Training Objectives

EQUAL OPPORTUNITY (EO) PROGRAM

LEGAL AUTHORITIES

RELATED CALTRANS POLICIES & DIRECTIVES

MANAGER/SUPERVISOR/Employees
RESPONSIBILITIES, LIABILITIES, AND PREVENTION
STRATEGIES

OVERVIEW OF COMPLAINT PROCESS

SEXUAL HARASSMENT PREVENTION
Headquarters
Equal Opportunity Program
Organizational Chart
Director
Acting
__________________________________
Chief Deputy Director
Randell H. Iwasaki
Acting
Deputy Director
Olivia Fonseca
Civil Rights Program
Title VI Program
Sherry Johnstone
Title VI Program Unit
District Directors
Office of Equal Opportunity
Dean Lan
EEO Program Managerr
Terry Baker
Discrimination Complaint & Investigative Unit
(DCIU)
ADA Statewide Coordinator
Michelle Adams
Principles of Equal Opportunity
Achieve Equality
Come together to achieve an environment free of discrimination
without regard to race, gender, religion, color, national origin, age,
marital status, sexual orientation, political affiliation, disability or
medical condition.
Appreciate Diversity
Recognize and appreciate the Caltrans Team for its blend of
different cultures, experiences and backgrounds by working
together to enhance our personal and professional lives and
contributing to the success of a very dynamic Department.
Acknowledge Differences
Acknowledge different perspectives at all levels and embrace the
uniqueness that others add to our personal and professional
growth, talent, and learning.
EQUAL OPPORTUNITY PROGRAM
Roles & Responsibilities

Encourages compliance w/Departmental EO
Program

Increases employee awareness of EO issues
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Provides training, resources & information

Assists w/the resolution of discrimination issues,
and the informal/formal complaint process

Responds to control agencies

Provides technical assistance to other partner
programs; i.e., ADA, Reasonable Accommodation
LEGAL AUTHORITIES
(Federal and State)

TITLE VI, Civil Rights Act of 1964
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TITLE VII, Civil Rights Act of 1964

Section 504 - REHABILITATION ACT of 1973

AMERICANS WITH DISABILITIES ACT of 1990 (ADA)

CALIFORNIA FAIR EMPLOYMENT & HOUSING ACT
of 1959 (FEHA)
Basis of Protection
From Discrimination
FEDERAL
 Race
 National Origin
 Color
 Religion
 Sex
• Gender
• Sexual Harassment
• Pregnancy
 Age – 40 or older
 American with Disabilities Act
 Family Medical Leave Act
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STATE
 Race
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National origin
Color
Religion
Sex
Age – 40 or older
Ancestry
Sexual Orientation
Marital Status
Disability
Medical Condition
Pregnancy Disability Leave
CA Family Rights Act (CFRA)
Retaliation
Perceived Status or Association
Political Affiliation
Employment Decisions
Regulated by Law
 Hiring, firing, promotions, transfers, layoffs
 Recruitment, testing, advertisements
 Compensation, retirement plans, disability
leave
 Training
 Other terms and conditions of employment
THEORIES OF DISCRIMINATION
 Differential/Disparate Treatment:
Intentionally denying an employment opportunity
on the basis of a protected characteristic.
 Adverse Impact:
A neutral policy, practice or procedure that
disproportionately burdens or screens out a
protected group.
THEORIES OF DISCRIMINATION
 Perpetuation of Past Discrimination:
Where a past discriminatory policy or practice is
maintained.
 Reasonable Accommodation:
Failure to provide accommodation for disabilities and
religious practices.
 Retaliation:
Reprisals against persons who have participated in a
complaint.
KEY ELEMENTS OF DISCRIMINATION
 ISSUE - Promotion, Work Environment
 BASIS - Race, Religion, Disability, etc.
 THEORY OF DISCRIMINATION - Retaliation,
Disparate Treatment, etc.
 CAUSAL LINK - Link between the employment
practice and the protected characteristic
KEY ELEMENTS
OF DISCRIMINATION
 PRIMA FACIE CASE :
Evidence to support an allegation
 BURDEN OF PROOF:
Obligation to establish a degree of belief.

