Today the Department of Fair Employment and Housing (DFEH) released a Workplace Harassment Guide. The new guide, available here, provides recommended practices for preventing and addressing workplace harassment. The guide was developed by DFEH’s California Sexual Harassment Task Force, of which Amy Oppenheimer is a member. It provides insight into employer responsibilities addressed in the new Fair Employment and Housing Council (FEHC) regulations enacted in 2016.
The guide will be instrumental in providing employers with practical advice as to how to prevent and investigate workplace harassment and is one of the few such guides available to employers that has the imprimatur of a government agency. It will help employers comply with their obligation to take reasonable steps to prevent and correct workplace harassment.
As workplace investigators, our office is pleased to have such an important resource and proud that Amy contributed to this groundbreaking guide.
“Having the opportunity to contribute to the DFEH Task Force on Sexual Harassment in the workplace has been a capstone of my career. It has given me an opportunity to put my thirty years of work in this area into something concrete that will help both employers and employees,” said Amy, who also noted that the guide is consistent with the Association of Workplace Investigators’ Guiding Principles as well as the practices Amy teaches when she trains workplace investigators.
In conjunction with the development of the guidance, the DFEH has updated publication DFEH-185 and the corresponding poster. The release of this guide and the updated brochure and poster are significant for all California employers, as preventing and correcting harassment in the workplace ensures a healthy and productive workforce and is required under the Fair Employment and Housing Act.
Contact us for more on the workplace investigations and trainings available from Amy and the other members of our team.
For employees dealing with workplace bullying, click here for some good advice.
Here are excerpts from the article:
State Treasurer Dan Rutherford routinely roomed overnight in hotels and a Chicago apartment with a low-level treasurer’s office employee whom he has given a 50 percent pay hike, raising questions about the workplace judgment of the Republican candidate for governor.
Amy Oppenheimer, a California attorney, investigator, government consultant and expert witness on workplace harassment issues, said, “Supervisors and subordinates need to have a certain amount of professional distance so that a supervisor can take action that the subordinate may disagree with and to ensure that they’re not friends.
“And sharing a room with someone is an intimate friendship activity, not a supervisor/subordinate activity,” Oppenheimer said.
“Let’s say this assistant didn’t work for the state and was just a campaign employee and they shared a room, it’s probably not so much of an issue,” Oppenheimer said.
“But then it bleeds into the fact that this is a state employee and how much choice does a person really have?” she said. “It’s about trying to sort of understand what people can comfortably say no to and what they can’t. And it certainly brings up the appearance of potential impropriety.”
You can read the entire article here:
Workplace investigations continue to be a hot issue for the courts. On December 23, 2013, a Federal Court in Connecticut, in an age discrimination case against IBM, precluded evidence of an internal investigation that found IBM had treated the plaintiff fairly. IBM wanted to show it did a fair investigation and that based on the investigation it acted properly in terminating the employee. However the court found that the probative value of entering that investigation into evidence did not exceed its prejudicial effect, because it was one sided. The court determined that the investigator was not neutral due to his failure to interview witnesses who might support the plaintiff’s contentions and due to the focus on plaintiff’s job performance, rather than his allegations of age discrimination. In conclusion, the court found that “There is also reason to suspect that the purpose was to exonerate IBM more than to determine if Mr. Castelluccio was treated fairly.”
When I review an investigation like this I have to wonder if the investigator thought he/she was being impartial. Without a constant check on our own biases it is all too easy to work toward a foregone conclusion, and one that confirms what the employer thinks to begin with – this is what is meant by confirmation bias. Only by truly looking at all sides, and carefully weighing that information, can an investigator come to a fair conclusion. And it may mean delivering news an employer does not want to hear. Perhaps, in this case, if the investigator had really considered the employee’s side of things, he would have come to the same conclusion. But without his doing so and making that clear by whom he interviewed and what he considered in his report, this investigation made things worse, not better, for the employer.
This case underscores the need for employers to ensure that the investigations they are conducting are truly fair and unbiased. A biased investigation may come to the result the employer hopes for, but be more costly in the long run. Employers should carefully consider bringing in an outsider when they do not have the internal resources to do a truly fair and unbiased internal investigation.
The case is Castelluccio v. International Business Machines Corporation, 2013 WL 6842895.
A recent public radio program on “Inspiring Girls and Women to Code” addressed the disheartening reality that while women were 38% of the computer workforce in the 1980’s, that percentage has been nearly cut in half today. (Forum with Michael Krasny, September 9, 2013 http://www.kqed.org/a/forum/R201309091000 )
The program’s guests focused on strategies and programs designed to engage girls and women in the world of science, technology, engineering and math – but also cited institutional barriers to female participation. One caller listed successful strategies for increasing women speakers at conferences, including simply making the call for proposals process anonymous.
This is the same strategy famously used to raise the percentage of women orchestra musicians from about 10% in the 1970’s to 35% in the 1990’s. Much of this gain was attributed to “blind auditions,” where a screen prevents judges from seeing the musician, so that their decision will be based solely on hearing the music.
Is it still necessary to employ such strategies? Yes, according to Shelley Correll, at Stanford. She cites studies showing that hiring committees still let bias get in the way of impartial decision-making. For example, a group of raters evaluating candidates for a faculty position were provided resumes that were identical except that half showed female names and half showed male names. The result? 79% deemed the male worthy of hire and 49% deemed the female worthy of hire.
Prof. Correll lists organizational solutions, including:
- Educating people about how stereotypes work;
- Establishing clear hiring and promotion criteria before looking at candidates;
- Ensuring that the criteria are relevant and non-discriminatory;
- Holding decision-makers accountable by requiring them to explain their decisions;
- Transparently measuring and reporting who is being hired and promoted; and
- Publicly vouching for the competence of leaders from underrepresented groups.