Real Questions.
Really Great Answers.


HR Questions


January 6
Private

If I am working with someone who operates in the yellow on a regular basis and is demeaning/belittling publicly, but they are a superior to me, how could I address this? I'm fearful of going to HR because of the likelihood of backlash. Would love advice.

Phyllis bubble Phyllis Cheng

Please excuse our delayed response during the holidays but thanks for a really helpful question. I'm sure many people have a similar question. If you don't want the help of HR, here's a recommended approach to take: Pick a time when there's no friction or conflict and ask the person to coffee or a walk and talk. Then, delicately let the person know that while you think they're very effective, their work style can be a bit demoralizing for you at times given that it sometimes feels demeaning. You may want to reference the workplace color spectrum and let the person know they tend to go "yellow" under stress. The key is to not make pronouncements about the person -- don't call the other person a bad manager or a bully. It's all how that person makes YOU feel. When you discuss your feelings, it's easier for the other person to want to help and support you as compared to making pronouncements about the other person, which will always get that person defensive. Hope that helps.

January 6
Private

When faced harassment from Client's Team, while working as a contractor at a Client location how is that situation handled?

Janine yancey bubble Janine Yancey

Thanks for your question and please excuse the delay due to the holidays. As a contractor, if you experience harassment or conflict from the client's team, you'll want to connect with the HR person from your organization first so the matter can be handled delicately and professionally, and if you're a freelancer, then go to the HR person of the client's team to help navigate and resolve the issue. Hope that helps!

January 6
Private

The use of the statement "She gossips and ..." uses a female pronoun and a word that has genderized usage (there is case law re more likely to accuse a female of gossiping and men of banter). So, not the best way to test protected characteristics. Why is that the format of this objective ask?

Janine yancey bubble Janine Yancey

Hello - Please excuse the delayed response due to the holidays. Thanks for the feedback and highlighting the unconscious bias associated with identifying who gossips. We'll evaluate and address accordingly.

January 6
Private

What is a protected personal characteristic?

Patti bubble Patti Perez

Thanks for your question. A protected personal characteristic are those traits (age, gender, religion, etc.) that state legislatures have deemed should be protected and not used to make any employment decisions.

January 6
Private

You haven't really touched upon the implicit "working until late in the evening" culture, which generally discriminates against many people who strive for a good work life balance.

Phyllis bubble Phyllis Cheng

Thanks for your comment. Work/life balance is really a workplace culture issue and not a respect or legal issue.

December 19
Private

Is there a document available that contains the information in this training that can be used as a reference later?

Patti bubble Patti Perez

Yes, there is. If you log back into the course and look for the resources button on the chapters on the left side (expand by clicking the three horizontal lines at top) - you'll see a course guide for learners. Hope that helps!

December 19
Private

So say you have a co-worker that does not appear to "work" as much as everyone, because there is an atmosphere of a "clique", meaning that they go to lunch together and are gone for 1-2 hours and the co-worker jokes and "plays" around with the acting Manager and no one wants to say anything. What can you do, because you feel you cannot talk to the acting Manager?

Phyllis bubble Phyllis Cheng

Great question! While this isn't a legal issue, it's a potential workplace issue that negatively impacts the workplace culture. Use your reporting process to connect with someone in the chain of command -- perhaps a District Manager or Field HR manager? And outline your concern as a workplace issue impacting productivity and morale -- don't style it as a legal issue.

December 12
Private

Different states have different class of EEO classification – does this mean what is applicable in California may not be the same in other states? Example: If anyone over 40 comes under protected class in California and if it's not defined in other states does it mean it's not applicable or it's as defined by EEO and applicable across all of USA?

Patti bubble Patti Perez

Thanks for your question. Yes, different states have different protected personal characteristics. So for example, age protection in California begins at age 40 while in Oregon, it begins at age 18. However, there is also the federal EEO law and nationally, age protection begins at age 40. So you need to look at both the state and national protection and select the most protective standard (for the employee), and that's the standard. As an illustration, if you work in a state that does not protect a certain personal characteristic, there may still be protection for that personal characteristic under the national EEO law. Hope that helps clarify.

December 12
Private

Title VII: What defines an undue hardship for on employer in terms of an employee's religious practices?

Janine yancey bubble Janine Yancey

Thanks for your question about undue hardship. Deciding what is "undue hardship" is a factual question based on the "totality of the circumstances" and is evaluated on a case by case basis. There is no hard and fast rule. However, there are several issues to consider such as: -the nature and cost of the accommodation needed; -the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; -the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); -the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; -the impact of the accommodation on the operation of the facility See the EEOC's guidance on this issue here:https://www.eeoc.gov/policy/docs/accommodation.html#undue The best practice for determining employer undue hardship is to summarize the "hardship" and present to an objective third party to get that person's assessment. Hope that helps clarify.

December 12
Private

Does this certification expire in time?

Janine yancey bubble Janine Yancey

Yes, it does. The certification is valid for 24 months. Thanks for pointing that out as we'll clarify the time limit on the certificate going forward.

December 12
Private

Can coarse language (cursing & foul language, either in routine conversation, or in combination with an emotional outburst, i.e. anger/frustration over an unexpected problem with a product launch), that is non-sexual in nature, and not targeted at a protected class, be grounds for a hostile work environment? I recognize it's not professional, but would like to know if this could be viewed as creating a hostile work environment. Thx!

Phyllis bubble Phyllis Cheng

Thanks for your question about foul language. Foul language, by itself and without reference to a protected personal characteristic, cannot create a "hostile work environment" as that term is defined under fair employment laws. Fair employment laws are civil rights laws to protect people and not intended to establish a civility standard. Having said that, foul and unprofessional language is still a workplace problem and "yellow" on the Workplace Color Spectrum as it negatively affects the workplace culture. Therefore, it's a workplace problem that needs to be addressed, it's just not a legal problem.

December 12
Private

When I review the training 1 hr is sufficient for the training to be completed. I wanted to know is there a reason why the training is for 2 hrs. Also it wont go to completed even if we have passed through all the slides. I just want to sit at the desktop and see the screen until the time is reduced to zero. So what to understand the reason.

Janine yancey bubble Janine Yancey

Hello - there are training regulations in California and Connecticut that require two (2) hours of harassment prevention training. Therefore, many employers hold their entire U.S. based workforce to the same standard to be consistent.

December 12
Private

What if my boss occasionally humiliates me in front of others? Is this harassment?

Janine yancey bubble Janine Yancey

If your boss' comments or actions do not concern any protected personal characteristics, then the "humiliation" is not harassment. However, rude or "humiliating" conduct is still a problem for the workplace culture and one way to address it is to let your boss know his or her comments are less than "green" and not that motivating as a team member. I hope that helps provide some guidance.

December 12
Private

Hi, it would be nice if the training covers some aspects regarding how employees could react or report if someone from client organization acts as a bully or behaves in unethical and derogatory manner, and the environment forces us to tolerate such behavior from clients, because they are clients!

Patti bubble Patti Perez

Excellent question! Actually, you can use your same reporting process (as outlined in your code of conduct) to report inappropriate conduct by clients that affect your work environment.

December 12
Private

I am curious to know why these kinds of training are not mandatory for subcontractors and only targeted at employees? Subcontractors also represent our brand name and I feel it's very important that they also follow highest standards set by our company, and also have access to these kinds of reporting mechanisms while working in our projects.

Janine yancey bubble Janine Yancey

Thanks for your comment and you're right in that everyone's conduct creates the workplace culture - employees, contractors, clients, partners, etc. Therefore, an organization's code of conduct and content that helps illustrate and explain the code should be made available to everyone who impacts the culture.

November 17
Private

What do you do if you feel your co-worker doesn't work as hard as you do?

Janine yancey bubble Janine Yancey

Please excuse the delayed response and thank you for your question. Whether or not your co-worker works as hard as you is probably less helpful than asking whether your co-worker is negatively impacting co-workers due to a poor work ethic. If that's the situation, it would be helpful to seek out the HR or Talent manager and ask them to coach the co-worker, or let the manager know your feelings. Rarely would it be a good idea to give that message directly to the co-worker as it would be difficult to hear that message from a peer. .

November 17
Private

I pay sales and use tax. I am instructed to pay at the last possible day to save money. I do not believe this is ethical and it is certainly not a course of action I would take. Saving a couple bucks in float is not worth the risk of a bank transfer error which could lead to legal matters and penalties against the company for which I would be held responsible when (not if) it does occur. Still, my supervisor and PLH instruct me to do differently, so I do what they say.

Janine yancey bubble Janine Yancey

Please excuse the delayed response and thank you for your question. Paying as late as possible is a common business practice since it's fiscally beneficial. It should not raise any ethical issues as long as it doesn't violate an agreement or regulation.

November 17
Private

I have a question about the religious decorations at Christmas time. It said that they were most likely a yellow or orange color code because it could make other people feel excluded or like their religion wasn't important. While I understand that train of thought I feel like you could argue that this presentation classifying someone who is expressing their religion around the holidays as either yellow or orange, could now make them feel like their workplace is trying to suppress their freedom to exercise their religion. I feel like this is a double edged sword with no perfect answer and wonder how you would try to handle this situation if it arose.

Janine yancey bubble Janine Yancey

Thanks for your excellent question! In the religion question you're referencing, the key was that the Christmas decorations were in shared office space -- without including any other religions. As we approach the holiday season -- it's completely appropriate to express your Christmas spirit - as long as there's an acknowledgment of and respect for your co-workers who may be celebrating other religious holidays during the same time.

November 17
Private

How does the fact that employees frequently work at sites where a manager is not present affect the knowledge of workplace harassment? How is the concept that the manager "should have known" about inappropriate or illegal conduct affected by this?

Janine yancey bubble Janine Yancey

Thanks for your question. So if I understand correctly, you're asking whether the "should have known" standard would be relevant in a business operation where managers are not present? In that type of work situation, the "should have known" standard would most likely not be relevant or applicable. Instead, the question would be on whether the employer "knew" of the harassment. Hope that helps.

November 17
Private

What does a manager do if the employee says something like "if my complaint can't be kept confidential, then I won't make it". Is there still a responsibility to report it to HR or the manager's superior?

Janine yancey bubble Janine Yancey

Thanks for your question. In the situation you describe, you may want to let the employee know that a complaint does not necessarily need to trigger a whole lot of workplace drama. In fact, the HR team can often address and resolve issues quickly and without people even being aware of an issue. If the person still refuses to open up, then report to HR that that person expressed a concern but refused to articulate it. That way, the HR team can keep an eye out for problems and document that the person refused to articulate their complaint. Hope that helps.

November 17
Private

Why only cancer under medical condition?

Janine yancey bubble Janine Yancey

Thanks for your question. Policy makers pass regulations to protect certain groups of people when they've seen evidence of enough situations indicating a social problem. So most likely, medical condition and cancer were added to the list of protected characteristics when evidence was presented to show the magnitude of that particular workplace and social injustice.

November 3
Private

Isn't the new threshold $927/ a week starting in December 2016?

Janine yancey bubble Janine Yancey

Close -- the new salary threshold for exempt status will be $913/week or $47,476 per year. Here's a link to the DOL website page that summarizes the new rule: https://www.dol.gov/featured/overtime

November 3
Private

What is the procedure to recommend a supplier or vendor to the company? Will the procedure be different if the supplier or vendor is relative or friend of the recommender? What can I do if I suspect the proper procedure was not carried out for such recommendation?

Janine yancey bubble Janine Yancey

Thanks for your question. We've passed your question to your internal team to get answers for you. Having said that, whenever there is a personal relationship involved in a possible vendor situation, that relationship should be disclosed and made transparent. Thanks for your patience and we'll be back shortly with some answers!

November 3
Private

I was at a job where I found out after I was fired for a non-related incident that the boss had told other employees to follow me and report back all times I didn't follow policy and procedure to the tee. Most incidences were things that were acceptable with other employees. When I was brought to a meeting with the director and told her that these were minor I was reprimanded. My boss was a relative to someone I knew and our relationship had gone sour. She informed me of that relationship the day I was hired.

Janine yancey bubble Janine Yancey

Sorry to hear of your unpleasant experience. However, the law does not guarantee you a great workplace -- or even a fair one - just one that is free of discrimination and harassment based on personal traits that are legally protected.

November 3
Private

I had a co worker who refused to talk to me after I came back to work after drug treatment with restrictions. We worked together but my manager would never let us work alone together. She at one point called my case manager for my restrictions and told her I need to apologize to her and another co worker whose schedule had to be changed due to my return to work restrictions.

Janine yancey bubble Janine Yancey

Sorry to hear of your unpleasant work experience. In a situation like the one you describe, it's best to get your HR team involved so they can facilitate any necessary team discussions to resolve conflict.

November 3
Private

What do you do when an employee tells other associates what to do, and also seems somewhat disrespectful to the management team?

Janine yancey bubble Janine Yancey

Thanks for your question. In that situation, it's best to get someone from HR to coach the employee so their manner is more respectful and supportive of teams.

November 3
Private

How should management level handle an employee who is showing signs of "gratuitous sabotage of the management's work performance to other employees”?

Janine yancey bubble Janine Yancey

That's a management (rather than an HR) challenge. In the situation you describe, it's best to give specific, timely feedback to the person and outline the negative impact of their actions on the greater team. Always follow up with a written note summarizing your discussions so you can refer back to your discussion and ensure everyone is on the same page.

October 28
Private

Do the federal laws apply in the absence of state law?

Janine yancey bubble Janine Yancey

Yes, when a state lacks specific fair employment laws, then the federal laws apply.

October 28
Private

Can your job terminate you if you have an addiction?

Janine yancey bubble Janine Yancey

If the addiction triggers substance or alcohol abuse that carries over into the workplace, then yes, it could justify termination.

October 25
Private

If immediate supervisor is creating a hostile work environment and has been brought up to Human Resources. Nothing has been done. Where do you turn to?

Janine yancey bubble Janine Yancey

Thanks for your question. When you have complained to HR about a supervisor's conduct and there's no employer response, it's a general best practice to summarize your concern in writing and include details of the actions/comments that you found unwelcome and then deliver your documented concern to HR and a more senior manager. Typically, documenting a concern gives employers visibility into an issue and prompts some type of documented response from the employer. If the employer fails to provide any response to your documented concern and if you work in California, you can remind your HR team that the 2016 amendments to the Fair Employment regulations requires employers to respond to employee workplace complaints.

October 20
Private

In the section about Jeff and Navid, you state that they don't have to tell their co-workers about their discomfort, but that is 1) not being transparent which is something you should promote in a positive work environment and 2) expecting that the other co-workers can read minds. Why do you state this?

Janine yancey bubble Janine Yancey

Thanks for your question. The harassment prevention course will always say that an employee is not required to express their discomfort to you because that is how the legal standard has evolved. You are correct that the legal standard (of not having to express your discomfort) does not promote workplace transparency and does put people in the position of having to "guess" at what people are thinking. Having said that, the legal standard does make sense when it comes to protecting employee rights because a more junior employee is rarely going to feel comfortable saying anything critical to a manager. Even as it relates to peers, many people hate conflict and will avoid it all costs... until they eventually file a claim or spin out of an organization because they object to the conduct. Additionally, everyone in an organization is accountable for their own conduct and when people go beyond work topics -- it's their responsibility to ensure their comments/actions are workplace appropriate.

October 20
Private

Do you have job aids for the material in this training?

Janine yancey bubble Janine Yancey

Thanks for your question! Under the "resources" tab within the chapters on the left side, you'll see the course guide. Also, check out www.emtrain.com/resources to see a variety of checklists and guides to help navigate workplace issues.

October 11
Private

If there was no previous relationship can a working lunch to go over the numbers be appropriate?

Janine yancey bubble Janine Yancey

Yes, of course. A working lunch is reasonable. What is not reasonable is when a manager requests a "working lunch" as a pretext to connect personally and further a personal relationship.

October 10
Private

How is being a parent not a protected trait, but being a "caregiver" is? Does being a parent fall under being a caregiver?

Janine yancey bubble Janine Yancey

Thank you for your question! Being a parent is protected under family status.

October 7
Private

I don't understand the GINA act. If someone has a genetic test done, it is not as if they have to share that information with an employer. Or is the idea that if that genetic test reveals something that affects their performance in the workplace, they cannot be discriminated against?

Janine yancey bubble Janine Yancey

Thanks for your question. The concept is that if an employee has genetic testing and somehow the employer learns of the results of the testing -- through insurance communications (e.g., stating pre-existing conditions) -- then the employer cannot use the genetic trait as a motivator for an employment decision. For example, let's say someone gets tested for the breast cancer gene and tests positive -- an employer cannot learn of that and fire the person to avoid having to deal with an employee who is predisposed to getting cancer.

October 6
Private

How often should federal contractors train on drug free workplace? How often should they distribute the policy? Here is what our guideline says, but FREQUENCY is NOT mentioned. Drug and Alcohol Awareness Training –The Drug-Free Workplace Act of 1988 requires Federal contractors and all Federal grantees to agree that they will provide drug-free workplaces as a condition of receiving a contract or grant from a Federal agency. All organizations covered by the Drug-Free Workplace Act of 1988 are required to provide a drug-free workplace by taking the following steps: a. Distribute a drug and alcohol policy to all employees informing them that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against employees who violate the policy. b. Establish a drug-free awareness training program to make employees aware of a) the dangers of drug abuse in the workplace; b) the policy of maintaining a drug-free workplace; c) any available drug counseling, rehabilitation, and employee assistance programs; and d) the penalties that may be imposed upon employees for drug abuse violations.

Janine yancey bubble Janine Yancey

Thanks for your question. The statute does not reference frequency of training, other than to reference employees working in furtherance of the federal contract. Accordingly, I believe a reasonable interpretation is that employers should document drug free workplace training any time an employee is assigned to work in furtherance of a federal contract and if the work spans multiple years -- than conducting refresher training every other year would be consistent with other legal training mandates.

September 28
Private

Has anything been added to the training library or to an existing training module that addresses responding to gender identification issues in the workplace, such as discrimination, respect and dignity, legal compliance, providing restroom or dressing room facilities, etc.? Our company is looking to see what training organizations have produced or are producing to determine such training could be added to our modules for management team. Please advise.

Janine yancey bubble Janine Yancey

We are actually shooting an episode next Friday on gender identification and it references the bathroom issue and the awkwardness that arises when someone is going through gender reassignment. It will be in the next version of our preventing workplace harassment course. But it will also be available as a stand-alone video lesson in our new 3 MVL product, which allows in-house HR and Legal to send out quick video messages on trending workplace concerns/issues.

September 28
Private

This supervisory position that has been restricted to internal applicants who have supervisory experience isn't necessarily discriminatory. You set up the situation with the word MOST supervisors at the company were male. You didn't say ALL. How can it be discriminatory? I don't understand that.

Janine yancey bubble Janine Yancey

Hello and thanks for your question. If an employer policy has the effect of excluding a class of people, then it could be considered discriminatory. So in the situation of a hiring guideline -- if there are no women that meet the requirements of the guideline -- then the rule could be viewed as discriminatory, unless there is a legitimate business reason justifying the rule. However, if a person can argue that requiring internal candidates with supervisory experience is not really necessary from a business perspective, then the hiring guideline is vulnerable to a discrimination claim. Hope that helps clarify.

September 28
Private

How much do lawsuits against workplace harassment cost for the individual making the complaint?

Janine yancey bubble Janine Yancey

Typically, employees who wish to file a claim against their employer are represented by attorneys who advance all of the costs of the lawsuit. If there is a settlement or a verdict in the employee's favor, then those advanced costs are deducted, along with the lawyer's fees, from the total settlement amount or verdict.

September 28
Private

If someone has collectively kept copies of email correspondence showing a history of possible harassment and/or retaliation from upper management in the period of 2 years; could this be potential case to sue the county?

Janine yancey bubble Janine Yancey

Thanks for your question. Any written record that illustrates comments and/or actions that influenced the workplace environment is always helpful evidence for a judge or jury to evaluate an employment claim.

September 27
Private

If I were to accrue frequent flyer miles due to company travel, is it ethical for me to use the free travel for personal flights & trips?

Janine yancey bubble Janine Yancey

Thanks for your question. Transparency is the key here -- particularly since the employer could theoretically benefit from the free flights too and reduce its travel costs in the future. So sending a note to a senior manager on the issue and confirming the matter is helpful and appropriate. Ideally, each organization should have a guideline of how they address this issue and circulate that policy to all impacted employees. It's reasonable to allow employees who travel on behalf of the organization to get the benefit of frequent flyer perks, but that benefit should be transparent and evenly applied to all employee travelers.

September 26
Private

If an employee has ASD (Autistic Spectrum Disorder), how does one improve their Emotional Intelligence when there are no resources to do so. Also it is important to state individuals with ASD may say things out of context and not be aware. How does that equate into Unwelcome Conduct?

Janine yancey bubble Janine Yancey

Excellent question - thank you for bringing this up! A person with ASD can improve their emotional intelligence skills too, it just takes more time and effort than it would for someone without that challenge. A good place to start your research for EQ resources is the UC Davis Mind Institute. Check out their website which includes a video on job coaches (towards the bottom of the page): http://www.ucdmc.ucdavis.edu/mindinstitute/videos/video_mind_tips.html As it relates to workplace behavior, a person with ASD is not going to get "a pass" to make people feel uncomfortable because he/she has a disability - it is up to the person with ASD to identify actions and comments that are workplace appropriate. Having said that, setting co-workers' expectations that someone has difficulty "reading" social cues would be really helpful in providing a context for, and persuading people to be more tolerant and patient. I hope that helps provide some guidance for you.

September 26
Private

I have a question regarding the policy acknowledgment… Is this necessary for all future hires, such as, will I need all new colleagues to fill out an acknowledgement form? Or is this solely for existing employees and just to notify them there has been a change in policy?

Janine yancey bubble Janine Yancey

Hi and thanks for your question! California law requires employers to have all employees acknowledge their policy, document and retain the records of the employee policy acknowledgment. This procedure should be conducted each year to ALL employees. One of Emtrain's Experts is Patti Perez, the California state official who wrote this law. See page 12 of these final regulations: http://www.dfeh.ca.gov/res/docs/FEHC/FinalText.pdf Also check out Emtrain's resource page for templates and guidance: http://emtrain.com/AB-1825-Update

September 26
Private

In terms of distributing an information sheet (I have pulled 185 and 185-s from the DFEH website) about sexual harassment, can I email this info sheet to all California colleagues or do our managers have to hand each employee a physical copy?

Janine yancey bubble Janine Yancey

Hello - You need to get an acknowledgment of receipt. So if you choose to email (which we DO NOT recommend) -- please ensure you have an acknowledgment from each employee that the person has read and understands the policy. Ideally -- you want to have a database record of the acknowledgment and it's a legal record -- so using your email inbox to maintain your legal records is less than ideal. You cannot sort/filter or report on email messages like you can on database records.

September 24
Private

Why wouldn't Chris scraping Theresa's code be gender based if he is doing so because she is a women?

Janine yancey bubble Janine Yancey

Thanks for your question! The "evidence" from the interviews in that Workplace Episode indicated that gender was not really the issue -- the employee was missing some of the specifications for the job and was distracted by non-work activities.

September 24
Private

In the past not getting promoted several times despite the fact very qualified for the job. Job offered to someone with less experience and I felt was favored. Is this workplace harassment?

Janine yancey bubble Janine Yancey

Thanks for your question. Not receiving a promotion, even if it happens several times, is not harassment. It may indicate corporate politics, or that there are other job requirements you are not considering, but either situation is lawful. The law does not guarantee us a perfect workplace.

September 24
Private

Do these laws apply to an employer if they classify the employee as an independent contractor?

Janine yancey bubble Janine Yancey

Thanks for your question and generally "yes" but protections do vary from state to state. Relatively recently, California updated its regulations to clarify that interns, applicants and independent contractors should be protected by the employer from any unlawful harassment: http://www.dfeh.ca.gov/res/docs/Publications/DFEH-162-2015.pdf

September 24
Private

In an instance where an employee is "attacking" the employer and making accusations that are outlandish- is that considered harassment of employer by employee? How should an employer proceed or react to that kind of situation?

Janine yancey bubble Janine Yancey

Thanks for your question. Harassment involves the power to alter or change a workplace environment. So employees lack the power to harass employers. Why? Because the employer has the power and ability to terminate an employee who acts inappropriately, meaning the employer ultimately has the power to control the workplace environment (one way or another).

September 24
Private

Why does Medical Condition deal with cancer specifically? What is the definition of genetic characteristic?

Janine yancey bubble Janine Yancey

Thanks for your question. Medical condition was added to the list of protected characteristics to specifically address discrimination against employees with cancer and/or recovering from cancer. Having the BCRA gene (cancer gene) is an example of a genetic characteristic. Hope that helps to clarify.

September 24
Private

Can I really have an ethical problem if I don't believe in God or god?

Janine yancey bubble Janine Yancey

Was there a reference to that idea somewhere in the training? Certainly, you don't need to be religious to be ethical.

September 24
Private

Well, then where do ethics come from if not through religion or spirituality?

Janine yancey bubble Janine Yancey

Thanks for your question! While ethics may have originated from religious beliefs, ethics is now probably more reflective of community values rather than religious values. For example, it's arguably not "ethical" to use paper shopping bags in California any more because as a community, we have decided that is harmful to our environment. So retailers now encourage consumers to use their own reusable bags. What is "ethical" for California consumers is probably very different than Arkansas consumers. The value reflects a community rather than a religious value.

September 20
Private

In an instance where an employee is "attacking" the employer and making accusations that are outlandish – is that considered harassment of employer by employee? How should an employer proceed or react to that kind of situation?

Janine yancey bubble Janine Yancey

Thanks for your question. Harassment involves the power to alter or change a workplace environment. So employees lack the power to harass employers. Why? Because the employer has the power and ability to terminate an employee who acts inappropriately, meaning the employer ultimately has the power to control the workplace environment (one way or another).

September 20
Private

Why does Medical Condition deal with cancer specifically? What is the definition of genetic characteristic?

Janine yancey bubble Janine Yancey

Thanks for your question. Medical condition was added to the list of protected characteristics to specifically address discrimination against employees with cancer and/or recovering from cancer. Having the BCRA gene (cancer gene) is an example of a genetic characteristic. Hope that helps to clarify.

September 14
Private

What is the best way to remove malware from an infected computer?

Janine yancey bubble Janine Yancey

Hello - Here's a helpful article from PC World that lays out 4 easy steps: 1. Enter Safe Mode 2. Delete Temporary Files 3. Download Malware Scanners 4. Run a Malware Scan I hope that helps!

September 14
Private

Got quite fascinated with ethics decision tree. Was trying to follow it carefully and faced with this question. Please clarify if my view differs from the intended meaning. Don’t you think DOES IT COMPLY WITH POLICY? should be starting point in tree? Even before IS IT LEGAL? If we answer DOES IT COMPLY WITH POLICY? as NO then we stop at that point and come out of decision tree though it was legally correct. This gives an impression that policies might deviate/ contradict from what’s legally right. I believe policies do follow and abide to legal correctness. If answering NO for DOES IT COMPLY WITH POLICY? is valid, in what circumstances is it valid and what factors are taken into consideration (like human emotions, moral aspects ..etc)?

Janine yancey bubble Janine Yancey

Super question, thank you! Yes, you may be right that policy considerations would be a sufficient starting point rather than the question of whether the conduct is legal. Thank you.

September 10
Private

I have been retaliated against twice for complaining about inappropriate behavior in the workplace. The employer in both instances, admitted harassment, but denied very clear retaliation. What else can an employee do if the employer covers up the retaliation?

Janine yancey bubble Janine Yancey

Sorry, but we are prohibited from giving advice on specific workplace situations such as the one you outline. However, generally, summarizing a situation in writing and requesting an appropriate employer response is more likely to trigger action than if you only mention a situation verbally.

September 10
Private

The uniformed services employment and reemployment rights act says it is illegal to deny employment based on an individual's military past. Is it also illegal to give preference to an individual based on past military employment?

Janine yancey bubble Janine Yancey

Thanks for your question. The uniformed services employment and reemployment rights act (USERRA) protects military status from being a basis for negative employment actions. But military status can be evaluated as a positive factor for a job candidate. I hope that helps clarify the issue.

September 10
Private

I am in California. What does it mean to have personal (individual) liability for harassment?

Janine yancey bubble Janine Yancey

Thanks for your question. In California, anyone can be sued personally for their workplace harassment, meaning you can be sued separately from your employer. Hope that helps clarify the issue.

September 10
Private

When an employee comes to their manager and requests confidentiality, do you as the manager let the employee know that you must report to HR or your supervisor?

Janine yancey bubble Janine Yancey

Thanks for your question. You must inform the employee that you cannot guarantee complete confidentiality and depending on the nature of their concern, you may have to report the issue to HR.

September 2
Private

Hi. I wanted to check with you about workplace harassment and abuse. When an employee is under workplace harassment or abuse quite often, what are all the actions one can take? What evidence does one need to bring in order to highlight this? It could happen that the harassment is over phone which are not recorded. Favoritism cannot be quantified so easily when the person often speaks differently at different times in order not to reveal that and with lack of integrity. Also, what about when a person demands other colleagues use their personal time for office work, for which case there are no beneficial results but is just to satisfy his ego? In summary, are these situations bad enough to highlight as workplace harassments?

Janine yancey bubble Janine Yancey

Thank you so much for your question. Unfortunately, there is no simple answer. Generally, the best practice to use when you feel like you're experiencing negative conduct is by following up on situations with an email (or other documentation) and include others in the communication so that you (1) show you don't like the conduct and (2) give others visibility into the situation. Typically, people tend to slow down and re-think their actions when faced with someone's written communication complaining about those actions. I hope this helps answer your questions.

September 2
Private

I'm a frequent traveler and sometimes the cell phone and hotspot do not work in foreign countries. How safe is connecting to hotel Wi-Fi which requires name, room number, or a specific password to connect? Does it have same risk level as a public WiFi?

Janine yancey bubble Janine Yancey

Thanks for your question! The hotel probably uses a local area network (LAN) which are fine for a private business but not safe for a hotel full of people who are logged in. So probably best to assume you're not safe when connecting to the hotel wi-fi. Hope that helps.

September 2
Private

What is a real-world example of "attending a child's school activities pursuant to state law?"

Janine yancey bubble Janine Yancey

Thanks for your question. Going to a parent/teacher conference would be an example of attending school activities.

August 25
Private

Are engineers a legally protected class?

Janine yancey bubble Janine Yancey

Sorry. Engineers would need a stronger lobbying group to get legally protected. : )

August 25
Private

Please explain "gratuitous sabotage of a person's work performance" with an example. Thanks.

Janine yancey bubble Janine Yancey

Thanks for your question. How about this example: A person needs to complete a work project by a certain date and the project entails work from other individual contributors. A person sabotages someone else's work performance by agreeing to finish their work by a certain date and then going off on vacation without getting the work done or informing the project owner.

August 25
Private

The training on IT security recommends using ShareFile to safely transfer and track sensitive file transfers rather than using email. Is ShareFile an application itself or a feature of another application? I'm not familiar with it and am unsure if I have access to it.

Janine yancey bubble Janine Yancey

ShareFile is a cloud-based application that provides secure file sharing. However, there are other similar applications. You should seek guidance and recommendations from your IT team about which applications they prefer people using within your organization.

August 25
Private

I receive many spam emails daily. At one point it was up to 15-20 a day that were hitting my inbox and not going to "junk mail" or being caught by the company's spam filter. The quantity of spam emails I received on a daily basis were negatively impacting my ability to efficiently get my work done. I began consistently clicking the "unsubscribe" link in the email and then clicking the "unsubscribe" button once directed to a website. While this practice has significantly cut down on the number of spam emails I receive, from reviewing this training it also seems that it could compromise security. Does the company have a plan to better filter the spam emails that get through to our inboxes?

Janine yancey bubble Janine Yancey

Thanks for sharing your concerns. We've copied your training administrator on your email about spam so that person can get gather information and/or guidance that responds to your concerns. Thank you!

August 25
Private

When I receive notification that my password needs to be reset I am directed to the IT Helpdesk to have it reset. The IT Helpdesk chooses the password and it is consistently reset to the same extremely unsecured (per this training) password. Does the company have a plan to enable us to reset passwords on our own or at a minimum begin providing more secure and unique passwords?

Janine yancey bubble Janine Yancey

Thanks for raising your concern. I've copied your training administrator so that person can gather the information/guidance to respond to your question on passwords. Thank you!

August 19
Private

Can a person be discriminated against by someone of his or her own group? For example Joanne is a woman so can Theresa, also a woman, discriminate against Joanne?

Janine yancey bubble Janine Yancey

Yes. People can discriminate and/or harass base on a legally protected characteristic that they share such as gender or race.

August 19
Private

It was my understanding that Theresa was not employed by her husband's (Chris) agency. (?) How is she being drawn into the harassment claim?

Janine yancey bubble Janine Yancey

Harassment claims can involve non-employees such as customers, partners, vendors, etc. As long as the person is a regular visitor to a workplace, they can be involved in a harassment claim.

August 19
Private

How long a period of time to deliver a negative performance review after the person submits a claim of harassment?

Janine yancey bubble Janine Yancey

There's no magic number of days or weeks. The key is that the negative review does not appear related to, or a result of the harassment claim. Generally, a neutral third party should be able to read a summary of events and the negative review and determine whether the negative review appears retaliatory.

August 10
Private

What is “disparate impact”?

Janine yancey bubble Janine Yancey

Disparate impact refers to a policy or rule that appears neutral on its face but which benefits some groups of people over others, or conversely, has a negative result on some groups of people over others.

August 10
Private

What does “light in the loafers” mean?

Janine yancey bubble Janine Yancey

”Light in the loafers” is a phrase used to refer to a man who's perceived to be gay or homosexual.

August 10
Private

How do you address orange conduct from management towards employees without repercussions and further discrimination or harassment?

Janine yancey bubble Janine Yancey

Super question! Yes, we know this is a real concern and that's why we came up with the workplace color spectrum so people can use colors rather than words (which can cause offense) to get people to moderate conduct. Try telling the person in a somewhat light-hearted way that his/her conduct is "a bit orange." Ideally, this message can be delivered while others are around to generate more visibility and accountability for the managers' conduct. If one or two people tell a manager that his/her actions are "orange" -- the manager will become more conscious and aware and hopefully self-correct. If not, it may be time to loop in an HR business partner to coach the person. Hope this helps.

August 10
Private

In Oregon it says the protected age is 18. Not sure what exactly this means. In hiring, it is always best to hire the most qualified individual, does it mean that I should be taking into account their age?

Janine yancey bubble Janine Yancey

Thanks for your question. You're doing the right thing -- you always want to base a hiring decision on someone's qualifications rather than their age, race, religion, etc. In Oregon, the legislature has decided that an employer cannot use someone's youth as a basis for making hiring decisions or any other management or workplace actions.

August 10
Private

If a team member reports a false complaint broadcasting it to all, is it not appropriate for HR/investigative authority to send a correction mail about it to all. This is because the person who was falsely accused has a slightly damaged reputation because of the false complaint. Please suggest the right way of closing this without losing productivity of either complainant or one who was falsely complained against.

Janine yancey bubble Janine Yancey

Excellent question! HR and Investigators are limited in the information they share with the greater team based on the general obligation to be as discreet as possible. Accordingly, it's a best practice to communicate with the greater team and thank people for their participation and patience and let everyone know the matter has been addressed and resolved. Ideally, that type of message persuades people to move on and limits the amount of gossip about the involved parties.

August 10
Private

Hello, what is workplace violence?

Janine yancey bubble Janine Yancey

Workplace violence is any physical intimidation, threats, or actual violence in the workplace.

August 10
Private

Which state laws govern the liability? The state I work in or the state where our HQ's is located.

Janine yancey bubble Janine Yancey

Liability is determined by the laws of the state where the employee/complainant works.

August 10
Private

If you are new on the job and giving a tour with clients when your associate interrupts and corrects you in front of these clients is that ok?

Janine yancey bubble Janine Yancey

No, it's not OK and would be "yellow" conduct as it's a bit rude and doesn't reflect well on the team.

August 10
Private

Can you explain the Workplace Color Spectrum by color?

Janine yancey bubble Janine Yancey

Of course! Here's a link to the Workplace Color Spectrum, which is intended as a helpful tool to categorize and modify workplace conduct: http://cdn2.hubspot.net/hubfs/324661/EMT16_wpcolorspectrum_V-1.pdf

August 3
Private

Who monitors, Leads, Supervisors & Managers, while they monitor their People?

Janine yancey bubble Janine Yancey

Thanks for your question. Typically, HR Business Partners are tasked with ensuring managers and supervisors are on the right path and operating "in the green."

August 3
Private

How would I approach an employee who perceives actions to be against several of her protected status categories, but which others do not perceive as such (perceived to be more related to work performance, not protected characteristics)?

Janine yancey bubble Janine Yancey

Thanks for your question. Ideally, you request the assistance of an HR professional if you're not one yourself. These are always challenging conversations to have. As a best practice, you want to anchor all performance issues in objective criteria. Depending on how the conversation progresses, you may want to ask the person to outline how a protected characteristic relates to the objective performance criteria.

August 3
Private

What is a reasonable time to wait for performance reviews, if there is not a formal complaint but a sense of a possible brewing complaint? It seems like there may not ever be a chance to work on performance if a concern about a person's protected status is always present.

Janine yancey bubble Janine Yancey

As a best practice, it's always helpful to deliver a performance review and have it "on the record" before the employee tactically submits a complaint to cloud performance issues. Further, the key to performance reviews is to anchor all feedback on very objective facts so the process appears fair rather than arbitrary.

July 29
Private

In the last few months (since April 2016) I have reported a violation of ethical integrity by the president and vice president of our company to the VP of HR. I just got a form letter-email saying leadership will get back to me. That was a week ago. they have violated a number of their own company values. The culture of the company is on a very slippery slope. What other recourse do I have?

Janine yancey bubble Janine Yancey

Reporting ethical violations to a VP of HR is difficult because that role reports to the C-Suite. The President and Vice President ultimately report to the Board of Directors and typically, someone on the Board of Directors is responsible for ethics and compliance. You may want to consider documenting your concern and sending a written communication to one or more members of the Board of Directors. To understand the perspective of the Board, they care about audits and investigations from government agencies, litigation and any negative impact to the brand and reputation of the organization as that has a direct impact on the organization's ability to recruit top talent and the P&L. Hope that provides you some guidance.

July 27
Private

I do not work on the Jewish High Holidays. However, these days are not recognized holidays in the same manner that Christmas is recognized (ie paid day off). I feel like there is some push back and resistance from my manager if I ask for these days off (I sometimes get an eye roll with a comment like "there is another Holiday for you?"). Could this be an issue? It makes me feel very uncomfortable to ask for this time off.

Janine yancey bubble Janine Yancey

Thank you for your question. Certainly you don't want to feel uncomfortable taking time off for your religious holidays and your employer has a duty to accommodate your time off for religious observance. As a best practice, you may want to try having a conversation with your manager about the fact you're feeling uncomfortable. Perhaps the manager is not aware of your discomfort and would alter his/her comments based on your feedback? If the manager is not open to having a productive dialog on the issue, that's when you may want to consider connecting with someone from your HR team so they can coach the manager about employee rights and making the workplace a respectful workplace culture.