PREPONDERANCE OF EVIDENCE:
Standard for evaluating evidence.
Discriminatory Practices
Regulated by Law
 Harassment based on any protected characteristic.
 Retaliation for filing a complaint of discrimination or for
participating in an investigation.
 Employment decisions based on stereotypes or
assumptions of a particular group.
#1.
TRUE OR FALSE?
FACT:
NINA VOLUNTARILY RESIGNED AS A
RESULT OF SERIOUS RACIAL
HARASSMENT.
TRUE OR FALSE?
NINA CANNOT HAVE A VALID CLAIM FOR
WRONGFUL DISMISSAL IF THE STATE RESPONDED
TO THE REPORT OF HARASSMENT, RID THE
WORKPLACE OF HARASSMENT AND TOOK
CORRECTIVE ACTION AGAINST THOSE
RESPONSIBLE FOR THE HARASSMENT.
BEST ANSWER: FALSE
NINA MAY HAVE SUCH A CLAIM IF THE “RESPONSE”
CAME AFTER FRONT-LINE SUPERVISORS HAD
FAILED TO RESPOND TO PRIOR COMPLAINTS,
RESULTING IN NINA’S FORCED DEPARTURE.
ALTHOUGH THIS EMPLOYER PROPERLY RESPONDED
AFTER THE FACT, IT FAILED TO PREVENT THE “SERIOUS
RACIAL HARASSMENT”.
#2.
TRUE OR FALSE?
FACTS: WARD IS A STATE WORKER. HIS CO-WORKER,
SHEILA, COMPLAINS TO HER SUPERVISOR THAT WARD
IS CONSTANTLY LOSING HIS TEMPER WITH HER AND
RAISING HIS VOICE IN ANGER. ON SEVERAL OCCASIONS,
WARD HAS SAID DIVISIVE THINGS LIKE:
“IF IT WASN’T FOR AFFIRMATIVE ACTION, WOMEN WOULD
NOT BE ALLOWED TO DO A MAN’S JOB - YOU JUST DON’T
HAVE WHAT IT TAKES?”
TRUE OR FALSE?
THIS MAY BE RUDE CONDUCT ON WARD’S PART,
BUT IT IS NOT SEXUAL OR GENDER HARASSMENT
BECAUSE WARD HAS A RIGHT TO EXPRESS HIS
FIRST AMENDMENT OPTIONS.
BEST ANSWER: FALSE
WHILE WARD CERTAINLY HAS A RIGHT TO HIS
BELIEFS, HE DOES NOT HAVE AN ABSOLUTE FIRST
AMENDMENT RIGHT TO EXPRESS THEM IN THE
WORKPLACE.
CALTRANS POLICY
& DEPUTY DIRECTIVES
 EQUAL OPPORTUNITY
 SEXUAL HARASSMENT
 REASONABLE ACCOMMODATION
 AMERICANS WITH DISABILITIES ACT (ADA)
EQUAL OPPORTUNITY POLICY
(Zero Tolerance Policy)
 What does Zero Tolerance mean?
• Must take immediate and appropriate
action.
• Conduct does not need to be severe and
pervasive.
• Caltrans has a higher standard than the
law.
Sexual Harassment
Deputy Directive

Provide a workplace free of sexual harassment.

Provide training and encourage employees
to identify, prevent and report inappropriate
conduct.

Take effective, appropriate and timely corrective
actions.

Refrain from conduct that can reasonably be
interpreted as sexual harassment.
Sexual Harassment is
Any conduct or communication of a sexual
nature (verbal, written, visual or physical)
which is:
unwanted, creates a hostile, offensive or
intimidating work environment, and/or
affects a person’s ability to perform work.
Reasonable Accommodation
Deputy Directive
Provide reasonable accommodations to
assist qualified employees and applicants
with a disability to participate in
Departmental
programs, services and/or to perform the
essential functions of the employee’s job.
Americans w/Disabilities Act (ADA)
Deputy Directive
Ensures equal employment opportunities for
employees and applicants, including those
with a disability, by providing access
opportunities to Departmental programs,
services, and activities.
Manager/Supervisor
Responsibilities
As a supervisor and agent of the Department,
your role is to assure that Caltrans provides
equal access to all its programs, services
and employment opportunities.
Employees’ Responsibilities
 Employees are responsible for behaving in
ways that maintain a work environment
which is free of discrimination and
harassment. Employees are also
responsible for reporting inappropriate
behavior in a timely manner.
How to do you fulfill your
role as a Supervisor?
 Know the departmental policies, who is
protected and what is protected.
 Implement the policies.
 Assure accessibility.
 Provide an harassment free environment.
How do you fulfill your role as an
employee?
 Know the departmental policies, who is
protected and what is protected.
 Self-awareness, in terms of understanding
your own culture, identity, biases,
prejudices, and stereotypes.
 Be aware of accessibility needs.

Participate in providing an harassment free environment
Supervisory Liability
Caltrans liability for discrimination and
harassment begins:
When knowledge of the condition exists, and when
you should have known about it, but failed to take
action.
 As agents of the Department, supervisors can
personally incur liability in the same way.

How to Prevent
Discrimination & Harassment
in the
Workplace
PRACTICE PREVENTION

Set standard; and lead by example.

Communicate policies clearly and consistently.

