder of George Floyd in 2021,
the uptick in violence against members of the Asian American
and Asian communities because of COVID-19 misinformation,
Increasingly in the past couple years, there's been
anti LGBTQIA
legislation and then the conflict in the Middle East has very much shown up in the workplace in the last two years
Because of these things it's been harder to disentangle
work from personal life
And so it's necessary to look at how they've shown up in the workplace and we'll go into more detail later in the presentation
So elected officials in the workplace you all are not employees of the city of San Leandro
But you are elected officials and so your obligations are slightly different than traditional supervisor employees
Elected officials are still considered supervisors under fee. Ha which means you're required to
Follow fee ha and not discriminate harass or retaliate against employees of the city of San Leandro
Supervisor under FEHA is defined as any individual having the authority in the interest of the employer to hire
transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or
the responsibility to direct them or to adjust their grievances or
effectively to recommend that action.
If in connection with the foregoing the exercise of that authority is not merely routine or clerical in nature
But requires the use of independent judgment
It's also well established that elected officials
Are supervisors through case law? There's a case Bayada the city of Los Angeles
Where the courts decided that elected officials are supervisors under FEHA because the City Council generally has the authority to
to hire, fire, and issue direction to, at the minimum, the city manager.
FIHA doesn't define agent of the employer, so we look to traditional principles of what
defines an agent, and generally speaking, elected officials are considered agents of
the employer under FIHA as well.
And this is important to understand because elected official conduct can expose the city
to liability.
So supervisors and non-supervisors have different obligations under FEHA.
If the harasser is a supervisor, then different rules apply.
There's strict liability for the employer, irrelevant of whether the harassment culminates
in a tangible action.
Employers are responsible for the acts of agents and supervisors.
For non-supervisory employees the employer still can be responsible if the supervisor
or agent knows or should have known of the conduct and fails to take immediate corrective
action.
So that means you and your capacity as elected officials, if you knew or should have known
about conduct, you have an obligation to report it immediately and potentially take corrective
action.
law departs from federal standards in the sense of what if a tangible
employment action is necessary. Federal standards require it whereas California
doesn't and is everyone familiar with what a tangible employment action is? No?
Okay and go over the definition. Okay tangible employment action is a
significant change in employment status so that would be like hiring firing or
or failing to promote somebody.
A tangible employment action requires
an official act of enterprise.
It's usually something that's documented through records,
usually inflicts some sort of economic harm onto somebody.
And conversely, it's not tangible if it results
only in an insignificant change,
which California will still honor.
So unfulfilled threats are insufficient,
but they can still blend themselves to a harassment plane.
In California, if an employee was not actually fired,
but the supervisor took action
to effectuate a termination, let's say,
they could still, that could still be considered
an adverse employment action.
The only way to really avoid liability
for unlawful harassment that results
in tangible employment actions
are to prevent them from happening.
So we're gonna go over the City of San Leandro's policies
throughout the presentation.
And that's part of the requirement
of the government code to do that.
I won't read it for you here,
but I will leave it on the screen
to give you a moment to review.
Okay, we're gonna move on to discrimination.
So can anyone here define discrimination?
Yep, close, yep.
Decisions based on a person's protected category
which interferes with their equal opportunity,
equal employment opportunities.
So the main laws that protect employees
from discrimination include the California Constitution,
Article I, Section 8, which prohibits disqualifying
any person from entering or pursuing a business,
profession, vocation, or employment based on sex,
race, creed, color, or national or ethnic origin.
Most people are familiar with Title VII
of the 1964 Civil Rights Act,
the ADA, the American with Disabilities Act,
and the Fair Employment and Housing Act,
also known as FEHA.
So when we talk about discrimination
and avoiding discrimination,
our goal is to ensure that employees and applicants
are not treated unfavorably
because of a protected characteristic.
Under Title VII, there are two types of discrimination.
There's disparate treatment and disparate impact.
or is anyone here familiar with the differences
between the two or can share the definitions?
Okay.
Okay, so disparate treatment is intentionally
treating one person or group different from another.
So an example of that is a workplace
that hires women for certain positions,
like nursing or administrative assistance
or a restaurant host.
That could be considered disparate treatment.
or the practice of only hiring non-LGBTQIA-plus executives
in an organization.
Disparate impact, also known as unintentional discrimination,
is applying a neutral rule that impacts one group adversely
over another.
So an example of that would be the construction industry,
perhaps hiring more men than women
because of physical abilities.
So when we discuss disparate impact, it's also important to discuss the difference between
equity and equality.
Does anyone know the difference between equity and equality here?
That's a great poster.
That's a good example.
Yes.
Sure.
No problem.
Oh, okay.
Yes.
They're in the packet on your right in front of you, there should be a packet for you.
Is that better?
Okay.
No problem.
Okay, so equality is the state of being equal, especially in status rights and opportunities.
So in the workplace this looks like having an EEO policy.
And equity means fairness and justice.
So the two terms are distinguishable because equality means providing the same whereas
equity means recognizing that everyone doesn't start from the same, everyone doesn't start
from the same place.
And so it's an opportunity to adjust imbalances.
And this is generally an ongoing process
that requires identification of the barriers
and continuing change.
And one example of legislation which
was created in direct response to discrimination
against pregnant women and mothers
is lactation and pregnancy leave policies.
And that's really to ensure equity in the workplace,
to ensure working mothers and lactating mothers
have an equal chance at succeeding in the workplace.
So before I go to the next slide,
which is a discussion of the protected categories,
I'd like to hear from you all if you know
what some of the protected categories are,
and you can just shout them out.
Anyone else?
Disability, yes.
Religion, mm-hmm.
Veteran is one.
Does anybody know how many protected categories there are?
More than that, 22.
So these are just some of them.
What's not included on here is ancestry,
which includes caste.
Sex also includes breastfeeding.