July 27
Private

Is there a color coded graph that I can have to reference in the future? One that highlights green/yellow/orange/red spectrum?

Janine yancey bubble Janine Yancey

Yes certainly! http://cdn2.hubspot.net/hubfs/324661/EMT16_wpcolorspectrum_V-1.pdf Download a PDF of the Workplace Color Spectrum.

July 21
Private

This is a very well thought course and going to help a lot of people a great deal - esp. the managers and leaders. Are there best known methods from companies who have successfully shifted the culture of being mindful of UB, especially mitigation of UB in the leadership and management layers?

Janine yancey bubble Janine Yancey

Hello and thanks for your question. Most thought leaders agree that in order to shift a culture, you need a holistic, integrated approach that leverages various components, tailored to the specific workplace culture. Having said that, leadership and management can and should commit to practices that will influence workplace culture, including: Speak up: If something isn't right -- say something. Regardless of the result, you're communicating your values. Solicit opinions: Pay attention to who's talking and who isn't. Solicit the ideas and feedback from those who don't feel comfortable speaking up in group settings. Use inclusive language: Leaders and managers have significant influence over the culture. Words have power so make it a point to use inclusive language whenever possible. Connect with different types of people: In the book, The Nine: Inside the Secret World of the Supreme Court, the author tells a story of how Sandra Day O'Connor worked with a gay law clerk who adopted a baby with his partner. Although O'Connor's judicial opinions arguably did not support inclusion, her personal connection and respect for her law clerk prompted her to host a baby shower for the clerk when she learned of the adoption. Personal relationships and connections are the key to understanding and shifting cultural norms. Hope that helps!

July 21
Private

If a manager brings in coffee or baked goods to 1 individual repeatedly instead of the whole group, would that be considered inappropriate behaviour as well?

Janine yancey bubble Janine Yancey

Excellent question! However, there's no easy "yes" or "no" answer regarding what is appropriate or not. Instead, it usually depends on the entire situation and context. The best way to evaluate the situation is to look for clues from the 1 individual and the other co-workers. Does the 1 individual (receiving the morning treats) look awkward or uncomfortable? Do the co-workers notice the action, and if so, are they smiling and looking positive, or conversely, do the co-workers appear critical of the action? Lastly, does this action reflect good management technique (which is a different question than appropriate workplace conduct)? It seems like a manager going out his/her way and getting morning treats for one team member but not for others, on multiple occasions, would not be inclusive or foster good team dynamics. Hope that helps.

July 21
Private

Is continual mocking of a person’s sports team harassment?

Janine yancey bubble Janine Yancey

Let's analyze that question by checking it against the legal criteria required of harassment situations. The first legal criteria is that it involve a personal, protected characteristic? If yes, then there are other questions to ask. If no, then it cannot be harassment as that term is used legally. Here, a preference for a particular sports team is not a personal protected characteristic. Therefore, teasing or hazing about someone's sports team could not be considered harassment without some other conduct that implicates a personal protected characteristic.

July 21
Private

Is it possible to get a short small reference guide hard or soft copy to use or have access to for a quick look up? Maybe a phone app ?

Janine yancey bubble Janine Yancey

Thanks for your question. If you log back into the course and click on the word Chapters in upper left side, you'll see a printable resources guide regarding this material. Thanks for your suggestion regarding a mobile app. I'll direct to our product team to consider for our 2017 product roadmap.

July 21
Private

What are "uniformed services"? Could you give some examples?

Janine yancey bubble Janine Yancey

Thanks for your question! Uniformed services would include army, navy, marines, national guard, coast guard. Hope that helps clarify for you.

July 14
Private

What's the standard for "unrelated to an employer's legitimate business interests?" If an employer believes that such conduct improves productivity do they escape responsibility?

Janine yancey bubble Janine Yancey

Legitimate business interests refer to any legal activity that would advance or promote the business. So for example, an employer cannot violate laws but claim improved productivity as a defense to violating a law. Let me know if that helps clarify it for you.

July 14
Private

What is the skill to motivate a co-worker who is very passive on communication?

Janine yancey bubble Janine Yancey

As an Emtrain learner, you have access to a communications strategies course that provides some helpful tools and guidance. You can request access from your HR or People Ops Team. However, different people require different styles of communication. With someone who is passive and reserved, it may be helpful to be more direct and invite the person for a "walk and talk" to open the lines of communication.

July 14
Private

If we have a situation similar to this within our organization, who should be contacted? What if there is retaliation? Will be the HR team work independently?

Janine yancey bubble Janine Yancey

If you think you've seen or experienced a situation like the scenes reflected in the course, you should contact the staff or office that is designated in your policy so those folks can address it. The HR team is an advisory team so they'll counsel people (if necessary) to get everyone back on the right track. As per the policy, employees are protected from retaliation for submitting a complaint. If there's concern or fear in speaking up about something, then a good practice is to put a complaint in writing and use a professional, reasonable tone and when appropriate, email involved parties regarding your expectation that people will act professionally and not retaliate for making a good faith complaint. Hope that helps.

July 14
Private

How does one get into this field?

Janine yancey bubble Janine Yancey

Hello - Yes, we have a resource to help workplace investigators. You can find it here: http://emtrain.com/resources Filter on eBooks and you'll see an investigations guide. We will also be producing an expert video this fall to provide guidance on how to conduct workplace investigations. Hope this helps.

July 14
Private

Wouldn't the situation be red if an employee was at the point of wanting to quit? If the employees expresses that, does the situation become severe?

Janine yancey bubble Janine Yancey

Thanks for your question. Certainly, a person's perception of and reaction to a workplace situation is very important when evaluating the situation. However, the person's perception is balanced against an objective, reasonable standard too and whether the average person would want to quit in that same situation. These are not easy "yes" or "no" answers as they are all factual questions and people can differ in their assessment. Hope that helps.

July 14
Private

Do people really use the term "orange" in the workplace? Is the color spectrum commonly known?

Janine yancey bubble Janine Yancey

"Orange" and the Workplace Color Spectrum are terms introduced by Emtrain to provide people easy communication tools. We are aware that one large California state government office has produced Emtrain's Workplace Color Spectrum as a chart and it hangs in multiple places in their workplace and people leverage those terms in that office. We hope others use it as well for 2 reasons: 1. People need an easy way to tell someone to back off or shape up. People generally don't like conflict and they need a tongue in cheek, casual way to tell someone to shape up without saying it directly. 2. Most harassment prevention programs talk about appropriate versus inappropriate conduct. That's not human. Well intentioned, nice people can make an ill-advised joke or put their foot in their mouth -- without being a harasser. So we need a more practical, useful tool to guide our actions when in the workplace. Lastly, our Workplace Color Spectrum Graphic will be available next week on our resources page for workplaces to download. Our resources page is at: http://emtrain.com/resources

July 8
Private

What does the word "perceived" mean under the medical condition?

Janine yancey bubble Janine Yancey

Hello - A perceived medical condition is when co-workers or a manager believe there's a medical condition when there isn't one. This situation comes up when someone gets treated differently because of the fear of a medical condition that could interfere with work (even when the person doesn't have a medical condition). Hope that helps clarify.

July 8
Private

In our policy, it states that company will take action against an individual for filing fraudulent harassment claims. Could not such an action potentially be interpreted as retaliation, even if justified. I presume that such action would only be advised if the fraudulent activity was blatant and obvious.

Janine yancey bubble Janine Yancey

Thanks for the question and please excuse the delayed response. As I'm sure you can appreciate, we would need to see all of the policy language in order to comment. Having said that, the concept of "taking action" for filing "fraudulent harassment claims" could be as simple as documenting that a claim was investigated and found to lack merit. In any event, there are brand new requirements for harassment policy language in California (effective April 1st) and it may be a good time to have your HR team revise the policy so it comports with new harassment regulations.

July 8
Private

You may want to update the information for NC. The Legislature recently passed a law (HB2) specifically excluding LGBT characteristics as protected.

Janine yancey bubble Janine Yancey

Hello - Thanks for your feedback. I believe you were looking at our list of protected characteristics and those are intended to illustrate examples only. The Map of States (found in the course) identifies specific protected characteristics per state. Thanks!

July 8
Private

So, we're not allowed to discriminate, or, more accurately, to make decisions based upon these protected characteristics. Am I right in thinking that while it is not explicitly actionable to discuss PCs, it is kind of asking for trouble in a way to make PCs a topic of conversation?

Janine yancey bubble Janine Yancey

Thanks for your question. Use the Workplace Color Spectrum as a tool to navigate workplace situations. On the Spectrum -- you're in the orange zone anytime you're discussing protected characteristics. How comfortable you feel depends on the full context of the situation -- such as the number of people present and the likelihood of anyone taking offense (based on your knowledge/understanding of your co-workers). No one expects people to stop all comments referencing personal characteristics -- that would not be realistic (or very human). But we can develop good "radar" for comments or situations that are likely to offend or cause someone to feel uncomfortable and stop short before we get into those situations. Hope that helps.

July 8
Private

On Gender Identity and Gender Expression: is this protected at federal level? If so, can you help me understand NC HR2?

Janine yancey bubble Janine Yancey

Gender identity and gender expression are protected by the EEOC and through court decisions. Here's a link to the EEOC website that summarizes their protections: https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm However, until federal lawmakers pass a bill specifically protecting gender identity and gender expression (as opposed to federal agency and court interpretation) -- then there's the opportunity for states to pass bills like NC HR2. The Department of Justice has sued North Carolina, claiming their recent law violates federal civil rights and it's likely the matter will end up before the US Supreme Court so we can get a definitive answer.

July 8
Private

It is illegal in the USA to discriminate against a person on the basis of his/her protected characteristics. QED. So, erm...is it similarly illegal to discriminate in favor of a person on the basis of PCs? I mean, provided that there is no collateral, implicit discrimination against other individuals on the basis of their PCs?

Janine yancey bubble Janine Yancey

How about if I answer this way - Discriminating based on protected characteristics (PC) means holding people to different standards and treating them differently based on criteria the person has no control over and which is not work related. That dynamic can work either way - either negatively or positively for someone. As a matter of public policy and law -- we do not want those employment practices in our workplaces. Instead, we want employment practices that treat people equally, based on legitimate business considerations. Having said that, an employer (or manager) can determine there is a strong business case to increase diversity within its team and/or leadership and implement programs to help develop people who are otherwise underrepresented in the organization. With additional support and development, underrepresented people can advance in an organization, while maintaining the same criteria for advancement as applicable to everyone else. This type of program would be anchored by a legitimate business interest of better reflecting and serving the community.

July 8
Private

Why is decorating your cubicle with personal religious items described this way (below)? I thought we celebrate diversity which can stem from different sex, race, religion, sexual orientation or other difference...We join with the LGBTQ community in celebrating Pride. Seems odd that celebrating a component of religion or other component of diversity would be deemed orange. "While again it depends on the full context of the situation, generally, this situation could easily lead to people feeling excluded if they do not share the same beliefs, celebrate the holiday in the same way, or if they were not asked to decorate the shared office space with signs of their holiday. So, depending on the specifics, the situation could be yellow or orange."

Janine yancey bubble Janine Yancey

In terms of your question -- decorating a personal cubicle is fine... the challenge arises when decorations are in a common area. And when it's inclusive of all religions -- that's wonderful and a "green" employment practice. The issue arises when there's a dominant religion reflected in a workplace and it does not feel inclusive. Hope that helps clarify the issue.

July 8
Private

At this time we don't have separate sick time to use for any illness, hospitalization, or caregiver responsibilities; we are currently required to use Paid Time Off. How does FMLA come into play here if I am being penalized for these types of absences?

Janine yancey bubble Janine Yancey

In terms of your question, it's common for employers to provide general PTO (paid time off) for employees to use to cover all types of sick leave. FMLA does not provide paid sick leave... it guarantees a non-paid leave where the employee is protected from termination due to taking leave. I hope that answers your question.

July 8
Private

I don't really understand how the employees seeing people dance is "yellow" conduct. If someone is "gawking" then I understand, but that isn't what seems to have happened here and instead the onus is put on people for being cognizant of their surroundings given the disruption. As a male, this makes me feel like I will automatically be in the wrong even if I'm literally just looking around the office, and makes me second guess most of my actions in the workplace, which overall may decrease productivity of the workplace. People should be held accountable if they are sexualizing a coworker, but in this case the training exercising is putting me on edge merely for my gender. Given the protected status of gender, where does this place my uncomfortable feelings on the color spectrum? (My guess is that this is a non-issue, ie green.)

Janine yancey bubble Janine Yancey

These issues are not easy and very nuanced. No one expects or wants people to stop having conversations or having fun with coworkers .. or to feel uncomfortable or on edge due to possible complaints or conflict. But it is possible to become more aware of others and moderate behavior to promote a situation where everyone feels included and comfortable.

July 8
Private

What about political alignment?

Janine yancey bubble Janine Yancey

Political alignment is a protected characteristic in some states, but not in California and not federally. Even so, it's wise to avoid a discussion of politics at work as it often leads to conflict. Here's a link to view a video showing politics in the workplace: https://www.youtube.com/watch?v=w0zUMv6_Pdg

June 30
Private

What are ways to reward and celebrate employees smallest successes?

Janine yancey bubble Janine Yancey

Good question about coaching. Employee recognition is probably the easiest and most effective way to reward and motivate employees. Employee recognition can be as simple as a shout out at a all hands meeting or an email circulated to the whole team regarding someone's good work or success.

June 30
Private

When responding to a problem, (slide 6 of 17), what difference does it make whether I am the direct supervisor or not? Do I proceed with the recommended actions (slide 8 of 17), even though I am not the person's direct supervisor?

Janine yancey bubble Janine Yancey

Even if someone is not a direct supervisor, they should still report a problem so the employer can quickly address and remedy a workplace issue if necessary.

June 30
Private

What do you do when you've complained about someone for bullying and harassment but they do nothing about it? Are you at liberty to file a lawsuit when you have written evidence showing continued occurrences?

Janine yancey bubble Janine Yancey

Thanks for your question. If you work in the United States, you cannot sue for bullying. With respect to harassment issues, you should summarize the situation in writing and submit your written summary to the HR team or senior management so that trained professionals can evaluate the situation, address it as appropriate and communicate back to you so you know your management has taken action on the issue, one way or another. If, after taking these steps, your HR team or senior management does not acknowledge or evaluate your complaint, then it would be reasonable to seek guidance from your state fair employment agency.

June 30
Private

Is retaliation a form of bullying and harassment? If so, can a lawsuit be filed when it keeps occurring for almost 3 years?

Janine yancey bubble Janine Yancey

Retaliation is a part of harassment and discrimination law. Retaliation occurs when an employee engages in a legally protected activity, such as filing a complaint about workplace conduct, and suffers negative employment actions as a result of their legally protected activity. Common examples of "negative employment actions" are: demotions, transfers, failure to promote, exclusion from employer events, etc. Your state law governs the time period for which you can file a lawsuit. However generally, a lawsuit can address actions over one year if the conduct reflects "a continuous pattern" without a break in the bad actions. Hope that is helpful.

June 30
Private

What about the Coast Guard?

Janine yancey bubble Janine Yancey

The United States Coast Guard is a branch of the United States Armed Forces and therefore, service in the Coast Guard constitutes a protected legal characteristic. Hope that answers your question.

June 30
Private

Where does a disgruntled employee fall along the color spectrum? And with a disgruntle employee, are her/his actions be considered harassment to any co-workers/supervisor?

Janine yancey bubble Janine Yancey

Thanks for your question. If an employee is disgruntled because of management, work projects or coworkers (for reasons other than perceived discrimination or harassment), then the poor morale would fall under the yellow portion of the workplace color spectrum. That person's effect on other employees would also fall under the yellow portion of the color spectrum.

June 20
Private

Something not noted, is AAP applies to USA companies hiring in Mexico / other countries as well.

Janine yancey bubble Janine Yancey

Thanks for your question. A federal contractor's affirmative action plan (AAP) would only apply to their US workforce. There may be laws from other countries that would apply to the employees working in the other countries. Hope that helps clarify the issue for you.

June 20
Private

I was working in Mexico, and UPS was advertising for an employee under age 30 for a driver job as a requirement. The newspaper said the US Gov't told them as a USA contractor to the USA Gov't, they could not advertise a job in Mexico with an under age requirement. Not sure what the official laws are, but UPS and other USA based companies did change to be USA job advertising compliant. The broad spirit of the AAP law may have been applied.

Janine yancey bubble Janine Yancey

Thanks for your clarification and without researching the law, it certainly makes sense that a US company should provide the same worker protections in other countries (not discriminating based on age for example) as it is compelled to provide to U.S. workers.

June 20
Private

I was wondering if the following things that occurred to me constituted harassment: - for months after returning from parental leave, co-worker would repeatedly (in condescending tone) say things like "oh you missed that" "oh that happened when you were out" "you weren't here for that" - after returning from parental leave, co-worker on one occasion asks about my partner's new job and states that it would allow me to stay home with my child - after returning from parental leave, in discussing my partner's family who lives overseas, co-worker suggests I go live with them so that they could help with childcare - after returning from parental leave, co-worker asks about cost of childcare and states it would make more sense and be preferable for me to stay home than pay that (note - all the same co-worker)

Janine yancey bubble Janine Yancey

Our apology but we are unable to provide a legal opinion on specific workplace situations such as the one you outline here. However, the co-worker's comments make you uncomfortable and reference your family status, which is a protected characteristic. Therefore, it may be productive to let the co-worker know his or her comments are "orange." Alternatively, you can always ask someone from your HR team to provide guidance to the co-worker so the comments stop.

June 20
Private

Quick question: Does "medical condition " refer also refer to psychiatric conditions or treatment needs?

Janine yancey bubble Janine Yancey

Hello -- medical condition refers to cancer or a genetic issue. Psychiatric conditions and treatment are covered under disability. So for example, anxiety and stress, manic depressive, bipolar, and other psychiatric conditions are all covered under mental disability. Treatment for a disability would be covered under disability protections such as reasonable accommodation.

June 20
Private

if someone is doing an awesome job, and you want to show your appreciation, is it okay to buy lunch for the entire department?

Janine yancey bubble Janine Yancey

Hello - Purchasing lunch for your team and coworkers is completely appropriate when trying to show appreciation and motivate.

June 17
Private

Who do you tell of unfairness when you’re not really sure how far up it goes? Who do you talk to when there is no hr in the state and your managers constantly stand in the way of you going over their heads?

Janine yancey bubble Janine Yancey

Thanks for your question. It depends in part on the nature of the perceived unfairness and how many people the unfairness could impact. If the issue has identifiable consequences and wide impact, then it's appropriate to seek guidance from either someone in corporate HR or the business compliance team. Even if none of these professionals are located in your state, HR and business compliance professionals really welcome the opportunity to connect directly with employees in the trenches and provide direction and guidance. So, there's no need to go through your direct management staff. I hope that helps.

June 17
Private

Do I need an antivirus for a mac? Is it enough to send a suspicious email directly to my spam folder?

Janine yancey bubble Janine Yancey

While many feel more protected using a Mac machine, whether or not you need antivirus software depends on how old your Mac is and whether you've been upgrading the operating system along the way. The most current mac operating systems have functionality to quarantine content downloaded from the web, use certificates to verify legitimacy of content and regularly update a database of known security threats to the Mac operating system. Certainly, identifying spam emails and not opening unverified content will increase the security to your machine.

June 17
Private

The slides on enabling are key, I was on a project where a lot of people covered for two people, and management promoted both of them to supervisory roles thinking that there work was so skilled - the results were not good. Have you seen that before?

Janine yancey bubble Janine Yancey

Thanks for sharing. I think it's human nature to "cover" for our friends when our friends are having a difficult time. Unfortunately, "covering" is usually a short term answer that often causes more problems than it solves.

June 17
Private

Why is it commonly accepted that "diversity" is "the right thing to do?" Can you provide any case studies that substantiate the claim that "diversity" improves competitive business advantage?

Janine yancey bubble Janine Yancey

Yes, thanks for your question! Take a look at this McKinsey (business consultants) diversity study from January 2015: http://bit.ly/1QhB4ur You may also find this whitepaper on unconscious bias helpful: http://bit.ly/28Jhrzy Let us know if you have any further questions.

June 9
Private

Hello, Our company is national. We have managers in the following states: CA TX GA SC CO FL OH What are the training requirements in each state? Also, if the manager is in CO, but manages employees in CA, does he/she need to do the sexual harassment training requirements for the CO state or CA state or both? Thank you!

Janine yancey bubble Janine Yancey

Hello - Here are the training requirements: CA - mandatory for managers every other year. 2 hour requirement of interactivity. TX - mandatory only for state employees GA - none SC - none CO - none FL - mandatory only for state employees OH - none Lastly, the state where the person works determines whether there is a mandatory training requirement or not. So a Colorado manager is not legally required to participate in training. Having said that, if the person manages CA employees who can file claims, it makes sense to train the CO manager from a risk management perspective.

June 9
Private

If I have a per diem limit for food expenses, but I don’t use the full amount during the normal work day. is it ethical or right to go to a grocery store and spend the rest of the amount to justify the full amount to be reimbursed?

Janine yancey bubble Janine Yancey

Thanks for your question. Let's break it down. What's the purpose of the per diem food expense? Is it just a component of your compensation package? Or is it to cover food expenses while you're travelling and/or engaged with work? If the latter, then submitting your local grocery bill as part of your per diem food expense benefits you personally, but is not consistent with the intent of the expense reimbursement.

June 9
Private

How is Chris' behavior during the meetings appropriate? It doesn't seem that he is respectful of anyone and enjoys heckling his staff.

Janine yancey bubble Janine Yancey

True. Chris' behavior may not reflect respectful conduct or good management, but that does not mean it is harassment. Harassing conduct is at the end of the spectrum and is more severe than disrespect or heckling. I hope that helps clarify the issue.

June 3
Private

When state law is involved, is enforcement based on the state of the action, state of residence (of either individual) or state of the Company's primary business operations?

Janine yancey bubble Janine Yancey

The state where the action is based controls legal enforcement and remedies.

June 3
Private

Hello, I didn't really understand the explanation of "Medical Condition". The way it reads indicates that it only refers to "cancer". Is that correct? There are numerous "Medical Conditions" that are not cancer. ie. diabetes, MS, etc.

Janine yancey bubble Janine Yancey

Yes, the way that "medical condition" is defined, it only refers to genetic characteristics, cancer or a record or history of cancer. Clearly there are many more medical conditions but many of those other conditions, including diabetes would be protected under physical disability.

June 3
Private

If you ask an associate at work to discontinue passive way to bring attention to a email your aware of and they tell you to "go f**k yourself" is that harassment ?

Janine yancey bubble Janine Yancey

I'm sorry, we cannot comment or advise on specific workplace situations. We would need all the facts and context to properly evaluate a situation. Having said that, profanity at the workplace is typically insufficient to create a hostile work environment ... without other actions. Even though it may not be harassment, using profanity is certainly unprofessional and inappropriate workplace behavior.

June 1
Private

I know this situation is unethical but I'm unsure how it should've been reported. A sales rep asked a supplier if he could get tickets to a playoff game 6 hours away. The sales rep promised the supplier that he would get a substantial amount of business in exchange. The supplier gave the sales rep two tickets to the game. Who should this situation have been reported to?

Janine yancey bubble Janine Yancey

Thanks for your question. Whenever you have an ethics question or concern, you can share your concern with a senior leader in your department, an HR business partner, and/or a business compliance professional. Check the reporting section within this code of conduct course and your employer will provide information on where to report ethical concerns.

June 1
Private

It's great that the employer wants us to act a certain way. They do not act this way or treat us fairly, how do we deal with this? I haven't had a raise in almost 5years, which the VPs and CEO live high on the hog, without all of us they wouldn't be able to. Why don't they act the way they want us to? Why do I have to deal with a boss who had no ethics?

Janine yancey bubble Janine Yancey

Thanks for your candid question and comments. It's important to work for an organization where the whole team exhibits the type of ethics and behavior you value. If you don't believe the leadership team is exhibiting those values, you may want to start a candid, productive dialog on the topic. You may find you don't have the full picture regarding your leadership team, OR, you may discover your initial concerns have merit and you can raise your concerns in a productive, influential way.

May 27
Private

The team that I supervise is made up of all women (coincidence). In the morning I greet them by saying "Good morning, ladies!" Is this okay?

Janine yancey bubble Janine Yancey

I'm sure it's fine and no one thinks twice about your greeting. Most reasonable people would be fine with that greeting. But if you're concerned, pay attention to facial expressions.

May 27
Private

If an employee has chronic bad breath. When do you say enough is enough?

Janine yancey bubble Janine Yancey

That's when you ask your HR team for help. Let someone from HR or People Ops deliver that message.

May 27
Private

With the current state of American culture in regards to gender identity, how will gender specific pronouns such as princess (used in this course) change the disciplinary actions of workplace harassment?

Janine yancey bubble Janine Yancey

Such a great question -- thank you! You're right, our society is in transition and that will affect our gender specific pronouns. However, I'm not sure if or how much it will impact the evaluation of workplace behavior. For example -- calling someone a "princess" in the context of the workplace scene in the course -- that manager was probably thinking more of the person's attitude and demeanor (high maintenance) than her gender. Further, making one or two comments (even if off color) will not typically create a "hostile work environment" for anyone.

May 27
Private

I am halfway through the course, but one question. On the business color spectrum when would it be most appropriate to reach out to HR. Yellow suggests seeking guidance, so at that point should you reach out to HR or just speak to your manager?

Janine yancey bubble Janine Yancey

Good question - -thank you! If you find yourself in the yellow zone, we recommend getting guidance from your manager or co-workers as an easy way to get some perspective on the situation. Orange is where you need to go to HR or compliance to get experienced guidance.

May 27
Private

Noticed earlier when the map was presented, that the states have differences in protected classes. I work in one state but interact (phone, email, etc.) with other employees in other states. How does that work?

Janine yancey bubble Janine Yancey

An employee's work situation is governed by the laws of the state where they work. However, the only legal differences from state to state are the personal characteristics that are legally protected and whether the state imposes personal liability on people for their harassing actions towards others, meaning can you get sued personally. So as a best practice, you should probably review the personal characteristics that are legally protected in the states where your co-workers work.

May 20
Private

If a person were offered a new position and the manager said to expect a wage scale of between $12.50 and $13.50 an hour then after training you were told your wage for that position would be no more than $11.50 is that fair?

Janine yancey bubble Janine Yancey

Hello and thanks for your question. Your question is difficult to address without knowing all the details and facts of the situation. For example, was this a new position with a new employer, or with a current employer? Also, did the person give up something valuable in order to take the new position, which was promoted as paying between $12.50-13.50? Lastly, was a specific job offer with details of the job (compensation and benefits) ever provided to the employee? Without knowing the full context of the situation, it's difficult to determine if the employer's actions were appropriate or not.

May 20
Private

If an older female person with two years experience in the company is offered another position at a maximum amount of $11.50 an hour and then a younger male without the experience is offered the position at $11.75 is that okay?

Janine yancey bubble Janine Yancey

Thanks for your question. You'll want to determine if it's the same or comparable position, AND, whether the younger male employee has any prior experience relevant to the particular position (regardless of his experience with the company). If it's the same or comparable position and the male employee does not have more experience for that specific position, then HR should be advised so they can address the situation.

May 20
Private

A co-worker is not part of a particular team.....The team lead sends a call invite....one of the team members tells this other person the call in info and she calls in to the meeting but does not announce herself and listens in on call information. Again, she is not part of that team and was not invited to join the call and does not say that she is on the call.....is this unethical?

Janine yancey bubble Janine Yancey

Thanks for your question! Determining whether an action is unethical requires evaluating all the facts of a situation. For example, was this person a supervisor/manager and trying to assess team dynamics or conduct? And if so, does the organization communicate in its rules or policies that managers may listen in on work related phone calls? Alternatively, was this person motivated by personal gain or trying to avoid a negative consequence? These are some of the questions to ask when trying to determine if a particular action is ethical. Lastly, the Business Color Spectrum is a helpful tool to quickly check check conduct.

May 20
Private

How would an outside party within the company determine if the gift was for influence reasons or not? The video shown in this section to me at that very moment and with the words and expressions used, did not seem like a situation that was trying to be influenced.

Janine yancey bubble Janine Yancey

Thanks for the question. Sometimes a situation is difficult because it can appear improper to third parties. For example, let's say there's a bid process for a big project and the losing vendor hears about how the winning vendor gave "gifts" to the company representative. All of a sudden the losing vendor challenges the integrity of the process. That's why it's helpful to assess how situations will look to third parties.

May 20
Private

There is an employee who is a supervisor because a family member is a long time manager. She harasses her employees to the point where several employees have cried, gotten so stress that they were extremely depressed, and are scared of her. Management have talked to her occasionally but sometimes she even yells at them saying they are harassing her. What else could be done to resolve?

Janine yancey bubble Janine Yancey

Sorry to hear about the poor workplace dynamics. As a general guideline, bringing transparency to a situation is the first step to changing a situation. Towards that end, it may be helpful to have people communicate their stress and anxiety via email to both the supervisor and senior management. Once the supervisor and senior managers see repeated reactions of stress from the team, it may cause the supervisor to re-evaluate her demeanor and approach with the team.

May 20
Private

Thanks for the session. I really like the course.

Janine yancey bubble Janine Yancey

Super! Glad you liked it.

May 12
Private

How do I know if someone acts in a vexatious behavior?

Janine yancey bubble Janine Yancey

Thank you for your question. Here's a definition for vexatious: "causing or tending to cause annoyance, frustration, or worry" So if someone is deliberately causing annoyance or frustration to others -- then the conduct may be vexatious.

May 12
Private

"Red is unlawful harassment" but orange is not? Why?

Janine yancey bubble Janine Yancey

Yes. Orange is borderline conduct because it concerns legally protected characteristics. It is not red or unlawful if it's not severe or pervasive through the workplace.

May 12
Private

Why do you differentiate between orange and red? They're the same actions.

Janine yancey bubble Janine Yancey

We make a distinction between orange and red conduct because it's a useful tool to let someone know when their actions are kind of borderline and they should stop doing what they're doing and move towards the "green zone." People typically don't illegally harass their coworkers ... that's not common. But it is common for people to make comments or jokes that are borderline and letting them know they've crossed into the orange zone is practical and helpful.

May 12
Private

Religion and creed have the same definition in your slides, but Creed is protected in Oklahoma and not Texas. What's the difference?

Janine yancey bubble Janine Yancey

Religious creed refers to a religious belief that does not belong to a traditionally organized religion. Here are the protections in Oklahoma and Texas: Oklahoma: Religious discrimination is treating individuals differently in their employment because of their religion, their religious beliefs and practices, and/or their request for accommodation (a change in a workplace rule or policy) of their religious beliefs and practices. It also includes treating individuals differently in their employment because of their lack of religious belief or practice. The law protects not only people who belong to traditional organized religions such as the Christian, Muslim, Jewish, or other faiths, but all people who have sincerely held religious, ethical, or moral beliefs. Texas: Sec. 21.108. DISCRIMINATION BASED ON RELIGION. A provision in this chapter referring to discrimination because of religion or on the basis of religion applies to discrimination because of or on the basis of any aspect of religious observance, practice, or belief, unless an employer demonstrates that the employer is unable reasonably to accommodate the religious observance or practice of an employee or applicant without undue hardship to the conduct of the employer's business.

May 5
Private

Is it true that if a company has less than 50 employees, that FMLA does work, due to not having enough employees?

Janine yancey bubble Janine Yancey

It is true that in order to be a "covered" employer (under the FMLA), you need to employ 50 or more employees.

May 5
Private

No doubt about the redness of this situation. As a related but separate matter, is there an actionable problem with Sarah's Twitter storm?

Janine yancey bubble Janine Yancey

Good question and one that's tricky to navigate. An employee's comments about his/her company or colleagues on social media would generally be protected by rights guaranteed by the National Labor Relations Board, and in particular, the right to organize and communicate about the terms and conditions of a job. Given the broad standard, most employees could claim their "speech" on social media sites is "protected speech" per the NLRB. On the other hand, an employee's "speech" on social media could also violate employer policies to the extent it negatively affects the employer or employees. Therefore, any and all specific situations would need to be analyzed by counsel to determine the most appropriate course of action.

April 28
Private

If a manager stalks you on Facebook and sends you an email stating you have been dishonest because they found you on Facebook even though you said you weren't, is this a violation?

Janine yancey bubble Janine Yancey

For questions regarding specific workplace policies, please connect with someone from your HR team. However generally, a person's activity on social media outside of the workplace should not be a basis for management scrutiny and/or counseling with the possible exception of those situations where a person's social media activity has a direct and negative consequence to the workplace. In any situation where a manager would like to reference an employee's social media activity, the manager should seek guidance from the HR team or in-house counsel.

April 28
Private

What are the legally protected actions? (ex: age, gender, etc)

Janine yancey bubble Janine Yancey

Thanks for your question and it depends on which state you work in. If you go back into the course and click on the map of states, you can see the protected characteristics in each state. In California for example, they are: Age (40 and over), Ancestry, Color, Religion, Disability (mental and physical) including HIV and AIDS, Marital Status, Family Status, Medical Condition (cancer and genetic characteristics), National Origin, Race, Sex (including gender expression and identity), Sexual Orientation, and Military Veterans. There is personal (individual) liability for harassment.

April 21
Private

What about the employee's postings on social media? Wasn't that inappropriate? While she was clearly harassed, should she be counseled about activity?

Janine yancey bubble Janine Yancey

Hello! An employee's social media activity is generally protected activity, with limited exceptions such as a breach of confidentiality or breaching some duty owed to the employer

April 21
Private

We are said to have 5 senses but only 3 are represented here (hearing, seeing and touching) why? Could one not harass another by smell for example? By taste is harder to imagine but theoretically possible i guess. Just curious!

Janine yancey bubble Janine Yancey

Thanks for the comment! You're right we are not referencing smell or taste in this topic but it seems improbable that smell or taste could ever be connected to someone's legally protected characteristic such as their age, race, sex, etc.

April 21
Private

I have attended 2 Bullying in the Workplace trainings and I understand that, at this time, bullying is not illegal and it is difficult to develop an anti-bullying policy. But, I have witnessed prolonged and extreme bullying in the workplace and a large number of the employees in the department were very aware of the bullying of this employee. It is difficult for me to understand why something that is extreme and can lead to an employee suffering as a result of being bullied (loss of work engagement; physical, mental, and spiritual problems as a result of the stress; and basically not producing up to one's capacity) has not been defined at least a little bit so that managers can have some type of tool, resource, recourse, etc. to stop this type of behavior - it negatively impacts all employees who have to witness the bullying on an everyday basis.

Janine yancey bubble Janine Yancey

Thanks so much for your comments and feedback. I think it's fair to say that the California state government is trying to provide some resources for employees by mandating that employers including information about bullying (and guidance) in their harassment prevention training conducted every other year. There's an increasing awareness around this issue and it's just a matter of time until all employers routinely address this issue in a proactive way.

April 15
Private

What if the person doing the bullying is your boss and you don't want to get fired?

Janine yancey bubble Janine Yancey

You should seek guidance from your HR team about the nature of your manager's actions and whether your manager could use some coaching to be more effective in communicating with team members.

April 15
Private

What if you feel bullied, but can't be sure? What is the line you draw in knowing what is okay and what is not?

Janine yancey bubble Janine Yancey

If you "feel" bullied, you should say something to improve the situation. Ideally, you should connect with an HR professional so that person can provide coaching to the person who is making you feel uncomfortable.

April 15
Private

Where is the example of where white people are made fun of for how they walk and can't jump? I as a white male am offended that in these first 3 examples, it is the white male who is made to look like the bad person?

Janine yancey bubble Janine Yancey

Hopefully you've seen the last episode by now -- "In the Orange" which is based on a real situation where a female manager acted inappropriately with her male subordinate.

April 15
Private

Interesting. The one example of the white male as the victim in this course was one in which the victim did not file a complaint. This course has a strange angle to it altogether. Can you all step back and appreciate my perception of this entire course? I really resent as a white male that these examples include the white male, and old white female, as the one who is wrong.

Janine yancey bubble Janine Yancey

We certainly appreciate your perspective and your feedback. However, we are also producing stories based on real claims and the people involved in those situations. If you start scanning court filings and government statistics, you'll see that the real numbers are also skewed and do not reflect an even split between men and women filing harassment claims.

April 15
Private

Hello There, I find myself experiencing several of these acts in form of harassment/discrimination, hostile work environment and bullying in the past and recently retaliation for speaking out. I need advice or direction to end this indefinitely. Unfortunately, it's been 2 years and my Union hasn't really done much. This video has been very informative! Thank you...

Janine yancey bubble Janine Yancey

Our apologies but we are prohibited from providing legal advice on specific workplace situations.

April 15
Private

What if an employee is being discriminated and harassed by his manager and the employee complained, an investigation was done but the manager still does those things. It also appears that this manager is being protected by the organization, what does an employee do at this point? File a claim with the EEOC or lodge another complaint to the HR Dept.?

Janine yancey bubble Janine Yancey

While we are prohibited from commenting on specific workplace situations, a general best practice in these types of situations is to communicate your concerns in writing and illustrate your concerns with very specific examples. Try to avoid broad, vague statements such as, "the manager is unfair" or "manager is bullying." Instead, say something like -- the manager did xyz to me and I think it's unfair when viewed in the broader context of abc. The more concise and persuasive you can be, the better. Then send that communication to the HR team and/or to HR and the manager at issue, or that manager's manager. Give your company a chance to address your concerns first (before going to a government agency) and the way to do that is to persuade them there's a real issue that requires attention. The corollary is that the law doesn't guarantee anyone a perfect workplace and there are many workplace issues that are not necessarily legal issues. I hope this is helpful guidance.

April 15
Private

In 2014 I experienced what i believe to be workplace bullying though I’m unsure of the "legitimate business interests". I was named and involved in an abuse allegation was was found to be false both through investigation and the alleger making a statement that they made the false allegation. But in the weeks and months following, the words unsubstantiated were continuously used when i tried to understand why I was placed under such scrutiny when the coworker who made the call was made to do so by the behavior analyst after waiting 3 days from the day in question that the abuse was alleged to happen, which to me seemed suspicious and a bit methodical, followed by additional statements made about something not even relating to the day in question (shaving). But none the less since that time my job as a manager was made to be under constant scrutiny of even taking the individuals (which were female) to doctor's appointments which was never an issue prior to the abuse allegation being made. I’m curious to know just based on this would this be considered harassment?

Janine yancey bubble Janine Yancey

First off, we are prohibited from providing advice to specific workplace situations. However generally, it's a good risk management practice to keep an eye on a manager who was the subject of a workplace complaint. If you believe the scrutiny is more than is warranted, you may want to try having an open conversation with your HR and management team regarding the best path moving forward. Hope that's helpful

April 7
Private

Based on this definition, is it legal to discriminate against someone on the basis of social class (classism)?