Address complaints or observations of
discriminatory/harassing conduct immediately.

Document incidents of discriminatory &
harassing conduct.

Effectively monitor the workplace after a
complaint of discrimination/harassment is filed.
What if? (Situation #1)
#1
You have a position opening up soon in your
unit. You have worked with Joe in the past
and you believe that he would be just perfect
for the job.
What action would you take in this
situation?
OPTIONS
A. Tell Joe that you have an opening in your unit and
you would like him to have the position.
B. Mention in meetings and other conversations that
Joe would be a great choice for the position.
C. Encourage Joe to apply for the position.
D. Provide Joe with materials and background
information to prepare for the interview.
BEST RESPONSE
 ISSUE:
Pre-selection
C is the best response. It is acceptable for
supervisors to request a certain individual to
compete along with other interested
candidates. Supervisor needs to be careful
so that there are no promises or pre-selection.
What if? (Situation #2)
Three gay men, Sam, Bill, and Don, are co-workers on
large project. All three men were repeatedly
exposed to graphic and offensive jokes about
homosexuals. Sam and Bill objected to supervisors.
Don, however, laughed along with the remarks.
True or False?
This may be a preventable hostile
environment if Don was offended, but felt
compelled to "go along."
BEST ANSWER: True
A hostile environment is based in part on unwelcome
conduct. Although Don might have a difficult time
producing evidence that the conduct was unwelcome,
this element is subjective in nature.
The real issue is: The supervisor and employees involved
must be aware and follow the Caltrans Zero tolerance for
discrimination and harassment in the workplace.
RESPONDING
TO
DISCRIMINATION
Supervisors and Employees
DO’S
Supervisors:
 Take the situation
seriously
 Communicate with
employee
 Act immediately to stop
behavior
 Maintain
confidentiality
 Remain neutral
Employees:
 Contact the EO Office
for assistance
 Report it to your
supervisor
 Document actions
 Resolve at lowest
possible level whenever possible
Supervisors and Employees
DON’TS
 Make judgments
 Ignore or delay
 Diminish or exaggerate
 Make promises
 Legally advise the complaining party
 Take the complaint personally!
 Retaliate!
DISCRIMINATION
COMPLAINT
PROCESS
INTERNAL COMPLAINT PROCESS
(Informal)

Offers informal confidential counseling concerning
potential discrimination and/or harassment.

Provides a means for resolving discrimination
complaint issues quickly, informally and at the
lowest possible level.

EO Staff works with employees, supervisors, and
managers to assist in finding a fair and equitable
solution to the employee’s issues/concerns.
INTERNAL COMPLAINT PROCESS
(Informal)

Employee or applicant may utilize the informal
process by contacting:
– HQ Office of Equal Opportunity
– District Office of Equal Opportunity
– Calling the Discrimination Complaint Hotline #
at 1-866-810-6346.

Informal contact must be made within one year of
the date of the discriminatory action.
Informal Discrimination Complaint Process
(District Level)
Employee contacts District EO Office to initiate complaint
District EO Officer arranges a private and
confidential meeting with the Complainant to take statement.
District EO Officer determines jurisdiction and selects
appropriate resolution process. Is there a basis for discrimination?
YES
NO
Complainant is advised
of his/her rights and the
informal complaint process
Complainant is notified
and case is closed
if applicable.
District EO Officer contacts the appropriate
supervisor or manager to seek an informal solution
EO Officer discusses the results of the resolution attempt
with the Complainant. Complainant agrees to proceed informally?
YES
NO
EO Officer brings issue(s) to
those with authority to resolve.
EO Officer advises Complainant of
right to file a formal complaint
with Caltrans DCIU, DFEH, and/or EEOC
Complainant is
satisfied.
EO Officer prepares final report and files in secure,
confidential file and sends copy of report to
HQ Office of Equal Opportunity
Informal complaint
case is closed.
EO Officer prepares final report and files in secure,
confidential file and sends copy of report to
HQ Office of Equal Opportunity
Internal Formal Discrimination Complaint Process
Complainant contacts HQ OEO or Dist. EEO to initiate a complaint
Complaint form is completed and all relevant info is taken from complainant
(Indiviual is advised of their rights to file concurrently with DFEH, EEOC and SPB
depending on the legal authority.)
Caltrans DCIU evaluates complaint package for jurisdiction
YES
NO
DCIU Investigator
performs fact-finding investigation
Complainant is notified & case is closed.
If applicable, will be referred to appropriate entity
for further jurisdictional review.
DCIU Investigator
performs final interview with complainant
DCIU issues a final fact-finding investigation
report to Chief, OEO, and to the Deputy Director,
Civil Rights Program for review
Complainant, Respondent(s), the District Director
and the District EO Officer are notified
Complainant IS satisfied
Complainant is NOT satisfied
Case is closed
Caltrans employees may appeal to SPB within 30
calendar days of decision by Caltrans. All other
complainants may file a complaint with DFEH, EEOC, FHWA,
and HUD, depending on the legal authority.
EO provides follow-up & quarterly reports to the directorate
on corrective action taken as a result of the investigation
in an effort to assure the directorate that departmental
management is carrying out its responsibility
EXTERNAL COMPLAINT PROCESS
Employees who believe they have been subjected to
discrimination can go outside the Department to file
a discrimination complaint.
External Agencies:
• Department of Fair Employment and Housing (DFEH)
• Equal Employment Opportunity Commission (EEOC)
• State Personnel Board
SEXUAL HARASSMENT
What is it?
Any conduct or communication of a sexual
nature (verbal, written, visual or physical)
which is:
• Unwanted
• Creates a hostile, offensive or intimidating
work environment, and/or
• Affects a person’s ability to perform work.
EXAMPLES OF
UNWELCOME BEHAVIOR

