Anti-Harassment
Non-discrimination
Reasonable Accommodation
Policy

Office of Equity and Diversity
Location: USU 301
Telephone ext.: 5-8256
California State University, Long Beach
FEHA

Fair Employment and Housing Act
(State Statute)
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Applies to discriminatory speech and conduct on the basis of:
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Age
Ancestry
Color
Creed
Denial of Family and Medical Care Leave
Disability (mental and physical) includes HIV & AIDS
Marital Status
Medical Condition
National Origin
Race
Religion
Sex
Sexual Orientation
UNRUH CIVIL RIGHTS ACT

State law provides protection from discrimination by all
business establishments in California, including public
agencies
– On the basis of:
 Age
 Ancestry
 Color
 Disability
 National Origin
 Race
 Religion
 Sex
 Sexual Orientation
Applicable State Statutes

Students and visitors of the campus
(i.e. vendors and contractors) may file state
claims under the Unruh Civil Rights Act
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Employees may file state claims under
FEHA
 These claims may be filed through the
Department of Fair Employment and
Housing (DFEH)
Civil Rights Act of 1964

Applies to employers with 15 or more
employees
 Title VII prohibits discrimination based on:
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Race
Religion
Color
National Origin
Sex
EEOC HARASSMENT
REGULATIONS
– Unwelcome conduct
– On the basis of protected category
– Unreasonably interferes with job
– Creates hostile work environment
Most Common Claims

Given the power relations in the workplace,
women have been the primary victims of sexual
harassment.
 Male claims of sexual harassment against their
female supervisors have increased significantly.
 Claims based may also be filed on grounds of
disability, national origin, race, ethnicity,
religion, or gender identity.
 More recently increasing numbers of claims have
been filed based on disability and/or national
origin.
Same Sex Harassment
 Same
sex harassment is prohibited
regardless of whether the parties
involved are heterosexuals or
homosexuals.
TYPES OF HARASSMENT
 Quid
Pro Quo (this for that)
 Today: ‘tangible employment action’
has replaced ‘quid pro quo’
standard
 Hostile
Work Environment:
must be severe or ongoing and pervasive
with or without economic impact.
HOSTILE ENVIRONMENT
 Various
forms of workplace conduct
can lead to a hostile work
environment:
– Physical and/or verbal derogatory or
aggressive treatment
– Baiting, ridicule, banter or hazing
based upon any protected category.
HOSTILE ENVIRONMENT
continued:
 Use
of crude or vulgar language
 Name-calling, discussions, references
of derogatory nature
 Presence of offensive material based
upon protected category
 Intimidation or hostility
STRICT LIABILITY

Employer is automatically liable for
supervisor’s actions or failure to prevent the
harm
 Fault is irrelevant
EMPLOYERS DAMAGES

May be limited under the doctrine of
avoidable consequences
 Liability will be reduced if the injured party
could have avoided the harm by reasonable
effort or expense
 Through taking advantage of the
institution’s complaint processes
EMPLOYER’S POLICY

Supervisors must communicate the
University’s non-discrimination, antiharassment and reasonable accommodation
policy to their employees in an effort to
avoid liability!

Supervisors/managers must take immediate
and appropriate action.
PERSONAL LIABILITY

Employees who engage in harassment may
be sued in civil court by the injured party
and be subject to monetary liability if the
court finds that, it is more likely than not,
the harassment occurred.
Supervisor Responsibilities
Supervisors/Managers must discuss the concerns or
complaints of discrimination, harassment and/or denial
of reasonable accommodation in private with each
party separately. KEEP RECORDS of all discussions.
They must report the concern or complaint and action
taken with the Office of Equity & Diversity.
Full & complete complaint procedures are at Office of
Equity & Diversity: www.csulb.edu/oed
.
Supervisor Responsibilities

Confidentiality must be maintained on a
need to know basis.
 It’s ALWAYS best to resolve concerns
early & at the lowest possible level.
Complaint Procedures
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Information is available: www.csulb.edu/oed.
 Discuss your concern first with your
supervisor or Staff Human Resources or
Faculty Affairs.
 Employees may file informally or formally.
 A list of campus contacts is at:
www.csulb.edu/depts/oed/resources/contacts.h
tml
 Union representation is your choice (if
covered). Others may utilize E.O. 928
 http://www.calstate.edu/eo/EO-928.html
RETALIATION