Janine yancey bubble Janine Yancey

Thanks for your question. Technically, yes. Discrimination against someone of a different social class is not legally prohibited. Having said that, there may be legally protected characteristics present in that situation (such as race) and it could be difficult to distinguish the basis for the discrimination. In any event, the best practice is to base all preferences/decisions on logical business criteria. As long as you tie preferences back to specific business reasons, you shouldn't have any problems.

April 7
Private

If my co-worker who has the same job title and position as me makes more money than me because of a personal situation, is that fair to me? Shouldn't we be paid the same?

Janine yancey bubble Janine Yancey

Thanks for your question! We are prohibited from commenting on specific workplace situations, but generally, employers are allowed to have a pay range based on tenure, experience, performance, geography. So even the same role and title may have the same pay scale, but with a slight variable to adjust for legitimate business issues.

March 31
Private

What is the role of age? To make strong decisions and get succeed in job?

Janine yancey bubble Janine Yancey

Thanks for your question. Ideally, "age" should not factor into workplace decisions. Experience can influence decisions since there's a direct connection between experience and business interests. But there isn't a direct connection between "age" and legitimate business interests. Let us know if you have any further questions.

March 31
Private

If my co-worker who has the same job title and position as me makes more money then me because of a personal situation, is that fair to me? Shouldn't we be paid the same?

Janine yancey bubble Janine Yancey

Thanks for your question! We are prohibited from commenting on specific workplace situations, but generally, employers are allowed to have a pay range based on tenure, experience, performance, geography. So even the same role and title may have the same pay scale, but with a slight variable to adjust for legitimate business issues.

March 31
Private

I have an employee that has been grossly unprofessional, demeaning and discourteous to both management and line staff. She has received disciplinary action yet completely lacks insight into how her actions impact others. Judging by the targets of her wrath, I believe her behavior is racially motivated at least in part. However, it is of the subtle and pervasive variety rather than blatant racism. Either way, I believe it is hostile. Under what category of harassment would this behavior fall?

Janine yancey bubble Janine Yancey

I'm sorry but we cannot comment or advise on specific workplace situations. However generally, if someone is more hostile or critical of people with a shared characteristic such as race, the person may be exhibiting unconscious bias. The best way to address and manage unconscious bias is to seek guidance from your HR or Talent team so someone can provide coaching. In order to be harassment or discrimination, there would need to be some kind of negative management actions and/or behavior or comment that can be directly tied to the protected trait of race.

March 31
Private

If an employee appears to have mental health challenges as evidenced in their inappropriate workplace behaviors toward others, but have not identified themselves as having a disability, can they later claim discrimination to avoid disciplinary action for their inappropriate workplace behaviors?

Janine yancey bubble Janine Yancey

Thanks for your question and yes, a person can claim a mental disability to explain performance issues. Having said that, the employer or manager can establish essential job functions so that appropriate workplace conduct is a minimum requirement, regardless of the existence of a mental disability.

March 31
Private

Regarding gifts. What is nominal value? Also, does the demarcation between nominal and non-nominal gift change based on the employee/officer/director position/compensation etc.? Is a gift, with a monetary value of $50, to an employee with an annual compensation of say $50,000 nominal or not? Is the same $50 gift to an officer with say $150,000 annual compensation nominal? Unless I missed it, I didn't see any definition for "nominal value" in our Code of Ethics handbook either.

Janine yancey bubble Janine Yancey

Thanks for your question! There's no "right" answer to define nominal value. Ideally though, an organization has one definition of "nominal" and it doesn't change from position to position. It's pretty common for organizations to define "nominal" as less than $50 and beyond that, gifts should be disclosed or made visible to others on the team. If you like, we can request specific guidance from your employer regarding your employer's definition of "nominal value." Just let us know. Thanks!

March 28
Private

Why isn't final judge of ethics issues an outside entity?

Janine yancey bubble Janine Yancey

Well, the organization has the right to determine its own values and what it considers ethical versus unethical conduct (which is typically different than a legal, compliance standard). A helpful way to think about this is: Compliance is what you "must" do and ethics is the "right" thing to do.

March 28
Private

What is a protected personal characteristic?

Janine yancey bubble Janine Yancey

Thanks for your question! A personally protected characteristic is a personal trait that a person typically cannot change (race, color, national origin) and which the legislature has determined should not influence workplace actions or decisions.

March 28
Private

Due to a stressful deadline, one of my seniors suddenly started inappropriately expressing his stress on me, blaming me for the being late on the deadline and accusing me of lack of responsibility based on his misunderstanding. Few days later, the same senior had a private conversation with me about he shouldn't do this but he did not apologize for his offensive em-professional behavior, and justified his act as a reaction of family issue. I'm uncomfortable around him and I honestly afraid that if I approached HR or anybody else, that he abuse his power against me and I will be the only loser in this.

Janine yancey bubble Janine Yancey

Thanks for sharing your concern. Typically an HR professional or another more senior manager at your organization would coach your manager on helpful ways to manage stress. If you're concerned about your direct manager's reaction, you may want to write him a note and copy someone on the HR team so it brings more visibility into your concern. Typically, when you document a concern (in a productive, respectful manner) and share it with relevant people within the organization, people are more likely to process your communication and think it over and less likely to react quickly.

March 28
Private

Is knowledge a protected Characteristic? Does denial based on knowledge qualify as discrimination?

Janine yancey bubble Janine Yancey

Sorry, knowledge is not a protected characteristic. However, participating in a legal process or adhering to legal requirements could be a protected characteristic. I hope that's helpful.

March 22
Private

Is Medical Condition specific to cancer, or does it include other serious/life-threatening illnesses? If so, which ones?

Janine yancey bubble Janine Yancey

Thanks for your question. Medical condition is specific to cancer and/or genetic conditions. Other serious or life threatening illnesses are also covered but they would be covered under disability.

March 22
Private

Does age play a prime role when it comes to the hiring process?

Janine yancey bubble Janine Yancey

Thanks for your question. Age should not play any role when evaluating someone in the hiring process. Experience is valid and relevant, but age is not.

March 17
Private

What responsibility does Sarah have for posting negative comments on social media?

Janine yancey bubble Janine Yancey

Thanks for your question! Sarah has the right to post negative comments on social media. However, it's a fine line for both the employee and the employer. Employees have the right to share or publish information about the terms and conditions of a job, which can include critical comments about management, business execution, etc. Employers have the right to make determinations of who is a "good fit" for the organization, which can include an assessment of attitude and communication style.

March 17
Private

Throughout my career, I've always felt a little awkward asking my supervisor for time off to observe Good Friday even though it is important to me as a Roman Catholic to be religiously observant during noon - 3:00 on this day. What advice can you provide me as a supervisor to make sure my employees feel comfortable requesting time off to observe their own religious holidays?

Janine yancey bubble Janine Yancey

Excellent question, thanks for submitting it! A good practice is to let your team know that you respect the need to observe religious holidays and that people should not hesitate to ask for time off to accommodate religious observances. Since it's already mid-March, you'll want to bring it up soon at a group meeting and/or through an email so people feel comfortable requesting time off for Good Friday this month and Passover in April as well as Holi, the Hindu Festival of Colors.

March 17
Private

So if we have a law in place currently for equal pay, why is it a topic for political discussion today. Is the law not strict enough or enforceable?

Janine yancey bubble Janine Yancey

Excellent question! The current federal law mandates equal pay for equal work. However, research has shown there is still a wide gap in compensation between the genders, e.g., an average of 12% disparity. Therefore, California has addressed this social problem by expanding the law so there's a mandate of equal pay for "substantially similar" work. By broadening the standard, employers are now obligated to look at job duties and rank or classify jobs so that jobs of a similar rank or classification pay equally with minor adjustments for legitimate business criteria, e.g., experience, seniority, geography, performance, etc. The new California law forces employers to proactively look at their jobs and pay data and ensure there's pay equity. On the federal level, President Obama is asking Congress to pass the Paycheck Fairness Act, which is similar to California's Fair Pay Act. The Paycheck Fairness Act would go one step further though and require employers to submit all their pay data (indicating race and gender) every year with their EEO-1 form. Again, the goal is to push employers to proactively ensure pay equity rather than waiting for a claim.

March 17
Private

I have employees that are Facebook friends with members of our team and the company at large. If an employee finds comments or pictures, etc. that are posted by that employee offensive, can that be considered harassment?

Janine yancey bubble Janine Yancey

Thanks for your question! Generally, a workplace harassment situation requires a close connection between an incident that occurs outside the workplace and a subsequent negative impact that occurs within the workplace. For pictures or statements posted on social media, you typically want to ensure people aren't talking about them inside the workplace, which can compound the problem if some people found them offensive. It's also a good practice to caution managers to think carefully before connecting to their direct reports on social media because the personal comments and pictures blur professional boundaries, which often lead to unnecessary workplace conflicts.

March 17
Private

What do managers do if a situation arises where his analysis falls in between the Gray area of Orange or Red based on the interviews he had done with the employees participated in the conversation.

Janine yancey bubble Janine Yancey

Thank you for your question. When a manager has a conversation with one or more employees and the facts indicate a situation that potentially falls between Orange and Red on the Workplace Color Spectrum, then the manager should seek guidance from the HR Business Partner to help address and resolve the situation. Please let us know if you'd like to be connected to an HR professional within your organization.

March 17
Private

What is meant by "Our workplace is complex these days due to growing differences in culture, race, gender, ethnicity, age, and many other factors." Is this meant to say that the workplace has growing differences due to the makeup changes (ie more diversity across those categories)? My interpretation of this line is that there are growing differences in culture, race, gender and so on, which might indirectly put pressure on those who are "different", saying that while it is great to have them, they are causing the potential problems. Might be good to clarify. Wording like, "The workplace is complex these days due to the growing diversity of representation around culture, race, gender...". Not the best wording, need to get through this training, but wanted to let you know how I was interpreting this, and that it did not evoke positivity that I think was intended. Feel free to reach out if you would like more follow up.

Janine yancey bubble Janine Yancey

Thanks so much for your feedback! The goal of the line - "Our workplace is complex these days due to growing differences in culture, race, gender, ethnicity, age, and many other factors" is to persuade people to slow down and think about people more carefully so we take time to understand our differences and then learn how to work with our differences. The challenges often come when people don't slow down and don't shift their perspective, resulting in quick, emotional conclusions. We'll share your feedback with our content team so we can refine that message. Thanks again.

March 17
Private

What about sharing our company’s food product with a family member who went to pick us up from work? In that case the company is not the primary beneficiary.

Janine yancey bubble Janine Yancey

Thanks for your question. Here are a couple of questions to ask yourself to help evaluate the situation: First, is it your company practice or policy to provide food to guests and visitors to the workplace? Second, could a family member who transports several employees to/from work be considered an authorized guest or visitor? If the answer to the first question is "yes" then most HR and ethics team would view the family member who transports one or more employees as the occasional guest who could also partake in whatever food was available. Please note the emphasis on occasional guest. Providing food to guests occasionally is quite different than a consistent obligation. Please consult your internal HR and/or ethics team for specific policy questions and answers.

March 17
Private

One of our vendors reached out to me (randomly) to participate in a design research exercise to assess HOW I use their tool in my workplace and are offering a $250 gift card for my time. Would it be unethical to participate? I know we do the same with our customers (our design research team observes them so we can improve our product for them) but I'm still feeling unsure.

Janine yancey bubble Janine Yancey

Thanks for your question! Let's help you evaluate the situation. First -- it sounds like you were contacted because of the business relationship between your organization and the vendor. If you were not an employee of the organization, do you think the vendor would be contacting you? If the answer is "no," then it's a business opportunity rather than a personal one. Second -- would your organization consider $250 to be a nominal amount? Generally, organizations allow employees to receive gifts of a nominal amount as they are unlikely to influence decision-making or give rise to an appearance of impropriety. Organizations have different standards for what they consider "nominal" but generally anything over $40 is no longer "nominal." So it looks like you've been offered an opportunity that belongs to the business rather than you personally and it's a valuable gift card. It would be an ethical issue to accept the gift card without disclosing the opportunity and seeking permission from the appropriate department within your organization. I hope that helps address your question.

February 26
Private

So, I see "perceived" a lot. Does that pretty much mean, if someone else perceives you are doing something wrong, even if you're not, you're still wrong? I see "perceived" a lot. In my opinion, some people can take simple innocent comments to extreme if they are upset with you or the current work situation and take it out on an unsuspecting person. I'm not talking about legitimate offensive stuff. I have seen stuff that the clarification of, "a reasonable person would..." would say no. But if that certain person "perceived" otherwise...

Janine yancey bubble Janine Yancey

When someone "perceives" something as "harassment", that does not mean it is harassment. We call attention to how a coworker perceives a situation because it bears on whether a situation may cause conflict or not -- regardless of whether the conflict is really harassment. It's always easier to be aware of your coworkers, their perceptions and to modify your statements and actions so you don't create conflict at all than to try to resolve conflict after it erupts.

February 26
Private

If I'm in an argument with three women about how a task should be done and tell them, "i don't won't to argue with 3 ladies" is that any form of harassment?

Janine yancey bubble Janine Yancey

It's fine to say you don't want to argue with three ladies. It's even better to say you don't want to argue with three colleagues.

February 26
Private

If an individual routinely demeans and yells at a other employees and they feel uncomfortable and anxious about working in that environment would that constitute a hostile work environment?

Janine yancey bubble Janine Yancey

If the conduct is general yelling and demeaning people (without referencing a personally protected characteristic), that type of conduct is considered bullying which does not constitute a hostile work environment.

February 26
Private

Why was there no discussion of the interaction between the fact-finding team, his rolling his eyes, her being on the phone and the somewhat gossipy discussion about the confidential matters and making light of them if they are HR experts?

Janine yancey bubble Janine Yancey

Thanks for your feedback. The interaction between the experts is primarily a storytelling device and to make the characters interesting and is not legally significant.

February 26
Private

Should a manager or supervisor avoid making any comments at all about someone's appearance (i.e., complimenting them on their outfit or that they look nice), even if it is made in a professional manner ? I thought the video showed this example as "orange" behavior, but well-meaning, appropriate compliments about attire have never been an issue in the many years I have been working in offices. I want to verify the expert recommendations.

Janine yancey bubble Janine Yancey

It really depends on the relationship between the co-workers and the nature of the compliments. If two people are friendly and one offers a simple compliment, then yes, it's appropriate. But it depends on the details of each situation.

February 26
Private

I read that bullying is not illegal, but can someone still be fired for being a bully?

Janine yancey bubble Janine Yancey

You are correct that bullying is not illegal. You're also correct that an employer has the right to fire someone for bullying or any other type of conduct that is negative for the workplace.

February 26
Private

In terms of harassment claims, if consistent harassing behavior (similar to bullying in a supervisor / subordinate situation) is known within an environment, but the situation is not part of a protected class, are we required to address, attempt to resolve and / or report the behavior to higher level management?

Janine yancey bubble Janine Yancey

If the bullying behavior does not concern someone's legally protected personal characteristic (e.g., race, gender, age, religion, etc.), then there's no legal requirement to report that behavior to senior management -- because bullying is not legally actionable. Having said that, bullying is unproductive and destroys morale. So, senior management will generally want to know if/when those types of situations exist so they can address the situation before they have a retention issue.

February 26
Private

Is the company responsible for an employee's behavior at an event of which the company had no knowledge (i.e., two co-workers going to a baseball game on a Sunday afternoon)?

Janine yancey bubble Janine Yancey

Typically, a company will not be responsible for employee behavior that occurs on the employee's own time and where there is no reason for the company to be aware of or "on notice" of the person's conduct. In contrast, if it's a regularly occurring event with several co-workers and/or an employer sponsored event, then the company could be responsible for the behavior.

February 26
Private

If a Supervisor tells an employee that they believe that they are becoming burnt out yet they have no proof of their findings and continue with this for a few days telling the employee that they need to move on and find another job. Is this harassment?

Janine yancey bubble Janine Yancey

A supervisor has the legal right to evaluate someone's performance at a job and determine whether the person is a "good fit" for the job. As long as the supervisor does not make comments or base his/her evaluation on legally protected personal characteristics, then it's not harassment. Even if the supervisor could refine his/her management style, that would still be a management issue and not a legal/harassment issue. Hope that makes sense.

February 22
Private

Are only minority races protected? In the example of "Mr. Terrorist", the middle eastern employee first described his western coworkers as materialistic and lacking religious values. This generalization based on race was not discussed; only the western employees reaction was characterized as orange conduct.

Janine yancey bubble Janine Yancey

Good observation and yes, all races are protected in the workplace. So yes, the white employees could also be offended by their co-worker's generalizations.

February 22
Private

What about if someone yells more at female subordinates than male subordinates, but obviously never says "I'm bullying you because you're a woman" and it just so happens they are more inclined to yell at women?

Janine yancey bubble Janine Yancey

A manager yelling more and/or being more critical of junior female employees as compared to male employees may be an issue of unconscious bias where the manager may need to be introduced to the idea that he unconsciously treats people differently. An HR professional or senior manager is the best person to have that type of conversation to keep the workforce on track.

February 22
Private

What if the top manager at your firm has an annual party where he invites only partners, but then one year he invited some associates (non-partners), but only male associates?

Janine yancey bubble Janine Yancey

If a senior manager hosts a party and invites male associates but does not invite female associates, then a best practice is to have an HR person or someone in senior management advise the manager to re-think his actions to foster a more inclusive workplace and a level playing field.

February 22
Private

What do you do if, as a woman, you are speaking out and being assertive about something and then the managers perceive it as "unprofessional"; whereas they would not do the same when it's a man who is being assertive about work?

Janine yancey bubble Janine Yancey

Often, men leaders are unconscious about applying different standards to men versus women. A helpful practice in that situation is to seek guidance from an HR professional and raise the idea that workforce productivity increases with a positive, inclusive culture where people perceive a level playing field. And if a workplace is not positive and inclusive then perhaps unconscious bias training would have a positive impact. Emtrain is launching a Managing Unconscious Bias course in April that will be available to everyone in our learning community.

February 22
Private

Can a supervisor ask female subordinates to button another button on their blouse?

Janine yancey bubble Janine Yancey

Yes, a male supervisor can quickly state the workplace requires more conservative attire and therefore, could the employee button an additional button to be a bit more conservative. If the male supervisor is brief and businesslike when making the comment, it's probably appropriate.

February 22
Private

Does age discrimination also apply when it comes to the hiring process? I'm assuming that it does.

Janine yancey bubble Janine Yancey

Yes, it does. In any employment decision, the evaluation should only be based on legitimate business criteria. Age, race, gender, religion, etc. are not legitimate business criteria.

February 22
Private

Should coworkers be friends on Facebook?

Janine yancey bubble Janine Yancey

It's generally fine for coworkers to be friends on social media sites such as Facebook. It becomes a more challenging situation when managers and subordinates are connected on social media sites.

February 22
Private

Why does Michael roll his eyes every single time his partners get a new client and have to go to see them? Is that intentional and we are supposed to notice as part of the training or just an acting quirk by the person playing him?

Janine yancey bubble Janine Yancey

It's just the character/actor trying to be witty or funny .... it has no relevance to the subject matter.

February 22
Private

Male hires female as a contractor later female hired full time in another department. 2 months later, when on vacation, female Instant Messages the Male to just check in to see what is happening at work. Female did so on multiple occasions. On two of the occasion, female refers to male as 'Hon" After female is back from vacation, asks male to go to lunch to thank the male for helping her get a full time position. At lunch they talk about work but nothing really personal. But upon leaving, male asks female about her calling him 'Hon" and asks if there is something going on that he is not picking up on. Female gets upset that this came up and is taken aback. Upon returning to work, no further interaction or conversation occurs. How would this be viewed from an HR perspective? It would seem to be yellow as the male was trying to understand why female was calling him "hon".

Janine yancey bubble Janine Yancey

We are prohibited from providing advice on specific workplace situations such as the one you outline here. However generally, it's appropriate to clarify and seek understanding of a person's statement. If it's a single interaction, most HR teams would view it as a typical and appropriate workplace interaction.

February 17
Private

With regard to the Sambo's scenario: the employees did not choose the name of the pancake house. Why are the employees being held responsible for referring to the restaurant by its name, because Jeff and Naveed do not like the name of the restaurant? Are the employees supposed to use a pseudonym to refer to the pancake house?

Janine yancey bubble Janine Yancey

Good question. First, this scene with the Sambo's restaurant situation was not deemed to be "red," which means the employees were not held responsible for Jeff and Naveed's discomfort. However, it was insensitive conduct because, even without naming the restaurant, Jeff and Naveed were familiar with the restaurant being discussed and its negative (e.g., racist) business reputation. Given their discomfort, the best practice would have been to re-direct the conversation rather than try to persuade them to not be offended.

February 17
Private

Hi, I wanted to know How often you review these course material content..? Is it annually or as & when needed due to any changes in regulations etc..? Thanks

Janine yancey bubble Janine Yancey

We review the material annually and update as warranted. We completely reproduce the course content every 18-24 months.

February 17
Private

I understand where and why the laws came about, but I always wonder how we are expected to move forward as a society in the direction of equality when we have laws and statutes such as protected genders, races, religions, etc...?

Janine yancey bubble Janine Yancey

That's an interesting way to view the purpose of these laws. Here's another perspective to consider: the protections apply to every person in the workplace, meaning we're all protected one way or another. And with those protections we filter out all personal, irrelevant information and instead, we focus on the skills and abilities to get our respective jobs done.

February 17
Private

If different employees across the United States do the same job and get paid differently because the state they live in, is that discrimination?

Janine yancey bubble Janine Yancey

It's legal and appropriate to have a compensation differential based on cost of living differences in various geographies.

February 17
Private

Wouldn't an employee yelling at a supervisor/manager be workplace harassment and shouldn't the HR department protect management as well as employees?

Janine yancey bubble Janine Yancey

The laws are not there to protect managers against employees because theoretically, the managers are agents of the employer and can discipline/terminate employees who are behaving inappropriately. Therefore, lawmakers did not perceive a social need to protect managers from employees.

February 17
Private

Under GINA (Genetic Information Nondiscrimination Act), is a person protected against discrimination of their own genetic disease/disorder/condition? That part was unclear; it sounded to me that only the information of their family’s disease/disorder/condition was protected.

Janine yancey bubble Janine Yancey

GINA protects employees from discrimination based on any genetic disorder that the employee has or that runs in the employee's family.

February 17
Private

I am a senior member of the company. Suppose a junior worker approached me with a concern that they don’t feel communicating to the CEO, how should I respond?

Janine yancey bubble Janine Yancey

As a senior leader in the company, you should always err on the side of being more proactive than less. So if a junior worker expresses concerns to you, it's a best practice to share the employee's concerns with either an HR professional, CEO or another senior leader who can evaluate and address the concerns as appropriate.

February 17
Private

Scenario: You have a person who makes a complaint or does something that he/she needs to be reprimanded about. Reviews are expected to be given two week thereafter. This person has not met his/her required goals and fell short of expectations. How should the manager handle? If manager provides a rating that equates to his/her performance which was under par does the employee use that as reinforcement to state they were given a negative rating because of the prior incident?

Janine yancey bubble Janine Yancey

In a situation where an employee makes a complaint within 2 weeks before receiving a critical performance review, it's a good practice to communicate in writing that the person is scheduled to get a review but that the manager/employer is delaying the performance review while the person's complaint/concern is addressed and resolved. Then the employer should address the complaint. Thereafter and when a pending complaint does not obscure the issues or appear retaliatory, then the employer should give the critical performance review. Try to view any situation from a neutral third party perspective to help determine when management actions would appear retaliatory.

February 16
Private

I had an employee that as she did not complete probation told me she felt questioned, judged and undermined in this environment (our small office). I take that very seriously and wonder if there is anything I could have done to change that perception or how she felt.

Janine yancey bubble Janine Yancey

When you are not able to retain an employee, it's always helpful to reach out to the person after a week or two have passed and request honest and candid feedback about the job and the workplace. That feedback and visibility is what allows all of us to evolve and get better.

February 16
Private

I am hoping you can help me; does “substantially same or similar work,” mean jobs can be compared “outside,” of an employer’s organization? For instance, CEO at ABC facility can compare similar work to CEO at XYZ company, who does same or similar work but is being paid much higher wage.

Janine yancey bubble Janine Yancey

The "substantially same or similar work" only refers to positions within a single employer, meaning two people who work for the same employer doing similar work need to be paid the same compensation package, notwithstanding legitimate variables such as experience, skill, cost of living, etc.

February 16
Private

My supervising partner has made comments that I should marry my long-term boyfriend, even after I explained to him I do not desire to every marry again. Are his comments inappropriate?

Janine yancey bubble Janine Yancey

While we cannot comment on specific workplace situations, generally we can say that whether a situation is appropriate or not depends on the nature and extent of particular comments. So for example, if the supervising partner makes 1-2 off-hand comments about getting married in the context of making conversation -- then those comments are probably innocuous and fine for the workplace. Conversely, if he makes those comments repeatedly, then they may not be workplace appropriate and then you or someone on your team should provide him some feedback.

February 16
Private

If harassment involves an agency that an employee's organization contracts with and this employee has expressed distress due to unsubstantiated or false claims made by the contractor about the employee's work, can this be cause for investigation and/or be considered harassment if the manager is aware of this and does nothing to address the distress.

Janine yancey bubble Janine Yancey

There are several categories of workplace problems, and harassment is just one of the categories. To be harassment, the conduct must be based on or reference someone's legally protected personal characteristic. If there's no protected characteristic at issue -- then there is no harassment. However, even if something doesn't qualify as "harassment", it can still be a workplace problem that should be addressed by HR or senior management. Friction with an outside contractor could easily be a management issue rather than a harassment issue.

February 16
Private

I am over 65, had cancer, and need to go to the doctor or rest more than most co-workers. Nonetheless, I end up working from home on my laptop many nights and most weekends because I am one of the few people that can do the work. It is often too much and creates great stress. What should I do?

Janine yancey bubble Janine Yancey

Unfortunately, we cannot provide specific workplace advice, just general recommendations. As a best practice, a qualified individual with a disability (which would apply to a cancer survivor) can seek a reasonable accommodation to enable that person to perform his/her essential job functions and maybe minimize or streamline the non-essential duties. That seems like a good starting point to streamline the job duties to minimize the need to work nights/weekends. Typically, employees would consult with their HR business partner and/or senior manager to seek/request a reasonable accommodation.

February 16
Private

If a co-worker states she noticed her supervisor looking at her chest area, is that sexual harassment?

Janine yancey bubble Janine Yancey

A one time event, even if it involves a supervisor staring at someone's chest, is not sufficiently severe and/or pervasive to create a workplace harassment situation. Further, unless there are 2-3 people who witnessed the conduct and characterize it as "staring at a chest" -- it's difficult to substantiate a claim solely about someone staring.

February 16
Private

Is it considered harassment to use the term dear or sweetheart when a male is responding to a female employee either verbally or in writing?

Janine yancey bubble Janine Yancey

It all depends on the context of the situation and how frequent someone uses the terms "dear" or "sweetheart" and the impact on the business culture of using those terms. So for example, calling someone "dear" or "sweetheart" upon occasion may be a bit outdated culturally, but generally OK if it occurs infrequently. If it occurs more frequently, and contributes to a paternalistic or sexist culture, then it's clearly more of a problem and depending on the full situation could help create a harassment situation.

February 16
Private

Why were some of these not RED? They should be RED because it was occurring repeatedly... I think the only reason Orange is acceptable is because Robin did not bluntly tell him to stop.

Janine yancey bubble Janine Yancey

Thanks for your feedback. These "episodes" and different workplace scenes are based on real events and if they are not viewed as "red," it's because the situation in real life was not judged to be "red." Remember, whether a situation is severe and pervasive enough to be judged harassment is up to what a reasonable jury or judge determines. And different people can differ in their assessment of the situation.

February 16
Private

Is it a form of harassment when your supervisor, during a monthly meeting with your coworkers, hands you a disciplinary action form, tell everyone you’re getting written up for not saying ok to his sent email? The disciplinary form was blank and I must fill out and return to him at the end of the meeting.

Janine yancey bubble Janine Yancey

Generally, the situation you describe reflects poor management skill and poor emotional intelligence. It does not reflect harassment as it does not concern a legally protected personal characteristic.

February 16
Private

Hey, my questions is related to Manager who hails from a different geography ( say Europe) making a comment to team member which is from US, about certain workplace practice. While, this may appear to be very common in Europe, this may not be welcomed all the time in US. How should we consider such situation? Is Manager at fault or Team member needs to know How things are carried out at Europe from where this Manager hails from in this example?

Janine yancey bubble Janine Yancey

Excellent question and one that people increasingly face as more employers operate globally. We increasingly face overlapping and sometimes conflicting workplace regulations and differing workplace practices. It's up to us individually to do our "homework" and understand the cultural and regulatory dynamics that apply to the people we work with. So if a EU manager works with an employee from the US, the EU manager should ensure he/she knows the U.S. laws and workplace expectations. And visa versa if the manager is from the US and the employee works in the EU. But the manager should be the one to take responsibility for understanding the local laws and expectations.

February 9
Private

Talking in regional language while there is someone in the room who does not understand that language - Is that a form of harassment? The conversation is usually not about the person who does not understand that language.

Janine yancey bubble Janine Yancey

Talking in a language that a co-worker cannot understand is not a form of harassment. However, that situation can lead to employee conflict. A best practice is to quickly address the co-worker who is nearby and ask if the person minds if you speak in another language. When people feel included and respected, they typically will feel OK with others speaking in a different language.

February 9
Private

If a manger questions why work is not been done probably with high volume, would it be considered as yellow workplace behavior?

Janine yancey bubble Janine Yancey

Yes. A manager publicly questioning the work performance of another and in a loud voice is not a great management technique. Management techniques that could use improvement are "yellow" on the workplace color spectrum.

February 9
Private

If my supervisor is starting to give me negative feedback because a teacher in the next doors classroom are complaining about my classroom's personal leave of absences of the teachers in my classroom, does that count as a claim that should be looked at? I had a teacher out a whole week because a family member passed away, and I had been out due to personal needs with my family, and the teacher was complaining about our absences. Let me know.

Janine yancey bubble Janine Yancey

We are prohibited from providing advice on specific workplace situations. However generally, as long as an employee is eligible to take a protected leave, the employee's leave is legally protected and cannot be a basis for criticism.

February 9
Private

Why isn't the calling a female "princess" flagged as Red? Especially in the scenario's shown, the boss was being very condescending in using the name "princess"?

Janine yancey bubble Janine Yancey

This episode is based on a real situation and the investigator determined that calling the female employee "princess" was inappropriate, but not so severe or frequent of conduct that it made the entire workplace hostile for that employee. Ultimately, it's up to the fact finder to determine whether the conduct is severe or pervasive enough to create a hostile work environment.

February 9
Private

So I just watched a portion of the training regarding race and origin. A person goes to a restaurant named "Sambos" and returns to talk about the great pancakes. While I fully understand the person of color feeling uncomfortable with the name Sambos, it IS the NAME of a restaurant, not a derogatory phrase used by the speaker, and the person spoke about pancakes being great and prices cheap. How is their 1st Amendment right to speak about food protected in this situation? I guess I should now feel offended by the "Cracker" Barrel restaurant chain?

Janine yancey bubble Janine Yancey

These are difficult, nuanced situations. Yes, in the episode about race and national origin, the employees did not try to offend their colleague by referring to "Sambos" restaurant. And most factfinders would not determine that references to "Sambos," by themselves, would create a hostile work environment for anyone. However, ideally, employees should be able to pick up on their co-worker's discomfort with the topic and re-direct the conversation to a safer ground. It's important to be able to navigate and avoid employee conflict and the best way to do that is to switch your perspective and quickly spot when conduct makes others feel uncomfortable.

February 9
Private

An employee claims harassment even though no protected classification is involved. It is safe to go ahead and give a negative performance review. Two weeks later since the review was done prior to the claim. You state while it may be fine to give a negative review two weeks after the harassment claim it is definitely taking a risk since the review follows shortly after the complaint it can be view as retaliation. My question is that if his performance is all ready in question and he is getting a bad performance review which was done prior, and it states that it is risky.. when is the proper time to let him know his performance is not up to par. He or she is still under performing!

Janine yancey bubble Janine Yancey

Excellent question and it all depends on how clear the manager can make it through objective documented evidence. As a manager, you don't want to have to "explain" a situation. So if someone claims harassment, even if lacking substance or merit, you don't want to give that person an easy retaliation claim by giving a critical performance review and then try to explain that the review was already drafted before the meritless claim was submitted. Depending on the situation, it may be more strategic to note the draft review and pending claim and "pause" the review process until resolution of the claim. Then have HR go address and resolve the claim -- noting that it lacks a protected characteristic - and then proceed with the review process. So you're basically hitting "pause" while the harassment claim is addressed. Ideally, when there's a situation that an employee may likely challenge -- a manager should be in a spot where he/she can provide an outsider with a "file" (emails, performance reviews, feedback, etc.) and the outsider can easily understand the dynamics of the situation so the manager doesn't need to do a whole lot of "explaining." I hope that helps!

February 9
Private

I have just completed your course. I have to say I was shocked and horrified by the clip art images of the workplace, all of which show very young, very tall, ridiculously thin, attractive women with figures even more exaggerated than Barbie dolls, with 12-inch waists and large busts and impossibly small hips. No human being looks like that. The men in the cartoon images are more realistic and some are even stocky. So what is the message you folks are sending? Do you think it is appropriate? Do you feel you need some sensitivity training?

Janine yancey bubble Janine Yancey

Thanks for your feedback. We will certainly review the art images we're using in the course to check whether we're unintentionally reflecting a bunch of "barbie dolls." I've copied our content manager so he can see your feedback. Thanks again.

February 9
Private

if a person has a medical condition that is not cancer, and is not genetically documented, but has been documented by multiple surgeries, is that considered protected against discrimination?

Janine yancey bubble Janine Yancey

A person can be protected from discrimination based on a disability and/or use of family/medical leave. Generally, a person who has multiple surgeries probably has an underlying physical condition that may qualify as a "disability." Otherwise, use of FMLA/CFRA leave would apply to that person too.

February 9
Private

Why are all of the women attractive in this video and the men are repulsive?

Janine yancey bubble Janine Yancey

Thanks for your feedback. We'll review the content to see whether we have a balanced acting crew reflecting all shapes and sizes. I've copied our content manager so he's aware of your feedback. Thanks again.

February 2
Private

A co-worker/Team lead corrects an employee front of the entire team and makes rude comments. This activity is repeated continuously and we're not seeing any support from the manager. Can we take this as RED or Orange?

Janine yancey bubble Janine Yancey

Shouting about mistakes and poor productivity is actually a "yellow" category since shouting is rude and doesn't reflect good teamwork. However, it would not be orange or red if no legally protected characteristic is involved.

February 2
Private

As the Manager calls repeatedly, the team member on a vacation/holiday to return back to work and on complaining the team member is not getting any support from the hr/senior manager as he is the Manager. Even though the work can be completed by any available person. The performance ratings are affected due to this which affects morale and productivity of the employee. How should we take forward?

Janine yancey bubble Janine Yancey

When verbal complaints do not trigger a response from HR or senior management, it's a good practice to put the complaint in writing and summarize the concern so any third person could read the complaint and easily get an understanding of the situation. Keep a copy of the complaint for your records and send the written complaint to your HR team.

February 2
Private

I need multiple passwords for different sites and applications. Many of them have distinct formatting requirements, and I can't remember them all. So I use an encrypted program called Password Safe to store them. Is that a reliable way to store multiple passwords? If not - what else can I do?

Janine yancey bubble Janine Yancey

An encrypted program that stores passwords is good practice for keeping track of multiple passwords.

February 2
Private

If we have a question about relationships in the workplace because information has been told to us, is the right course of action to take this concern to the manager? Also, does it automatically result in termination or is it just when there have been repeated occurrences of workplace distractions?

Janine yancey bubble Janine Yancey

Questions about workplace relationships should generally be directed to the HR team or senior management. And discipline and termination decisions are made based on all the facts and circumstances of each situation.

February 2
Private

If an employee has a relationship with someone (person a) outside of work and a situation leads to creating a hostile environment within the workplace between someone else (person b who is a supervisor), what course of action could/ should the manager take?

Janine yancey bubble Janine Yancey

Whenever someone faces any type of employee conflict, the best practice is to seek guidance from the HR team or senior management to help navigate the issue.

February 2
Private

Your 'verbal' example states nothing about cursing, etc.- which is offensive to many. Gold standard companies often have policies related to cursing. Is it considered a type of harassment-if folks continue to use words like 'F--- Them', etc. which is typically not acceptable and when a person -who finds such language offensive- informs the individual they do not appreciate the language, yet the offensive language continues.

Janine yancey bubble Janine Yancey

While cursing is rude and offensive to many, it is not related to a legally protected characteristic and therefore, it is not considered harassment. However, employers can and do impose discipline for rude behavior -- it doesn't have to be harassment to warrant discipline.

February 2
Private

In a small company that doesn't have an HR person or any policy and the problem is with the owner of the company, who do you go to?

Janine yancey bubble Janine Yancey

The best practice is to summarize the concern in as much detail as possible (and in a professional tone) and provide the written summary to the senior executive and keep a copy for your own records. Let the senior executive know you've retained a copy of the written complaint, which should provide protection from retaliation.

February 2
Private

Here is one scenario which happened with me. I was leading a team, as Team Lead, though I don't have title of Manager. One of my teammates was not happy about the aspirations he had and which were not getting made, I told him, he will need to talk with manager, and discuss but he did not listen and started shouting at me. Everyone on the floor was aware, even my manager, I dropped mail detailing the incident to my Manager, Senior manager, but for that incident I did not receive any proper response explaining what action was done. Later in performance review, it was held against me as I was not able to handle the situation. Please can you confirm if this was my responsibility to handle the situation?

Janine yancey bubble Janine Yancey

We are prohibited from advising on specific workplace situations. However generally, everyone should learn conflict resolution skills and these skills are even more necessary when leading a team - with or without the manager title.

February 2
Private

How could it be Quid Pro Quo? He just offered to discuss it over lunch. He didn't tell her if she didn't go to lunch he will give her a bad review or anything.

Janine yancey bubble Janine Yancey

The retail scene could be considered quid pro quo because the implication is that she needs to go to lunch with her manager in order to get her job done.

February 2
Private

Can you fire an employee if their productivity drops once they return from maternity leave? Let’s say they have been back for five months and you have already offered training and reasonable accommodations.

Janine yancey bubble Janine Yancey

It's possible to fire any employee for poor performance and poor productivity. When dealing with someone who returned from a legally protected leave (like maternity leave), you want to ensure you're partnering with your HR team and documenting clear performance expectations and documenting how the person fails to meet those expectations and sharing those communications with the employee so the situation is transparent to all parties. When you and/or your HR partner believe that any neutral third party would view the documentation and surmise a performance issue (rather than anything stemming from the maternity leave), then it should be relatively safe to let the person go.