Pregnancy, childbirth, or related medical conditions,
religious creed, and citizenship status
is a protected category under federal law.
Does anyone have an idea of what discrimination
based on genetic information might look like.
So it might be not wanting to hire an employee
who has a cancer predisposition
out of concern of absenteeism.
What about an example of disability discrimination?
So yes, there's other, I think there are other things
related there for police officers,
but yes, mental health ailments that employers use
as a reason not to hire employees
can certainly be disability discrimination.
Another example is not hiring someone
because they're on the autism spectrum
and they might need additional accommodations to do their job.
Yes, or if they're in a wheelchair, exactly.
Oh, how about age discrimination?
Does anyone know when that kicks in,
what age becomes protected?
40 or older, exactly.
What about caste?
I mentioned caste as a part of ancestry.
Does anyone know what caste is?
You've said in that class of person.
Like a social stratification.
Yes, that's what it is exactly.
So in history, some examples of what caste-based discrimination
look like are the Jim Crow segregation and Nazi treatment
of Jewish people.
I think a lot of people also draw parallel
to casteism in Hindu society in India, which
is now illegal in India.
But they had a more formal caste system there,
which basically determined access to opportunities
based on what caste people were born into.
It's estimated that caste affects hundreds of billions,
sorry, millions of people globally.
So it is considered officially a part
of ancestry in California and it is protected.
Okay, let's talk about discriminatory decision-making.
So intentional discrimination is the most obvious
and that's what you are seeing on the screen.
Things like recruiting, hiring,
but there are other things that can also be considered
discrimination that are less obvious,
like invitations to meetings
or withholding invitations to meetings,
gatekeeping, how it's often referred to,
determining who gets a seat at the table
Who can have visibility or increased visibility?
to certain individuals
Really almost every decision related to employment can result in a claim of discrimination
So managers should scrutinize every single decision
They make to ensure there's no discriminatory impact and going even further for unionized workforces
Which I understand the city of San Leandro has a unionized workforce
Union activity is also considered protected and for cases at PERB
that is also another area where employers need to be aware of
that union leaders have enhanced rights with respect to advocating for
wages, hours, terms, and conditions of employment.
I think the bottom line is when it comes to thinking about
discrimination, it's important that employees feel like they're treated
equitably and fairly
every employment decision does need to be
Motivated by a legitimate business related concern and have an identifiable relationship to the position in question
So this is the city of San Leander's anti discrimination harassment policy
I won't read it out loud for you, but it is in front of you
And as a requirement for the training to be compliant you will need to go through AP 1000
But I'll give you a moment just to review it here
Okay. Moving on to harassment. Harassment is mistreatment based on or directed at membership
in a protected category or involving unwelcome behavior that is sexual in nature. The vast
majority of claims are filed by women against men. However, there has been an uptick in
claims by men against women. And we'll talk about why we think that might be the case.
There was a recent 2024 survey by Tulane University.
It was a multi-state survey called hashtag me to 2024.
And in the survey, 42% of male respondents indicated that they had experienced sexual
harassment or sexual assault in their lifetime.
This included verbal sexual harassment, cyber sexual harassment, and physically aggressive
sexual harassment.
believe that harassment of men has an increase but it's just that resources
have increased and so more men are feeling comfortable reporting. The
primary sources of sexual harassment prevention law are the EEOC and the
California Civil Rights Department. Harassment can also be on the basis of
other protected categories beyond sex so the other categories that we touched on
earlier. They can also be based on gender expression, identity, and sexual
orientation. So what would it mean to be, what would it mean to harass someone on
the basis of their sexual orientation? Does anyone have an example? Mm-hmm. Yes,
using derogatory terms in regards to someone's orientation. That's right. Maybe
be an employee who identifies as transgender
and recently had surgery, making comments
about their surgery.
That could be considered harassment.
So there are two types of harassment.
We're going to go over that more in detail.
But the first type involves a tangible employment
action, formerly known as quid pro quo,
and the other is a hostile work environment.
So quid pro quo is the more obvious kind
of sexual harassment, this for that.
You hear it, I think this is the one
that occurs mostly in movies, that you see in movies
where there will be a manager asking an employee
to engage in some sort of sexual act
in order to advance in the workplace,
it's the most common example.
This is the easiest to spot and prove.
It can be very explicit, like, you know,
engage in physical action with me
and you will get the promotion that you want.
The allegations against Harvey Weinstein,
if you recall that during the Me Too movement,
many of those were considered quid pro quo.
He was essentially asking, there was an exchange
for spaces in the film industry.
This can also, it's also possible to have
reverse quid pro quo.
So this is when a person rejects sexual advances
and then they're terminated,
they receive an adverse performance review,
they're getting less prestigious job assignments
or their office is being moved somewhere, undesirable.
And then we get to hostile work environment.
So in order to have a hostile work environment claim,
it requires an unwelcome conduct
that is sexual in nature or gender-based,
protected, class-based, has to be offensive,
it has to be severe or pervasive,
and it must create an intimidating
and hostile work environment.
The vast majority of claims that I see
as a workplace investigator tend to be
hostile work environment claims.
Severe generally means it has to be very intense.
That's what determines how bad the conduct is.
So for example, a type of conduct
that has been deemed to be severe
is using the N word against a black employee.
That has been determined to be just a single act
is severe enough to be deemed harassment.
Pervasive means the frequency of the conduct,
so severe or pervasive.
pervasive would mean multiple actions that, in totality,
create a hostile work environment.
Does anyone remember the Anita Hill hearings?
OK.
So based on what you just learned
about sexual harassment, what type of sexual harassment
do you think Anita Hill was experiencing?
Was it quid pro quo or hostile work environment?
Yes, that's right.
She was, as I recall, claiming there
was lots of discussions of pornographic material,
discussions of women's physical physicalities,
sexual activities over an extended period of time.