Retaliation against a complainant is
prohibited by federal and state law
 It is a distinct actionable claim
 Harassment does not need to have occurred
beforehand in order to prevail in a separate
claim of retaliation
DISABILITY

LEGAL CONTEXT
Rehabilitation Act of 1973
Section 503 – Employment
Section 504 – Programs/Services
Americans with Disabilities Act of 1991
Unruh Act – SB 2222 – State of California
LEGAL PROTECTIONS
Unruh Act
 Impairment that
“limits a major life
activity”
ADA
 Impairment that
“substantially limits
one or more major life
activities”
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Without regard to
mitigating measures
With or without
mitigating measures.
LEGAL PROTECTIONS 2.
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Unruh Act
Physical
Mental
History of
Regarded as having
Medical Condition
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ADA
Physical
Mental
Record of
Regarded as
Pre-Employment
Unruh Act
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No general questions
 Specific questions of
present illness,
condition, history IF
“directly related” to
the job in question
ADA
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No inquiry of the
existence, nature or
severity of a disability
 Inquiries permitted of
the ability to perform
job-related duties
DEFINING DISABILITY

No definitive checklist (Note explicit State
coverage for cancer as a medical condition)
 Note inclusion of mental or psychological
disorder, such as emotional or mental
illness:

Major depression, bipolar disorder, anxiety
disorders (panic, obsessive compulsive and posttraumatic stress disorders), schizophrenia and
personality disorders.
REASONABLE
ACCOMMODATION

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Who: Case by case evaluation for a particular individual
employee
What: Any change in the work environment or in the way
things are customarily done that enables an individual with
a disability to enjoy equal employment opportunities
(EEOC)
Where: In a private setting.
When: After it is known that the employee has a
disability.
How: By discussion with the employee through an
“interactive process” in “good faith.”
Timing of Accommodation
Reasonable accommodation is always
prospective.
An employer is not required to excuse past
misconduct.
Guidelines
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Document—When the disability becomes known.
Note an employee’s references to his/her
difficulty/inability to perform required duties –
NO MAGIC WORDS
Document—When an employee requests
accommodation
Document every conversation (telephone, voicemail,
electronic mail) regarding the need for accommodation.
Document consideration of request and the universe of
possible accommodations—including those that are
ultimately unreasonable and those that are refused.
Document the provision of accommodations.
Possible Accommodations
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Job restructuring
Part-time work
Modified work, modified scheduling
Reassignment or transfer
Leave of absence
Modification of equipment or devices
Elimination of non-essential job functions or
duties
 Retraining
Essential Functions

Duties/tasks that are critical to the job.
 Primary job duties typically established by a
job analysis and recorded in the job
description.

The ability to perform these WITH or
WITHOUT accommodation determines if
an individual is QUALIFIED
Unreasonable Accommodation

Extensive
 Substantial
 Disruptive
 Fundamentally alters the business’ nature or
operation

Costly – Use extreme care!!
Unreasonable Accommodation
Examples

Eliminating essential functions.
 Eliminating (as opposed to reducing) job
stress.
 Requiring employee to take medication or
monitoring their doing so.
 Switching supervisors.
 Lowering uniformly applied job
performance standards.
Confidentiality
Employers must keep all information concerning the medical condition or
history of its applicants or employees, including information about
psychiatric disability confidential. This includes medical information that
an individual voluntarily tells his/her employer.
Employers must collect and maintain such information on separate forms
and in separate medical files, apart from the usual personnel files.
References to medical condition or diagnoses must be kept out of
performance appraisals, and all other materials that could be used to
consider the employee or permanent status, advancement, transfer, or
promotion.
Exceptions
Supervisors and managers may be told on a need-to-know
basis about necessary restrictions on the work or duties of
the employee and about necessary accommodations.
First aid and safety personnel may be told if the disability
might require emergency treatment; and
Government officials investigating compliance with the
ADA must be given relevant information on request.
Disclosure to Co-workers
The employer must not disclose any medical
information to questions from co-workers.
An employer may not tell employees whether it is
providing a reasonable accommodation for a
particular individual. Doing so discloses that the
individual probably has a disability
Misconduct
Rule—Apply discipline based on rules that
are job-related for the position in question
and consistent with business necessity and
past practice.