February 2
Private

I've been at this place for over three months and my supervisor has made comments on my performance without doing a thorough checkup. Told me that I was slow. and then later I found out that she didn't know what projects I'd been working on. Then there are days where she ignores me, doesn't speak to me, but interacts happily with everyone else. It makes me feel really uncomfortable and I don't know what to think of the situation. Then there are days where she is nice again and then it seems to be repeating itself. I don't know what to think of this.

Janine yancey bubble Janine Yancey

We are prohibited from advising on specific workplace situations. However generally, it's a good practice to be proactive and get clarity on performance expectations for your role and then loop back and seek an assessment of how you're doing, asking for examples to support the manager's assessment.

February 2
Private

If someone wishes a fellow employee Merry Christmas - is that harassment - or do you always need to use Happy Holidays or something that cannot be perceived as religious?

Janine yancey bubble Janine Yancey

Wishing someone "Merry Christmas" is fine and not harassment. If you don't know if someone celebrates Christmas -- wishing them "happy holidays" is typically viewed as more inclusive as it covers several holidays.

January 29
Private

I have a co-worker who, off and on over the years, has been mean to me in that she makes negative comments to or about me, gives "scenarios" to others not naming me but indicating it's about me, she is rude to me or doesn't speak to me at all. She has gone long periods of time without speaking to me, and I never know why she quits speaking to me or why she begins speaking to me again. She has treated other employees in this office the same way or worse, but the two employees before me are no longer here. Most everyone here knows she is this way and she seems to find one person to "pick on," and with our current office employee role, it's me. I have asked her what I've done wrong and why she treats me this way, and she either doesn't answer, or in the last case, she responded with, "I don't have time for this right now I have stuff to do." I have spoken to the office manager and one of the attorneys, and both know how this co-worker is to me. My question is: How is my co-worker's behavior categorized as it relates to this training??

Janine yancey bubble Janine Yancey

Unless your coworker is making comments about you because of a protected characteristic like your race, age, gender, etc., then the situation outlined would fall under the "yellow" category on the Workplace Color Spectrum meaning, it's common personality conflicts/office politics. Situations in the "yellow" zone are problematic, but not legal issues. As a best practice, it's helpful to put concerns in writing in a professional manner and deliver the written communication to the coworker. Often people respond more to written complaints than to verbal feedback.

January 29
Private

It has been my experience that there is no stopping abuse and bullying. Any complaints only make the situation worse. How do you suggest people respond when their supervisor (who practices retaliation) treats them poorly, swears at them, snaps at them, yells at them?

Janine yancey bubble Janine Yancey

It's a best practice to summarize a problematic situation in writing and call out the behavior that offends you. Communicate what you see as the problem in a professional tone and deliver it to the supervisor with a copy to HR. Often people respond more quickly to a written communication than a verbal one.

January 29
Private

What if a third party is demoted due to complaint made by someone else? Like promotion they received that was not posted and co workers complained.

Janine yancey bubble Janine Yancey

We cannot advise on particular workplace situations. Most situations are very fact-specific and can vary greatly depending on the context, which is why we are unable to provide advice or opinions on particular workplace situations.

January 29
Private

If single person is ignored and kept out of all the group activities that entire team is organizing, is it also not a type of harassment? What action should be taken against the same?

Janine yancey bubble Janine Yancey

It depends on the facts and context of the particular situation. So for example, a group could be excluding an employee because of a protected characteristic (race, gender, age, etc.) or a group could be excluding someone due to personality conflicts or office politics. The first situation could be harassment but the second situation would not be.

January 29
Private

I've experienced 2 incidents where I wasn't sure if it was a form of harassment or not. I requested for FMLA before my childbirth and as soon as I sent out an email that I'm going to take 4 month leave, which I was legally entitled to, I heard my boss saying, "4 Month?!?!" as if he was in disbelief and a shocking tone that he couldn't believe that I was gone that long. I felt like I was doing something wrong. That was one incident, and another incident was that I decided to stay extend my leave for another 2-3 weeks because the nanny who was going to take care of the baby decided not to the last minute. Then I got the message from my boss and he put me pressure to come back earlier. I just want to know if these were the form of harassment. Thank you in advance.

Janine yancey bubble Janine Yancey

We are prohibited from advising on specific workplace situations. Having said that, one or two references to a person exercising their right to take leave generally would not rise to the level of creating a hostile work environment for the person. To create a harassment situation, you generally need a pattern of comments and conduct about a legally protected characteristic or someone exercising a right such as taking FMLA leave.

January 29
Private

What about the discrimination based on units within my company. There is an account team where I work. I have few projects in this account but the engagement manager and the account team are from a different unit. The engagement manager makes sure that only people from his unit get exposure to clients or other internal team and promotes only his people. I have requested him several times to let me meet the client at least for my own projects but he says no. The people in his group know about this discrimination and often make offensive comments during meetings which are at times very disrespectful. Can I report this? How?

Janine yancey bubble Janine Yancey

As generally outlined, the workplace situation where some account teams are treated differently than others seems to fall under "corporate politics" rather than constituting a legal or HR issue. Corporate politics are still a problem but they are a management issue. Therefore, it would be appropriate to seek guidance from HR or senior management to address what is potentially a team dynamics issue.

January 29
Private

If a female employee is complaining that the rumor/gossip around her is affecting the work productivity, then can she claim the harassment?

Janine yancey bubble Janine Yancey

It depends on the nature of the rumors and gossip as to whether the situation warrants a harassment complaint or perhaps some other type of complaint. Typically a harassment complaint would be based on comments or gossip about someone's legally protected characteristics (race, age, gender, etc.) and the conduct would be severe and pervasive such that it changed the nature of the workplace. If the situation is different than that, people can always seek help from HR to resolve employee conflicts and to make the workplace more positive and productive.

January 29
Private

Does making fun of people who, like these actors, use vocal fry, involve a protected classification?

Janine yancey bubble Janine Yancey

Every situation is unique and whether the situation involves a protected classification depends on the specific facts of that situation. Regarding the scenes shown in this course, some of them involved a protected classification and some of them did not and instead, reflected rude conduct that may be legal but not appropriate for the workplace.

January 29
Private

Chris continuing to use the nickname "princess" over a long period of time (when it was fairly clear from Joann's reaction that the name was unwanted), makes a case for this being "pervasive". The guidelines do not seem to take into account the frequency or duration of this situation. I would love to hear guidance on why the nickname seems to carry the same weight regardless of if it was a one time comment or an entrenched, habitual hazing.

Janine yancey bubble Janine Yancey

Excellent comment. At the end of the day, the fact finder makes an evaluation as to whether the unwelcome conduct is so severe or pervasive that it changes the nature of the workplace. Consistently calling someone a nickname they find offensive and gender related could meet that standard. This particular scene was based on a real situation where the fact finder found the name calling inappropriate but not pervasive enough to change the nature of the workplace. And certainly the evaluation of the situation would change if it involves 3 references to the nickname or 10+ references to the nickname.

January 25
Private

Was anything depicted in the first video sequence illegal?

Janine yancey bubble Janine Yancey

No. In the first video sequence where the software developer manager is being rude to his employee ... he's rude and not exhibiting good management techniques, but his actions probably would not constitute harassment.

January 25
Private

What if an alleged incident happened a few years ago. Can this incident be brought forward to HR/employer?

Janine yancey bubble Janine Yancey

Employees can always bring information to the HR team regarding past situations. However, it's helpful to know that legally, people can only bring a complaint within a year from the date of the last "bad" action. Even so, HR teams will want to know about past incidents if they have relevance to the current workplace situation.

January 25
Private

I've been having a situation with one of my colleagues, I'm new here and when I ask him questions he looks annoyed and irritated about it. I spoke with him and told him I was not comfortable with the situation, he apologized but then continued doing the same thing, but always but sometimes he still does. My second questions is about the same colleague; I heard from another colleague that he told him I was gay, which can make me think that he has done it with other colleagues. I think this is completely inappropriate because if I wanted to people to know, it should be my self the person saying this, I'm a very private person and there are things like this that I do not talk about at work because they are 100 private and personal. What is your advice for both situations?

Janine yancey bubble Janine Yancey

Our apologies but we are prohibited from providing "advice" on specific situations. Having said that, a polite but candid conversation with a coworker is good practice to minimize conflicts. Or, if you need help delivering a sensitive or challenging communication, you can always ask the HR team for advice and support on how best to have that conversation.

January 25
Private

Is it ok to share my religious beliefs with a co-worker?

Janine yancey bubble Janine Yancey

Sharing your religious beliefs with a coworker is fine. What starts to become an issue is when someone references their religious beliefs quite a bit and to the discomfort of coworkers -- particularly if the person sharing his/her religious beliefs has management authority over others. If the person is a manager, than subordinate employees may feel they need to be religious to be eligible for career advancement.

January 25
Private

In a meeting with an executive manager, the manager gets noticeably frustrated with the message they receive from the team ... the message coming back does not echo the vision they sought the team to develop at the outset, some 8 months back... the manager quotes that he is the executive, that he is the closest to the vision and that what he asked for should be delivered... later in the meeting the manager relaxes ... apparently this is a regular occurrence and many folks get "burned" by said executive... given the person is super remarkable/bright etc he is most often right... is there an issue here?

Janine yancey bubble Janine Yancey

As generally outlined, the situation doesn't appear to be an HR or Legal issue. Depending on all the facts and the context of the team meetings, perhaps the manager could leverage better management techniques for more effective and productive team dynamics. But that would be a management issue rather than an HR issue.

January 25
Private

Are people really discriminated against for "widowed" status?

Janine yancey bubble Janine Yancey

Typically, when a personal characteristic is specifically identified in a regulation, it's because there are enough social examples of that problem that the legislators feel compelled to address it.

January 25
Private

If you have been harassed and never talked about it for years can you still report it?

Janine yancey bubble Janine Yancey

People can always report to their employer when they feel like they've experienced harassment in the workplace. Legally, people need to file a claim within 1 year of the last "incident" or bad act that is the subject of the complaint.

January 25
Private

I find people conversing in another language other than English offensive.

Janine yancey bubble Janine Yancey

There are productive ways to address the situation and problematic ways to address that situation. Ideally, you want to tell people that you feel excluded and uncomfortable when they converse next to you in a language you can't understand and would they mind speaking English when around you. Conversely, it would be a problem to tell coworkers you don't like them conversing in their native language. That type of statement could easily offend most people and it may sound discriminatory as well.

January 25
Private

What is it considered when the HR team does NOT resolve people issues?

Janine yancey bubble Janine Yancey

As a general best practice, employees should connect with senior management if and when they feel the HR team is not responsive and/or fails to address known issues.

January 20
Private

Yes, it has been indeed lot of information, do you have a quick reference sheet so we can memorize and thoroughly put it in practice?

Janine yancey bubble Janine Yancey

Yes, we do have a reference sheet. If you log back into the course and click on the left menu slider -- the bottom tab will show you a resources button. If you click "resources," you'll see a printable guide to the course.

January 20
Private

Sexual Orientation seems to be missing. Discounting this in a course like this seems to be an intentional slighting of this class and can lead to those taking this course thinking this class is somehow inferior to the others mentioned. I will report this to my employer. Why would this be excluded?

Janine yancey bubble Janine Yancey

It seems there may be a misunderstanding? Sexual orientation is identified in the protected characteristics many times -- both in the body of the course and in the map of protected characteristics.

January 20
Private

Curious to know if there is any sort of a cheat sheet/decision tree that would help with making decisions or judgments about a particular situation.

Janine yancey bubble Janine Yancey

Excellent question! We have created a print out of the workplace color spectrum and we can send that to you? The goal is to stay away from the orange section, and if you're in orange, to go back to yellow quickly. You're in orange any time people are making comments or taking actions based on a protected characteristic. You get further into the orange zone and approach red when the conduct is: unwelcome severe and pervasive If you like, we can create an infographic for you.

January 20
Private

How do you differentiate between an employee who is going through a difficult emotional situation? Won’t the symptoms be similar?

Janine yancey bubble Janine Yancey

There may be some overlap of symptoms between a depressed emotional state and drug & alcohol usage. When in doubt, confide your suspicions to an HR business partner and get another opinion.

January 20
Private

The description of Medical Condition refers specifically to either cancer or a genetic issue. What about other medical conditions such as diabetes, heart disease, hearing or visual impairment, etc. ?

Janine yancey bubble Janine Yancey

Medical condition is specific to cancer or a genetic issue because of a specific lobbying effort to get those conditions specifically referenced. Many other medical conditions would be covered under disability protections.

January 20
Private

Hi there - just trying to understand this a little better... are the following (from the New York info on the map) considered "yellow"? Race, Color, Creed, National Origin, Sex, Age, Disability, Sexual Orientation, Military Status, Familial Status, Marital Status, Domestic Violence Victim Status, Arrest or Conviction Record, and Predisposing Genetic Characteristics. There is no individual (personal) liability for harassment.

Janine yancey bubble Janine Yancey

No. What you have listed are the legally protected characteristics - meaning any actions or comments based on those traits are automatically in the "orange" zone since they are supposed to be "off-limits" in the work context.

January 20
Private

I'm sure it's in another section, but would the way we dress be considered an inadvertent form of harassment? (in the case that myself or a colleague would wear something scandalous or a little too suggestive?)

Janine yancey bubble Janine Yancey

Yes, that's correct. The way someone dresses (e.g., too revealing or unprofessional for work) could be considered when evaluating a harassment situation.

January 20
Private

How does it impact harassment if the complainant is the manager of the team? How can a Manager complain to HR that the employee team is harassing when s/he did nothing to curb the supposed discussion (as a manager).

Janine yancey bubble Janine Yancey

It's difficult for a manager to claim harassment from his/her team because theoretically, the manager has the power to discipline the team for inappropriate conduct. From that perspective, the manager is really looking to partner with HR to validate and reinforce the assessment that certain actions from team members are inappropriate and/or harassing.

January 20
Private

In these situations in this course, you have an outside HR firm that is doing the investigating - a third party that is objective. What if the possible harassment situation is with our local HR? We cannot go to them to lodge the complaint? Who do we go to if we find the issue is with ourselves and someone in HR?

Janine yancey bubble Janine Yancey

You can always lodge a complaint and specifically request an impartial investigator. The impartial investigator can be someone from senior management or a 3rd party investigator.

January 20
Private

Can a workplace opt for a hostile work environment. Have employees, before they are hired, opt out of their rights?

Janine yancey bubble Janine Yancey

Asking new hires to "waive" their right to a respectful, professional workplace would not work from a legal or a practical perspective.

January 20
Private

A medical condition is only related to a diagnosis of cancer or a genetic disorder? What if a colleague had kidney disease? Would that be a disability?

Janine yancey bubble Janine Yancey

Yes, kidney disease would be protected under disability. Medical condition is very specific due to some specific lobbying efforts regarding the conditions referenced.

January 20
Private

Normally, I found working as vendor, our work is not much appreciated. But the team from company side is been appreciated. What would be this kind of behavior can be classified as?

Janine yancey bubble Janine Yancey

Generally, appreciation for the different units or functions of an organization would fall under corporate politics or management issues.

January 11
Private

What exactly is the HR role when there is conflict or problems in the workplace?

Janine yancey bubble Janine Yancey

The role of the HR team is to help employees navigate and resolve all "people issues." As HR professionals advise and support employees, the workplace functions more efficiently. HR professionals are the "workplace experts."

January 11
Private

Is it harassment if a manager tries to rally employees to falsely complain about an independent contractor in order to get the independent contractor removed?

Janine yancey bubble Janine Yancey

Rallying or persuading employees to make false complaints about an employee or independent contractor is not a harassment issue, but it is an ethical issue and probably a violation of an employer's code of conduct since it involves communicating false information.

January 11
Private

What can an employee do if they've reported harassment and the employer turns it against the employee?

Janine yancey bubble Janine Yancey

When there's conflict, it's a best practice to document events and conversations in writing and share the summary with all parties to ensure people are understanding each other and to minimize misunderstandings. A benefit to documenting events is that it typically prompts people to slow down and think about their actions and comments from a different perspective.

January 11
Private

Can an action (verbal or physical) be considered harassment even if it is not based on a protected characteristic if an employee still feels like they are receiving unwelcomed attention?

Janine yancey bubble Janine Yancey

No. In order to be considered harassment, actions or comments must be based on a protected characteristic. Without the protected characteristic, actions can be rude or impolite, but not harassment.

January 11
Private

[Forms of Harassment] "Offensive screen savers, emails, texts, instant messages, websites, or social media postings." Can you please elaborate in specific detail what types/timing/content of social media posting can constitute workplace harassment? This is unclear when it is not within the workplace/during employment hours.

Janine yancey bubble Janine Yancey

Even when social media comments are posted outside the workplace and during non-working hours -- if the comments are directed at or shared with co-workers, there's always the possibility that the off-duty comments create conflict, which "spills over" into the workplace. Every situation is different, but depending on the facts, it is possible to create a workplace harassment issue from off-duty social media comments.

January 5
Private

If a coworker told you in confidence and outside work they were touched inappropriately by a customer/contractor our company works with, but the incident took place at a non work function is it the supervisor’s responsibility to report it to HR. Also on that the coworker asked nothing be said because they felt the situation was handled by them (i.e. telling the person that was unwelcome, inappropriate and not to do it again. And also by limiting /avoiding being alone with the person).

Janine yancey bubble Janine Yancey

Yes -- even if the person shared a client experience in confidence - it is the supervisor's responsibility to inform HR so the organization is in a place to ensure a safe, respectful workplace, which is a legal obligation for every employer. HR may not feel the need to take further action if the employee already addressed the situation. But if handled discreetly and skillfully, a supervisor and HR professional can make the employee feel supported, which is a win/win -- it manages risk and liability for the employer and at the same time, it potentially fosters a better workplace culture for the employee.

January 5
Private

Wonder how to address when a person, who has a federal & state protected characteristic makes comments or jokes about himself? For example, a person with a disability joking about their disability with their coworkers. Is there a need for management to intervene?

Janine yancey bubble Janine Yancey

Yes, people can still cause workplace problems even if they're using nicknames or jokes to describe themselves if other people are around them -- and depending on the nature and severity of the comments. For example, let's say two employees are joking about someone being "the Nose" and that conversation expands to reference whatever race or culture they associate with "the Nose"... then all of a sudden you have comments based on a protected characteristic and others in the workplace could find those comments offensive -- particularly if they share that same protected characteristic under discussion. In these situations, managers should intervene to minimize these types of comments/jokes in the workplace.

January 5
Private

It says "Taking a potential client out to lunch is an appropriate activity." - Here, as the contract is not in place (Potential client as against "the client"), would it be appropriate from Client's perspective to accept the lunch offer ?

Janine yancey bubble Janine Yancey

Typically, accepting a lunch invitation from a vendor or partner is appropriate but review your company's gifts and entertainment policy (if there is a specific policy or provision within the Code of Conduct) for more detailed information.

January 5
Private

So if I have a personal problem with a fellow employee. And I don't like being in the same room with them. Simply leaving when they come in is a form of unwelcomed harassment? I have done nothing verbally or talked behind their back. My actions alone can result in me getting in trouble ?

Janine yancey bubble Janine Yancey

Simply leaving a room to avoid contact within another employee is not a form of harassment. Ideally, the person's departure does not become a spectacle in and of itself -- making others feel uncomfortable.

January 5
Private

Is there a statute of limitations for harassment?

Janine yancey bubble Janine Yancey

Yes. Every state has its own statute of limitations. For example, California has a 1 year statute of limitations meaning you have 1 year after the objectionable conduct to file a claim. In California, people must file a claim with the DFEH (dfeh.ca.gov) before they are able to file a lawsuit.

January 5
Private

Is it inappropriate to refer to a job applicant as a "black person or black guy" in the context of describing someone?

Janine yancey bubble Janine Yancey

It's certainly not an ideal way to describe someone since the hiring group should be focused on skills or prior experiences -- not on irrelevant personal criteria such as skin color. So as a best practice, people should take the extra effort and think of another identifying characteristic to remind others which candidate is under discussion. Try referencing the person based on his educational background or last employer rather than his skin color.

January 5
Private

For workplaces that would be considered "green," what are promising practices we can utilize to create an even more safe and inclusive work environment? What are some metrics or criteria you can share that can help us get to that "next level?" Additionally, aside from the fact that a hostile work environment lowers productivity, what are some other ethical arguments you would give for why employers should invest in improving their work environments?

Janine yancey bubble Janine Yancey

Thanks for your question. It takes a constant commitment to foster a "green" productive workplace. A constant commitment would include corporate communications about workplace issues, publishing video clips to raise awareness, refresher courses. We are also releasing a Managing Unconscious Bias course in February that will help people make better decisions and foster greater diversity and inclusion. In terms of metrics, we are developing functionality to reveal and capture aggregated learner feedback (per organization) to indicate trending workplace concerns so we can share with our employer community. We anticipate having helpful business intelligence to share with our employer community by Q2. Lastly, the ROI for investing in activities to foster a "green" workplace include increasing recruitment and retention, increasing productivity and bolstering employer brand and reputation in the market and community. I hope this is helpful!

January 5
Private

I was surprised by an example used awhile back: 2 employees self identify nicknames for themselves, "Fro" and "Nose" and use these for online communications. I get that a protected characteristic is in play here, but since the employees self-identified this way, I don't see why it's an orange situation. It wasn't other staff labeling them this way, etc. Seems it would be a yellow situation - not using good judgment, etc.

Janine yancey bubble Janine Yancey

People can still cause workplace problems even if they're using nick names to describe themselves if other people are around them -- and depending on the nature and severity of the comments. For example, let's say two employees are joking about someone being "the Nose" and that conversation expands to reference whatever race or culture they associate with "the Nose"... then all of a sudden you have comments based on a protected characteristic and others in the workplace could find those comments offensive -- particularly if they share that same protected characteristic under discussion.

January 5
Private

I manage a 40+ male who tends to "wear his feelings on his sleeve". In other words, if he's not having a good day you know it. I occasionally, when I see / hear what I call "negative internal customer service", I will have a coaching & counseling session (i.e. ask if he wants to talk about it; give him positive things to think about & offer options, etc.) and usually that will "turn him around". However, when I'm not around, I do get some feedback from Team Member who sit around him. His behavior will sometimes make them feel uncomfortable; of course I hear from them, which is how I know. I do follow-up; however if this happens repeatedly, does my company have to worry about those around "him" filing a suit?

Janine yancey bubble Janine Yancey

The law doesn't guarantee a great or even a pleasant workplace. In fact, most of the issues or concerns that employees have with their employer are not legal issues but non-legal, workplace concerns. Whether or not an employer has harassment liability for someone's behavior depends on whether that behavior concerns someone's protected, personal characteristic such as race, gender, age, religion, etc. Providing "negative internal customer service" sounds more like a performance issue rather than a harassment issue, with the disclaimer that evaluations of each situation are really fact specific and depend on the details.

December 28
Private

What are the consequences for managers who had staff worked unpaid overtime?

Janine yancey bubble Janine Yancey

It depends on the individual organization and a specific assessment of whether the manager acted out of ignorance or acted based on a desire to "hide" the overtime hours. In either situation, the managers' actions regarding having non-exempt employees work overtime and not tracking or paying for the overtime hours can trigger liability for the employer. For more information, you can take the wage and hour course (30 minutes) to provide a quick overview.

December 28
Private

If a male co-worker has a sex change and you still occasionally call him "dude": Would that be considered harassment?

Janine yancey bubble Janine Yancey

When a co-worker is going through a gender transition and people occasionally refer to the person by the former name or gender, most people would perceive it as unintentional and an expected element of that particular workplace situation, and therefore not harassment. However, if co-workers repeatedly call someone by the wrong name and/or identify them as the wrong gender over a significant amount of time, then people could perceive that conduct as harassment based on someone's gender identity.

December 28
Private

Earlier in the training, in the example of the workplace relationship between a supervisor and employee, the situation was said to fall in either the orange or red workplace color spectrum, but which protected personal characteristic would that be? If it's not due to a protected characteristic, then other situations are able to be in those color spectrums, correct?

Janine yancey bubble Janine Yancey

Whenever there is a romantic relationship at issue in the workplace, then the protected characteristic would be the employee's sex.

December 28
Private

What would you do if your male boss favors a female employee & does most of her work for her & tells anyone who complains that she is doing the work, though she is not bright enough to understand or undertake the work, i.e., gives her credit, & spins the actual situation so as to bring the morale of the other employees in the department down?

Janine yancey bubble Janine Yancey

When there is a manager that favors one employee over others and it appears the preference is unfair and unwarranted, the best workplace practice would be to outline the situation in writing as professionally and neutrally as possible and indicate the negative impact on team morale, productivity and workplace culture since the manager has a "favorite" that does not appear anchored to business reasons. Then send the written summary to your HR team requesting their professional assistance to ensure the manager in question is utilizing the best possible management techniques. HR professionals are skilled at navigating complex workplace situations and advising both managers and employees to perform at a higher level.

December 28
Private

I live and work in New York City. Why is California law applicable in my case?

Janine yancey bubble Janine Yancey

California law would only be applicable to you if you manage employees in California. Otherwise, check the Map of States in the course content to see the protected characteristics within New York.

December 28
Private

What if a colleague comes storming into your office and continuously complains to others about the way things are being done?

Janine yancey bubble Janine Yancey

When a colleague consistently acts negatively and unprofessionally, it's a best workplace practice to politely and professionally let the person know the impact of his/her actions on you and how the person can respond to a difficult situation in a manner that is more positive for you.

December 21
Private

I'm a little chubby and there is this co-worker that keeps calling me teddy bear, it’s making me feel uncomfortable.

Janine yancey bubble Janine Yancey

A good practice would be to gently tell your co-worker you don't care for the "teddy bear" comments. Be nice, but clear.

December 21
Private

Why is HIV/AIDS considered a disability rather than a medical condition?

Janine yancey bubble Janine Yancey

California state lobbyists and legislators outlined specific conditions when defining "medical condition" based on what they perceived as a gap in employee protections. Given that HIV/AIDS is specifically referenced in disability laws, there's less social need to address it in other regulations.

December 21
Private

Would not Jeff and Navid's response to the Sambo's comments constitute a notification that the jokes were "Orange"? Seems like they did and yet the analysis says they did not.

Janine yancey bubble Janine Yancey

Both Jeff and Navid certainly made it clear they did not appreciate or "welcome" the Sambo's comments and other off-color comments. The analysis focused more on the question of how severe and pervasive the conduct was versus how unwelcome it was. In the Jeff and Navid situation, the analysis was that the conduct was not severe or pervasive enough to negatively alter the nature of the workplace and create a hostile work environment.

December 21
Private

Where can I find a list of examples of sexual harassment?

Janine yancey bubble Janine Yancey

You can find common examples of sexual harassment in your employer's policy and/or the course has a reference guide that is accessible under "resources" at the bottom of the left menu tab.

December 21
Private

What about third-party harassment claims?

Janine yancey bubble Janine Yancey

Yes, it's possible for a third party or bystander to "harassment" make a claim for a hostile work environment.

December 21
Private

Policy Acknowledgement: The Information Security Policy document is about 100 pages and relates to the entire organization security policy. I was wondering if I can go over the entire document and understand it in few minutes or in one go.

Janine yancey bubble Janine Yancey

You can print out the information security policy so you have it for future reference. Also, you may want to view the table of contents to view information that is most relevant to your situation.

December 21
Private

Does this mean that you cannot have a hostile work environment if the employer didn't know?

Janine yancey bubble Janine Yancey

The rule is that the employer needs to know, or the employer should have known because the conduct is so obvious to everyone throughout the workplace. Without that knowledge or presumed knowledge, there cannot be a hostile work environment.

December 21
Private

If you witness a co-worker (A) joking encouraging a colleague (B) to pursue a romantic relationship with another colleague (C), and B does NOT respond to the verbal joking ... as a witness (W) who is a superior in level, but NOT a direct manager to A or B, should W ... 1) approach A to recommend A stop making those jokes; 2) approach B to ask whether B is uncomfortable with the jokes & if so, suggest to B to ask A to stop; 3) tell A's direct manager (D) and recommend that direct manager approach A about stopping; 4) other suggestions (e.g. when should HR be engaged)??

Janine yancey bubble Janine Yancey

We are prohibited from providing guidance on specific workplace situations. However as a general best practice, a person should feel comfortable advising a co-worker that his/her joking comments do not seem to be welcome and are probably not a good idea for the workplace. If the workplace situation warrants a more proactive approach, then it would be appropriate to loop in a relevant manager so the manager could address the situation.

December 17
Private

Who is responsible for providing proof of harassment? The injured party or HR?

Janine yancey bubble Janine Yancey

The injured party who is complaining has the burden of proof.

December 17
Private

How do you determine what is actually management addressing lack of performance and harassment. Where is the line drawn?

Janine yancey bubble Janine Yancey

The general guideline is whether management's actions are anchored in business reasons. So for example, on a performance evaluation, you would want to see that the manager is focusing on work skills and performance of duties, which would be appropriate. If the manager focuses on personal characteristics that have no bearing on work, that would be inappropriate.

December 17
Private

I agree that Theresa could be bullying, but she does have a stake in the company. How should that have been approached if someone was actually trying to help without it looking like bullying or intimidation? This type of training just makes me want to put my head down and do my job and NOT get involved at all even if I see something questionable going on... A person trying to help getting this turned around on them and thought to be intimidating? It doesn't make much sense to me. This seems similar to a crash situation where someone tries to help a crash victim and then gets sued for helping.

Janine yancey bubble Janine Yancey

Certainly it can be frustrating when a manager is trying to resolve or de-escalate a problem and then someone complains about their good intentioned efforts. A best practice would be to slow down and look at how your actions could be perceived and then adjust course. So for example, Theresa could have thought the situation through a bit more and then modified her comments to Joanne so she didn't imply that Joanne couldn't complain to anyone but her. Maybe if Theresa kept her comments to: "hey, I'd like to be supportive if I can. You can always reach out to me and I'll help if I can." -- that message may have been received as more supportive and less threatening. It's all about thinking through the actions and possible reactions before you do something.

December 17
Private

If both parties are always making jokes about things but one day the other person is offended about things but one day the other person is offended about a joke that was made. Can this be a grounds for a harassment claim against the other person?

Janine yancey bubble Janine Yancey

It always depends on the full context of the situation and all the details. But yes, it's possible to engage in a consistent joking dialog and then all of a sudden, one of the parties to the conversation gets upset and complains.

December 17
Private

Is there a statute of limitations for such complaints?

Janine yancey bubble Janine Yancey

Yes. In California for example, there is a 1 year statute of limitations to bring a complaint. The statute is 180 days if filing with the federal agency.

December 17
Private

A doctor that I work with often references age of one of the staff members. The staff member laughs but it seems uncomfortable. When does it become harassment?

Janine yancey bubble Janine Yancey

There's no clear cut answer. It all depends on the general context and all the details of a situation. Theoretically, actions become harassment when the complaining party can't tolerate the workplace anymore. But that's a broad standard so it always comes down to a specific inquiry in each situation.

December 17
Private

How do you resolve issues when there are two conflicting protected classes? I'm a transgender woman and I would feel that a workplace was hostile if I were not allowed to express my gender, but at the same time there are certain flavors of fundamentalist Christianity that would claim that having to work in a place where I'm free to express my gender is hostile to them.

Janine yancey bubble Janine Yancey

Generally, a person does not have the legal right to express his/her religious ideas in a manner that violates the legal rights of a co-worker. So in a private workplace, a religious fundamentalist cannot insist that a co-worker abridge his/her legal right towards gender expression because that expression conflicts with their religious views.

December 17
Private

Does uniformed services means military?

Janine yancey bubble Janine Yancey

Yes.

December 11
Private

I am curious why cancer and genetic condition seem to be the only conditions listed under medical. I realize ADA is broader, but surprised that medical condition is so narrowly defined.

Janine yancey bubble Janine Yancey

Regulations are often "cobbled" together as a result of specific lobbying efforts, and to address specific situations that are not covered by other laws. Given that the ADA and corresponding state disability laws are so broad, cancer and genetic condition were probably two specific situations that needed further legal coverage.

December 11
Private

I noticed that there are no references to a violent workplace. Some employees are complaining that they don't feel safe at work. What would be a good way to deal with this issue since it doesn't seem to be a protected status.

Janine yancey bubble Janine Yancey

There is a workplace violence course Included in the Essentials Library, which provides some practical, helpful guidelines on what to do when threatened with workplace violence. Please request the Preventing Workplace Violence course as you have automatic access to it.

December 11
Private

Omitting a temporary worker's last name, who happens to be a black Muslim female, on the updated work telephone directory. Is this a form of harassment or bias to neglecting to asking her last name?

Janine yancey bubble Janine Yancey

One instance of omitted a temporary worker's last name would not be viewed as bias or harassment as the action is not severe or pervasive and it's a question as to whether the omission could be viewed as conduct relating to someone's personal, legally protected characteristic.

December 11
Private

Why is it that only the white people are the racists in this video?

Janine yancey bubble Janine Yancey

The course shows a two women harassing as well. However, the scenes illustrate real cases in the last 24 months ... and most of the high profile cases revolved around the actions of white men who held positions of influence within the organization.

December 11
Private

Is calling a staff member fat periodically workplace harassment?

Janine yancey bubble Janine Yancey

No. Only Michigan protects someone's size and weight, and even then, the comments would need to be pervasive to create a harassment situation. Remember, workplace conduct can be insensitive or rude ... but not a legal problem.

December 11
Private

Are managers often personally sued in California? Is this a common event in California? Do employers in California usually pay for the defense of manager who are being sued? Finally, do employers also cover the damages if the manager loses the case?

Janine yancey bubble Janine Yancey

Typically managers are not sued in their individual capacity, however it can and does happen in California. When it happens, the employer pays for the costs of defense. Theoretically, the employer has the right to deny paying costs if a court or jury determines the manager acted illegally and outside the bounds of his/her job. But I believe that type of situation rarely occurs.

December 8
Private

Is it illegal to ask an applicant if they are in any branch of the service that would possibly take the applicant away from their job, if hired, for an extended period of time?

Janine yancey bubble Janine Yancey

Yes -- any questions about service in the military could be perceived as discrimination, which is prohibited. Here's more information about protections for people who serve in the uniformed services: http://www.dol.gov/vets/usc/vpl/usc38.htm#sub2

December 8
Private

Are managers expected to investigate issues? Is it recommended to report them to HR?

Janine yancey bubble Janine Yancey

No. Managers should refer issues or claims to the HR team. The HR team has professionals who are trained at conducting investigations.

December 8
Private

What if a manager responds to the lack of initiative and support it is getting from its staff by saying to the team that they don't care about the manager or the team if they are not offering to help or taking initiative watching everyone around them doing work and they are just idly watching. One of the team's response is you made us feel guilty so we just remained silent.

Janine yancey bubble Janine Yancey

Is your question about whether the manager's statement would be appropriate? Team morale is influenced by respect, inclusion (discrimination and harassment issues) as well as communication and teamwork skills. Often, when a manager or people on the team lack strong communication or teamwork skills, personal interactions cause conflict and that conflict can be perceived as harassment. Most often, that interpersonal conflict is a workplace issue, but not a legal issue. A best practice is to strengthen everyone's communication and teamwork skills to minimize workplace conflict. We have courses on both topics in the Essentials Library and they are available for your use.

December 8
Private

Hi there, I do actually have a question about this. It's splitting hairs, but I am curious. As I understand it, there are 2 types of harassment claims - quid pro quo (manager requiring something romantic in exchange for positive assessment of subordinate) or hostile work environment which involves one of the protected classes. Before Rob was promoted, and he and Susan were coworkers, and after they broke up, he was clearly "harassing" her in colloquial terms to the point at which Susan found work difficult, avoided him and her coworker noticed the signs. But the first question in "The Findings" asks "is their a protected characteristic at play here?" and the system says the correct answer is "yes." I'm unclear about what it is. When he is Susan's supervisor there is clear quid pro quo harassment, and as coworkers there is certainly "harassment" of a romantic nature, but I'm unsure what protected class romantic harassment between coworkers falls under. Thanks for steering me in the right direction!

Janine yancey bubble Janine Yancey

The protected characteristic would be gender as Rob was pursuing Susan in a romantic fashion and based on her gender.

December 8
Private

So you can’t have Nativity scenes or crosses, can you have kwanzaa candle or Chanukkah lights outside your cubicle?

Janine yancey bubble Janine Yancey

Same rules apply for all religious symbols; personal religious decoration is fine within personal space. Religious decoration within the common areas of the workplace should be respectful and inclusive. That does not necessarily mean you need to reflect every possible holiday. But it does mean that people should "check-in" with their colleagues and get input as to which holidays and which decorations people would like to see reflected in the common space.

December 8
Private

What's the best way to keep up to date on changes in harassment laws?

Phyllis bubble Phyllis Cheng

Review our site, www.emtrain.com. It's our job to keep everyone abreast of legal changes in workplace law.

December 8
Private

What if you and your friend took a 15 min break and found a secluded spot to talk and joke with one another. due to how close you and your friend are the jokes can get rather extreme but are not serious or have any truth behind it and normally include yourself or your friend on the insult of the joke. these jokes can range from sexism to racism or complete absurdity. As you and your friend joke you make a sexist joke about general female attributes and have yourself as the punchline, but then a female worker happened to find your secluded spot walked quietly to listen in on your subject matter and was Livid and insulted by the jokes content despite her effort of trying to sneak up and listen to the joke without them knowing. Who is in the wrong?

Janine yancey bubble Janine Yancey

We are prohibited from commenting on specific workplace situations such as the one you outline. Having said that, generally, two co-workers who are good friends should be able to have a private conversation on any topic without fear of offending others in the workplace. If the two co-workers take effort to be private and a third co-worker tries to "listen in" on what is essentially a private conversation -- that third co-worker would be hard pressed to claim offense when the comments were not made publicly.

December 8
Private

How should I tell someone who has symptoms of contagious illness to stay home or see doctors?

Janine yancey bubble Janine Yancey

Be respectful and polite, but also explain that you prefer not to work near sick people as you don't want to get sick. Ideally, co-workers can see that staying home when sick is also showing respect and courtesy for their colleagues.

December 8
Private

i definitely feel a lot of these gender related issues coming up, but i'm scared to say anything. who are we supposed to talk to at the company?

Janine yancey bubble Janine Yancey

You can always go to your HR team and let anyone within HR know that you don't have a "complaint" necessarily but you believe there maybe some unconscious gender bias present in the workforce. Also, if you have specific concerns, you can share them here and we will convey them anonymously to the appropriate staff people.

December 3
Private

Is it wrong for a person who is training you to ask you to do work that would restrict how much time you have to complete your required task? Then them telling a supervisor you are not completing task in a timely manner and withhold training material, because they believe "you should already know these things"? Also, is it wrong for co-workers/supervisors to be little you because of a mental diagnoses/disability? For example: "We don't want to stress you out..." or "If this is just too much for you, maybe you need to change/move to a slower location?"

Phyllis bubble Phyllis Cheng

We are prohibited from commenting on specific workplace situations such as the one you outline because whether a situation is "wrong" or "inappropriate" depends on the full context of the situation and requires a detailed evaluation. However generally, people should seek the guidance from their HR team if and when they are dealing with co-workers who are not acting respectfully and/or undermining someone's chances for job success.