So when we think about hostile work environment
and harassment, intent versus impact is important to discuss.
When considering harassment, it's
essential to broaden our perceptions
to understanding that harassing behaviors are more
egregious and harmful than that are obvious.
People can engage in minor acts of harassment
and not even consider it to be such.
It can start small.
Whether conduct qualifies as sexual harassment
should be evaluated based on the perspective of the victim
and not stereotype notions of acceptable behavior.
So there is a reasonableness analysis that goes into it.
but overwhelmingly what the victim believes is important.
So what are some examples of minor acts
that if pervasive could be considered harassment?
Does anyone have any examples?
Yeah, so let's think about a remote work environment.
Maybe having an inappropriate Zoom background
or making comments about someone's background,
what's in their background,
maybe they're taking a call from their bedroom,
making comments about their bedroom
or what they're seeing in that person's bedroom.
Taking a Zoom call pantless.
I think this came up more during the pandemic,
but, you know, a combination of those
happening several times could be considered
a hostile work environment.
Let's talk about microaggressions.
Is everyone familiar with microaggressions?
We see, you're not, okay.
So microaggressions are everyday verbal, nonverbal,
and environmental slights, snubs, or insults,
whether intentional or unintentional,
that communicate hostile, derogatory, or negative messages
to target persons based solely upon their status.
This is in contrast to micro-inequity,
which reflects bias that can be indirect
or negligently inflicted, but is demeaning to the recipient.
So an example of that is repeatedly calling someone
by their wrong name or by their wrong pronouns.
So it's really exclusion and ostracizing.
So these are some examples of microaggressions.
Can anyone provide examples of other types of microaggressions?
These are more common, I think.
Let's talk about harassment in the virtual workplace
specifically.
So we gave some examples of what some incidents that combined
could be a hostile work environment.
But why?
Why does a virtual workplace create challenges?
Boundaries is one big reason.
It's harder to distinguish between personal life
and work life in a remote environment,
especially if communication is constant
through various mediums, whether it's email, phone, social media,
LinkedIn.
it makes it harder to create the boundaries.
And then blind spots, invasion of privacy
when you're having remote meetings,
you're getting insight into someone's personal life
and comments that could come up in relation to that.
Unwelcome conduct can come in several forms
and you'll see in AP 1000 it addresses
all these different types of forms of harassment
in more detail.
Can anyone give me an example of verbal harassment?
What might be an example of verbal harassment
in the workplace?
It could be, yeah, combined with maybe a reference
to protected class.
It could be on its own, it might be considered
abusive conduct or bullying,
if there's no protected class implicated.
What about visual harassment?
That could be considered visual harassment.
It could also be considered maybe physical harassment, right?
because you're using your finger to flip someone off,
that's what you meant, right?
Yeah, that could be considered physical as well,
physical harassment, mm-hmm.
It could be, it could be staring someone down, mm-hmm.
It could also be playing something inappropriate
for the workplace on your computer
and someone sees it over your shoulder.
Yeah, those are all good examples.
So when we think of the expanded workplace
as it relates to elected officials specifically,
It's beyond just city hall, right?
You and your capacities as representatives of the city
or attending JPA meetings and conferences off-site.
You're meeting with legislators in Sacramento.
You might be attending city meetings from home
or commission meetings from home.
And all of those can be considered the workplace
when you're acting in your official capacity.
Doesn't matter if it's within traditional work hours nine to five
The determining factor is whether there's some relation to the city
some of the things that
investigators will look at when considering an expanded workplace beyond these
this listed here is
whether the person is getting a benefit from their employer when they're
Attending this event or acting in that capacity if there is any reimbursement or compensation related
or render if there are any written agreements
between this person and the employer
with respect to whatever it is
that they're participating in.
Workplace romance is another big area
where sexual harassment claims will often show up.
And you know, it's undeniable that people
often meet their partners in the workplace.
It just happens you're spending a lot of time with people,
your colleagues, it happens.
The problem is is that when it goes south,
that can show up in the workplace.
And also when there's a power differential.
So if a supervisor is dating their analyst,
there's a power differential inherently
in that relationship.
You can also have other issues
if the relationship is going well,
like PDA in the workplace,
or talking to your colleagues about your experience
with your relationship.
Those, PDA is Public Display of Affection.
Oh.
Yes, thanks for the question.
So it can create uncomfortable situations for colleagues.
I don't know, City of San Leandro,
if they have a non-dating policy.
No, but it's generally frowned upon to date your coworkers,
especially if there's a power difference.
Let's talk about social media communication.
So sexual harassment can include unwanted phone calls, text
messages, messages on social media we've discussed.
To a counsel person or a non-counsel person,
the question is whether there's a nexus.
These are some common emojis that
may have sexual connotation associated with them,
which is why I put them up on the screen. Is everyone familiar with these emojis and
the connotations? Okay. Okay. Okay. So when we think about harassment, just some general
rules that the victim does not have to be of the opposite sex, the offender or offended
can be a supervisor, agent of the employer, supervisor in another area, a client or a
third party. So it can be someone visiting, let's say, a City Council meeting. The
offended does not need to be the target of the conduct. So it can be a third
party who has observed the conduct and they have found it to be offensive. They
themselves could potentially then bring a claim for harassment. And again, it can
be verbal, visual, or physical conduct. So how common is sexual harassment in the
workplace. It remains commonplace with about 40% of working women saying that
they're experiencing such treatment during their careers ranging from sexist
jokes to obscene comments directed towards them this particular study found.