Verbal - epithets, derogatory comments, slurs

Physical - assault, blocking movement or physical
interference with work

Visual - derogatory posters, cartoons, drawings,
gestures

Sexual - conditioning an employment benefit on a
sexual favor
Two Categories
of
Sexual Harassment
 “QUID PRO QUO” SEXUAL HARASSMENT:
Simply means offering employment benefits in exchange
for sexual favors.

‘HOSTILE ENVIRONMENT - SEXUAL HARASSMENT:
Occurs when an employee is subjected to unwelcome,
unsolicited sexual conduct.
In this type of harassment, there is no threat of loss of job,
raise, or promotion as in quid pro quo harassment.
#1. TRUE OR FALSE?
Gary complains to Martha, his friend and
supervisor, about sexually suggestive
comments made him by Kate, but
demands that the
information be kept strictly
"confidential."
True or False?
Martha should not violate the confidence
Gary placed in her because Gary has
chosen not to pursue a claim.
BEST ANSWER: False
Although this is a common reason for
inaction by mangers, receiving information
about sexual harassment "in
confidence" does not form the basis for a
defense of privilege in a sexual
harassment case. Martha owes duties to
her employer, herself, and
to other employees in the workplace
(including Kate), as well as to Gary.
#2. TRUE OR FALSE?
One night after work Jennifer, an employee
with the State, goes to a local pub with a
few of her friends from work. While there
she runs into Ray, her supervisor. Ray
jokes to Jennifer’s friends that he can’t
stop thinking about her. Later that
evening, Ray asks Jennifer to join him for
dinner.
TRUE OR FALSE?
This is not sexual harassment because it
occurred outside the workplace.
BEST ANSWER: FALSE
Supervisors should consider themselves on
duty 24-hours a day when it comes to potential
sexual harassment. Although this incident
occurred
off premises (and we do not know if Jennifer was
offended), Ray’s conduct may become a factor at
work the next day. That fact that it occurred
“outside the workplace” may be irrelevant.
Manager/Supervisor Responsibilities
with regard to Sexual Harassment
 Provide a harassment-free workplace.
 Be proactive.
• Know and understand the Department’s
policies.
• Implement the policies, and assure equal
access.
 Take immediate and appropriate action.
Employee Responsibilities with regard
to Sexual Harassment

Participate in a harassment-free workplace.

Know and understand the Department’s policies.

Regularly review personal behavior for
potentially harassing elements.

Become familiar with employee rights under
policy guidelines and laws.

Confront and report incidents of sexual
harassment.
Effects of Sexual Harassment
(Individual)
 Anger
 Reduction in performance
 Avoidance
 Increased absentee rate
 Self-blame
Effects of Sexual Harassment
(Unit)
 Loss of unit cohesion
 Low morale
 Undermines ability of unit to complete job
 Detracts from mission accomplishment
Supervisor’s Roles
SUMMARY
 Supervisor’s primary role is to support the
Department’s policy/directives of “zero
tolerance” of discrimination and
harassment.
 Practice prevention.
Immediately and
effectively address complaints of
discriminatory and harassing conduct in the
work place.
Employee’s Role
Summary
 Employee’s primary role is to comply
with
the Department’s policy/directives of “zero
tolerance” of discrimination and
harassment.
 Participate in any training provided by the
Department
 Model appropriate behavior
EO Resources
Available to You
 Dean Lan , Chief, Office of Equal Opportunity
916-324-0989
 Terry Baker, EEO Program Manager
916-324-0904
 Michelle Adams, ADA Statewide
Coordinator
916-324-0987
 Veronica Vargas, Statewide RA Coordinator
916-227-4592
THANK YOU!