December 3
Private

How long can one wait if afraid to speak about harassment. (months,years)

Janine yancey bubble Janine Yancey

The statute of limitations on harassment claims is 1 year from the date of the incident or those actions that are the subject of the complaint.

December 3
Private

I'm not clear about bullying. This doesn't seem like a protected characteristic. Can bullying ever turn "orange"?

Phyllis bubble Phyllis Cheng

Bullying cannot be "orange" because is can never be illegal. The U.S. does not have a law prohibiting workplace bullying. However, bullying harms the workplace culture so it is considered "yellow" on the Workplace Color Spectrum.

December 3
Private

May we get a copy of this presentation's slides to use in the future for a reference guide or refresher?

Janine yancey bubble Janine Yancey

Certainly. If you log back into the course, there's a menu on the left side of the course. At bottom of the menu is a tab for Resources. Click the Resources tab and you'll see the course guide.

December 3
Private

Are harassment and a hostile work environment the exact same thing?

Janine yancey bubble Janine Yancey

A hostile work environment is a type of harassment.

December 3
Private

Can I have a hard copy of the Protected Characteristics types?

Phyllis bubble Phyllis Cheng

If you log back into the course, there's a menu on the left side. Click that menu and at the bottom you'll see a Resources tab. Click the Resources tab and you'll see a course guide, which you can print. The course guide outlines the protected characteristics.

December 3
Private

Is gossiping or talking behind someone's back, (not necessarily about protected characteristics), on work behavior, a form of workplace harassment? Such gossip creates negative influence on workplace environment.

Janine yancey bubble Janine Yancey

If the gossip does not reference or pertain to a protected characteristic, then it's negative workplace conduct, but not harassment.

December 3
Private

As a Catholic, I have a cross on my desk, and I want to put a very small Nativity scene during Advent/Christmas season. Is it OK? (I would be dismayed if not!)

Janine yancey bubble Janine Yancey

Generally, decorating your personal workspace is fine... it's the common areas that get a bit tricky.

December 3
Private

It would seem that the case studies discussed in the training are predominantly when the reason for discrimination/harassment is explicit - for example, comments about racial background. But this is seldom the case, isn't it? Discrimination because of race, gender, origin, etc. generally would occur without "announcement" and is more subtle. Are there techniques for managers to learn to identify such situations?

Janine yancey bubble Janine Yancey

Certainly there is a lot of unconscious bias that impacts hiring, team and career development decisions. Some of the unconscious bias may constitute discrimination but much of it does not. The key is to be aware of those situations that do not present a level playing field or provide respect for everyone.

November 30
Private

Orange (Protected Personal Characteristic)?

Phyllis bubble Phyllis Cheng

Yes. If conduct involves any legally, protected personal characteristic, it shifts into the orange zone.

November 30
Private

Will all of this information be available on-line / as an App when completed? It's a lot of information.

Janine yancey bubble Janine Yancey

This information is available 24/7 online -- just use your login and password to access anytime. Also, we are launching an App in 2016 that allows people to ask workplace questions at any time to get guidance and best practices.

November 30
Private

As a manager, how do you address negative talk when it doesn't happen around you however it's obvious that it is happening by how quiet things get?

Phyllis bubble Phyllis Cheng

Addressing negative chatter and morale issues is difficult because the very nature of these situations is that people are inclined to view statements or actions as skeptically as possible. With that mind, it's generally a good practice to invite team feedback in any way that is comfortable for people and state that the goal is to increase teamwork and improve the workplace culture. Genuinely, people will engage in a dialogue if they perceive there's a genuine effort to improve team dynamics and workplace culture.

November 30
Private

Why is it that (nearly always) it seems these types of trainings have "stereotype" problems in the illustrations? The men are usually of a straightforward build; the woman are usually of a curvaceous frame, etc.

Janine yancey bubble Janine Yancey

Typically, these training courses illustrate the most recent workplace conflicts and claims. Training vendors don't make them up. So the "stereotype" conflicts are not stereotypes .... they're the real deal.

November 30
Private

If a supervisor or manager is constantly belittling or talking down to a group or division and we all tell him that he is being too aggressive and he continues. Then we talk to his immediate manager. Then also to the manager's manager and so on... and they don't do anything about it what can we do?

Janine yancey bubble Janine Yancey

Generally, HR is a better resources than line managers because HR staff are trained and experienced in coaching managers regarding their communication and management styles. So you can seek help from HR and just clarify that you're seeking coaching for a line manager to increase that person's skill-set before his/her weakness results in a recruitment and retention issue for the team. Additionally, we can convey that message to your HR team anonymously if you like. We just need the name of the manager and a brief description of the communication problems.

November 30
Private

Can a manager be harassed by a subordinate if they continually talk negatively about them to other, and make false claims?

Phyllis bubble Phyllis Cheng

Theoretically no because the manager should have the ability to discipline or fire the subordinate for his/her conduct, and stop the offensive conduct.

November 30
Private

When it refers to inappropriate posts on social media, is it referring to my personal account?

Janine yancey bubble Janine Yancey

Yes. In limited circumstances, a person's communication on social media sites could harass people within the workplace. Depending on your position within the organization and the connection between comments on social media and the possible impact to employees in the workplace -- some social media comments may not be appropriate.

November 30
Private

The video said that bullying is not illegal. If there was a sexual overtone to the bullying, I assume that it could be considered a sexually hostile environment and therefore, illegal. Do you agree?

Janine yancey bubble Janine Yancey

Yes, if the bullying actions were based on sex or gender, then those actions could be viewed as potential sexual harassment.

November 30
Private

My boss asked me to meet with a staff member who has been on FMLA and ask her to cut their hours back by 10 hours per week so that we can "someone who is more passionate about their job" Is this a form of FMLA discrimination?

Janine yancey bubble Janine Yancey

We are prohibited from commenting on specific workplace situations such as the one you outline here. However generally, any communications with someone on FMLA/CFRA leave should be viewed by someone from your HR team to ensure the communication is appropriate and legally compliant.

November 30
Private

Some employees in the workplace are gossiping about a suspected inappropriate relationship between a manager and an employee whom he indirectly or directly supervises. There is absolutely no inappropriate behavior or relationship between them, but because the employee feels she can talk to the manager about issues affecting her career, some in the workplace assume there is something more. It is negatively impacting the workplace. What is the best way to address this situation?

Phyllis bubble Phyllis Cheng

This is a pretty common situation and yes, it negatively impacts the workplace. In these types of situations, the best practice would be to leverage the assistance of HR and have HR remind everyone that gossip about people and workplace relationships can be very negative, harmful to the workplace culture, and potentially offensive to the people who are the subject of the gossip. In very negative situations, gossipers can be subject to discipline. On the other hand, if someone has a concern or complaint about the workplace, the person should communicate the concern to the appropriate personnel so it can be addressed.

November 30
Private

The example provided within the module was described as yellow and orange behavior that had not crossed the line to red (illegal) behavior. If an employee is experiencing harassing behavior from management, is then criticized for not delivering quality work based on the expectation that she stay after normal working hours in the event she may miss critical information to perform her job, it doesn't seem like management had a reasonable argument for dismissing her work but rather was creating a scenario to retaliate. What is the company's position on resolving the yellow and orange offenses and what steps are taken to prevent retaliation against the employee? How would the example manager have been coached or disciplined in this example? Does the company encourage employees to contact HR or go over the manager's head to a higher level in the chain of command? Although bullying is not illegal in the U.S., what is the company's position on bullying in the workplace? What is the company's strategy to ensure employees have an environment that leads to successful performance? Do we have ethical guidelines that go beyond merely following employment law to produce a successful workplace culture?

Janine yancey bubble Janine Yancey

In the workplace situation reflected in the course, the woman was employed at a high-growth Internet company and therefore, it was her responsibility to keep up with the demands of the job even if the job hours exceeded "normal working hours." That scene is in the course to show that these situations are rarely clear cut where one person is clearly a wrongdoer and the other person is clearly in the right. Often, both people could communicate better and better understand the needs and expectations of the other person. In this example, the manager acted inappropriately... but he was acting out of frustration because he perceived the woman as not performing up to his standards. On her end, the woman was missing work and not being straightforward with her boss about her industry commitments that impacted her work schedule. These are clearly problems that need to be addressed and resolved in order to have a productive and respectful working situation -- but they are workplace culture problems rather than legal problems. With respect to your company specific questions, you should seek guidance from your organization's HR team. If you would like us to connect you via email with an HR member from your company, we're happy to do that.

November 30
Private

Does a manager who constantly yells at his staff, coworkers, and peers constant bullying?

Phyllis bubble Phyllis Cheng

Constant yelling could be considered bullying and while bullying is not illegal, it is not helpful for the workplace. As a best practice, people should seek guidance from their HR team to help address and eliminate instances of workplace bullying.

November 24
Private

I'm curious to know in what states it is illegal to terminate a female employee that is pregnant. I saw that happen one time in Virginia and I thought it was very unfair.

Phyllis bubble Phyllis Cheng

It's illegal in every state to terminate a female employee because of her pregnancy.

November 24
Private

With the lines being blurred between professional duties and personal feelings, I would think that going over numbers at lunch would be inappropriate due to the circumstance. They could either wait til after lunch or power through in a "safe" environment, the place of business. So, I would think throwing the lunch aspect of other branches is wrong. The lunch aspect with other branches may be appropriate due to no personal relationship and or her feeling awkward. Correct?

Janine yancey bubble Janine Yancey

Yes, certainly the prior personal relationship makes many routine work functions awkward. But absent the former personal relationship and depending on the employee's seniority, a working lunch meeting between a district manager and a store manager should be acceptable.

November 24
Private

What happens when the situation is between two people and they have totally different viewpoints of what happened? How do you clarify and assist when they are on opposite ends of the color spectrum?

Phyllis bubble Phyllis Cheng

Then you interview third parties who may have knowledge of the events and determine where the evidence is pointing.

November 24
Private

yea why would a christmas scene be considered yellow or orange? As a Christian man i find it offensive that your training people to think that way.

Janine yancey bubble Janine Yancey

It's only yellow or orange if the christmas scene or decorations are exclusive of other team members, and their preferred seasonal holidays.

November 24
Private

Investigations are to be kept confidential. Does the accused and/or witnesses have the right to know the identity of the complainant?

Janine yancey bubble Janine Yancey

Not necessarily. The only parameter is whether enough information is conveyed so the investigator can conduct an effective investigation. But the person who is the subject of the complaint has a right to a fair, impartial and thorough investigation and that's it.

November 20
Private

Is it considered harassment if you have a problem with another employee, the manager addresses it with the offender, and then the offender tells other employees about the situation?

Phyllis bubble Phyllis Cheng

We are prohibited from commenting on specific workplace situations. However generally, it would not be "harassment" if an employee gossips about a management action or workplace situation. While it may not be "harassment," the gossip could be inappropriate and negative for the workplace and if so, the HR team can help address it.

November 20
Private

How do I handle a situation where an employee dressed up as a Native American for Halloween, while the employee is caucasian (European)?

Janine yancey bubble Janine Yancey

Evaluations of specific situations (like dressing up as a Native American) depend on the context and the totality of the circumstances. But generally you want to remind everyone to be respectful and non-offensive to their co-workers.

November 20
Private

I think there are statutes and policies to protect whistleblowers also...since it is not a specific protected characteristic of harassment is that covered in some other type of training?

Phyllis bubble Phyllis Cheng

It is covered in this course under retaliation. Everyone has a legal right to make a complaint, exercise a legal right and/or cooperate in a workplace investigation, and be free from any adverse employment action.

November 20
Private

I strongly disagree that calling a female employee "princess" is not severe and pervasive. I do think this is in the red category, and it is a disservice to male managers watching this video to let them think that they can skate on thin ice like this without risking legal action and damage to their company, even if a suit is settled out of court.

Janine yancey bubble Janine Yancey

Thank you for your feedback. An evaluation of any situation is always complex and depends on the context, nuance and totality of the circumstances. The scene you're referencing is loosely based on a real situation and the manager in question did suffer harm to his reputation and employment situation -- even though the situation was evaluated as less than illegal harassment.

November 20
Private

It seems so easy to be misunderstood. It is almost like you need to be aware of potential harassment before you open your mouth. Not that you intend harassment but that it might be interpreted that it was such! It might be better to start with a bland Good Morning ! than risk Hello, Bright Eyes! It seems like the workplace is changing without us being aware? How do you see it?

Janine yancey bubble Janine Yancey

Ideally, everyone should be aware of how people can perceive their comments and actions and the potential for how someone would claim his/her actions and comments are harassment. That heightened understanding and awareness makes people focus a bit more on co-workers' reactions to their comments and conduct.

November 20
Private

Does California have bullying laws?

Phyllis bubble Phyllis Cheng

No, it does not. But it does have a law encouraging awareness training on bullying. No state in the U.S. has anti-bullying laws.

November 20
Private

If your immediate supervisor uses a form of retaliation of passive aggressive, is that considered harassment? For example: If my direct manager, who is in charge of the survey compliments and complaints, emails everyone the shout outs but instead she sent everyone 1 complaint of one customer about one employee, then recalls the message, not apologizing or anything. The intention was to embarrass that particular staff who almost never receives negative feedback, but rather compliments from clients for excellent customer service. Is that considered harassment? This type of passive-aggressive behavior from a manager to me is considered bullying and harassment. So, again, is that considered a type of harassment?

Janine yancey bubble Janine Yancey

The conduct, as described, would not be considered harassment. It may be viewed as poor management and/or poor teamwork, but it would not be harassment since no legally protected characteristic is at issue.

November 20
Private

What about a set of non-beliefs. Is that protected?

Janine yancey bubble Janine Yancey

Yes. If someone is an atheist or otherwise is not religious, then that characteristic is legally protected.

November 20
Private

What is the historical context to Sambos and why the restaurant is offensive? I don't have any prior knowledge.

Janine yancey bubble Janine Yancey

Sambos was a popular restaurant in the 1970s and the main figure representing the restaurant popularized a little African American boy named Sambo. The NAACP and many other civic groups charged the restaurant with racism.

November 16
Private

Can a former employee file a complaint once they have left the company?

Phyllis bubble Phyllis Cheng

Yes. In California for example, people have 1 year to file a complaint about an incident.

November 16
Private

When someone complains that they are uncomfortable seeing two of their co-workers engaging in a solicited massage at work, is that harassment or an illegal activity?

Janine yancey bubble Janine Yancey

Giving massages at work can easily make others feel uncomfortable and should be avoided. But typically, massaging will not create a harassment situation (without other actions contributing to a more negative situation) nor is it illegal.

November 16
Private

Are there any current cases that are addressing bullying and abuse in the workplace?

Phyllis bubble Phyllis Cheng

No, because workplace bullying is not illegal in the United States.

November 16
Private

Re Rob and Susan, it seems like somewhere in the video it should get pointed out that promoting someone who has time to stop by, leave and pass notes, and have flowers delivered---all seemingly on work time, may not be the best choice for promotion. Why didn't that get mentioned in the video?

Janine yancey bubble Janine Yancey

Generally, people don't speak up and voice workplace concerns until the situation becomes extreme. Therefore, it's relatively common for someone to exercise poor judgment, but otherwise show good skill and experience, and not have co-workers voice concerns. And when people don't voice their concerns, it's relatively common to promote someone who has exhibited poor judgment at some point in their career.

November 16
Private

We are in the hotel industry. If, during bar, management overhears guests telling dirty jokes, using the "F" word regularly in earshot of other guests, kids, and possibly our team members, is it required that we step in and ask the guest to be more respectful of others? If we don't, can this come back against the employer?

Janine yancey bubble Janine Yancey

A manager or employer has an obligation to step in and take corrective action only when it knows or should know the behavior is offending people. So ultimately, managers need to look for visual cues (person looks really uncomfortable) and verbal cues (complaints) from patrons and/or team members regarding the conduct of the guests. If the cues are there, then yes, the manager needs to step in and ask the guest to be more respectful of others. Fortunately, this is a good business practice as well.

November 16
Private

Is it discrimination when someone who is pregnant gets more work than others?

Phyllis bubble Phyllis Cheng

These situations are always very nuanced and depend on the totality of the circumstances. However, the mere fact of giving more work to one employee as compared to another - - without any other facts - would not be harassment.

November 16
Private

The definition of Medical Condition seems only to relate to cancer - am I reading it wrong?

Janine yancey bubble Janine Yancey

Yes, medical condition relates to cancer or a genetic characteristic. For more information, see: http://www.dfeh.ca.gov/Publications_FEHADescr.htm

November 16
Private

If a manager has a reasonable suspicion that an employee will file a complaint because an issue was not addressed when the employee presented it to the manager, can the manager nitpick on performance issues to hurry up and get disciplinary issues documented so that it doesn't seem retaliatory after the complaint is filed?

Janine yancey bubble Janine Yancey

As a general rule, managers should document performance issues as early as possible so the documentation occurs close to the actual conduct. Articulating/documenting performance issues BEFORE someone submits a complaint helps a neutral third party view the performance feedback as credible and authentic rather than retaliatory. However, managers should always partner with HR if and when they believe someone may file a complaint because HR typically has the experience to navigate the situation skillfully and be proactive.

November 16
Private

Are volunteers and board members subject to the organization's harassment policies?

Janine yancey bubble Janine Yancey

The employer is responsible for the actions of its employees and the work environment as created by everyone who routinely interacts with the workplace, which includes volunteers and board members if those people regularly interact with others in the workplace.

November 10
Private

The training module mentioned that "Gender is Sex at Birth." Ignoring the glaring factual inaccuracy, does that mean that I as a trans woman am not protected from gendered harassment, but only from harassment based on my "gender identity" or trans status?

Phyllis bubble Phyllis Cheng

Thanks for your comment and we will certainly review the content to clarify any ambiguity or questions. As a trans woman -- you are protected from harassment based on your gender (both at birth and current), your gender identity and the fact that you underwent gender reassignment.

November 10
Private

While it might be easy to identify if someone is a member of a protected class (i.e. by gender), how do you determine the more difficult task of assessing if the harassment was specifically due to that protected class or for other reasons (i.e. work product, other behavior)?

Janine yancey bubble Janine Yancey

Well... that's why there are so many workplace conflicts because that is a difficult challenge. The Best Practice for employers and managers is to conduct their actions in a way that leaves no room for ambiguity. Document all your actions with supporting explanations and ensure your actions and comments are direct and always anchored by objective business needs.

November 10
Private

If harassment requires four criteria, including being part of a protected class, is there any type of law that would protect, for example, one white male from "abusive" behavior from another white male? I could imagine a hostile environment where you could be picked on, your work product minimized, simply because someone doesn't like you, even if you aren't part of a protected class.

Phyllis bubble Phyllis Cheng

The type of conduct that you generally describe would fall under "bullying" and bullying is not illegal in the United States. Having said that, most employers don't want bullying and abusive conduct in the workplace as it brings down morale and productivity and denigrates the workplace culture. Therefore, the best recourse is to seek guidance from your HR team.

November 10
Private

My co-worker always wears low cut tops. Is this a form of of harassment?

Janine yancey bubble Janine Yancey

Wearing a low cut top could not constitute harassment, but it could be inappropriate for the office.

November 10
Private

Often during the course of this training inappropriate behavior such as bullying yelling or harassment is referred to as hostile work environment; my understanding is that in CA hostile work environment refers to issues related with sexual harassment claims. Is that correct?

Janine yancey bubble Janine Yancey

Often during the course of this training inappropriate behavior such as bullying yelling or harassment is referred to as hostile work environment; my understanding is that in CA hostile work environment refers to issues related with sexual harassment claims. is that correct?

November 10
Private

How do you evaluate when a co-worker consistently has an opinion about what they deem appropriate clothing or what they thought you should wear and even go as far buying clothes they think you should wear when no formal dress code is in place and it's pretty much a casual work environment?

Phyllis bubble Phyllis Cheng

Certainly every workplace is different and some are more casual than others. But prior to giving feedback on attire, there should be a general outline of what is considered appropriate or inappropriate attire.

November 10
Private

Is it harassment when your boss constantly states that he will fire you for things and situations out of your control?

Janine yancey bubble Janine Yancey

No - not if the statement is about business and work. As a general best practice, people should seek guidance from their HR team if and when a manager shows poor management skills.

November 10
Private

How should someone address an issue with a co-workers poor personal hygiene?

Janine yancey bubble Janine Yancey

Hygiene issues and bathroom issues always go to the HR team. They have more skill to navigate these delicate conversations.

November 10
Private

What is the recommended course of action for managers when their direct reports share some information that may be considered borderline harassment but the information is appended with "please don't say anything - I don't want to deal with the fallout" or "I just wanted to get it off my chest"?

Janine yancey bubble Janine Yancey

If the conduct concerned actions or references to someone's personal, protected characteristics, then you should report the issue to the HR team. As a compromise with the complaining employee, you can share the details of the situation without disclosing identities (at first) and let the HR team determine the next steps.

November 5
Private

Wondering how bullying is not illegal. Isn't verbal abuse considered harassment? How do you distinguish between abuse and poor management? Another question: I am constantly accosted by weird comments asking about "all things South Asian"- given that I am of Indian and Sri Lankan descent. What if you see this happen to other South Asians you work with and also black employees (asked to be experts on all things Black.) Is this harassment based on protected status?

Phyllis bubble Phyllis Cheng

First, bullying is not illegal in the United States because it is very difficult to create an objective standard to evaluate and determine which actions are "bullying" or not. Just as you point out, how can you distinguish between bullying and poor management? Given our litigious culture, we cannot put ourselves in a situation where people can sue for poor management due to ambiguous legal standards. Second, the comments regarding "all things asian" or "all things black" are relatively common (unfortunately) and showcase a need for diversity and inclusion awareness since people generally don't want to be typecast by their personal traits like race, national origin, religion, etc.

November 5
Private

I don't understand the age 40 and over law, and why is California recognizes age 40+ and another state recognizes age 18+ as theirs, I don't understand it.?

Janine yancey bubble Janine Yancey

Every state has its own fair employment laws and protects those personal characteristics which the people of that state feel need protecting. In California, people felt like workers only need protection from age discrimination starting at 40 years old.

November 5
Private

How long does it usually take for a claim to be investigated and resolved?

Phyllis bubble Phyllis Cheng

There's no "average" time as it really depends on the nature of the claim and the number of witnesses involved.

November 5
Private

If I have two managers, one male and one female, doing the same job, but one of them has been doing that job for three or more years and the other one is new to it, can I pay them at two different rates based on their experience?

Janine yancey bubble Janine Yancey

Generally, you can pay different rates to people performing the same job if there's a difference in qualifications or value to the business, such as amount of experience. Having said that, each position and it's pay should be well documented and anchored in objective business reasons.

November 5
Private

What if you have an employee on social media after work hours who is posting pictures of themselves that are offensive to their co-workers who look at the person’s social media page, then the co-worker comes to work and complains about the pictures to their boss? They can't believe that their co-worker is engaged in this type of activity. Is this a private issue with the employee who is posting the pictures? This employee is off work time and had a right to their own personal life. What does the employer do with this type of situation?

Janine yancey bubble Janine Yancey

Generally, an employee's conduct on social media and during their "off hours" is private and should not be the subject of employer scrutiny -- unless the employee's actions have a direct and foreseeable impact on the workplace. In those situations, the employer is able, to some extent, to assess the employee's off-duty conduct. A situation where an employee visits a co-worker's social media page probably doesn't meet the test of having a direct and foreseeable impact on the workplace.

November 5
Private

How do I confront a manager who may be bullying or yelling inappropriately at staff?

Phyllis bubble Phyllis Cheng

When responding to a bullying manager, it's generally a best practice to give the manager feedback that his/her actions are perceived as hostile and bullying and the bullying results in lower performance (due to fear and anxiety) rather than higher performance. Alternatively, people can and should leverage the skills and expertise of the HR team who can also have that conversation.

November 5
Private

I chair a non profit board and the CEO has put his arm around a female staff, talked about his sex life to female staff, talked about the dress of a Pakistani female, asked female staff personal questions about other female associates. Can I just fire him if it is he said she said? This has created a very hostile environment and the staff don’t want to be around him.

Janine yancey bubble Janine Yancey

We are prohibited from commenting on particular workplace situations such as the one you outline. However, generally, an employer looks objectively reasonable if it documents and summarizes the problematic conduct and the risk that conduct poses to the employer and makes a termination decision based on that assessment.

November 5
Private

As an employment case manager, one of my responsibilities is to ensure that all clients dress either professionally or casual professionally. I am a male. When a female client comes into my office wearing very inappropriate attire, and I tell her so, am I participating in any harassment conduct?

Janine yancey bubble Janine Yancey

No, but you certainly want to take care in how you communicate your message. Your message needs to clearly reference professional business attire and that you believe most reasonable people would not perceive the person's attire as professional or appropriate for the workplace. Keep the message simple, to the point and don't get into the details of what the person is wearing, other than to say it's not sufficiently professional.

November 3
Private

I got this question wrong: "An employee claims harassment even though no protected classification is involved. It is safe to go ahead and give a negative performance review two weeks later, since the review was prepared prior to the claim." I said True, and the correct answer was False. But I thought a situation is not considered harassment unless it involves a protected characteristic?

Phyllis bubble Phyllis Cheng

It's true that a situation can only be considered harassment when it involves a personal, protected characteristic. However, the issue of retaliation is a bit tricky because someone can file a harassment claim that does NOT have merit and be protected from any negative employment action stemming from their claim. So as a Best Practice, you want to proceed very carefully with giving any negative review after someone has made any type of workplace claim because it allows that person to believe (or claim) the negative action is a result of their claim -- whether true or not. That's why typically, you want to leverage the assistance of HR if and when there's negative feedback for someone who has recently filed a claim.

November 3
Private

I am a manager in Texas which has no personal liability for harassment, however, my employer is based in California, so am I still not personally liable?

Janine yancey bubble Janine Yancey

The law of the state where you work is what controls. Therefore, Texas law applies to your employment situation.

November 3
Private

During lunch conversations, my peers often bring up fellow employees and voice their complaints regarding upper management and fellow peers (not present). These complaints most often relate to workplace performance, people not "pulling their weight", and general instances when they have felt disrespected or under appreciated. I don't feel that this would fall into an orange or red category, but it makes me feel uncomfortable all the same that the discussion is held in such an open forum in the workplace. Any suggestions?

Phyllis bubble Phyllis Cheng

You are right to be concerned as it's this type of negative gossip that brings down the workplace culture. Generally, gossip criticizing people would be "yellow" conduct on the Workplace Spectrum -- not "orange" but negative and over time, somewhat toxic. Next time it occurs, you may want to try calling out the yellow gossip (in a nice, friendly manner) and tell people the yellow negativity is bringing you down and bumming you out.

November 3
Private

Hello, I’m worried that we may be discriminating or causing a hostile environment by treating Hourly vs Salary employees differently. For instance, salary can come and go when they please, take extended lunches, attend salary only happy hours. Hourly are tied to a clock and have disciplinary points against them if they are 1 minute late, never invited to "Outside Team Building events" otherwise known as Happy Hours. You get the picture. Looking forward to your response, Thank You.

Janine yancey bubble Janine Yancey

Whether someone is "hourly" or "salary" depends on whether or not the person is exempt from the Fair Labor Standards Act, which depends on the job duties and level of responsibility and discretion of the job. Hourly or salary status is not a personal, legally protected characteristic -- it's a business characteristic relevant to the person's job. Therefore, it cannot be a basis for harassment or discrimination. Having said that, if you believe hourly employees are excluded from many team functions, you may want to express that idea to your HR team and frame the issue as a "team building issue" meaning that as an hourly worker, you feel like you're not part of "the team" because hourly workers are often excluded from team events.

November 3
Private

If someone makes an harassment complaint, then that person must be held accountable for the charges, right? The subject of the complaint must have a chance to respond to the charge, isn't that correct?

Janine yancey bubble Janine Yancey

Generally, the employer requirement is to conduct a neutral, good faith investigation and make a business decision based on the results of the investigation. Typically, a good faith investigation would include an interview with the person alleged to have committed the bad acts.

November 3
Private

Where does an employee start if harassment is suspected?

Phyllis bubble Phyllis Cheng

If an employee believes he/she has experienced harassment, then the best place to start is to get help from the HR team. Regardless of whether the situation is harassment or not, the HR team can help facilitate personality or other employee conflicts.

November 3
Private

Would it be considered inappropriate to go above one's immediate supervisor if harassment is suspected, but the supervisor does not want to report it??

Janine yancey bubble Janine Yancey

Actually, it's common to bring suspected harassment to a senior supervisor since senior managers are better equipped to report and respond to harassment issues.

November 3
Private

Maybe it's me, but I found the team to be openly hostile to the character, Jo-anne. There was a pattern of action and poor course corrections performed by management, that seemed to be pushing the envelope to see what they could get away with. The manager was a Jerk to Jamal as well, doesn't this represent a manager that would need to undergo corrective action?

Janine yancey bubble Janine Yancey

Certainly the manager in the first episode (Workplace Files) lacked the sophistication and skill of an experienced manager. This scene was based on a real incident that occurred in 2014 and while the investigator determined that there was no harassment, the manager was asked to leave the company.

October 30
Private

I was working in a coffee shop several years ago and my manager touched my butt inappropriately, asked me out, and gossiped with me sexually a lot. I felt uncomfortable and told her to stop. She retaliated by yelling at me in front of customers repeatedly about my "bad performance". Years have passed and I don't work there anymore (I left because of this) and she doesn't work there anymore either. Is there anything I can do about this? Can I inform the owner of the café?

Phyllis bubble Phyllis Cheng

In California and many other states, there is a 1 year statute of limitations to bring a claim for a workplace incident.

October 30
Private

What about when someone says "what are your stupid" and " clean your ears out" in front of others whenever you go to ask/show them a difference in a weekly report? We are supposed to work together as a team on these weekly reports. Other than this person being rude, would you consider this harassment?

Janine yancey bubble Janine Yancey

Even if a comment is rude, it would not be harassment if it does not reference a protected personal characteristic. In situations where a manager or co-worker is rude, you may want to ask HR to help "coach" the person so their workplace interactions are polite.

October 30
Private

In the list of Protected Personal Criteria, Medical conditions "includes" but only lists cancer. Wouldn't other medical conditions also apply, as in "multiple chemical sensitivities disorder"? So the "include" means the list is not exhaustive?

Phyllis bubble Phyllis Cheng

Medical condition includes cancer, a history of cancer and genetic characteristics. Here's more information from California's Department of Fair Employment and Housing: http://www.dfeh.ca.gov/Publications_FEHADescr.htm

October 30
Private

Some team members have breakfast or lunch together in the office every day, and a few of us are rarely included unless we invite ourselves or when a new person joins and and reaches out to the ones who are not included. This feels unfair and shows other teams who is "in" and who is "out". It makes for an uncomfortable work environment until the food dust settles and people get back to work. Can anything be done to improve the situation from all parties?

Janine yancey bubble Janine Yancey

Often people are not aware when they are being exclusive and they may need a gentle message to raise their awareness that their actions may make some co-workers feel excluded. Generally, it's a good practice to rely on your HR team to deliver sensitive messages that help everyone get on the same page and perform as a team.

October 28
Private

I didn't understand that the Christmas decorations that were, it seemed to me, inclusive of all religions were considered to be orange or red. Maybe i misread the description. I saw it as green.

Phyllis bubble Phyllis Cheng

The holiday decorations were primarily Christmas, and not reflective of other religious holidays. It's appropriate to decorate private workspaces with decorations reflecting one holiday, but communal spaces should reflect and include decorations from the religious holidays of everyone in the workplace.

October 28
Private

Ok, how you discuss an employee's performance when they are working on something that they "deem" important, but you has the manager, deem minor an nonproductive to the overall success of the department or project? Additionally, you had one on ones with this individual and she continues to spend a large about on minor things, but misses the big picture. The only way I can describe is graphical is someone rearranging the deck stairs on the Titanic, while the boat is sinking.

Phyllis bubble Phyllis Cheng

If and when a direct report is making the wrong work choices, it's up to the manager to outline specific projects and check-ins and do so in writing so everyone is on the same page. If the employee doesn't follow the manager's outline and general work direction, then discipline is appropriate for corrective action.

October 28
Private

What are some things we can do as managers if our employees experience harassment behaviors from external sources such as a customer?

Janine yancey bubble Janine Yancey

If managers see employees experience actions from customers or other people external to the workforce that are harassing or could be harassing, then the managers should report the situation to the HR team. Even if the conduct stems from people external to the workforce, that conduct could still create a harassment situation for an employee. Ultimately, either the HR team and/or senior management would need to address the issue with the customer or external person to ensure a safe, respectful workplace.

October 28
Private

Do pictures, cartoon, posters, etc. of a political nature constitute a form of inappropriate visual conduct if one considers them offensive because the postings are contrary to their own political views?

Phyllis bubble Phyllis Cheng

It depends on the state but most states do not protect political beliefs or political expression, and therefore, political pictures or cartoons would not be a basis for harassment. Having said that, the topic of politics within a workplace is typically bound to create or lead to workplace conflict.

October 28
Private

Does the person being complained about have a right to know who has filed a complaint against them? And the specifics of the charges?

Janine yancey bubble Janine Yancey

Generally no. An employer has a duty to conduct a neutral, good faith investigation and make a business judgment based on the results of that investigation. The employer doesn't owe a duty to the employee who is the subject of a complaint -- other than to act in good faith and make employment decisions based on business needs.

October 28
Private

My boss gave me a performance review and when I asked about a promotion or raise, she said well you only have a handful of years left to work. I said what are you saying? She said since I only have a few years to work, maybe a promotion might not be in the cards...I feel it was an ageist remark. What do you see? It was 6 months ago.

Janine yancey bubble Janine Yancey

We are prohibited from commenting on particular workplace situations, like the one you outline here, because these situations depend greatly on context and the full details of the situation. However generally, managers should refrain from discussing someone's age or referencing or alluding to a specific retirement date. In the event a manager is referencing age in his/her comments, you should ask someone from your HR team to help facilitate the situation.

October 28
Private

I have an employee complaining a person(s) are moving things on his assigned desk. I know this person doesn't like changes and comes into work early to be organized and ready to go days ahead and when things change it hard on him. So others know what bugs him and feed off things like that. I feel I know who's the likely one that changing on his desk but have not seen anyone at his desk. I feel I make a general statement to my group as a whole is the best thing I can do, don't want to ignore things but unable people should not touch personal property, like thing laying around in locker room or at other employee desk and if someone is messing with someone's personal property and possible to be removed on suspension. It is a personal attack on his personal property but the person is not seen at his desk, but if I say nothing then it can come out someway nothing was ever done about it.

Phyllis bubble Phyllis Cheng

If a group of employees are teasing and taunting an employee and causing him distress, than a manager has an obligation to address the situation and stop the teasing. Therefore, even if a manager only has an idea of who may be behind the teasing, the manager can and should provide a warning to anyone suspected of the conduct and outline consequences for anyone caught doing the teasing or taunting.

October 28
Private

An employee reveled inaccurate information to the newspaper which was printed. How will I approach his evaluation in 2 months? His evaluation was not that great last time. Now I do not feel I am not able to be truthful without be accused of retaliation.

Janine yancey bubble Janine Yancey

Generally, if someone is providing inaccurate information about the organization, then a manager can and should correct the "record" by pointing out which information is inaccurate. That feedback should be done in writing and provided to the employee as close in time to the incident as possible. With respect to referencing that incident in his performance evaluation, you should seek guidance from HR so they can help you "wordsmith" the evaluation to ensure it focuses on business criteria and does not appear connected or related to the employee's comments to the newspaper.

October 22
Private

On the map of state laws, the Virginia law states, "There is no individual (personal) liability for harassment." What does this mean?

Phyllis bubble Phyllis Cheng

The statement, "There is no individual (personal) liability for harassment" means that an employee cannot sue his/her co-worker personally in court. The employee would only sue the employer -- based on the actions of the co-worker. I hope that helps clarify the issue.

October 22
Private

I would like to grow more in my communication skills with our employees. Can I ask my employer for more management training on dealing with people?

Janine yancey bubble Janine Yancey

Certainly! If you're taking this course through your employer, then you have access to all course titles in the Essentials Library. The Essentials Library includes these courses that could be helpful to you: Communication Strategies Coaching & Mentoring Motivating Employees If you click on the links, it'll take you to course descriptions. If you're taking training through Emtrain's learning platform, you can request further training by clicking on the "Request Training" link on the left side menu of your training page.

October 22
Private

How are workplace cliques seen within the context of a harassing environment?

Phyllis bubble Phyllis Cheng

In response to all questions about whether a situation could ever constitute workplace harassment, the answer is typically, it depends. It depends on the full situation and all the details of the situation. For example, is the workplace clique a group of people with similar backgrounds? And do they exclude others with different types of backgrounds? Is the workplace clique engaged in off-color jokes and gossip? These are the types of factual details that you need to understand to properly evaluate a situation.

October 22
Private

Is there ever a situation where confidentiality is appropriate or legal?

Janine yancey bubble Janine Yancey

Confidentiality is appropriate in those situations where only 1 person is affected, like someone's medical condition or a disability. But for workplace situations that impact or affect numerous people, the standard is typically "disclose information on a 'need to know' basis" because you want to be as discreet as possible but you also need to disclose some facts (typically) to conduct an inquiry into workplace conduct.

October 22
Private

If your boss constantly yells across the floor "What're you doing?" And only does it to you and no other employees while in front of other employees. Is that a former of harassment or misconduct? And what should the employee do about it?

Janine yancey bubble Janine Yancey

If a manager yells at an employee in front of others (and it's related to work), then it may be a poor management style, but it's not harassment or even misconduct, depending on the nature of the manager's communication.

October 22
Private

My boss's boss manages a lot of people younger than he is. They make fun of him in a friendly way about his age, is that harassment? I am close in age to him and he sometimes tries to pull me in "She's just as old as me" type comments and tries to make me part of 'being made fun of.' Is this harassment? It makes me uncomfortable sometimes but isn't offensive.

Janine yancey bubble Janine Yancey

When employees tease a senior manager, it cannot be harassment since the manager has the authority to stop conduct and behavior (at least theoretically). So employees cannot harassment managers. A manager referencing another similarly aged employee as a focal point for the conversation may or may not be appropriate based on the context and full situation. Regardless, if you feel uncomfortable, you should speak up. It doesn't have to be confrontational ... just mention to the manager that his comments, while teasing and intended to redirect the conversation, make you feel awkward, and you think his comments are kind of "orange" because they're about your age. More likely than not, you won't have a repeat occurrence. Alternatively, if you don't feel comfortable having that conversation, then leverage your HR partner to communicate that message for you.

October 22
Private

Are welcomed and innocent hugs any form of harassment? Can other people say that it makes them uncomfortable and have a leg to stand on? And if my co-worker does not wish to celebrate holidays, can invitations to "holiday" events be considered inappropriate?