And and this is for reported sexual harassment in America. It doesn't account
for across the world where advocacy or tools for reporting may not be as well
developed. So in addition to sexual harassment cases, there are a variety of
other claims that can attach listed here. And so there's often, often sexual
harassment is tied, we see it most frequently with wrongful termination
claims, discrimination, harassment, retaliation claims often go together as
one. It can result in workers compensation is up there because if an
employee is experiencing something in the workplace that's caused by the
workplace they then have the right to file for workers compensation claims so
we oftentimes will see that workers compensation aspect attached to
discrimination harassment retaliation claims stalking invasion of privacy
sometimes workplace violence sometimes there's it's necessary to explore
temporary restraining orders if there is some sort of violence in the workplace
happening. So why do people not complain? Well people, women in particular, as the
commissioner of the ABA Commission on women in the profession states, women who
are victims of sexual harassment may think I better be careful, I don't want
to screw myself for the rest of my career. If a woman made a claim of sexual
harassment against her firm it would be difficult for her to be hired at another
firm and it is a real fear of retaliation is generally attached to making a sexual harassment
claim.
So California also requires specifically that employees be trained on sexual harassment,
gender identity, gender expression, and sexual orientation.
So we're going to cover that more in detail here.
Most people understand the definition of sexual orientation, which is a person's identity
in relation to the gender or genders that they're attracted to.
Sexual orientations you're probably familiar with include gay, lesbian, straight, bisexual,
pansexual, asexual.
For example, women who are attracted to men or men who are attracted to women are referred
to as heterosexual or straight.
People who are attracted to the same gender, you will sometimes hear them referred to as
gay or lesbian.
People who are attracted to both men and women, bisexual.
People who don't experience any sexual attraction for anyone often refer to themselves as asexual.
Does anyone know what pansexual is?
No?
Okay, pansexual are people whose attractions span across many different gender identities.
So it can be male, female, transgender, genderqueer, or intersex.
So they may refer to themselves as pansexual or queer.
So what is gender identity?
Gender identity is a person's internal, deeply held
knowledge of their own gender.
For most people, their gender identity
matches the sex they were assigned at birth,
often referred to as cisgender.
For transgender people, their gender identity
does not align with the sex they were assigned at birth.
For other people, their gender identity
does not fit neatly into one of those two binary genders,
non-binary.
So gender identity is different from sexual orientation
because it's about who you are and how you feel on the inside.
In other words, it's the gender that you most identify with.
This is distinguished from gender expression,
which is how a person publicly expresses or presents
their gender identity.
And it's typically through their mannerisms
and how they dress.
So what's an example of someone that might be harassed
based on their gender expression?
It could be an employer firing an employee
because they identified as male at birth,
but now they use feminine pronouns
and perhaps they wear skirt suits to work.
And then the employer takes an action against this person
for how they are dressing
or how they're expressing their gender
that would not have been taken, but for the fact
they are now wearing skirt suits or using feminine pronouns.
It can be.
Is it someone behaving as if they don't
film what you say they dress and behave?
So is that why you got to that?
No.
I mean, it's included.
It could be being critical of their mannerisms
is also a behavior.
if someone is being criticized,
someone who's born male at birth
is being criticized for acting in a way
that society deems to be overly feminine.
That could be a form of harassment.
Oh god, if I were to speak up.
Yeah, okay.
So what is non-binary?
Is anyone familiar with non-binary?
No?
Okay, yes?
Great.
A non-binary is an umbrella term for people
with gender identities out of the conceptions of strictly
either female or male.
So California is one of the first states
to recognize non-binary as a gender.
What's significant, though, is that many cultures
have recognized non-binary for centuries.
So it has been around for quite some time.
Since 2019, people may use non-binary on their driver's
license and birth certificates.
When I talked about other cultures recognizing it,
you may have heard reference to two-spirit people.
For example, this is a Pacific Islander
and Native American cultures.
In these cultures, a person who is non-binary or someone
of both genders are celebrated as having special abilities.
So what is transgender?
A transgender person are people whose gender identity
or gender expression do not match the gender they
were assigned at birth.
Transgender people express their gender identity
in different ways.
Some dress or express or have behavior or mannerisms
to live in the gender that feels right to them.
This is considered a social transition.
Some people actually have surgery
to change their physical bodies and take hormones.
and this is considered medical transition,
and some just reject traditional notions of gender
as divided between male and female.
This is significant because transitioning,
a person transitioning, that is also a protected activity,
and so it's important to be mindful of
if you are aware of someone transitioning in the workplace.
So what are some work-related changes
that may happen for transgender employees?
Some transgender employees may want to make legal changes as a part of their transition. So that's changing their pronouns
They might want to be referred to something else
Changing their name on their paycheck driver's license or identity documents using a different bathroom
But not all trans people do want changes
Changing dress code and uniforms is also another area that I've seen in workplace investigations
If you do come across a situation where you're unsure
Or someone asks for accommodations. The best thing to do is send them to HR
Let HR know and HR is best positioned to address it
Let's talk about bias and discrimination
gender expression
So a study from the Center of American progress
the Center for American progress
How to survey which resulted in
Indicating that trans and gender nonconforming people reported high levels of discrimination at work as outlined on the slide
With employment being where they face the highest levels of discrimination
They also reported discrimination in housing health care and really all facets of life with these percentages
increased when the LGBTQIA plus person also identified as a person of color or
Was a part of another protected group
Coworkers who identified as heterosexual also attested to the presence of discrimination, harassment, and retaliation against LGBTQIA plus individuals.
A Williams Institute report found that 12 to 30 percent of straight workers witnessed discrimination in the workforce based on sexual orientation.
A takeaway is that discrimination diminishes productivity, job satisfaction, and mental
and physical health of all employees.
So the best thing you can do is stay on top of training and take steps to prevent it to
begin with.
Okay, let's talk about retaliation.
So most people are familiar with the concept of retaliation, but what's the actual definition?
Does anyone know the actual definition of retaliation?
It's a materially adverse action against an employee who participates in a protected
activity or opposes unlawful practices.
Retaliation is prohibited under state and federal law, but also under AP 1000, the city's
policy as well.
So retaliation has three elements.
It requires a protected activity, a materially adverse action and a connection between the
two.
It is an easy legal claim to make.
It is easier than harassment or discrimination.
So we tend to see more retaliation-based, more retaliation claims in employment claims.
It's important to know that effective January 1st, 2024 legislation was passed, which makes
it even easier for an employee to claim retaliation.
Essentially, it creates a rebuttable presumption that an employer has retaliated against an
an employee if an employer takes an adverse action against an employee within 90 days
of the employee having engaged in a protective activity.
So what are some examples of protected activities?
Can anyone provide any examples?
So on this slide, you see some of the more common examples of protected activities.
But what are some lesser-known examples?
filing a lawsuit or being a witness in a lawsuit, communicating with a supervisor, a concern
about your wages, hours, terms and conditions of employment, refusing to follow an order
which you think would result in discrimination or harassment or something illegal, asking
managers or co-workers about salary information. That's a protected activity. You can ask your
co-workers about their salary and it's really to uncover discriminatory compensation practices.
You can, you can, you can ask. Employers can't ask employees about past salary information,
but you can ask your colleagues about their compensation. They don't have to answer,
but you can ask.
So it's rooted in both federal and state law that employees have a right to discuss their
wages, hours, terms, and conditions of employment is the general phrase, and that's really to
discover if there are discriminatory or discriminatory practices within an employer.
can ask each other yes about their employers employers can't ask their
employees about past salary that they've made in previous jobs cannot yes yes
yes thank you for the question also when it comes to represented employees
participation in an employee organization is also considered a
Protected activity as our we talked a little bit about union leaders union leaders have heightened protection when it comes to advocacy
About wages hours terms and conditions of employment with respect to the members of their union
examples of materially adverse actions
Materially adverse action is the second element required for retaliation
These are some of the more well-known examples of materially adverse actions, but some other types of adverse actions could be considered
Switching to a less desirable work shift
being
inconveniently relocated
Or an unsatisfactory job reference
So on the screen is the city of San Leander's definition of retaliation with an AP 1,000
I won't read it out loud for you, but I'll give you a moment to review it
So it's important to remember that not all negative action is retaliation
Employees are, even if they engage in a protected activity,
they are still required to follow work rules.
They can still be performance managed.
Negative action can occur due to poor performance,
but performance, good performance management is key.
And so this is really when your HR department
comes into play, ensuring that if misconduct is occurring
or poor performance is occurring,
that it's documented early on through performance management.
After a complaint is made and protected activity
or if protected activity occurs, managers just
need to be more hypervigilant about how
they go about maybe effectuating the performance management.
And it's always important to have HR in the loop
because they can advise on the bigger picture of what's
going on.
But the bottom line, the biggest takeaway,
if you take anything away from the slide,
is to document everything from the beginning
because poor performance has to be timely managed.
And it needs to be reported timely.
So preventing abusive conduct.
Abusive conduct, as I said, is required.
It's required we train on abusive conduct under FEHA.
But why does preventing abusive conduct matter?
Did anyone read Dr. Vivek Murthy's?
He's a former US Surgeon General.
The report in 2022, the comprehensive report
about workplace mental health.
Did anyone read that?
Yes?
OK.
Do you recall what he said about the importance of well-being
for employees in the workplace?
That's right.
That's right.
He specifically, so this report was
a framework for workplace mental health and well-being.
And what he said specifically was,
creating an environment where workers' voices are supported
without fear of retaliation is an essential component
of healthy organizations.
So when we talk about abuse of conduct,
well, how do we combat it?
We combat it by ensuring a respectful workplace.
So the definition of abuse of conduct
is an unwanted, negative, verbal, visual,
or physical behavior with malice,
conducted by one or more individuals
against another individual on any basis,
regardless of a protected characteristic
that is repeated over time.
So with malice is the significant word here.
It requires malice in the action.
Even if abusive conduct is not always actionable per se,
but it is sort of what we call a gateway drug to harassment,
it might not rise to the level of a policy violation
for abusive conduct, but it can lead to a toxic workplace.
It could also be the basis for other policy violations
like a professionalism in the workplace type of policy.
So this is the language from the council member handbook,
which specifically calls out refraining
from abusive conduct.
And I won't read it out loud,
but I'll give you a moment to review it here.
Okay, moving on to the next slide.
This is the city of San Leandro's definition
of abusive conduct in AP 1000.
And I won't read this out loud,
but I'll give you a moment to review it.
All right, so let's talk about best practices,
identifying objective red flags for abusive conduct.
So the common examples are on the screen.
Personalized demeaning comments, insults,
criticism in public, rumors, exclusion.
But some of the more uncommon examples
include excessive profanity, shouting or name calling,
staring or glaring or nonverbal demonstrations of hostility.
So maybe passive aggressive silence,
or ignoring someone else if they're not there.
Encouragement of others to turn against a targeted employee,
or sabotaging a co-worker's work product
by undermining their work performance.
That might look like stealing documents
that they're working on, or ripping pages out of manuals
they might rely on to do their job.
usually a single act alone won't constitute abusive conduct unless it's
especially severe or egregious. So unchecked abusive conduct or bullying
have significant impacts in the workplace, increases adverse publicity,
constituent complaints, cost specifically tied to excessive turnover or the need
to do you know more workplace investigations to look into claims and
And then the loss of trained and effective staff.
It decreases engagement, morale, attendance,
and it does cause reputational and organizational damage.
Let's talk about proximity bias.
Now this comes up maybe more often
in hybrid work environments or places
with buildings or locations in different states
or across the state.
But it's a tendency to show favoritism
give preferential treatment to employees who are closest in proximity to them physically.