Janine yancey bubble Janine Yancey

Any hugs or similar actions that are "welcome" are acceptable -- as long as the conduct is welcome to everyone who sees it. So, if a co-worker watching the conduct is not comfortable, then it's a best practice to refrain from that conduct around people who find it unwelcome. Remember, that one or two isolated incidents, unless physically severe, will generally create an "orange" inappropriate situation as opposed to a "red" unlawful situation. With respect to invitations to holiday events, being inclusive is rarely (if ever) inappropriate. Even if an employee does not celebrate holidays, it's always a good practice to extend the invitation to be inclusive. .

October 22
Private

If we feel as though promotions are based off of favoritism, how can we address this matter

Janine yancey bubble Janine Yancey

If the favoritism is based on legally protected characteristics, then it's potentially an inappropriate "orange" situation and should be reported to your HR team to address the situation. If the favoritism does not involve legally protected characteristics, then the favoritism is most likely a "yellow" imperfect situation that can be improved by either seeking guidance from your HR team and/or telling the managers involved that their method for promotions is "yellow" and could benefit from a critical review and another effort at making the promotional process a more thorough, fair process.

October 20
Private

In the first few sets of slides it is detailed quid pro quo is specific to sexual harassment. However, later in the slides, a prompt relating to a non-sexual circumstance shows the correct answer to be quid pro quo. Is quid pro quo exclusive to sexual harassment situations?

Phyllis bubble Phyllis Cheng

Yes, quid pro quo only relates to sexual harassment.

October 20
Private

What is a protected characteristic?

Janine yancey bubble Janine Yancey

A protected characteristic is a personal trait (like age, race, color, religion) that is not work related and which the legislature has determined should be "legally protected" meaning it cannot be a basis for any employment decision.

October 20
Private

What should you do if the person does have a negative review and they have submitted a claim?

Phyllis bubble Phyllis Cheng

In a situation where a manager gives a negative review and evaluation and thereafter, the direct report makes any kind of workplace claim, the manager should ALWAYS seek guidance from his/her HR team.

October 20
Private

What steps can an employee take to report unwelcoming behavior on the behalf of another co-worker? What if it bothers you but not the affected party?

Janine yancey bubble Janine Yancey

If offensive conduct is affecting the workplace culture, then any employee can report it -- not just the employee who is directly involved in the conduct. An employee has a few options when trying to address unwelcome behavior: 1. The employee can politely address the person responsible for the behavior and let that person know his/her conduct is "yellow" or "orange" and tainting the workplace culture. 2. The employee can seek guidance from the HR team and ask an experienced HR person to have that conversation with the employee responsible for the conduct. 3. The employee can seek guidance from a senior manager in the organization and ask the senior manager to address the situation. However, please note that it's important to connect with a senior or executive manager so the person has sufficient experience navigating workplace conflicts and has sufficient authority to effectuate change.

October 20
Private

Can a hostile work environment ever be created without actions that are directed toward a protected characteristic?

Janine yancey bubble Janine Yancey

No, you need a legally protected characteristic to be at issue in order to have a hostile work environment. If there's offensive conduct that does not concern a legally protected characteristic, then you can have an inappropriate or "yellow" workplace, but it would not be a hostile work environment as legally defined.

October 20
Private

Could someone overhearing a private conversation and become offended by the conversation file a complaint about harassment?

Janine yancey bubble Janine Yancey

Whether a situation can or cannot constitute harassment always depends on the full situation and all the relevant details. There's rarely an easy answer. So regarding the question of whether a private conversation can constitute harassment really depends on the factual question of how private is private? How many people overhead the conversation? How often did the unwelcome conversation topic occur? In general, whether a situation constitutes harassment depends on how unwelcome the conduct is, and how much impact the unwelcome conduct has on the entire workplace?

October 20
Private

There's been situations where it felt safe and welcome to share my faith with a co-worker. If it's invited, are there any laws that prohibit sharing personal information about your religion at work?

Janine yancey bubble Janine Yancey

If invited, it's fine to share details about your personal faith. However, it's common to encounter issues when someone feels like they have a "green light" to discuss particular topics and they stop checking in with their audience. So as a general best practice, you always want to look for verbal and non-verbal cues that your co-workers are comfortable with your conversation topics.

October 20
Private

What about suggestive clothing or non professional attire can that be considered as offensive and making and uncomfortable workplace environment?

Janine yancey bubble Janine Yancey

How people dress and present themselves to their co-workers definitely affects the workplace culture. Suggestive and/or inappropriate attire can make people feel uncomfortable. Generally, when someone is not dressing appropriately for the workplace, co-workers should leverage the experience of their HR partner to communicate that message to the employee in question.

October 16
Private

What do you do when HR does not respond to any of your concerns

Phyllis bubble Phyllis Cheng

It's a best practice to summarize and document your concerns and provide a copy of your summary to HR. You can also ask HR for a written response addressing your concerns. HR is typically busy and it's pretty common for people to believe they've adequately communicated a concern to HR but the comment was not conveyed in a way that HR heard it as a concern or a complaint. So, by providing a documented concern to HR, you avoid the possibility of a miscommunication.

October 16
Private

If your manager requests that another co-worker follow you outside of the office to see if you are meeting with a competitor, would this be considered a form of harassment?

Janine yancey bubble Janine Yancey

As always, there's no "right answer" and everything depends on the context of the full situation. However generally, following an employee outside the office and/or keeping tabs on someone to monitor his/her activity would not be considered harassment as it does not concern a personal protected characteristic and it does concern a legitimate business interest. Having said that, there may be more productive management techniques for retaining an employee and/or evaluating a person's productivity.

October 16
Private

In the last episode, although Dave and Linda were insensitive, if they went back and apologized, would that be lowering the levels, or does it need to remain in the same workplace color spectrum. What would lower the level at the point that it is? This is the episode where Dave and Linda were insensitive to a co-worker’s feelings. The co-worker expressed his dissatisfaction and the “third party” came in. If Dave and Linda began to realize the severity of the issue, and went back to the co-worker to apologize, would the situation be resolved, or does further action need to be taken?

Phyllis bubble Phyllis Cheng

Good question! In the episode where people are work friends and 1 person inadvertently offends a co-worker, the co-workers themselves can quickly de-escalate a situation (and the HR team would be ecstatic!) by having a candid exchange of ideas where the person who offended apologizes and tries to see the situation from the other person's perspective. Additionally, if the offended colleague can outline the situation to the co-worker and explain why it was offensive, then everyone is wiser and the conflict dissipates. Unfortunately, people tend to get emotionally "stuck" on their position and defend their actions or their emotional reaction -- which prompts the need for a neutral third party.

October 16
Private

How about insinuating about someone's weight and using the word, FAT???? What color would that fall under?

Janine yancey bubble Janine Yancey

It depends on the state you live in. If you live in Michigan, you can't make workplace comments about someone's weight. In most of the other states, a person's size or weight is not a legally protected characteristic, and therefore, comments about weight are "yellow" and inappropriate, but not illegal.

October 16
Private

I've experienced bullying. Knowing now that it is not illegal sends a clear message to the perpetrator as in "Go for it!" What are the reasons we have not made it illegal?

Janine yancey bubble Janine Yancey

No state in the U.S. has made bullying illegal yet for a couple of reasons: 1. The definition of bullying is very broad and leaves a lot of room for interpretation, e.g., your perception of bullying may be quite different than another person's perception of bullying. Typically, unlawful conduct has one objective element that can be used to help determine if the conduct is lawful or unlawful. For example, in harassment -- that objective element is the requirement of a personal, protected characteristic that is at issue. Either there is or there isn't a personal protected characteristic. Bullying lacks that objective element, which means bullying claims could be all over the map. 2. The U.S. is extremely litigious as compared to other countries. If we pass legislation making conduct illegal -- and yet we lack a concrete objective element that would help define when the conduct is legal or illegal -- we would essentially be opening the floodgates to an enormous amount of claims that could not be easily adjudicated.

October 16
Private

How long do you have to file a complaint or lawsuit after the occurrence? What is the statute?

Janine yancey bubble Janine Yancey

In California and many other states, you have 1 year to file a claim after the incident or occurrence. If filing a federal claim under the EEOC, the timeline is 180 days to file a claim after the incident. Each state is different and the specific state agency will have specific information on its website about filing deadlines.

October 16
Private

Would it be possible to get a printed copy of this information to have on hand?

Janine yancey bubble Janine Yancey

Yes. If you log back into the course and click on the menu in the upper left corner -- at the bottom of the menu slider -- you'll see resources which includes a printed guide of this material.

October 16
Private

Can bullying also apply to an employee towards a supervisor?

Janine yancey bubble Janine Yancey

Well, bullying is not actionable so lawyers and courts have not had to determine or resolve that question. Having said that, I suspect the answer would be "no" for the same reason an employee cannot harass a manager. Theoretically, the manager has more power/authority over an employee and can stop the problematic behavior through counseling, discipline or termination.

October 16
Private

The "or perceived health impairment" confuses me. Can "perceived" be clarified?

Janine yancey bubble Janine Yancey

Yes. Let's say you have a team of employees and one person seems to get sick frequently and the others gossip that he/she may have a chronic condition causing the frequent colds. Or, let's say a middle aged woman has several visits to her doctor and has labwork done. Her manager is now worried she has breast cancer. These are examples of "perceiving a health impairment" that may or may not exist.

October 15
Private

I have a co-worker who is displaying bullying behavior. We are on a sales team that had been territory based previously but our sales manager announced a change to pursue any account not contacted in past 60 days. I was reaching out to contacts previously in her territory and she announced there was no one to call. Though we all use salesforce, she announced her notes were not in there and to just ask if her name was on there which is clearly prohibitive to productivity. I offered that if she gave me a list of clients she's contacted I would not call them. She became hostile, called me "a piece of work" and became confrontational to which I let her know that I was just following our manager's parameters and any issues should go to him. I followed up with an email reiterating my offer not to call anyone she listed to which she responded angrily, saying she was offended. She is intentionally creating roadblocks to impede my ability to prospect in her perceived territory. Since she has made subtle, uncomfortable moves such as calling accounts she has not called in 2 years because she knows I have a trip to that area, spilling water on my desk, and taking my stapler. What is a good way to approach my manager who's only perceived reprimand of this behavior appears to have been to re-iterate the rules that she is not following.

Phyllis bubble Phyllis Cheng

It's not healthy or productive to allow or tolerate conflict and bullying behavior. When confronted with bullying or adversarial behavior, it's best to schedule a meeting with either the manager and/or the HR business partner so skilled communicators and people experienced at conflict resolution can help address and navigate the conflict and resulting negative behavior.

October 15
Private

I have had a co-worker repeatedly use other co-workers to mention her name or promote her to me romantically for over a year. My People-ops director said she cannot draw any conclusions based on coincidences though she did talk to the person in question. However, this person keeps repeating her behavior befriending more co-workers and asks them to keep putting peer pressure on me, she is a single woman in her late 20s with lowering chances of finding someone which is causing her to target me. How do I convince my HR/people operations to act in a better way so I'm not disillusioned with my co-workers for trying to side with her?

Janine yancey bubble Janine Yancey

While we can't advise on a specific workplace situation such as the one you outline here, there are some general "best practices" that may help address this situation. First, if you feel comfortable, you may want mention to the person in question that while you like her platonically, you're not interested romantically. It's a pretty straight-forward message without a downside if you're kind and respectful in your communication. Second, if you don't feel comfortable addressing the person in question, ask your People Ops team to do it. Working together every day takes a lot of navigation of people issues and that's what the People Ops team is good at -- navigating people issues. Let them communicate the awkward message in a nice way with minimal hurt feelings. Third, you may want to let your team and co-workers know that you don't appreciate any peer pressure regarding romantic situations and you find the peer pressure unwelcome and offensive.

October 15
Private

Why is "age" defined as 40 and above? In today's world I think there can also be bullying / harassment targeted at younger people.

Phyllis bubble Phyllis Cheng

Some states do define age protection at younger than 40 years old. For example, Oregon starts age protection at 18 years old. However, California and the majority of the states start age protection at age 40 based on research conducted regarding the harm to society when there is discrimination or harassment against older workers.

October 15
Private

Can you give me the definition a lawyer or judge uses of when the remarks become legally condemnable. Are they defined yet or is it case-by-case and left to the judge’s discretion? I prefer to know what the boundaries are in a concrete, methodical way.

Janine yancey bubble Janine Yancey

Here is the legal "checklist" to determine if and when conduct has become illegal harassment: 1. Is there a personal, protected characteristic at issue? 2. Is there some kind of visual, verbal or physical conduct? 3. Is the conduct subjectively and objective unwelcome? That means -- did the person involved find the conduct unwelcome and would your average person in that same situation find the conduct unwelcome? 4. Is the conduct so severe and/or pervasive that it has negatively changed the terms and conditions of the workplace? Many of the arguments over whether conduct is or is not illegal hinges on debating that last question. That last question is always a factual question that is decided case by case and in light of the full context of the situation.

October 15
Private

I understand now that quid pro quo refers only to sexual harassment. What kind of harassment is it when a superior abuses his/her position by requesting a non-sexual and non-business oriented favor (for example, picking up dry cleaning) as a condition for promotion or advancement?

Janine yancey bubble Janine Yancey

It depends on the full context of the specific situation as to whether asking your direct report to do personal errands for you (e.g., picking up laundry, walking your dog, getting you lunch, etc.) is "yellow" inappropriate conduct, OR, whether it crosses over to "orange" borderline conduct if the situation directly or indirectly involves gender or another personal protected characteristic. If and when a manager requests assistance for personal errands, it's a good practice to leverage the help of an HR person or another manager to have a delicate conversation and explain that requesting personal errands may not be perceived as respectful or a good management practice.

October 13
Private

What do we do as a vendor if we see someone being bullied or yelled at and it makes us feel uncomfortable as well as this same person has bullied myself as well?

Phyllis bubble Phyllis Cheng

Anyone who regularly interacts with the workplace can be a party to, or a victim of harassment. Therefore, if someone who regularly interacts with you yells or bullies, it's appropriate to seek guidance from the HR team to help address the situation.

October 13
Private

So, I guess I am a little confused. Is this woman the boss? I don't see it as unreasonable for a boss to request her staff to attend functions that are directly related to their work.

Janine yancey bubble Janine Yancey

Yes the woman in the Episode within the law firm was the manager. It's not unreasonable to request staff to attend functions related to work. But, the question in that Episode was whether the functions were really directly related to work and/or whether the female manager was abusing her authority by insisting that her subordinate employee accompany her. It's a best practice to shift your perspective and view a situation from different angles to get an indication of how others may perceive the situation.

October 13
Private

What if a vice president of a company is trying to "transition" a worker by saying that after the end of the year, a memo or email will be sent out to others in the company to acknowledge the years of a service that this employee has given, even though the employee has no intention of quitting or retiring. Furthermore, the vice president says that this individual can write his own memo or they can do it for him.?

Phyllis bubble Phyllis Cheng

We are prohibited from advising on specific workplace situations such as the one you outline here. However, it's a "best practice" to be transparent and straightforward to respect all parties. So if an executive wants someone to retire and/or transition out, it's best to tell that person directly in a respectful way, supported by specific business reasons. Thereafter, the executive and employee can determine how to communicate the transition to the rest of the team.

October 13
Private

Based on religious beliefs, can an employee be excused from attending holiday related activities at the workplace, for example, company holiday luncheon, department holiday party, etc, or does the employee have to stay and work while others are participating in the activities?

Janine yancey bubble Janine Yancey

A workplace can and should accommodate an employee's religious beliefs and practices while still meeting business needs. For example, typical religious accommodations relate to work schedules, holiday events, employer catered meals (due to dietary restrictions)... Having said that, an employee's need for an accommodation may be less pressing if the holiday event does not reflect any particular religion and instead is focused on spending time together as a team.

October 13
Private

If you joke with someone who is a co-worker but also a friend outside of work hours that is racially derogatory or stereotypical, then can you be charged legally? Is outside of work hours still legally harrasment time?

Janine yancey bubble Janine Yancey

It all depends on the total circumstances of the situation, e.g., how much of the conduct spills over to the workplace; how close are the two friends; how welcome or unwelcome were the racial comments; did anyone else at the workplace overhear the comments; could there be any factual disputes that the two people are good friends, etc. A helpful guideline to moderate conduct is to ask yourself whether an outside, third party could quickly scan the situation, understand the dynamics of the situation and determine that the situation and conduct is NOT illegal harassment.

October 13
Private

I have an employee who has poor performance and multiple errors. However, when any discussions about the expectations of performance or procedures (including correction of errors) happens, she will get very upset and call in sick or mentally distressed for a couple days in a row afterwards. Her job is very critical to the flow of the operations, and her absence causes hardships on coworkers or managers who have to complete those tasks. At this point there is a hesitancy or fear to talk with her or call attention to her performance because of this behavior. Because it appears her absences can be considered a real medical condition/disability, is there any recourse or direction that management can take? Is there such a thing as reverse harassment? Both myself (director) and her direct supervisor (manager) are female, so it is not a gender issue.

Janine yancey bubble Janine Yancey

We are prohibited from advising on specific workplace situations such as the one you outline here. Having said that, there are some general "best practices" that relate to these types of situations. It's common to have a situation where an employee knows he/she is not meeting expectations and thereafter, starts to manipulate and/or leverage legal protections in order to safeguard themselves from dismissal. In these situations, it's critical to create a transparent record of events that any third person could quickly scan and understand the nature of the situation in a minute or so. So when the employee calls in sick or claims mental distress, summarize the situation in an email record showing the causal connection between the pending management action and the subsequent employee reaction ... and then BE PATIENT. When you've documented this cycle 2-3 times and the person clearly looks like he/she is manipulating the situation, any neutral observer will quickly surmise the dynamics of the situation and determine that the resulting management action (discipline or termination) was fair and appropriate.

October 9
Private

Can personal Facebook posts be used as part of a company investigation into a harassment complaint?

Phyllis bubble Phyllis Cheng

It depends on the full circumstances of the situation. If there's a direct connection between the Facebook posts and an incident in the workplace, then it's possible that the Facebook posts are evaluated in a workplace investigation.

October 9
Private

Should I be friends with co-coworkers on Facebook?

Janine yancey bubble Janine Yancey

We are prohibited from giving advice. However as a general matter, you want to think through how the situation may unfold when your work friends are privy to your personal life. It may be fine or it may not. But you want to think it through in either situation.

October 9
Private

How do employees get protected from workplace bullying?

Phyllis bubble Phyllis Cheng

Generally, employees should get help from their HR team to address and resolve a workplace bullying issue.

October 9
Private

Is it a problem in the workplace to discuss political bias during election years? I personally find these open conversations offensive and out of place in a work environment.

Janine yancey bubble Janine Yancey

People are often emotionally connected to their views on both religion and politics, which means it's relatively easy for conversations on those topics to denigrate pretty quickly. Therefore, those topics of conversation are best left out of the workplace.

October 5
Private

While bullying is not considered a legal issue, is there anything that can be done about it?

Phyllis bubble Phyllis Cheng

Even though there's no law prohibiting bullying conduct, no one wants a bully in the workplace as it's demoralizing and unproductive. If you believe someone is acting like a bully, seek the guidance of your HR team as they have the skill and experience to best address it.

October 5
Private

Ok! I was just promoted to a supervisory position and have observed how the Clinical Program Director does not respect me in the new role. Now she is very aware of the promotion and agreed to the newly assigned task. I feel my instructions to the support staff is underminded.

Janine yancey bubble Janine Yancey

Generally, there's friction and employee conflict when there's a lack of understanding about different roles and responsibilities. If that situation occurs, it's best to leverage the in-house skill and experience of your HR team to clarify roles/responsibilities and ensure respect within the team.

October 5
Private

The DM was visiting our store. I was helping a customer and another associate was communicating something to me pertaining to the customer. I did not hear the associate so I asked the associate to repeat it to me. The DM started laughing about it in front of the associate and customer. I was embarrassed and humiliated. I asked the DM "why are you laughing?" She responded "I thought it was funny!" I did not find it funny though.

Phyllis bubble Phyllis Cheng

We are prohibited from commenting on specific workplace interactions such as the one you outline. However generally, it's helpful to give polite feedback when you don't appreciate a specific interaction or comment. Often, simple feedback is all that is required.

October 5
Private

Staff who is constantly negative and when she is upset over little things, she yelled or throw things and then when things are brought to her attention, she make herself look like she is the victim and blamed it on the fact that she has cancer before and she is forgetful.

Janine yancey bubble Janine Yancey

We are prohibited from commenting on questions/comments about specific workplace situations such as the one you outline here. However generally, anyone who has had cancer is protected from discrimination based on the disease and/or disease related issues, and that person may be entitled to reasonable accommodation to help them be able to perform their job better. At the same time, the person's ability to perform needs to be able to meet business needs. Hope that provides some guidance.

October 5
Private

Are cancer-related and proven genetic conditions the only protected medical conditions, or are these just examples of protected conditions?

Phyllis bubble Phyllis Cheng

Here is how medical condition is defined in California's statute: (7) “Medical condition” is a term specifically defined at Government Code section 12926, to mean either: (A) any cancer-related physical or mental health impairment from a diagnosis, record or history of cancer; or (B) a “genetic characteristic,” as defined at Government Code section 12926. “Genetic characteristics” means: 1) Any scientifically or medically identifiable gene or chromosome, or combination or alteration of a gene or chromosome, or any inherited characteristic that may derive from a person or the person’s family member, 2) that is known to be a cause of a disease or disorder in a person or the person’s offspring, or that is associated with a statistically increased risk of development of a disease or disorder, though presently not associated with any disease or disorder symptoms. Genetic characteristic is actually pretty broad, e.g., "any inherited characteristic that may derive from a person or the person's family member..." Also, "disability" protections are also available and potentially overlap with the protections afforded by "medical condition."

October 5
Private

Is it illegal to speak another language, say Spanish, to the exclusion of other co-workers?

Phyllis bubble Phyllis Cheng

No, it isn't. But it does become an inclusion issue meaning you don't want to create a culture where people feel excluded due to their language or other characteristics.

October 1
Private

If a manager is continously rude to an employee who reports to them by not responding to e-mails, not acknowledging an employee when they pass in the hall, not including them in group outings (lunches), being sarcastic to them-can this be considered bullying?

Phyllis bubble Phyllis Cheng

The actions you identify sound more like ostracism than bullying in that the manager is basically ignoring a direct report as opposed to yelling at or trying to intimidate them. Bullying and ostracism are generally not illegal workplace actions in the U.S., though they are de-motivating and negatively impact the workplace culture. For negative situations, it's a good practice to leverage the skill and experience of an in-house HR team to do some coaching with the relevant people.

October 1
Private

How can a non-employee be held accountable for harassment?

Janine yancey bubble Janine Yancey

An employer could be held responsible for the actions of a non-employee if the person is a regular visitor to the workplace. Further, the non-employee's employer can be held responsible for harassment. Lastly, the non-employee can be sued in his/her individual capacity for their unlawful conduct.

October 1
Private

If a male and female engage in sexual conversation at work that offends others. The others tell HR and the supervisor. Only the male got fired, but the female was not. Is that a form of discrimination that the male was fired? This was a first time offense.

Phyllis bubble Phyllis Cheng

We cannot comment on specific workplace situations as an appropriate evaluation requires the full context, all the nuances of behavior and the full facts of the situation. However, we can relay that the general practice is to defer to an employer's judgment based on the results of a fair and impartial investigation. Typically, employers are provided broad discretion on how they choose to address problematic workplace situations.

October 1
Private

If overhearing workplace gossip which is regularly occurring and makes me feel uncomfortable a form of harassment? Also, if someone quit their job and walked about with no two week notice and their direct supervisor after a meeting with that person walks into someone else's office and starts gossiping about what happened with several individuals and I over hear it and makes me upset and uncomfortable as I perceive it to be confidential a form of harassment.

Janine yancey bubble Janine Yancey

Office gossip, politics, poor management... all of these behaviors are negative for the workplace, but they're not unlawful harassment. Generally, it's a good practice to leverage the skill and experience of your HR team if you believe the workplace culture is suffering from negative behavior. HR and Talent teams want to ensure a positive workplace culture as it impacts recruitment, retention and productivity... so they'll be interested to hear about issues and address them accordingly.

October 1
Private

Does a "visual" aspect of the worksite containing "any stereotyping based on protected characteristics" include an attorney workgroup for which only men are ever hired, including the hiring and rehiring of substandard male attorneys? There is a point where it starts to look like male apartheid in an office of a national firm that values gender diversity, to the point where the office is severely out of step with the firm's national presence and values.

Phyllis bubble Phyllis Cheng

Certainly a lack of diversity within a particular team and/or hiring practices and performance standards that appear to favor one group over others is a workplace problem and negatively impacts the workplace culture regardless of how that problem is characterized, e.g., bias, discrimination, etc. Would you like us to pass on your comment (anonymously) to your employer so they hear some feedback?

September 30
Private

Curious, will yelling be considered harassment or bullying at a future date? I've had it happen to me in the past, it is both embarrassing and intimidating. It is definitely not motivating and had to get on track once this has occurred to you. Thanks.

Phyllis bubble Phyllis Cheng

Currently, yelling would be considered bullying, which is not illegal -- it's just de-motivating and not productive as you point out. So, poor conduct but not illegal conduct.

September 30
Private

Why is the working definition of medical condition limited to cancer and genetic characteristics? The law can't really be that limited, can it?

Janine yancey bubble Janine Yancey

Here is how medical condition is defined in California's statute: (7) “Medical condition” is a term specifically defined at Government Code section 12926, to mean either: (A) any cancer-related physical or mental health impairment from a diagnosis, record or history of cancer; or (B) a “genetic characteristic,” as defined at Government Code section 12926. “Genetic characteristics” means: 1) Any scientifically or medically identifiable gene or chromosome, or combination or alteration of a gene or chromosome, or any inherited characteristic that may derive from a person or the person’s family member, 2) that is known to be a cause of a disease or disorder in a person or the person’s offspring, or that is associated with a statistically increased risk of development of a disease or disorder, though presently not associated with any disease or disorder symptoms. Genetic characteristic is actually pretty broad, e.g., "any inherited characteristic that may derive from a person or the person's family member..." Also, "disability" protections are also available and potentially overlap with the protections afforded by "medical condition."

September 30
Private

Is it legal for an employer to make additional demands on an employee when they are dealing with a medical issue such as severe and debilitating back pain or pregnancy?

Phyllis bubble Phyllis Cheng

We can't comment on a particular situation because the answer depends on the nuances, context and all the facts of the situation. Having said that, it's a good practice to engage in an "interactive process" with an employer's HR team if and when there is a potential disability issue, which may require temporary accommodation that is consistent with the employer's business needs. .

September 30
Private

Wouldn't using the nickname Long John Silver, and repeating it at every meeting, be a potential form of verbal harassment to anyone in the room?

Janine yancey bubble Janine Yancey

Long John Silver" could only be perceived as possible verbal harassment if it references a personally, protected characteristic. Not sure what the protected characteristic would be. If there's no protected trait at issue, then it's just poor conduct that is not harassment.

September 30
Private

What do you mean by protected personal characteristic?

Phyllis bubble Phyllis Cheng

Protected personal characteristics refers to those personal traits that our government has deemed to be "off limits" when making workplace decisions. For example, you can't make a workplace decision based on someone's gender, age, race, etc. Instead, workplace decisions should be grounded in performance and business needs. .

September 25
Private

I understand that Travis is in the red zone by making decisions based on Sarah's protected class (pregnancy), but before it escalated there, was it unfair that Sarah pre-emptively complained to management and got herself the manager role based solely on her presumption that Travis's friend would receive the manager role instead of her? I know it doesn't matter but it seems to have laid the groundwork for the "red spectrum" behavior later even though it doesn't excuse it.

Phyllis bubble Phyllis Cheng

Generally, if an employee escalates a potential issue (e.g., a potential management decision) before it occurs, it could be viewed as manipulative or, it could be viewed as reflecting concern over a situation and preemptively trying to avoid a bad result. But even if someone's actions are viewed as manipulative, it doesn't condone or even "invite" management action that is based on someone's personal, protected characteristics. At the end of the day, managers are expected to be able to successfully navigate around employee issues and complaints and not cause further issues by emotionally reacting to situations.

September 25
Private

Although passing down information from shift to shift is not necessary(sometimes necessary), is avoiding someone by not acknowledging your presence a form of harassment or bullying??

Janine yancey bubble Janine Yancey

The types of situations such as the one you outline really depend on context. But generally, avoiding someone, in and of itself, would not be considered bullying or harassment.

September 25
Private

If two employees, one male and one female are engaged in sexual conversation and flirting, and other employees tell the boss, and the boss fires the male and not the female, is that a form of harassment as well (the firing of the male, and not the female)?

Phyllis bubble Phyllis Cheng

We cannot advise on specific workplace situations because these situations are typically very nuanced and context plays a big role in determining the best way to address a situation. In the situation you outline, an HR professional may have interviewed both parties and those interviews may have helped the employer make the termination decision.

September 25
Private

Regarding digital communications, what are suggestions for handling receiving an email from a manager that you find to be an inappropriate way to provide feedback -- i.e. the wording and tone of the email is disrespectful and not a management best practice. And the email was sent out at midnight before the next work day, which the employee felt blindsided the next morning.

Janine yancey bubble Janine Yancey

Ideally, people should leverage the expertise and guidance of their HR team to help craft and deliver sensitive messages such as a message giving a manager feedback on his/her digital communications. Generally, any sensitive message should be delivered live, not electronically. And shifting the focus from the manager's communication style to its impact on the recipient makes it easier for the manager to digest and process, e.g., "I feel compelled to respond when I get an email even if it's at midnight. I'd appreciate it if you don't send me emails past (time)."

September 25
Private

Is it okay for a supervisor to say "I don't like that black lipstick"?

Phyllis bubble Phyllis Cheng

Any comment on appearance and dress should be tied back to workplace standards and what is or is not appropriate. So, you could say something like - "I don't believe the black lipstick projects a polished, professional image." However, realize that the black lipstick may work for some workplace cultures but not others.

September 22
Private

If an employee filed a complaint about a yellow color spectrum (non-protected personal characteristic) issue, is that employee still protected from retaliation?

Janine yancey bubble Janine Yancey

Yes, a person is protected from any adverse or retaliatory conduct even if they file a harassment or discrimination claim that lacks merit. In fact, it's pretty common for the original harassment or discrimination claim to fail but the retaliation claim proceeds to litigation because managers and employees get upset at a person for filing a frivolous complaint and "the upset" is shown by negative actions, which appear retaliatory. Remember, everyone has the legal right to make a complaint, even if they are misguided and the complaint lacks merit.

September 22
Private

I am in California. Two questions: Is "red-headed" a protected characteristic? Also, am I permitted to discourage communication in non-English languages among sub-groups of employees?

Phyllis bubble Phyllis Cheng

Red-headed is not a protected personal characteristic. As for your second question, thanks for seeking guidance on this. You don't want to discourage communication in another language among employee subgroups. That type of directive could easily be interpreted as discrimination. Employees are allowed to speak in any language they like as long as there's not a legitimate business reason to speak English, e.g., talking to customers, the public, etc. Often, language differences are a diversity and inclusion issue and if that's the situation, then the message to employees should be something along the lines of: "Please be aware your co-workers may feel excluded when you don't use English and they can't understand you. Simply acknowledging the issue and asking whether co-workers are OK with you speaking another language is often sufficient to put people at ease."

September 22
Private

What if my old district manager caused me a lot of stress that I am still dealing with? What if my old district manager talked to me new district manager about me?

Phyllis bubble Phyllis Cheng

Generally, there is no legal guarantee or protection for a good workplace. The only legal protection is to stop managers from taking action or making decisions based on someone's legally protected, personal characteristics.

September 22
Private

If a person comes back from a disability leave and is constantly barraged with yelling and screaming and bullying tactics to the point that they can barely do their job and have considered just quitting, would this be considered a hostile work environment? Even to the point where they have called HR and warned their rep that they might quit because the situation is affecting their emotional and physical state.

Janine yancey bubble Janine Yancey

We cannot provide advice on specific workplace situations such as the one you outline. Having said that, bullying and abusive conduct is not illegal unless it is motivated by or somehow connected to someone's protected legal characteristic. A good practice to use is to summarize the offensive conduct as you perceive it in writing and outline how the conduct impacts you. Often, just reading about a situation, as seen through another's perspective, is sufficient to make people stop and re-think their conduct.

September 18
Private

I am not a manager, I am a FISA exempt professional employee with no direct reports. Does this still make me a mandated reporter? Why does my employer consider me to be a "Manager" and require me to take "Preventing Harassment for Managers" training?

Janine yancey bubble Janine Yancey

"Manager" is interpreted very broadly by the mandated training statute. People who manage projects or the work of others (even if no direct reports) are still considered "managers" under this particular training statute.

September 18
Private

What about the comments related to a specific food type or food smell in office?

Phyllis bubble Phyllis Cheng

Comments about a particular food or food smell can be insensitive and/or rude depending on the context of the situation. Context is a significant factor in EEO and harassment issues.

September 18
Private

So it's not illegal for someone to yell or bully another worker?

Phyllis bubble Phyllis Cheng

It's not illegal in the U.S. It is in Canada and other countries. Bullying and abusive conduct are clearly a workplace problem, just not a legal issue.

September 18
Private

What if the person sitting next makes bad noises (burping and farting)? Also he is using swear words all the time. When he was asked if he is ok he responds that yes he is fine and the proof he is fine is that these noises are heard. He keeps making these noises non-stop. What can be done in such ridiculous case? Thanks!

Phyllis bubble Phyllis Cheng

That is clearly a situation where you rely on your experienced HR team to help address the issue. Most people don't have the diplomacy or strong communication skills to delicately yet effectively address this topic with a co-worker. It's best to try and leverage your HR team for that.

September 16
Private

Is it considered harassment if a boss gives others larger projects that make more money but doesn't one particular person so that it intentionally hurts their commissions and performance reviews? On paper makes it look like they aren't as successful as others.

Janine yancey bubble Janine Yancey

We are prohibited from advising on specific workplace situations. However, generally, management actions such as work assignments or promotional opportunities could be considered "unfair" but not discriminatory as long as someone's legally protected characteristic was not the motivator for the action. In other words, it's legal to be unfair as long as the unfairness is not due to someone's gender, race, religion, age, etc.

September 16
Private

Can it be considered favoritism improper if a manager invites particular people to dinners/happy hours after hours but never interacts with one particular employee which leaves that employee to feel unwanted or not part of the team?

Phyllis bubble Phyllis Cheng

While not including someone at a work event could be unfair, that action is legal as long as it is not based on someone's race, religion, gender, age, or other legally protected, personal characteristics. As a general best practice, it's helpful to let the manager and/or HR team know that there's at least a perception of unfair favoritism or exclusion impacting the workplace culture.

September 16
Private

If someone has such a thick accent that it makes it extremely difficult to work with them because communication is impaired, would it be considered racial/ethnic discrimination to not hire them or only assign them to limited projects that require minimal communication?

Phyllis bubble Phyllis Cheng

As long as the business evaluation is based on legitimate business criteria, then it's appropriate and would not be considered discriminatory. Generally, communication is a legitimate business concern and depending on the nature of the role or position, a person's thick accent could be a valid communication concern. It all depends on the nature of the role and the full context of the situation.

September 16
Private

I’m not sure if this would be considered harassment, but every time I write my schedule for the week, my store manager will change it and leave 4 hour gaps between shifts. I have 2 different unions and it leaves me violating both of them. I have talked to her about it and it doesn't seem to matter. The union has already come in and filed a grievance.

Phyllis bubble Phyllis Cheng

Generally, management actions are not considered harassment or discriminatory if they are not triggered by someone's race, religion, gender, age, or other legally protected characteristic -- even if the actions appear unfair. Generally, when situations appear unfair or not well thought out, it's a good practice to summarize the situation in writing and identify why the management action appears unfair. Often, people respond to messages, in part, based on the way those messages are delivered. So if someone takes the time to prepare a well thought out message, people will typically spend a good amount of time receiving and responding to that message.

September 11
Private

If someone repeatedly misses the commitments he made, is this unwelcome conduct?

Janine yancey bubble Janine Yancey

No, that would be poor performance.

September 11
Private

I often feel uncomfortable when I have to speak to my boss -- he has a habit of looking me up and down. The other woman in my office notices it also and he's done it to her. What would my best approach be to stop this behavior?

Phyllis bubble Phyllis Cheng

You can either address it directly with him and/or ask someone from HR or a senior manager to help deliver the message. If you address it directly, you may want to make the person feel more comfortable by saying initially -- "Hey, I'm sure you don't mean to come off this way..." or "I know you don't intend this, but..." then fill in that you feel like he's looking you up and down and it makes you feel uncomfortable. Then indicate you wanted to bring this to his attention early on (even if it's not early on) so the two of you have a more comfortable time communicating with each other.

September 11
Private

I don't really understand the Genetic Information protected characteristic - can you provide an example, please? Also does the Medical Condition protected characteristic apply only to cancer, or can you provide another example? Thank you!

Phyllis bubble Phyllis Cheng

Medical condition protects many conditions in addition to cancer. Cancer is specifically called out in the fair employment statute because of the increase in cancer rates and the corresponding negative workplace actions that are cropping up and negatively impacting employees who who have cancer. Another example of a medical condition could be pneumonia or arthritis, etc. An example of genetic information would be, for example, if the employer somehow saw that a person had celiac disease or the BCRA gene (breast cancer). Genetically, some people are more likely than others to develop diseases. The fair employment laws are trying to protect those employees so employers do not discriminate against them due to their genetic issues.

September 9
Private

Does childbirth protect new fathers as well? Specifically if I didn't want to do a transfer because of the birth of a new child would I be able to stay where I am or could they force me to switch offices farther away from where I live?

Phyllis bubble Phyllis Cheng

The birth of a child will not "protect" you from management actions, meaning, if there are staffing changes, an employer doesn't need to stop those planned changes to accommodate a new parent. Conversely, an employer cannot target a negative management action towards someone because the person is a new parent.

September 9
Private

Does Medical condition only refer to Cancer patients? Are there any other medical conditions that can be applied?

Janine yancey bubble Janine Yancey

Medical condition applies to cancer as well as many other medical conditions. In the harassment context, it's not the same as providing disability protection, but it means the medical condition cannot be a basis for offensive comments and actions..

September 4
Private

A monthly operations meeting occurred, the subject of which was all personnel wearing safety PPE. During the meeting it was discussed that anyone can speak up and say when someone is not using the proper safety PPE with no recourse. After the safety meeting a male worker noticed that a female worker was not wearing her safety glasses. The male worker made a hand gesture referring to the safety glasses concern. The female ran to HR about the hand gesture with a harassment complaint. The male worker never talked to her before or after. The female worker has been observed many times not following safety protocol and the male was written up. What do you think?

Janine yancey bubble Janine Yancey

While we cannot advise on particular workplace situations such as the one you outlined, there are some general best communication practices to use as guidance. Generally, when you don't know someone very well and you've not talked to them before, a non-verbal gesture is not the best method of communication. It leaves too much opportunity for miscommunication and misunderstandings. In order to ensure your message is received the way it's intended, it's a better (and safer) practice to convey the message verbally and seek clarification that the other person received the message accurately.