So common examples of proximity bias include, you know, offering the most interesting projects
or assignments to people that are on site who you directly work with on a day-to-day
basis, excluding remote employees from important meetings or not encouraging them to speak
up on calls. A key driver of proximity bias is assumptions about people. That
assumptions that people are more productive in the work environment as in
the physical location as opposed to working from home. There is just a
tendency to overvalue employees that are physically present. Experts go on to say
that employees won't stick around if they feel like they aren't being treated
fairly including through proximity bias. This can also, proximity bias can
disproportionately impact people who are in the role of caretakers, whether it's
elderly parents or children or disabled family members or those with
disabilities that are, whether they're physical or non-visible. So how do you
combat proximity bias? It's about inclusion and belonging. You want to
invite all the people, all the voices in the room,
maybe schedule more team building activities.
Supervisors taking the initiative
to schedule more check-ins and in-person meetings,
reoccurring unconscious bias training,
and measuring performance by output
rather than physical presence in the workplace.
All right, so now we get to the most important part,
is how do we prevent workplace harassment because prevention is the best cure. So how
do we prevent workplace investment workplace harassment strict policies and zero tolerance
and strategies to prevent sexual harassment in the workplace like as discussed during
training prompt and effective workplace investigations prompt and invested prompt and effective follow
up when employees express concern. There's an urgency to the need to take
action. Confidentiality where possible and a clear delineation between workplace
appropriate topics versus inappropriate topics. It's important to have open door
policies for employees by their supervisors. There are situational risk
factors that impact harassment. Some common examples are on the slide but
other other examples include we talked about decentralized workplaces so that's
where corporate offices are far removed from frontline employees or first line
supervisors. Generational differences, young work young workforces like Gen Z
they're redefining workplace norms. So the new norms might come with risks.
They start up environments. They might be working in their first or second jobs, so
they might be less aware of workplace norms. Whereas older workforces, they
might have a harder time adjusting to new societal norms such as use of
pronouns or like pronunciation explainers. Does everyone know what that is?
pronunciation explainer. Sometimes in a signature line you'll see people spell
out their names phonetically to help the reader know how to pronounce their names.
Harassment is more likely to occur when there is a lack of diversity in the
workforce but workplaces that are extremely diverse can also pose a risk
factor for harassment if ongoing proper training isn't provided to support the
environment. Another risk factor is workplaces that don't conform to
workplace norms. So think like blue-collar auto shops or workspaces
like that. Oh sorry, workplace bystander intervention behaviors. Okay so bystander
intervention is another important way to prevent workplace harassment. What does
bystander intervention behaviors mean. So there's three D's that are a part of
bystander intervention. Does anyone know the three D's? No. It's direct, distract,
and delegate. So direct means to directly address the situation. For example, if you
see someone trying to put something offensive on your colleagues desk, you can
directly address the situation by suggesting that they don't do that.
Distract. Distract means finding a way to redirect that person's attention. Maybe
before they put the offensive object on their colleague's desk, you start to talk
to them about a recent holiday to distract them from this action they're
about to take. Delegate. Meaning initiate initiating help. You call HR. You call
security to intervene at what you're observing. As supervisors, all of you are
required to report if you see something that could constitute discrimination
harassment or retaliation. You shouldn't, you shouldn't decide whether it does. You
just report it to HR and then HR would make the decision. Employees should,
bottom line is employees should feel that they have a positive impact on the
workplace, specifically on the culture through their own behavior and by
upholding the expectations of others. So what about harassment of colleague at
work? We talked earlier about the survey that was conducted and
especially against LGBTQIA folks and what they've experienced in the
workplace. But according to a latter survey, 45% of employees witnessed
sexual harassment, and 42% did nothing about it.
Employees reported the most common way they are harassed
is based on gender and sex, which was at 50%.
Race and ethnicity was at 17%, religion at 15%,
and sexual orientation at 13%.
So again, why don't people speak up about it?
The same respondents in the survey
reported a fear of a hostile work environment,
fear of retaliation from the employer,
and fear that management wouldn't properly
handle the situation.
The city of San Leandro has a very comprehensive
complaint procedure that's also outlined in AP 1000.
I won't read it out loud,
but I'll give you a moment to review it here.
All right, so we are running a little short on time,
so I'm gonna zoom through these a little bit,
but your resources as an elected official,
if you yourself feel like you've experienced
discrimination, harassment, retaliation. You should file a complaint with the
city attorney where you can consider a third-party investigation,
discuss with the city attorney any concerns about liability. And I
understand your councilmember handbook is quite comprehensive as to remedial
action against elected officials. These are some of the examples of what
remedial action might look like counseling, action under misconduct policy or procedure,
and workplace violence restraining order. Confidentiality of workplace matters is important
to discuss. Employer confidentiality is required, especially with employees who have privacy
rights under the California Constitution, Article 1. But there are sometimes legal obligations
that required disclosure, like if there's an EEOC investigation or an investigation
by the Department of Civil Rights, when workplace investigations are conducted for employees,
there's always an admonition that's given that, you know, we endeavor to keep confidential
but can't guarantee it knowing that there are sometimes times where information has
to be released.
The practical impact to employers, however, is that if there's publicity around an investigation,
It sometimes limits the employer's ability to talk about an investigation publicly, but
it's important to know that as elected officials if there were employee investigations that
became public and needed to be discussed.
Okay, so this is an example, and I won't spend too much time on this since we're running
on time, but it is something that you can look up on your own, which is a 2023 case
in which a commissioner provided feedback on her views on a future housing development.
And specifically, she wrote an email with the language, she was blaming rich white anti-housing
men for thwarting future housing developments in town.
And the council voted to censure her in 2023 because they felt her comments were racist
against white people.
The council claimed that she failed to engage in constructive communication as a member
of the Planning Commission, even though she made these comments as a private citizen.
The complaints were made in an email and the city council took the following actions.
They sent her a formal written censure, they held a special public meeting where they verbally
presented the censure and invited members of the public to opine on what punishment
she should bear. They formally voted for censure, although written censure had already been
delivered and they imposed additional counseling on her. The ACLU did get involved. They did
indicate that the city was trampling on her First Amendment rights because she asserted
her concerns as a private citizen. They also stated that the city didn't appropriately
handle her actions and in fact they took punitive action instead of following their own manual.