September 4
Private

1) A worker heats up Indian food for lunch and a co-worker states something like, "Is that curry? God, I hate the smell." Another co-worker adds, "Yeah, I hate Indian food." 2) Two co-workers are relative neighbors outside of work. They attend the same church and meet regularly for breakfast on the weekends. They clearly have a friendship outside the office. In the office, one makes jokes about the other's height (he is what most would consider to be short) and the other jokes about the other's hair loss and germaphobe. Neither shows sign of comments being unwanted or offensive. Would either of the above situations be considered harassment?

Phyllis bubble Phyllis Cheng

In a situation where co-workers make negative comments about Indian food, the interaction is more likely a diversity and inclusion issue rather than harassment where harassing conduct creates a hostile work environment. Diversity and inclusion issues refer to situations where people need to be accepting and respectful of various differences, including different foods (and their smells). Reacting to and commenting on different foods is quite common in the workplace and some people are more respectful than others. In a second situation where two co-workers are good friends outside of the workplace, they have more flexibility to joke with each other and comment on their personal characteristics because they know each other well. As long as their comments don't pertain to others, the interactions are healthy workplace banter.

September 4
Private

Is loud open belching and passing gas a form of harassment?

Janine yancey bubble Janine Yancey

No, but it does make for a toxic work environment. Generally, when a co-worker's hygiene or personal habits negatively impact the workplace, it's time to seek guidance from the HR team and let HR delicately navigate and resolve the issue.

September 4
Private

If an employee makes a potentially offensive comment regarding a protected category in a public forum (e.g. "I don't understand how someone could be a rational thinker and religious" on blog or public Facebook post). They do not talk about this at all at any workplace function, but it is discovered by an open search on the Internet. Is this potentially orange activity that should be addressed with the employee?

Phyllis bubble Phyllis Cheng

Managers (and employers) cannot regulate speech outside the workplace if it doesn't have an obvious negative impact to people within the workplace. So commenting on social media sites without any indication that others in the workplace are even aware of the person's comments is not a basis for counseling, as it's not "workplace conduct." That situation could be different however, if the person making potentially offensive comments is linked socially with many co-workers so people in the workplace are more likely to be aware of those comments. It's rarely a clear cut situation, which is why it's helpful to seek guidance from HR for specific situations.

September 2
Private

Would the process be the same if actions are written, such as in an email, and offense is taken with the information provided or how you are "hearing" it? By process, I mean what if the situation is not verbal but written – in my opinion you could also have a situation occur that is not face-to-face but through email?

Janine yancey bubble Janine Yancey

Digital communication (email, skype, etc.) can also create workplace conflict and tension. In those situations, it's a good practice to leverage the experience of the HR team to help people see all perspectives involved and resolve the conflict.

September 2
Private

What could be the be the risks of dating a co-worker who is not in the chain of command, but who is in a lower level position than I am? Anything to pay special attention to?

Phyllis bubble Phyllis Cheng

As a general guideline, there are a couple of risks when dating a co-worker who is lower level in the organizational hierarchy, but not in the same chain of command. First, be on the lookout for co-workers who may perceive (whether correctly or not) that the lower level person is benefitting professionally from the personal influence of the more senior romantic partner, e.g., career opportunities and open doors because of the person's connection to the more senior romantic partner. Second, be on the lookout for personal romantic displays that may make others in the workplace feel uncomfortable. Third, be prepared in the event the relationship ends. If the less senior romantic partner becomes angry or bitter when the relationship ends, it's relatively easy to create a tense situation that can easily evolve into a claim.

August 31
Private

I have a question regarding social media. When can social media "venting" get you in trouble at work? Specifically, can a comment about work on Facebook cause a person to get written up?

Janine yancey bubble Janine Yancey

It depends on the nature of the comment. If it's just venting, without any hint of slander or harassment, then the employer generally cannot discipline for employee comments or speech made on social media sites. However, the more a person's comments drift towards harassment or any other unlawful conduct that arguably could impact the workplace, the stronger the basis the employer has for disciplining the employee for those comments or speech.

August 31
Private

I got a little bugged by the way all of a sudden there is a problem with Joann's performance. It wasn't just that she was made to feel singled out as she did. Let's say that she was doing her job and staying on task, would the outcome have been the same?

Phyllis bubble Phyllis Cheng

Episode 1 of the Preventing Workplace Harassment Course - The Workplace Files - is based on a workplace situation that occurred at a well known technology company in San Francisco in 2014. The point of that Episode is to show that claims and workplace conflict in general are rarely clear cut situations where one person is "right" and the other person is "wrong." Similar to conflict experienced in our personal lives, when we encounter conflict in the workplace it is often the result of poor communication and failing to shift one's perspective to view a particular situation from all angles. In Episode 1, Joanne's successful work performance would have changed the dynamics of the situation. Instead and at least as perceived by her manager, Joanne was not focused or committed to work, which triggered his anger and frustration that he then exhibited in an inappropriate manner -- causing the workplace conflict.

August 31
Private

Is income a "protected characteristic"? Are political views also a "protected characteristic"?

Janine yancey bubble Janine Yancey

Income is not protected in California, but receipt of public assistance/social services is a protected characteristic in North Dakota and Minnesota. Please view the Map of States in your course for more information. Political views are also not a protected characteristic in California but is protected in Montana and Oklahoma. Again, please view the Map of States in the course for further information.

August 31
Private

In order to establish or confirm unwelcome conduct for the validity of a harassment complaint is verbal confirmation necessary? I wonder about this since body language and actions are interpretations and therefore can be easily denied even if the interpretation is correct.

Phyllis bubble Phyllis Cheng

Verbal confirmation is not necessary to show unwelcome conduct. A person can show conduct is unwelcome by pointing to body language and actions (e.g., walked away from person; stopped interacting with person) AND by showing any reasonable person would find the conduct unwelcome. To show unwelcome conduct, a person needs to show they personally found the conduct unwelcome and any other reasonable person would find it unwelcome too.

August 31
Private

What is the best way to handle a situation, when a co-worker has just been hired that is equally qualified to do your job. You Manager just informs you that the employee has gone to him, and made several comments that pertains to my job.

Janine yancey bubble Janine Yancey

Generally, good communication, being a good listener and making an effort to view a situation from different perspectives will help address and resolve most workplace conflicts. In a situation where a co-worker is commenting to your manager about your work performance, you may want to consider requesting a meeting between all three of you in order to clearly define roles and responsibilities and get feedback about any real or perceived work issues. Understanding any concerns and getting on the same page regarding a go-forward plan is the first step to resolving workplace conflict.

August 26
Private

What if a honored guest that is invited to a company event gets in the orange or red during a speech?

Phyllis bubble Phyllis Cheng

As a best practice, senior management may want to comment (after the fact) on a situation where an honored guest makes inappropriate remarks during a speech. Senior management can send a brief written message apologizing for the inappropriate remarks and assuring people that the inappropriate remarks do not reflect the workplace values. If the honored guest makes extremely inappropriate remarks during a speech, then ideally, someone from senior management helps re-direct the person's speech so the person moves to a different topic.

August 26
Private

What if an employee tells supervisor that she is available? Supervisor knows employee is married. Supervisor tells employee that she should not be saying things like that to him. Later, the employee sends text that his apparel is nice.

Janine yancey bubble Janine Yancey

As a general best practice, a manager or supervisor should make it clear (verbally and/or in writing) that he or she is not open to romantic relationships with anyone on the team. If unwanted comments and/or actions persist after the general statement, the manager should seek guidance from the person's internal HR team.

August 26
Private

If I overhear one of my employees telling another unknown employee, on the phone, that she should talk to HR about feeling harassed in the workplace. Should I report it to HR?

Janine yancey bubble Janine Yancey

Yes, to the extent you hear or see anything that indicates possible harassment, you should report it to HR so they can address and resolve a sticky situation.

August 26
Private

If the complainant works for a group who handles situations like this, how can it be considered fair and unbiased? For example, if the employee works in HR and has a situation, who could they turn to for assistance?

Phyllis bubble Phyllis Cheng

If a person has a concern or complaint about a situation that exists within the HR team, then the person should report his/her concern to either the most senior person within HR (typically VP of HR), or a senior manager in another department such as legal or finance. The key is to report the concern to a senior person who can be objective and who has the experience and authority to address the situation if necessary. As a general best practice, it's also helpful to communicate the concerns in writing so the concerns are clearly outlined and provide a basis for a response.

August 26
Private

Is scaring a co-worker by making a loud sound behind their back with the intent to scare them considered physical harassment?

Janine yancey bubble Janine Yancey

We cannot comment on specific workplace situations such as the one you reference, primarily because any evaluation and/or opinion must be based on the totality of the circumstances, which includes context, relationships, prior history, etc. However as a general guideline, the "scaring" would need to be motivated or based on someone's legally protected characteristic to be considered physical harassment.

August 19
Private

What do you do when your workplace environment treats the spectrum as a joke? Often, offensive inappropriate comments are made, and someone will call RED, and everyone laughs - but this means that you can never really be offended because it’s considered a joke.

Phyllis bubble Phyllis Cheng

The purpose of the Workplace Color Spectrum is to make it easier to call out actions and comments and doing so in a joking, humorous manner is not necessarily a bad situation -- as long as people are receiving the message and the inappropriate comments/actions are diminishing thereafter and less of an element in the workplace culture. If the inappropriate comments/actions do not diminish after people have called them out as orange or red, then a recommended good practice would be to leverage your HR or People Operations Team and ask those folks to get a C-Suite Executive to message the workforce about the type of workplace culture he/she wants to create at the company. Most C-Suite executives would welcome an opportunity to speak about their desired workplace culture in light of the recent negative publicity about Amazon's workplace culture and the increased awareness of the problematic "brogrammer culture" in so many workplaces. The C-Suite is interested because at the end of the day, workplace culture impacts recruitment, retention and productivity.

August 17
Private

What is considered a reasonable amount of time between the filing of a claim and a resolution or statement from the Company/HR in response to it, after all investigating is said and done?

Janine yancey bubble Janine Yancey

A reasonable response time depends on the nature of the complaint and how big of an investigation the complaint triggers. For example, an investigation could consist of talking to two people and then reaching a decision, or, it could consist of 30 witness interviews and drafting a large report summarizing the investigators' findings. So what is a "reasonable response time" depends on the nature and complexity of the complaint and triggered investigation.

August 17
Private

Why is it that in every situation, it is a man that is the offender? This seems like a dangerous generalization that is offensive to men who operate in a professional manner.

Phyllis bubble Phyllis Cheng

Actually, there are a couple of Episodes in our 2015 training course where women were causing workplace problems. However, the Episodes reflect real workplace situations that have occurred in the last 18-24 months. And as it relates to sexual harassment charges, men are the complainants only 17% of the time as indicated in these EEOC charge stats: http://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm So while we certainly don't want to generalize and offend, we do want to reflect current workplace conflicts and show how they evolve so people are better equipped to navigate around potential conflicts.

August 17
Private

Does gossiping about a co-worker fall into any of these categories?

Janine yancey bubble Janine Yancey

Gossiping about coworkers is a typical workplace problem and easily leads to conflict. Commonly, gossip concerns someone's actions and not necessarily someone's legally protected personal characteristics. As a result, gossip is negative and frequently "yellow" on the Workplace Color Spectrum because it causes problems, but it's usually not going to create a harassment situation.

August 17
Private

There is no individual (personal) liability for harassment. What does this mean exactly?

Janine yancey bubble Janine Yancey

The concept of personal liability refers to whether someone can be sued personally and be a defendant in a case (as opposed to just having the employer as a defendant).

August 17
Private

In a construction meeting the other day, I was the only woman in the room and the guys started joking around that for the next project everyone who wanted to work on the project would have to have a beard. I told them their conversation was inappropriate and to stop but this has been going on for a while. The guys at the table are not employees of my company. Is this a hostile work environment?

Phyllis bubble Phyllis Cheng

We are prohibited from commenting or advising on particular workplace situations such as the one you outline. However, when faced with unwelcome conduct, it's a good practice to communicate your reaction to the conduct in writing. By quickly outlining the conduct and why it's problematic (either in an email, memo, etc.) -- it often forces the person to re-examine his/her actions from a different perspective. Typically, re-examination will end the unwelcome conduct. If the unwelcome conduct persists, your HR team can help address the situation.

August 17
Private

Does excluding a co-worker include not permitting them to go on a walk during a break when they are walking with other co-workers?

Janine yancey bubble Janine Yancey

Whether a situation could be considered "exclusion" really depends on many factors and should be viewed in the context of a broader situation. Accordingly, not permitting a co-worker to join others for a group walk could be exclusion or it could reflect legitimate business interests or it could reflect the ups/downs of life in the imperfect workplace.

August 14
Private

I wanted to know how the various state acts of employment are applicable in Texas.

Phyllis bubble Phyllis Cheng

Employment rights in Texas are governed by the Texas Workforce Commission. Here is a link to the Texas site that provides an overview of workplace rights: http://www.twc.state.tx.us/businesses/employment-law-discrimination-wages-child-labor

August 11
Private

Does a senior manager making a series of comments about "big c*cks" constitute verbal harassment? This was done in company-wide meeting and its adolescent locker room nature felt dismissive and divisive towards women. I think it is not coincidental that this manager had no women in his management chain.

Janine yancey bubble Janine Yancey

We are prohibited from commenting on particular workplace situations such as the one you outline. However, those types of comments are never appropriate for the workplace. Whether those comments would comprise verbal harassment depends on a specific evaluation of the situation, looking at the full context of the situation. Having said that and as a general best practice, you can and should rely on your HR team to address inappropriate comments in the workplace. A simple written description of the situation, comments made and people present during the situation would be helpful for a HR team to follow up on.

August 11
Private

Under protected class of family leave, can a supervisor insist that you schedule the intermittent leave according to work priorities and as long as there is coverage? What if the family leave days need to be taken but work priorities are more important? Is this borderline harassment?

Phyllis bubble Phyllis Cheng

Under FMLA or a state equivalent (such as California's CFRA), an eligible employee may take intermittent family, medical leave. The regulations require an employee to give advance notice of the leave, sufficient to make the employer aware of the need for a qualifying family medical leave. An employer may require written notice and may require 30 days advance notice if the need for leave is foreseeable. If not foreseeable, the employee must give notice as soon as is feasible. So after providing advance notice and verifying that the employee is eligible to take a legally protected family medical leave, including intermittent leave, a manager cannot deny a request because of business needs. The Emtrain Library (accessible to every learner) will have a short course on leaves of absence available later this year. In the interim, here's a link to California's publication on its family medical leave act, which addresses employee eligibility and notification requirements: http://www.dfeh.ca.gov/Publications_CFRADefined.htm

August 11
Private

With physical harassment it states that staring at someone is physical harassment. Is this to say that if I am a supervisor on duty and staring at someone to ensure they are making something properly and then give them a look if they are doing something improperly this can be seen as physical harassment?

Janine yancey bubble Janine Yancey

Typically, when people submit harassment claims and include allegations about staring, it's in the context of someone staring at someone up and down in a sexual manner. And rarely (if ever) do staring allegations comprise the whole complaint; usually staring is one of a number of unwelcome actions. Further, every claim is evaluated from both an objective and subjective standard meaning the average reasonable person would need to perceive the conduct as sexual and offensive for the person complaining to establish his/her complaint. Therefore, it's unlikely that looking at someone in the context of work to ensure he/she performs the job correctly would be perceived as physical harassment.

August 11
Private

This is more of a suggestion. At the end of this class you could ask a series of questions about the user's own work environment. For example, how would you rate your manager, your work group, your office and your company with each of the colors and why... just a thought... while the color coding and its meaning is fresh on our minds... especially if you could strip the responses to become anonymous. Just an idea.

Phyllis bubble Phyllis Cheng

Thank you for your suggestion. Our product team was just brainstorming along the same lines as your suggestion. Our goal would be to solicit specific, actionable feedback to help employers, managers and teams improve their workplace culture. All responses would be anonymous but feedback would be provided to employers. If you have other suggestions, please share as we want to hear them. Thanks!

August 11
Private

What if I make fun of my own gender? Often, when I get distracted and I am communicating via Skype to a female peer, I will make a statement like "Sorry for the delayed response... like a typical guy I can't multi-task and I got distracted." Is this an inappropriate comment in the workplace?

Janine yancey bubble Janine Yancey

As a general best practice, the less gender based comments, the better ... even if commenting on one's own gender. Typically, you can convey the same message without ascribing the characteristic to the whole gender. Having said that, an isolated or occasional remark made to someone who you know well and work closely with is probably fine and not a negative influence on the workplace.

August 11
Private

The 'protected characteristics' are very US centric, are there any significant differences in UK law?

Janine yancey bubble Janine Yancey

Emtrain is launching an international version of our preventing workplace harassment course later this year, which will provide general guidance for workers in Europe, Africa, Asia, Australia, South America. There will also be a specific Canadian version of this course given the workplace training mandates in Ontario and Quebec. In the interim, the United Kingdom has combined its prohibited discrimination rules in the Equality Act of 2010, which prohibits workplace discrimination on the basis of: age, disability, gender, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation. Increasingly, different countries and cultures are moving towards shared, common values and protections to ensure respect and fair treatment within the workplace.

August 11
Private

How is bullying not a mix of verbal/physical/visual conduct, and therefore illegal? Bullying isn't harassment? It seems like the content on those two slides is pretty much defining the same thing, but it specifically says bullying is not illegal.

Phyllis bubble Phyllis Cheng

Bullying refers to actions that aren't based on someone's legally protected personal characteristic, such as their race, age, gender, etc. Instead it refers to obnoxious, hostile or aggressive conduct that is unrelated to protected personal characteristics. Bullying has not been made illegal in any state or at the federal level, in part because it would be difficult to regulate as it lacks an objective component such as the presence of a legally protected characteristic.

August 11
Private

I have two questions: 1) Is there a statute of limitations on workplace harassment? And if there isn't, do you still have to be working at the agency? 2) Does a hostile dog (one known for barking and lunging at particular staff) constitute a hostile work environment even though it is not an easily confirmed protected class that is impacted?

Janine yancey bubble Janine Yancey

Yes, there is a statute of limitations to claim workplace harassment. If filing a claim federally with the EEOC, the statute is 300 days after the last incident that provides a basis for the complaint, as long as you work in a state with a statute prohibiting discrimination on the same basis. In some states such as California, workers have 1 year to file a claim after the last incident that provides a basis for the complaint. It's not necessary to be employed (by the subject employer) when filing a harassment or discrimination complaint. It's unlikely a hostile dog in the workplace would be perceived as a mechanism or vehicle for harassment against someone because of his/her legally protected, personal characteristic. Having said that, a hostile, lunging dog in the workplace is a workplace safety issue and should be reported to the HR team to address.

August 6
Private

In "Unwelcome conduct" one of the requirements mentioned is that someone of the same protected background would find the same thing offensive. Does that mean you have to be part of the protected class that the offensive behavior is directed toward?

Phyllis bubble Phyllis Cheng

Let me try to clarify it this way: If there's a question of whether something is offensive, the guideline is to put yourself in the complainant's shoes and evaluate the situation from that perspective. But that may not be necessary if the conduct was clearly offensive and there's no question about it.

August 6
Private

If you turn somebody in for sexual harassment and that person’s friends, while being asked about the harassment, tell lies to get the whistleblower in trouble, is it wrong for HR to write you up when all you wanted to do is stop the harassment? I would consider this to be retaliation.

Phyllis bubble Phyllis Cheng

We're prohibited from commenting on specific workplace situations such as the one you outline. However as a general best practice, a person's complaint should evidence his/her good faith in making that complaint, e.g., that the complaint is genuine. If, during the investigation of that complaint, some witnesses are dishonest, it is up to the person investigating the complaint to make those credibility determinations. At the conclusion of an investigation, it is possible for the investigator to make a credibility determination regarding whether the complaint was submitted in good faith.

August 6
Private

Is it acceptable behavior for a superior to hit you on the back of the head or arm as a form of an example to a story they were telling to the team for "illustrative" purposes?

Phyllis bubble Phyllis Cheng

That situation could either be appropriate, inappropriate or somewhere in between depending on the context of the situation and the relationship between the manager and direct report. If the manager and direct report know each other well and the manager is trying to re-enact a situation for the benefit of a team, then the actions are probably appropriate. However, those actions could be less appropriate if there's not a strong relationship between the manager and direct report. For specific guidance, you can reach out to your HR team to help facilitate.

August 6
Private

I am a manager and employ two staff at our California office. However, I work in the New Zealand office (branch). How does personal liability impact me when I am clearly outside of US boundaries?

Phyllis bubble Phyllis Cheng

To incur personal liability you would need to be personally subject to California laws. It's unlikely a California court could have jurisdiction over a manager that lives in New Zealand, even if the manager's actions impact those in California.

August 6
Private

Question #4 in the quiz on slide 8/20 confirms that employees cannot be discriminated against due to a genetic condition. Is the reverse (favoring those employees) also true? For instance, if an employee received a promotion due to a genetic condition, could another employee file a harassment claim arguing that they were treated unfairly? Could the employee who received a promotion?

Phyllis bubble Phyllis Cheng

As a general guideline, all work decisions need to be based on actual performance, not on personal characteristics or perceived personal characteristics. To the extent work decisions are made on criteria other than objective work performance, you open the door to potential claims and demoralization.

August 4
Private

I have a part two to my previous question, "what if you supervisor raises his/her voice and pounds their fist on the table with frustration?" What if the person banging her fist is both the head of HR (team) and is Senior Management? thanks for your previous answer to my first question.

Janine yancey bubble Janine Yancey

We can't advise on specific workplace situations. However, as a general best practice, we recommend nicely telling someone their conduct is kind of "yellow" or kind of "orange." Just calling it out and making someone aware of their conduct will cause them to rethink their actions.

August 4
Private

Can an employee be fired for transitioning gender presentation on the job? What about if the employee works in an office in California, but the company is headquartered elsewhere?

Janine yancey bubble Janine Yancey

A person in California (and other states) is protected from discrimination or harassment based on transitioning gender. It does not matter where the company is headquartered -- it matters where the employee works.

August 4
Private

If Rob sent the flowers directly to her house and no one would know, does it matter?

Janine yancey bubble Janine Yancey

Yes, it would still matter as sending flowers impacts the state of mind and comfort level of the manager receiving the flowers, regardless of who is present to witness the scene.

August 4
Private

What if I experienced or a coworker experienced a form of sexual harassment in the past? Can we bring it up now?

Janine yancey bubble Janine Yancey

Each state has a "statute of limitations" which give the parameters of how far you can go back and make claims about past incidents. In California, the statute of limitations is 1 year.

July 29
Private

The thing about being gay (or probably non-white, for that matter) is that, while people may not concretely discriminate against you, they may internally harbor negative perceptions of you. Just like in real life. Do you have any advice about knowing who are "safe" people to tell, or how to handle that in the workplace, outside of just being subtle?

Phyllis bubble Phyllis Cheng

Recent research indicates the harsh impact of subtle or unconscious bias on different groups of people in the workplace. Here's a free managing bias video from Facebook: http://managingbias.fb.com/ We will be recommending that all companies launch this training to their workforce to make everyone aware of their own biases and how those biases can hurt their coworkers. You can either wait for Emtrain to recommend this training to your company and/or you can suggest this training now to your HR team. Companies working with Emtrain can upload the Facebook Bias video link into Emtrain's LMS and assign the video to the entire workforce and track learner completions.

July 29
Private

Does statute of limitations apply to harassment/bullying complaints? Also, if the harassing/bullying has stopped should it still be reported?

Phyllis bubble Phyllis Cheng

Even if it's stopped, all harassment and bullying actions should be reported to HR so the HR team can address the conduct and ensure it doesn't occur again. Bullying is not legally actionable in the United States (it is in Canada and other countries), but the statute of limitations for harassment depends on the state's laws and/or federal law. Federally, there is a 180 days statute to file a claim after an "incident." However in some states such as California, there is a 1 year statute to file an administrative claim following an incident. The map of states in our workplace harassment course has more detailed information on requirements from state to state.

July 29
Private

I have significant concerns about "religion" being a protected characteristic. I strongly believe that "Sharia law" is a fundamental violation of human rights. I worked in a lab with a conservative muslim and he often stated that women should not be in the lab. Is his religious right to violate women’s rights protected?

Phyllis bubble Phyllis Cheng

First amendment speech rights do not trump or take precedence over the civil rights protections of employees in the workplace, meaning a person cannot state his/her religious or spiritual beliefs and trigger discrimination or a hostile work environment for others in the workplace. Religion as a protected characteristic means that managers or employees cannot take actions or make employment decisions about someone because of his/her religion. As a best practice, we recommend minimizing the amount of comments or workplace discussion concerning religious topics or views.

July 29
Private

What about holding employees to company standards and disciplining them when those standards are not met, even when there are not enough employees/hours to do the work the company expects within the guidelines they give? For example, 240 cases an hour but load size exceeds ability.

Phyllis bubble Phyllis Cheng

Even if management expectations or standards are unreasonable, it's not unlawful to hold people accountable to unreasonable expectations as long as those expectations are consistently applied to similarly situated employees, regardless of their personal and protected characteristics.

July 29
Private

What about excessive yelling toward superior as well as toward staff by manager. Is there anything we could do to stop this citing harassment laws?

Phyllis bubble Phyllis Cheng

Yelling is toxic in the workplace and it erodes the culture and impacts recruitment and retention. As a best practice, you should advise your HR team or senior management of the toxic situation as they'll want to know regardless of whether or not the conduct is legal.

July 29
Private

Is the Father of a newborn entitled to the same 12 weeks off from work to help care for that child?

Phyllis bubble Phyllis Cheng

Yes, both parents are afforded 12 weeks to care for a newborn per the FMLA and most state leave laws.

July 29
Private

Does our policy permit the use of prescription drugs, including medical marijuana, at the workplace during business hours or after hours?

Phyllis bubble Phyllis Cheng

We are a third party trainer. Please contact your HR team directly to ask that question. Generally, employers will permit prescription drug use (including medical marijuana) as long as it does not preclude the employee from performing the essential functions of his/her job.

July 23
Private

Do you always have to document the suspicious behavior?

Phyllis bubble Phyllis Cheng

If you want to take management action on someone's suspected drug and alcohol issues, such as requiring a drug test, then you need a documented record of the conduct or behavior that comprises the "reasonable suspicion."

July 23
Private

Who do you go to if the HR person is the one doing the wrong act?

Phyllis bubble Phyllis Cheng

If someone within HR is making you feel uncomfortable, you can go to that person's manager and/or seek guidance from a more senior manager within the organization.

July 23
Private

What if an employee speaks with their superior about two employees having a relationship within the workplace and the employee gets suspended instead of management investigating the complaint. Is this retaliation against the individual and could the employee have gone to the labor board?

Phyllis bubble Phyllis Cheng

We are prohibited from commenting on specific workplace situations. However generally, an employee is protected when expressing his/her discomfort with a particular workplace situation, but not protected when gossiping about a romantic relationship. It may be a nuanced distinction, but there is a California case that upheld an employer's decision to terminate an employee for gossiping about a workplace affair. In contrast, if someone is articulating the workplace conduct they find uncomfortable (kissing, holding hands, hugs, etc.), then those concerns are protected.

July 23
Private

If a woman in a male-dominated meeting makes suggestions and they are often dismissed, but a man makes the same or similar suggestions and is told "great idea," would that be any form of harassment?

Phyllis bubble Phyllis Cheng

That situation is a reflection of gender bias rather than harassment. Gender bias is a diversity issue and while it's a workplace problem that needs to be addressed, it's generally not legally actionable.

July 23
Private

If a non-employee of the company, but a person who works for our business partner, claims a harassment claim but then chooses to withdraw the claim, what should be the action of the employer and supervisor of the person that the claim is originally against?

Phyllis bubble Phyllis Cheng

Even if a person is not an employee, and even if the person withdraws their claim, the issue remains and management should conduct some limited form of inquiry to address the issue and ensure the workplace is comfortable and respectful for everyone.

July 23
Private

In the question: "One day, a group of guys who work together referred to their Middle Eastern co-worker as "Mr. Terrorist" after he criticized Western people for being too materialistic and lacking religious values." Why wouldn't the comment about Western people be considered an Orange statement? Isn't the Middle Eastern employee making a stereotype about the Western Employees?

Phyllis bubble Phyllis Cheng

Good comment. Yes, the comments about western employees are stereotypes and "orange," although a lighter "orange" than "Mr. Terrorist."

July 17
Private

The general team culture of my team is to put in long hours. We have a new employee who has a baby, and has a difficult time coming in early or staying late. Is it unfair to have the same expectations for him? How do I handle the fact that other people on the team may be more successful due to their ability and willingness to put in unconventional hours?

Phyllis bubble Phyllis Cheng

If you tie expectations and comments to legitimate business concerns, e.g., the needs of the team or the business, then holding people to the same expectations is not a problem or "unfair," absent other competing issues such as legally protected family leave. If an employee is not on leave or taking intermittent family leave and is back full time, then it's a good practice to outline and set expectations and then shift the responsibility to the employer to suggest how he or she can meet those expectations.

July 17
Private

What can we do or say when an employee makes threatening gestures or statements regarding their position.

Phyllis bubble Phyllis Cheng

Don't react, think through possible actions and reactions of the employee in question and proceed carefully. Try to view the situation as a third party would. Also, seek guidance from your HR team as those folks are skilled at navigating sensitive situations.

July 17
Private

Should a colleague be accused/charged with harassment in a state where personal liability for harassment laws exist. Would our company be liable/responsible to defend in court the colleague from the harassment acquisitions? Or would this be the colleague's expense and responsibility?

Phyllis bubble Phyllis Cheng

Generally, employers pay for the defense and costs of settlement of their employees accused of harassment. The few situations where that would not be the case is where the employer comes to the evaluation that the manager at issue clearly and egregiously violated employer policies.

July 17
Private

Please provide more in-depth examples of how current military members are protected under USERRA.

Phyllis bubble Phyllis Cheng

Certainly. A person's service in the armed forces cannot be a basis for, or motivating trigger of, workplace actions or comments. In the last few years, common situations on this topic involve actions or comments about a veteran having or potentially having post traumatic stress disorder (PTSD). Clearly, stereotyping someone along these lines would violate someone's protected characteristic.

July 15
Private

If gender is the sex at birth, why isn't being a male also considered to be a protected category?

Phyllis bubble Phyllis Cheng

Being male is a protected characteristic. So, a workplace situation would be inappropriate to the extent there are actions or comments motivated by someone's male gender. Learner response 2: Thanks for the response. It just seems like if male and female are both protected characteristics then that means everyone is protected so why do we have to specifically mention it. Probably overthinking it. Expert response 2: Thanks for the comment. Yes, everyone is protected but this framework is helpful to keep people focused on legitimate workplace criteria rather than basing their actions on someone's personal characteristics.

July 15
Private

Two years ago the training stated that if someone (he) was "hitting" on another employee (she) and she did not mind AND no one else in the workplace minded... that is was not sexual harassment....is that accurate?

Phyllis bubble Phyllis Cheng

Situations are very rarely that clear cut. Having said that, a legal requirement for a harassment claim is that someone found the conduct unwelcome. If a trier of fact (judge or jury) determines that nobody found the conduct unwelcome, then the facts don't support a harassment claim.

July 15
Private

I don't know how to deal with my current situation. I honestly believe that my department is currently in the yellow. We are not treated equally. Depends on who you are. It's frustrating. And as a person is always remains committed I want to see everyone doing their part. It makes for a difficult environment. We have an hour lunch everyday and sometimes can only take 30 mins. We work more over time then I need and trying to get off work even for doctors appointments and things you can't do AFTER 5:00 is a no go in this department. I often wonder what the turnover rate is.

Phyllis bubble Phyllis Cheng

While we cannot comment on particular workplace situations, this is important feedback for your employer. Most employers strive to be "in the green" and recognized as a top employer as it helps recruitment, retention and productivity. You may want to consider outlining some specific concerns about your workplace culture and providing those concerns to your HR team. Alternatively, Emtrain can notify your employer that a learner believes the workplace culture is "yellow" because of corporate politics, demand for working overtime and challenges getting time off and/or taking an hour lunch. HR teams appreciate more detailed feedback to give them visibility into workplace issues. Let us know if you would like us to summarize the feedback for your employer.

July 15
Private

A couple of us have an issue with our group. We are all in the same dept, we have 5 people in our group. 3 men, 2 women. the 3 men have different job responsibilities than the 2 women. One man in particular has called our job "putt-putt" as in putt-putt golf and that he plays pro-golf. We are regularly denied jobs that could advance our career, and feel they think less of us. And they have made verbal comments in that regard.

Phyllis bubble Phyllis Cheng

We are prohibited from commenting on particular workplace situations such as the one you outline. However as a general best practice, you may want to reach out and seek help from your HR team to facilitate teamwork and effective communication within your 5 person team. An experienced HR partner can spot demeaning and/or unproductive conduct and guide the team to more respectful and productive interactions.

July 7
Private

Would it be acceptable if a supervisor has drinks with his employees after work hours?

Phyllis bubble Phyllis Cheng

Certainly. Developing and strengthening work relationships is always a good thing. You just want to ensure you're being inclusive (or at least not exclusive) and you don't want to act so casually when away from the office that you say or do things that could make someone uncomfortable at work the next day.

July 7
Private

We have people in lots of locations. If a boss is in California and his employee is in Iowa, which state laws apply? What if the boss is in Iowa and the employee is in California?

Phyllis bubble Phyllis Cheng

Whichever state the employee is located in is the state law that applies to situations between that employee and his/her supervisor. So if the employee is in Iowa, Iowa law applies. If in California, California law applies.

July 7
Private

Why does the assessment seem to evaluate each type of conduct in isolation? The consistent epithet "princess" seems to me to color the remainder of Chris' otherwise-yellow conduct far more orange, because the epithet belittles Joanne on a gender-specific basis -- making it more likely his other evaluations (e.g. of her work) are tainted with that bias as well.

Phyllis bubble Phyllis Cheng

When determining whether a situation is unlawful harassment or something less than unlawful, a fact-finder looks to the "totality of the circumstances," e.g., all the comments and actions and the context for those actions and the credibility/motivations of each person involved. Ultimately, it's up to the fact-finder to make a decision. This workplace scene is based on the 2014 public allegations from a female software developer against a well known technology company in San Francisco. An experienced, third party investigator was the fact-finder and determined that this situation was "orange" and not "red" or unlawful. There are rarely clear-cut answers to these situations and ultimately, it's a decision for the fact-finder to make.

July 2
Private

What is the statute of limitations on sexual harassment?

Phyllis bubble Phyllis Cheng

It depends on the jurisdiction. Please see the Map of States in the course for information in each state. In California, a person has 1 year (from last incident) to file an administrative claim with the Department of Fair Employment and Housing. If seeking federal help, a person has 180 days to file an administrative claim with the EEOC.

July 2
Private

What kind of proof is needed when making complaints?

Phyllis bubble Phyllis Cheng

Generally, any third party reviewing a situation will want to see some objective evidence (notes, emails, documented actions) that support and verify a person's complaint.

July 2
Private

How should someone handle a situation where a coworker dislikes them, and seems to be consistently trying to find a way to get them in trouble? There hasn't been any harassment, but a few instances have been uncomfortable (such as snotty emails, or other coworkers overhearing negative comments about them).

Phyllis bubble Phyllis Cheng

When confronted with poor communication and teamwork, it's a best practice to seek guidance from a good communicator/facilitator to help address and resolve the conflict. Your HR team will typically have those skills and if you request their help to facilitate dialog (as opposed to complaining about a coworker), it's generally a relatively easy situation to address and resolve - but it's often key to address the problem collaboratively rather than as an adversary.

June 30
Private

I've witnessed several incidents of bullying, racism, sexism, and indirect sexual harassment in my workplace, and I know of coworkers that have made formal complaints to HR and upper-management to no avail. It is discouraging to see my coworkers' grievances and concerns fall on deaf ears. Behavior that used to surprise and offend me has now become the status quo. So here is my questions: Assuming one has already taken this online course to become "certified to prevent workplace harassment," does he or she, as a bystander, have an obligation to report harassment on the behalf of others? If managers are not employees, but instead contractors, can they still act as agents for the company? If so, since contractors haven't had any induction or company-specific training, how are they expected to uphold the same policies and standards?

Janine yancey bubble Janine Yancey

Everyone has a duty to report harassment, even if you're a bystander to the conduct. With respect to your question about whether contractors are agents of the employer - it depends on the particular facts. However, workplace harassment can stem from contractors or other people who regularly interact with employees in the workplace. Lastly, as a "best practice" when reporting concerns, we recommend outlining the concern in writing and communicating it to senior management to ensure everyone is on the same page as to the details of the concern or complaint.

June 30
Private

If a manager, who is not my direct report, uses intimidating behavior, insults my ability to follow instructions in front of a group, (unjustly) blames me for a project not going smoothly, and backpedals so that I don't report him to HR, should I still report this behavior?

Janine yancey bubble Janine Yancey

Intimidating behavior, questioning ability to follow instructions and/or complete work projects are not outside the scope of management activities because they are not based on someone's legally protected, personal characteristic -- the actions are work related, and therefore legal. However, even if it is not a legal issue, it may still be a "yellow" communication/management issue that should be addressed to have a more productive, happy team. It's a best practice to seek guidance from your HR team to help facilitate dialog since those folks have experience and training to navigate workplace communication challenges and workplace conflict.

June 30
Private

I recently received an email reply from my manager (mgr A) that was meant for another manager (mgr B) and that I was not supposed to see. The email was regarding a question that mgr B asked and that I responded to. Mgr A's reply stated that the other manager needed to "keep an eye on him and don't let him fast talk you", even though I had answered mgr B's question directly and professionally. This is not the first time I have been erroneously cc'd on a reply like this. I feel that my work ethic and integrity have been questioned and I feel both harassed and singled out. Is this harassment?

Phyllis bubble Phyllis Cheng

Questioning ethics, integrity or work performance is a legitimate and legal management activity and not harassment. However, even if it is not a legal issue, it may still be a "yellow" communication/management issue that should be addressed to have a more productive team. It's a best practice to seek guidance from your HR team to help facilitate dialog within a team since those folks have experience and training to navigate workplace communication challenges.

June 30
Private

If my boss tells me I cannot learn how to drive a fork-lift because I'm a woman, what does that constitute as?

Janine yancey bubble Janine Yancey

We are prohibited from commenting on particular workplace situations because these issues stem from the context of a situation where the details are important. So pulling one statement out of context is often not helpful to get a view of the full situation. Generally however, you should seek guidance from your HR team to address statements or situations that you believe are gender based and/or which limit your opportunities because of your gender.

June 30
Private

California Department of Fair Employment and Housing Age (40 and over), Ancestry, Color, Religion, Disability (mental and physical) including HIV and AIDS, Marital Status, Family Status, Medical Condition (cancer and genetic characteristics), National Origin, Race, Sex (including gender expression and identity), Sexual Orientation, and Military Veterans. There is personal (individual) liability for harassment. My question would be, isn't California Department of Fair Employment and Housing discriminating against all other ages 39 and under?