So ultimately the council did remove the censure. Okay so let's talk about compliance. Again
as elected officials you are supervisors under FEHA and supervisors are required to report.
This is strict liability.
Employers are strictly liable for sexual harassment of a subordinate by a supervisor.
Supervisors who sexually harass can be held personally liable.
Again, you don't make the assessment.
If you observe it, it's best to send it to HR.
And the best practice is if you see something, say something.
Okay, so now we're going to break up into groups for hypotheticals.
Before we do that, I'll just do a quick check.
Does anyone need to take a break?
Okay, so if we can just come back in five minutes,
6.17, we'll restart.
All right, we're gonna get back started.
Okay, all right, so we're gonna break you all into groups.
So we're gonna do two groups.
You have the hypotheticals in the packet in front of you.
So for the first group, Councilmember Bowen,
Councilmember Bolt, Councilmember Acevedo,
we'll put you in one group.
And you're gonna focus on case study number one.
Group number two, Councilmember Simon,
Councilmember Aguilar, Councilmember,
I'm sorry if I mispronounce it, Sabide, Viveris-Walton.
Okay, Viveris-Walton, thank you.
And then Councilmember, I'm missing someone.
Oh, yes, and Mayor Gonzalez, thank you.
You'll be in group number two,
and you are going to focus on case study number two.
So I'm gonna give you 10 minutes.
You'll go through the hypothetical with your group.
You'll need to assign a speaker
who's going to report back on the questions.
So you're gonna answer the questions
with your group members as well.
So 10 minutes and then you'll have five minutes
to report out.
Okay, does everyone know what group they're in?
Yeah.
You can go down here also, yep.
So two groups, yep.
First group is case study number one, the second group is case study number two.
Okay.
So 630 is one I'm going to start talking.
Okay.
All right.
I know 10 minutes is not enough time, I'm sorry, in the interest of time we're trying
to get through both hypothetical.
So each group is going to have five minutes to go through.
Just want a high level summary for the other group as to the fact pattern and then go through each question and answer the questions
So let's start with group one. Who is the designated spokesperson? Okay councilmember bolt
Our idea was that she could have gone to HR much quicker
And no, she didn't do a good follow-up and in fact kind of fumbled it
Once she finds out about the rumors that were happening and didn't really do anything about it. So
What would she have done differently number one would we thought she should have gone to HR?
Immediately to help her through the situation. Okay
additionally
did some good follow-up and take the the
accusations credibly and more appropriately.
Was Fernanda correct in handling the situation by herself
without involving HR?
We just said, no, we think she should have.
What do you think Bailey's conduct toward Jonathan?
Was it harassing based on national origin or sex?
And we put both the fact that he was saying she was exotic
saying he she was saying he was exotic and and and then asked where he was from
starts to bring in the national origin and then of course sex saying just
enjoying the show and then touching the bicep and in inappropriate ways what do
think Jonathan's conduct is, what could he have done differently? Oh, so we thought maybe
he could have gone above, like when he felt that it wasn't being addressed could have
gone straight to HR himself. If it's, if it was a public sector, would it change our analysis?
No, we still feel all this is the same regardless.
All these things should have happened the appropriate way
regardless of being public or private sector.
Bailey's conduct towards Lola, was it harassing?
Yes.
Gender expression or gender orientation, both.
Could Lola have a claim against Bailey
for her treatment of Jonathan?
The way Bailey treated Lola, yes, definitely a case.
Kind of stumbled a little bit on what, because this is a claim.
So we know that Bailey could definitely have gone and waged a complaint for what
Bailey witnessed, but when it says a claim, we're unsure of what that meant.
Yeah, so Lola witnessed Bailey's misconduct against Jonathan, right?
so as the third party if she was offended by that conduct she still has
the ability to bring a claim of sexual harassment or whatever she observed it
to be an acclaim could mean either a complaint at HR a claim at the Civil
Rights Department or something more beyond filing a complaint within the
actual workplace so the answer to that will be yes yes exactly and did you all
Did you all note the comment about where are you from, where are you really from?
Yes.
Would that be a microaggression?
Yes.
Would you consider that a microaggression?
Okay.
Great.
And then what about Fernanda's scheduling of a meeting between Jonathan and Bailey?
Did you think that was a good idea or that's something that could have been done differently?
I mean, looking back how it unfolded.
No, that's not a good idea.
You should have got HR involved.
But initially to say, hey, what's going on?
I don't see that as a problem,
but I think it's a problem as it unfolded
and nothing happened went forward after.
Maybe I'm wrong in that, I don't know.
I think generally speaking,
if there's some kind of tension between employees,
always best to just get HR involved
and then through other facilitated processes,
there could be an opportunity to bring them together
in sort of like an unofficial mediation or something
instead of doing it informally this way.
That's what I would have suggested.
Good job, great job.
Okay, case study number two.
Group two, who is your representative?
Okay, great.
So we had the case study number two, the odd coworker,
lead things elementary school, hires a new teacher,
And Natasha's new hire and there are other folks involved,
Julie, co-workers, Carla, and I believe HR,
who is Christine, who Natasha reports.
So Natasha is experiencing inappropriate behavior
with regards to question one.
Where do you draw the line between odd, weird behavior
and unacceptable conduct?
To kind of summarize, Julie, Carla,
Natasha all have experienced inappropriate behavior from Joe and
Natasha goes on a school conference and shares the experience of the
inappropriate advances touching comments to Julie and Carla and Carla and Julie
share similar stories and did not report what had happened on previous trips but
and Natasha does finally report what happened to Christine.
And as a result, there was an investigation
and learned things.
Elementary school terminates Joe
for inappropriate conduct towards Natasha.
So where do you go?
Where do you draw the line between odd or weird behavior
and unacceptable conduct?
Did Joe's conduct cross the line?
We said, yes, the odd things where he talked about
that he likes stringy things,
that he loves both men and women.
The weird thing is that he also said
that he loved the educational aspect of porn.
And he made some comments about his subordinates
indicating that there were hot mamas or what have you.
So that all crossed the line.
Number two, should Joe's coworkers have told Joe directly
that his conduct bothered them?
Yes is what we said, but also it depends how comfortably
the person experiencing the harassment feels to report it.
They can go directly to HR.
Should Natasha have said something to her boss, Joe?
Again, I said yes, some of my other colleagues said no
unless she feels safe to do so.
Number four, how does the power dynamic
between Joe and Natasha impact this case?
Natasha is a subordinate and there is fear of retaliation
if she feels like she would say anything.
How are Julian Carlos experiences relative to Natasha's?
They are both in the same position
and both have shared that they've experienced
and did not say anything
but did share it with their colleagues.
Did LearnThings Elementary do everything it could
to prevent Joe's inappropriate conduct?
Yes, they did, they concluded, they did the investigation
and they decided to terminate Joe
for inappropriate conduct towards Natasha.
And did they act appropriately
in terminating Joe's employment?
I said, yes, we didn't get that far.
Okay.
But I'm just speaking for myself in that aspect,
if there's anything else that my colleagues would like
to have that I didn't touch on.
Okay, anyone else?
Okay, great job.
I would say for, I appreciated the nuance
for whether Natasha should have said something to her boss
that if she felt comfortable doing so,
then yes, it would be appropriate.
But if she didn't, then going to HR is the right call
and still inevitably going to HR is probably
still the right thing to do even if she said something.
With respect to Julie and Carla's experiences
being relevant to Natasha's complaint,
Did you all talk about the possibility of, you know,
Joe's, these shared experiences with Joe
being evidence of pattern in practice?
No, we didn't.
We didn't get that.
Oh, you didn't get there.
Okay, I know, time crunch.
Okay, well, great job.
We have one more hypothetical.
We're gonna, you get 10 minutes
and then a couple of minutes to report back.
So same groups, please.
Group number one, you're gonna do case study number three
and group number two, you'll do case study number four.
Okay so if we can come back at 652 that would be great. Okay four minutes each
for each group to report back. Just high level summary if you have time of what
your scenario was and or you could just go through the questions and answers.
Let's start with group one case study three. Okay so case study three Mr.
Creeper is not an employee of so what is the responsibility or is there any
responsibility the answer is yes. The answer number two is you know you can
kick them out tell them you can't come back right if he keeps doing these these
type of actions. Three we put there shouldn't well any any protected class
is like that's the line so once they start to discriminate against any of
that that's the line. And the firm could have maybe taken some steps to put
barriers between people between them between them yeah okay number four was
no because that's you know you can't just switch it over because the guy's
being a creep to the man so it might be did you consider disparate impact
perhaps we're on number four right yes yeah disparate impact perhaps of
transferring all current matters if they were to honor that request what we said
no we don't like the actions okay so good we were like nah okay what
responsibilities does Juliet well since she was already invited and then she
heard now this is the second time something's happened she does have
responsibility to say something okay we felt about this incidence yes number six
was yes and then seven it was you know what are the what is the pub like the
people the clients and voice their concerns and if nothing changes take
their money elsewhere mm-hmm that's right good job any other feedback from
from that group?
Group one?
No?
Okay, group two, hypothetical four.
Okay, so for question one,
I'll just do a quick kind of overview.
It is in, it's set in a company in Silicon Valley.
There is a supervisor, there's a culture of teasing
and jokes that are ageist.
There's a lot of drinking outside of work hours,
but it kind of bleeds into the work.
A position opens up.
A supervisor gives it to a younger person,
both in similar experience to the older person.
So that's the scenario that we were dealing with.
So in terms of question one, is there anything wrong
with the joking around?
And it's not OK, especially when jokes
are at the expense of a particular coworker
or a colleague.
And number two is our assessment of the statement
of the person who did not get the promotion,
who was offended by drinking and age jokes.
So yeah, I mean, it was a culture
that she did not feel like she connected to
and she felt like she had to keep it up
in order to be part of it.
Question three, should coworkers have realized
that their jokings could become problematic?
Yes.
However, there was no formal training given to,
so it's a startup and they had not received
any kind of harassment training.
So it's a risk to the business or the place of work.
And number four, do coworkers bear any responsibility
for monitoring their behavior in the workplace?
Absolutely.
Number five, should Lorena have intervened
and stopped the joking?
Yes, as all of their supervisors,
she should have stepped in.
Especially because they were teasing
specifically to protected categories or classes
like age and gender.
Six, can outside conduct work between friends?
Yes, so it can.
And then seven, how should the situation be handled?
At that particular point where we were in this scenario,
there needed to be an investigation slash involve.
And then follow up with training.
And then the group also said, once the training happened,
there needs to be a culture of accountability.
So if you see something, say something.
I'll leave it there because we're out of time.
Was that my timer?
That was not your, was that our timer?
That was my timer.
Okay, that's my timer.
Okay, fantastic.
Let me ask you this.
Did y'all consider whether Lorena enabled the behavior
by facilitating the drinking games?
Yeah, it was a permissive culture
that she actively participated in.
So yes, we can talk about that.
Great, okay.
Fantastic, good job.
So just to wrap up here, just a few reminders.
Employers need to provide one hour of training
to employees and two supervisors every two years.
elected officials are required training within six months of being elected and every two years thereafter
Please review the city's policy and the councilmember handbook and remember that compliance is your duty. Thank you very much
Well done. And so with that we come to the conclusion of our meeting
It is 658 and we will take a pause for a couple of minutes and what we start at 7
We are returned