Janine yancey bubble Janine Yancey

California, the federal government and many states have determined that age protection should start at age 40 based on data collected indicating the harm to society from discrimination against older workers. So while ages 39 and under are not protected legally, it's based on a social public policy decision. Hope that helps clarify the issue.

June 26
Private

So quid pro quo only applies to sexual or romantic favors, not monetary or favors of any other type?

Janine yancey bubble Janine Yancey

Correct. Quid pro quo harassment involves sexual or romantic favors.

June 26
Private

Earlier there was a scenario involving religion as a protected class, whereby if an employee had pictures of religious figures/symbols in his/her office, that could be offensive to others. Could you please expand on that? When would this rise to the level of unwelcome/illegal behavior? Thank you.

Janine yancey bubble Janine Yancey

It's always a fact specific determination and it really depends on all the details of a specific workplace situation. But generally, when there are a number of religious comments, figures and symbols in the workplace such that it causes a reasonable person to wonder if religion plays a role in making management decisions that impact their job -- then you have a workplace problem that is in the orange and/or red zone depending on the nature and frequency of the religious influence on the workplace.

June 23
Private

What should you do when an employee has a complaint about a member of management but says that they don't want a response, they just want to let someone know what's the common perception among staff?

Phyllis bubble Phyllis Cheng

It depends on the nature of their complaints. If the complaints concern management style, then there is some flexibility in how you can respond. If the complaints concern a manager potentially harassing or discriminating based on personal, legally protected characteristics, then the complaint needs to be forwarded to the HR team or senior management to address and resolve if there's a real issue.

June 23
Private

I made a comment to a female regulatory, who was dressed in work boots, jeans, and a short-sleeved work shirt that "she had a nice tan." Where would this rank on your color scale?

Janine yancey bubble Janine Yancey

It all depends on the total situation, such as - how well do you know her? What was your attitude or demeanor like when you said it? It could be a green comment or yellow comment -- all depending on the details of the situation.

June 19
Private

What if an employee complains to me, the assistant supervisor, about his supervisor?

Phyllis bubble Phyllis Cheng

As a supervisor (assistant or otherwise), you have an obligation to report any complaint that seems connected to someone's personal and protected characteristic (race, gender, age, etc.) to the HR team and/or a more senior manager.

June 19
Private

Our situation seems more subtle. A male supervisor consistently asks for more review and editing of a female employee's work, values her opinions less, discounts her requests, micromanages her more. It seems based on their personal conflict more than on gender, but since she's the only woman on his team, it's hard to know. She says its gender discrimination.

Phyllis bubble Phyllis Cheng

We are prohibited from commenting on specific workplace situations such as the one you outline. But generally, subconscious bias comes before more conscious discrimination and the subconscious bias shows itself in not listening very well to certain people, not valuing their work performance, micromanaging, etc. While subconscious bias is a workplace problem, it is generally not illegal or actionable because it's significantly more subtle than outright discrimination. As a best practice, it makes sense to alert the HR team that managers may need some training on recognizing and becoming more aware of subconscious bias.

June 19
Private

If a person has been working for my company for over 5 years and tried to get another position, yet is denied again and again, Is that a form of harassment? The reasoning that is given is suspect and unfair. Other employees have been promoted over this employee that have had much worse record and yet this employee cannot get out of their current position.

Phyllis bubble Phyllis Cheng

We cannot comment on specific workplace situations such as the one you outline. However generally, it would not be harassment or otherwise illegal to refuse promotion to someone as long as the refusal is based on legitimate business criteria.

June 19
Private

What is the length of time an employee can be on disability?

Janine yancey bubble Janine Yancey

If you're asking about a leave of absence from the workplace, then a person can be out on leave for 12 weeks for a serious medical condition. If the condition is pregnancy related, then in most states such as California, a person can be out on leave for 4 months, plus another 12 weeks to care for the newborn. If the condition is a permanent disability, then the federal and state disability laws apply and trigger an obligation to see if it's feasible from a business perspective to grant a reasonable accommodation that may include extending a leave of absence beyond 12 weeks and/or providing a more flexible workplace schedule.

June 16
Private

If a person under a protected status speaks about his or her status, and it is offensive to someone protected under another status, how do you handle this situation? For example, if a transgender male is respectfully open about his journey, but this offends a gay male who has made it clear that he does not believe transgenders are a part of the LGB community, is the transgender guilty of making the work environment uncomfortable for the gay male?

Janine yancey bubble Janine Yancey

As a general guideline, commenting on any protected characteristic is very sensitive and can easily create workplace conflict -- regardless of whether the people commenting share the protected characteristic at issue. Just because you have a protected characteristic does not give you the green light to discuss that protected characteristic with others in the workplace -- it's still a sensitive topic and can easily offend.

June 16
Private

I know of a situation where an employee wears a lot of piercing. He works in the restaurant. When hired, he did not have piercing. Is this considered body art or personal expression? Is it protected if he does not claim his piercing has religious or spiritual significance?

Janine yancey bubble Janine Yancey

If not claimed to be religious or spiritual expression, then body piercing is not a legally protected personal characteristic and management may give guidelines for the appearance of its employees.

June 12
Private

One example, of many, is this: Our customer observed our manager yelling and flailing his arms at us in the parking lot. The customer’s concern was enough that they sent a text, directly to me about his actions being inappropriate. This behavior is commonplace and is killing my desire to do a good job. Industry experience 17 years. With this company for 6 years. New manager almost 3 years. Is there anything I can do?

Janine yancey bubble Janine Yancey

We are prohibited from advising on specific workplace situations such as the one you outline. Generally however, "yelling" is not legally actionable although it is not appropriate workplace behavior as it de-motivates and undermines the workplace culture. As a best practice, HR professionals should be notified so a trained professional can work with the manager and help the person manage without resorting to yelling.

June 12
Private

Do Workplace Harassment Laws differ from State to State?

Janine yancey bubble Janine Yancey

The legally protected personal characteristics vary from state to state. For example, Michigan protects weight whereas California does not. The legal framework for evaluating harassment claims (e.g., protected trait, unwelcome conduct, severe & pervasive, employer knew or should have known) does not vary.

June 12
Private

If a store manager is yelling at an employee loud enough for other employees and vendors to hear from the sales floor, would that be considered harassment/ bullying? And how can that be a legal workplace activity? I would consider that demeaning to the employee’s character, would that be correct?

Janine yancey bubble Janine Yancey

Yelling at someone for everyone on the sales floor to hear reflects poor management skills. It may also reflect bullying. But neither bullying nor poor management skills are legally actionable in the United States. Even though not legally actionable, the conduct is "yellow" on the Workplace Color Spectrum and can be improved to improve the overall workplace culture.

June 12
Private

Could quid pro quo involve a guest making unwanted sexual advances toward a crew member?

Phyllis bubble Phyllis Cheng

While third parties to the workplace (such as guests or customers) could be responsible for harassment, they couldn't be responsible for quid pro quo harassment since that involves someone who has direct power (to fire or grant favors) over the other person's job. A guest or customer can be responsible for creating a hostile work environment if their actions generally impact the other person's job in a negative manner.

June 12
Private

What would you do if you hear from a third party that a coworker is referring to another coworker (with special needs) as the "idiot", I repeat, I heard this from a third party, and makes me so mad.

Phyllis bubble Phyllis Cheng

While we are prohibited from commenting on specific workplace situations such as the one you outline, it's generally a best practice to let your designated HR professional know about a situation that is upsetting you and that could potentially involve comments about someone's legally protected and personal characteristic. And/or -- if you feel comfortable, let coworkers know that comments such as calling someone with special needs an "idiot" is "orange" and should be stopped as you prefer a "green" workplace.

June 9
Private

Do people actually use the term "orange" like they did in the video? "I feel like this is a bit orange." Are managers supposed to recognize that term or was that just mentioned in this video, because of the 4-color framework discussed throughout the training?

Janine yancey bubble Janine Yancey

It's a suggested framework and terminology to use in the workplace as it's less personal and it makes it easier and more casual to give quick feedback to get actions back on the right path.

June 9
Private

I didn't even know what "Sambos" was or is. I have never heard of it being linked to a race, and had it been named a restaurant, like say, Hooters or Twin Peaks, how would the conversation relate?

Janine yancey bubble Janine Yancey

Sambos was a popular chain of restaurants in the 70's and "sambo" referred to a little black boy character which many people believed to be racially insensitive.

June 5
Private

What must the company do if a guest of the company acts inappropriately? A guest speaker at a company meeting for example.

Janine yancey bubble Janine Yancey

If any guest or visitor to the workplace is acting inappropriately, it's a best practice for a senior manager to politely let the guest or visitor know the expectations for professional and respectful conduct within the workplace. The right message will let the guest know his/her conduct is off-base and typically, the person will modify their conduct.

June 5
Private

On Workplace Harassment Laws slide 8 of 20 shows "A manager yelling at someone because their work is poor is "yellow" conduct rather than harassment". I don't agree on this. The background picture for this shows her manager using a loudspeaker next to her ears. This shall be at least an orange, or even red, conduct.

Phyllis bubble Phyllis Cheng

Yelling about work is "yellow" because it's a negative action but it doesn't concern a legally protected personal characteristic which is what is required for conduct to be orange or red.

June 5
Private

I have new managers that occasionally refer to each other and their subordinates or the subordinates of other managers with endearing terms. Some of them claim that this is "cultural". How would you approach this?

Janine yancey bubble Janine Yancey

As a best practice, you may want to remind coworkers that "endearing terms" should be reserved for people they know really well and that not everyone appreciates, or feels comfortable with being addressed with terms of endearment as it's not business professional and it could rub some people the wrong way. The key is to know how the other person likes to be addressed and if that's not known, then it's a mistake to use a term of endearment.

June 5
Private

When a manager takes the option to use a open door policy and skip his/hers direct supervisor because he/she feels uncomfortable with that supervisor and goes directly to Human Resources., Then Human Resources informs the direct supervisor of the incidents happening. " Would receiving attitude, cold shoulder, not acknowledging, or plain ignoring the employee completely be received as retaliation? " Being a whistleblower, if you will.

Phyllis bubble Phyllis Cheng

Generally, it's human nature to feel uncomfortable and awkward around someone who has complained of workplace actions. To the extent any awkward behavior or cold demeanor becomes really uncomfortable, it's a good practice to reach out again to the HR team and they can facilitate.

June 5
Private

I feel very weird my boss hired her sister and she really does not do her job she actually watches movies on the computer I just really feel like a lot is not fair.

Phyllis bubble Phyllis Cheng

We are not allowed to provide advice on specific workplace situations such as the one you outline. However as a general best practice, you may want to consider leaving an anonymous message for the appropriate person on your HR team alerting them to a possible nepotism hiring situation that is not benefitting the company.

June 5
Private

There was a question that I'm looking for a bit of clarification on. "An employee claims harassment even though no protected classification is involved. It is safe to go ahead and give a negative performance review two weeks later, since the review was prepared prior to the claim." If the performance is sub-standard wouldn't a negative review be in order? Especially considering that the review was prepared beforehand and seemingly unrelated.

Janine yancey bubble Janine Yancey

While that course of action seems perfectly reasonable, here's the challenge you run into: the person getting the review will automatically think the negative review is in reaction to his/her harassment claim and then that person has a potential retaliation claim. Ideally, you want to wait so a negative review doesn't happen right after a claim is submitted. But if you can't wait, here's a best practice for that situation: Ensure your documentation undeniably shows the review was prepared prior to any claim that was submitted (there should not be any factual questions or possible disputes about the timing) and then get another senior manager who is not involved in the claim to review the person's performance if that's possible. All of this should be happening with the guidance of someone on your HR team. The goal here is to create a situation that allows any neutral third party to look at the situation and quickly determine no retaliation is involved.

June 5
Private

I just recently got transferred to a new store and I heard some gossip about my sexual preference. I am a family person that i have wife and kids and I’m not sure what I should do about it. I usually just ignore it and keep doing my work.

Janine yancey bubble Janine Yancey

Workplace gossip is typically negative and not productive for workplace culture. It's "yellow" conduct on the Workplace Color Spectrum. As a best practice, you may want to consider commenting to [suspected] gossipers that gossip is usually false, off-base, and creates conflict within teams. When you raise peoples' awareness to their negative actions, they usually stop. If you don't feel comfortable making a comment yourself, you can get help from your HR team and request they circulate a message to the team along the same lines.

June 2
Private

For personal liability - our company is based in CA, but I work in TX....which state's personal liability law applies to me...assuming an incident occurred in TX.

Janine yancey bubble Janine Yancey

The law of the state where you work governs the situation. So, Texas law will govern if you work in Texas, even if the company is headquartered in California.

May 29
Private

I’ve had an issue with a coworker who has told me “You are gay” and “You like d***.” I asked them to stop and even went to a higher up about this matter and they won’t do anything about it. What should I do?

Janine yancey bubble Janine Yancey

It's a best practice to put your complaint in writing and send it to the executive designated by your employer's harassment policy and/or the most senior executive within your organization. It's good for the employer to get notice of the issue and it typically triggers a response.

May 29
Private

Why would you change a performance evaluation if it was written prior to a complaint?

Janine yancey bubble Janine Yancey

If it's clear to any neutral third party that a performance evaluation was drafted BEFORE a submitted complaint, then communicating the performance assessment is appropriate. However, if it's open to a factual dispute, e.g., a complainant claims the manager is lying as to when he/she drafted the performance review, then it's a best practice to get strategic guidance from an HR professional regarding the timing and content of the performance review.

May 29
Private

My location manager jokes with a co-worker saying things like “your mama...get your ass to work.” Is this harassment?

Janine yancey bubble Janine Yancey

Using foul language is best described as "yellow conduct" on the Workplace Color Spectrum since it doesn't involve an action taken because of someone's legally protected, person trait. While it's not "green" positive workplace conduct, it's not illegal.

May 29
Private

If you are an hourly employee and work on a program that could benefit your work, however, it's an off hours project. Would it still count as company property?

Timothy crudo thumbnail Timothy Crudo

It sounds like you’re asking a question about who owns the intellectual property of work performed after hours but relating to the employer’s business. The answer always depends on the particular facts of each situation but generally, the employer “owns” the rights to the employee’s work-product when it’s business related and/or prompted by their work experience, regardless of when that work is performed.

May 29
Private

My manager is remote and I talk to him once every 2 weeks provided he doesn't reschedule the meeting. He talks down to me and acts as if I don't have a brain. Despite asking for time with him, he has continued to blow me off. The only time I had one on one time with him he makes a joke about LBGT women that sickens me and then blows it off as if I should have a stronger sense of self and not let it bother me. When I requested time with my next level manager he not only blows it off and doesn't answer my email, he shares the info with my direct manager who then calls me and gets angry for going over his head. Thoughts?

Sally march thumbnail Sally March

Sorry to hear your feedback. Perhaps you may want to send your feedback anonymously to senior management or HR? We can send your feedback to HR without disclosing your identity if you like.

May 29
Private

What does IIPP mean?

Chris macdonald thumbnail Chris MacDonald

IIPP refers to what some states call ­ Injury Illness Prevention Plan.

May 29
Private

The question under section Accurate Recordkeeping which asks "Is there a record keeping error in the contract" is not completely clear. It sounded to me as if they were asking if there was an error with the contract. The issue was communication from the sales department.

Timothy crudo thumbnail Timothy Crudo

Thanks for your question. The issue for that scene was that sales had verbally agreed to a term, but did not document it accurately and therefore, the written contract was not consistent with the verbal contract.

May 29
Private

I have a manager that I suspect is giving a lot of contract work to his brother, who is a freelancer. His brother doesn’t produce great work and I wonder at the budget and what the company is paying his brother. How can I raise concerns without my manager knowing I’m complaining about him? I want the company to know but I don’t want any problems to come my way.

Chris macdonald thumbnail Chris MacDonald

If your company has an employee hotline, you can use that to submit a concern/complaint anonymously. Otherwise, you can communicate your concerns in a general way to a senior manager in the Finance Department without identifying anyone specifically and ask Finance to review invoices from freelancers working for your department and verify the work-product received is commensurate with money paid and there were not any conflicts of interest.

May 29
Private

I hate when my boss emails me instead of talks to me in person about detailed topics or sensitive subjects. Any suggestions?

Janine yancey bubble Janine Yancey

You may want to suggest the idea of situational leadership to your manager, which is a leadership concept that Ken Blanchard and his team have developed where managers modify their approach per the needs of those reporting to them. Just tell your manager you prefer face to face communications for detailed or sensitive topics as it ensures the message is received as intended. This way you’re making the conversation about your needs which is easier to hear.

May 29
Private

I have a hard time motivating a millennial worker on my team. He doesn’t want to do “grunt” work and after 6 months, he thinks he can run the department. Suggestions?

Phyllis bubble Phyllis Cheng

This is oversimplifying, but millennials are somewhat of the “me” generation due to the “helicopter” parenting style that has been so pervasive within this generation of parents. In any event, it’s important to outline why the “grunt” tasks are important to overall career and skill development and why spending time on lower level activities and learning from more experienced colleagues is ultimately to the employee’s benefit.

May 26
Private

A manager at work is very rude to his subordinate because he thinks he can be. He treats the manager with a totally different attitude- everyone can see that he calls her "boss, yes boss, ok boss.." it bothers a lot of people at work. Is this a valid complaint?

Janine yancey bubble Janine Yancey

No, it wouldn't be a valid complaint. The law doesn't guarantee us a good workplace, it only guarantees a workplace free of actions taken against us because of legally protected personal traits such as our age, race, gender, etc. Corporate politics and rude conduct fall in the "yellow zone" on the Workplace Color Spectrum. While conduct in the "yellow zone" causes workplace problems (conflicts, employee turnover, etc.), it's not a legal issue. Having said that, HR teams want to hear about the "yellow conduct" so they can help minimize the conflict and help make the workplace healthier and more productive.

May 26
Private

I manage trade shows for my company through a big box retailer. I had a personal experience were a manager started yelling and screaming at me in the middle of the store and stated that my company was stupid for hiring a woman in a position of authority. I was the one directly affected by this, but my female team members and employees were very nervous going to that store afterward. I took action by making sure when we have to go to that location that I do not schedule females there. I do not want to put them into a situation I know could be hostile. There are 2 questions I have about this situation: 1. Is it OK for me to do that? My action is to try and protect my female team members, but I am not scheduling them because of gender, is that an appropriate act on my part? (there have been no complaints about the scheduling, but I want to make sure I am doing the right thing) When I reported this to my company, my direct boss (who is a woman) was outraged (I have never once had any issue with any other managers at this particular store in any other location. I work with at least 15 other locations and this is the only time there has ever been a problem.) But the higher ups from my direct boss (who are all men) stated that this act concerned them as to how I am relating to the managers, even though there has never been an incident in any other location. They stated that they didn't see why the manager would have had an issue and that everyone they spoke with said there was no problem. This situation happened directly in front of all my employees and none of them were contacted by the company which leads me to believe they would have only spoken with this big box retailer. I don't want to push this issue any further, but as the manager of the trade shows, any time I have a show being held in that building I have to visit it. I can handle it if this manager attacks me again, but since my higher level bosses are "concerned" about this incident as if I had done something inappropriate, I'm worried that should anything like this happen again at this location with that same manager, my job could be in trouble. 2. What are the things I should do to protect myself in this situation?

Janine yancey bubble Janine Yancey

Hello -- we are prevented from providing advice on specific workplace situations such as the one you outline here. Generally however, it's a best practice to outline the situation and your concerns in writing and forward your communication to the highest HR professional and/or the top lawyer at your employer. Get written guidance on how to proceed from that person or persons.

May 26
Private

What if you hear your supervisor picking on one of your staff members?

Janine yancey bubble Janine Yancey

It all depends on the nature of what constitutes "picking on." For most conduct, it's a best practice to use the Workplace Color Spectrum and nicely tell the person that his/her conduct is kind of "yellow" since it's negative for the workplace.

May 26
Private

What if an employee is reviled by the rest of the workers and there is some rude conduct on both sides, but worse in volume by those who dislike the employee. There are no protected issues, just workplace conflict. Isn't this harassment?

Phyllis bubble Phyllis Cheng

No, that wouldn't be harassment since no protected traits are involved. The law doesn't guarantee us a good workplace, it just guarantees a workplace free of actions taken against us because of legally protected personal traits such as our age, race, gender, etc. Rude conduct and employee conflicts fall in the "yellow zone" on the Workplace Color Spectrum. While conduct in the "yellow zone" causes workplace problems (conflicts, employee turnover, etc.), it's not a legal issue. Having said that, HR teams want to hear about the "yellow conduct" so they can help minimize the conflict and help make the workplace healthier and more productive.

May 19
Private

How do you separate performance issues after employee complaint? "Separate performance issues from investigations. If a complainant has performance issues, wait to deal with them until after the investigation is over. Mixing an investigation and performance issues can appear retaliatory." At what point can/do you address performance issues?

Janine yancey bubble Janine Yancey

That's the million dollar question! Managers should always partner with their HR team to get guidance on this issue as it depends on specific facts and context. However, ideally, you want a situation with a documented record that any third party can review and quickly surmise that the performance issues are not related to the complaint. It's when managers need to do a lot of explaining of a situation that you're in a risky situation. The general rule is the more explaining you have to do, the weaker your position. Hope that helps.

May 19
Private

Does an Association of Condominium Owners, as an employer, have a duty to protect their employees from owners who repeatedly grill them about their employer and make them uncomfortable?

Phyllis bubble Phyllis Cheng

Hello -- we're prohibited from commenting on specific workplace situations. However generally, an employer has a duty to maintain a harassment-free workplace for its employees regardless of whether the conduct stems from co-workers or third-parties who regularly interact with employees. Yet the duty only extends to "harassment." It does not address rude conduct that does not constitute harassment

May 19
Private

My company has multi-state locations and managers are not located in every state. Which state's laws apply - the state the harassment happened in, the state the manager is in or the state the corporate office is located in?

Janine yancey bubble Janine Yancey

The laws of the state where the workplace incident occurs determine the legal criteria used to assess the situation.

May 15
Private

I am curious why Theresa is not a red code. The major issue is that someone from HR at that company should have reached out and by being the president’s wife (who did not even work at the company) makes this a serious threat to her. Just wondered why this was taken so lightly in the video. To me it seems like Theresa was leveling threats not to rock the MALE dominated boat.

Janine yancey bubble Janine Yancey

First, this scene loosely models a real workplace claim situation from July 2014 involving a tech company in San Francisco. The neutral, independent investigator found no harassment. Second, the wife's actions didn't reach the red zone because of the severe and pervasive requirement. The comments were definitely inappropriate and can be perceived as urging the person to refrain from complaining, but to be considered harassment, the conduct needs to be severe or pervasive. In this situation, the wife only made those comments once and followed up with the complainant a few times but then stopped as soon as complainant complained of her actions. It's ultimately a factual decision but those few interactions were not deemed to be severe or pervasive.

May 15
Private

Hi,one of my colleagues has a tendency to call me and say things like "Oh you're such a slacker" and laugh it off. This colleague does this about once a month. This person even said it in front of one of our team’s new hires as if to warn them against my "slacker" behavior. I'm by no means a slacker. In fact, our manager sees me as the highest producing member of our team. The comments from my colleague anger me and then I forget about it a few days later until the next episode. What should I say to this colleague or my manager? Thanks.

Janine yancey bubble Janine Yancey

We can only offer general "best practices" and not specific workplace advice as every situation really depends on context and personalities, etc. But a simple best practice is to give feedback that the comment is rubbing you the wrong way. We know it's difficult to give feedback and that's why we came up with the Workplace Color Spectrum. So you can give feedback by saying the comment is "yellow" because it doesn't foster healthy productive teamwork.

May 15
Private

Does a manager have a legitimate concern when making decisions about future performance: i.e.--a white male tells his boss he's been asked to join a semi-pro football league but wants to continue working while on the team. "I will be able to play football around the work schedule and it shouldn't interfere with my work performance." The boss knows that the football will be grueling and it won't be as easy as he's being told to keep up with the work load. In other words, it's not a protected category. Can the boss say "no football if you want to continue to work here?" without fear of a registered complaint because there's no legal standing here, even if it concerns a legitimate activity a person does on his off-time?

Janine yancey bubble Janine Yancey

Generally, your question falls into more of a code of conduct topic rather than a harassment topic. The situation does not involve a management decision influenced by a personal and protected characteristic (e.g., harassment or discrimination). Instead, it seems to involve a management decision that could be influenced by an outside activity and the potential conflict of that outside activity with the demands of the job. In those situations, you want to refer to your code of conduct and seek guidance from the appropriate staff within your organization as every organization has different policies on outside activities and how those activities could pose a potential conflict for the job. Generally though, it's a valid management concern but tricky to articulate so it's best to rely on in-house professionals.

May 15
Private

I've had open heart surgery and back surgery during my employment term - I've also been diagnosed with a form of blood cancer; additionally, I'm nearly 60 yrs. old. Often that requires inconvenient medical appointments and that I not work as many hours as some of my colleagues. Unfortunately though, this creates workplace tension and I'm made to feel as though I'm not chipping in to the same degree as others, when that's not necessarily the case at all. I love my job and don't want to lose it, but I feel that these issues result in unfair treatment and exclusion. How should I handle that, when my VP is also one you would characterize as a "workaholic" who puts in as many hours as he expects others to put in?

Janine yancey bubble Janine Yancey

We are prohibited from providing advice or commenting on specific workplace situations such as the one you outline. However, we can offer general "best practices." It's always a best practice to have an open dialogue and ask for the measures of success so you have clear goals and a blueprint for successful performance. Business leaders usually care about results and the day to day interactions are less important if people are achieving the desired results. Certainly indicating your desire and confidence that you can achieve those results would be very helpful. This can be a positive and productive discussion that does not necessitate diving into personal and sensitive issues.

May 15
Private

Why isn't bullying and abuse considered illegal? This forms the basis of perhaps the most pernicious and disturbing conduct which could be experienced. It would seem there are a lot of "holes" in the classification system which permit overt abuse, without providing any legal protection from it.

Janine yancey bubble Janine Yancey

In the U.S., bullying and abuse is not yet considered illegal, despite numerous legislative attempts in various states. Lawmakers’ hesitation to regulate this workplace conduct stems from the concern and dilemma of how you define and qualify the conduct in an objective manner and in a way that does not open the door to millions of new legal claims against employers. Workplace law has been well settled that courts and juries can only help guarantee a minimally acceptable workplace, but they cannot guarantee a good workplace. Learner Response: Yes, unfortunately that same dilemma seems to govern much of the legislative agenda. Can’t have employers getting sued when they are so critical to the economy – that’s fully understandable. It also assures that things remain the same and that bullying and abuse continues unchecked in America. Thanks again for another candid, well considered response.

May 15
Private

My supervisor is constantly raising his voice at me and always tells me to get used to it because that is his personality, that his is not yelling at me that he just talks very loud. Is this a poor management or am I being sensitive?

Janine yancey bubble Janine Yancey

We cannot advise on particular workplace situations because as your example shows -- everything depends on context and it's not possible to provide helpful guidance based on a brief comment or question. Generally however, you manage in a style that works for the person you're managing, meaning you use different styles for different people. With that premise in mind, you may want to encourage your manager to use a style that works best for you (soft-spoken, non-yelling) and will get him the results he wants. Hope that helps provide some guidance.

May 15
Private

The protected characteristics map under "workplace harassment laws" 15 of 18 does not open when I click on the green box. In CA can managers be subject to personal liability for harassment?

Janine yancey bubble Janine Yancey

Yes, in California, managers are subject to personal liability for harassment, which means they can be sued personally.

May 12
Private

Given that a manager is "an agent of the employer," if he or she is truly unaware of a situation which could be otherwise deemed as a "knew or should have known" scenario, how can that manager protect himself/herself, assuming he or she would be subject to action from the employer or perhaps even civil action?

Janine yancey bubble Janine Yancey

The "knew or should have known" is a legal standard, but also a factual question determined by a judge or jury. So if a manager is truly unaware of a situation -- then there typically would not be an issue. If the manager is putting his/her head in the sand as a workplace drama unfolds, and everyone on the team knows about the workplace drama, then that would be a situation where the manager would be held accountable. And the best way to protect against that type of situation is to model good management practices and be in tune with what's going on with the people on your team.

May 8
Private

It seems like younger workers from overseas are getting the better jobs and promotions. Is this protected anywhere?

Janine yancey bubble Janine Yancey

Whether it's a problem or legally actionable to give jobs and promotions to younger workers from overseas depends on a variety of factors and the full context of the situation, such as whether the workers are a contingent workforce or whether they are regular employees; and whether there are systematic employment practices throughout the organization that negatively impact older workers.

May 8
Private

If you work with someone who is bipolar and inform the manager about it , should it be in a written statement?

Janine yancey bubble Janine Yancey

Whether you document a co-worker's disability (bipolar would be considered a mental disability) really depends on the context of the situation and your personal goals. For example, if your goal is to make your manager aware that your co-worker has a mental disability, there's probably no need to document your communication. However, if your co-worker's disability is negatively impacting your work-environment and you would like someone to remedy the situation, then it would probably be productive to document your communication regarding the co-worker's disability and any negative actions stemming from that person. Hope that helps provide some guidance.

May 5
Private

Is a manager elbowing his employees(on multiple occasions) considered unacceptable? How? Where does it fall on the spectrum? Usually "elbowing" because he doesn’t think their attention is where it should be. Or he believes they are not focusing on what he wants them to. Or they are not taking notes using the method he prefers.

Phyllis bubble Phyllis Cheng

Thanks for your question. Elbowing a co-worker to get their attention could be green or yellow on the Workplace Color Spectrum depending on the situation. So, if two co-workers know each other really well and have a strong relationship, elbowing someone is probably fine and a part of their rapport. However if the co-workers don't know each other very well, then elbowing someone is a bit rude and likely to offend -- making it less than ideal workplace conduct and within the yellow zone on the Workplace Color Spectrum. Hope that provides some guidance.

May 5
Private

California can hold someone liable for harassment. Can you explain the extent of this liability

Phyllis bubble Phyllis Cheng

Personal liability means that a co-worker can sue you personally for your actions in the workplace and if the person wins his/her lawsuit, then the individual defendant has to pay money to the plaintiff. Typically, when individuals are sued, they are sued along with the company. In that situation, the company will pay for the defense of the individual and often will pay the cost of the judgement too (if there is one)... unless it's determined that the individual clearly violated company policy and acted in a manner outside the scope of expected business conduct. I hope that clarifies the issue for you.

May 1
Private

If you are an hourly employee and work on a program that could benefit your work, however, it's an off hours project. Would it still count as company property?

Janine yancey bubble Janine Yancey

It depends on the full context of the situation. But if an employee (hourly or otherwise) is working on a project that is related to their work and/or prompted by their knowledge and experience from their work, then typically the work-product would belong to the employer regardless of whether the work was performed during normal working hours or not.

May 1
Private

I have an employee that was working towards a certification that would help him with his career goals. During his studies he found out his wife was expecting. Obviously his financial priorities shifted and he was struggling to get the money necessary to pay for the tests. There are 2 tests necessary for this certification. I told him if he can get the funding for the first test, i would get the second test for him. As there was nothing that his view or respect of me could influence, would this be ethical?

Janine yancey bubble Janine Yancey

Hello - While we're prohibited from commenting on specific workplace situations, generally you want to take a situation through the decision tree and ask if there's a conflict of interest, a violation of law or policy, an appearance of impropriety, a negative impact on employees, the business or shareholders, etc. If the answer is "no" to all those questions and the manager has the authority to make that decision -- then it's probably an ethical decision. Hope that helps.

May 1
Private

After a complaint is made from the employee to the manager, what is the best way for the manager to approach the employee with the intention of moving forward without future incident or retaliation?

Janine yancey bubble Janine Yancey

If employee made a complaint against the manager, it's a best practice to get either a senior manager or HR professional to facilitate a meeting to "clear the air" between the two and map out how the two will work respectfully and productively together moving forward.

May 1
Private

Is using the words “he is slow” or “she is slow” bad? And if so, what other words to use to not offend someone.

Janine yancey bubble Janine Yancey

If you're using "slow" to describe a work skill -- then it's kind of a "yellow" comment. You can probably communicate the same message but in a more productive and descriptive manner, e.g., -- "performing xyz task is not one of your strengths... you would benefit from developing abc..." Hope that provides some guidance.

April 28
Private

What if you are falsely accused of harassment? Does the mgr have recourse? Can the manager counter-sue the employee for false statements made in the claim?

Phyllis bubble Phyllis Cheng

The best course of conduct is to calmly and professionally disprove any and all claims made against you based on actions or statements that are as objective as possible. Ideally, you want to disprove claims made against you in writing. The goal here is to make it as easy as possible for a third party, unfamiliar with the situation, to quickly assess the situation and reach a decision in your favor.

April 28
Private

What if you are falsely accused of harassment? Does the mgr have recourse? Can the manager counter-sue the employee for false statements made in the claim?

Phyllis bubble Phyllis Cheng

The best course of conduct is to calmly and professionally disprove any and all claims made against you based on actions or statements that are as objective as possible. Ideally, you want to disprove claims made against you in writing. The goal here is to make it as easy as possible for a third party, unfamiliar with the situation, to quickly assess the situation and reach a decision in your favor.

April 28
Private

I'm more than an hour into this training and everything is orange or below. Is this training's underlying purpose to scare folks from reporting hostile environments or sexual harassment for fear that nothing will be legally prosecutable?

Phyllis bubble Phyllis Cheng

Thanks for your comment and question. The goal of this training is to show that these issues are nuanced and rarely clear cut. Very rarely are situations obviously harassment or obviously not harassment. The majority of workplace situations are "orange" or "yellow" -- and those situations should be reported internally so people can be guided into acting "green" rather than "orange." A "red" situation means you're in court, which most people never experience.

April 28
Private

I am the safety focal for my group, and I notice after entering an unsafe area (required safety glasses protection) I brought up the topic to my safety manager. He told me that this is an ongoing political battle. So then I brought this topic up again in another meeting with my direct leadership manager. She immediately take action and call the safety manager into her office and demanded he take action immediately. The next time I run into the safety manager in the hallway, he was very mad and told me that I am done with him? I was told by my other pier co-worker that my timing and I should just keep it to myself the next time I see similar incident. I am confused because I believed safety come first, and not waiting for an accident to happen before I raise up the concern.

Phyllis bubble Phyllis Cheng

Thank you for your question. We cannot comment on specific workplace situations because the context of a particular situation is important and typically impacts the nature of the guidance provided. However, as a general guideline, it's a good practice to document your workplace concerns (politely) and then direct your written communication to the company personnel responsible for either following up on employee concerns and/or ensuring a safe workplace for everyone. I hope that provides some guidance for you.

April 28
Private

In previous harassment training, using swear or cursing language is represented as a form of harassment. However, that was not mentioned here ... can you clarify?

Janine yancey bubble Janine Yancey

The language used in the workplace impacts the culture, either positively or negatively. The more people curse or swear, the more negative or "toxic" the workplace becomes. If people use curse words in conjunction with references based on a protected trait, then that language starts becoming "orange" and possibly "red" if combined with other inappropriate workplace activities.

April 28
Private

Chris had inappropriate nicknames for everyone on the team. So it seems like he was not discriminating against any trait in particular, but in fact treating everyone the same. That's not good, but doesn't that take away from discriminating against a protected trait?

Janine yancey bubble Janine Yancey

Yes, the manager in the episode with the software developers did have nicknames for everyone on his team. So while calling a female developer "princess" is not respectful or appropriate workplace conduct, that action by itself will not equal discrimination or harassment. In contrast, if the female developer starts experiencing negative job actions that don't appear to be based on legitimate business interests, then she can point to her manager's princess nickname for her as evidence of bias and discriminatory intent.

April 28
Private

Is there a number to call if you feel a situation falls under one of these categories?

Janine yancey bubble Janine Yancey

If you feel like you're experiencing a situation similar to those reflected in this course, the first course of action is to tell an HR professional at your organization. It's a best practice to communicate your concerns verbally and in writing and request confirmation of receipt so you know your message has been received. After you've tried that option and there's no response after 1-2 months, then you can contact your state agency that governs fair employment laws (just google fair employment laws and the name of your state) and the state agency can investigate your concerns.

April 24
Private

I was once approached by several employees about an employee passing gas in the workplace. Several people were making fun of them. I asked staff to address the employee but they refused but kept on making fun of him behind his back. I then spoke to the employee. Was this the right thing to do?

Janine yancey bubble Janine Yancey

Let me answer your question with a question. If you had food on your face wouldn't you want someone to tell you? Yes, you did the right thing. As long as you're tactful, letting someone know about an embarrassing situation (that they can change by going to the restroom when necessary) is the right thing to do. Good job!

April 24
Private

Hi -- why is calling a female princess not in the red?

Janine yancey bubble Janine Yancey

Because a one time comment is not sufficient to be "severe or pervasive" and change the nature of the workplace -- the standard required for harassment

April 24
Private

I know someone who works with a person born female but who prefers to called a male. If my associate refuses to refer to the female as a male, would that be considered harassment?

Janine yancey bubble Janine Yancey

It depends on the legally protected characteristics of the state wherein you work. Many states protect gender identity - which means the gender you identify with regardless of whether that matches the gender of your birth. If the state protects gender identity, then repeatedly refusing to acknowledge someone's stated gender could be considered harassment.

April 24
Private

What do you do in a case when an employee falsifies that he was hurt and he is seeking workers comp and when you have verified that everything he claim is false?

Phyllis bubble Phyllis Cheng

If you believe someone is making up a work injury and falsifying a workers comp claim, you should report your concerns and any evidence supporting your concerns, to the HR business partner or appropriate person at your company. That person will then inform the insurance carrier who is responsible for covering the claim.

April 21
Private

There's a fine line between bias and discrimination.

Janine yancey bubble Janine Yancey

Bias is a prejudice in favor of or against a certain group of people -- like a preference for younger employees. Bias is subtle and often difficult to show or prove. Discrimination is when the bias evolves and turns a bit more obvious and is displayed in the comments made or management actions that are blatantly taken because of a prejudice rather than legitimate business reasons.

April 21
Private

If an employee whose work needs improvement files a complaint, when is it appropriate to discuss the quality of their work? If everyone else in the company is going through performance reviews, won't delaying the presentation of a negative review appear to be special treatment?

Janine yancey bubble Janine Yancey

Excellent question and this is the exact situation that usually trips up managers. If the employee has preemptively filed a claim (before the manager has clearly documented the need for improvement) -- then HR needs to address the employee's claim first and it's best to delay a performance review until the employee's claim has been resolved and documented in a way that (if necessary), any outside person can quickly get an accurate read of the situation. It's not a problem to delay the review because the employee will typically not perceive the review as legitimate anyway given his/her pending claim and therefore, the review is immediately called into question and undermined. So when employees preemptively file claims to avoid discipline or term, managers need to slow down and play a game of chess. Meaning you wait the person out, have HR address their claim, and then when the dust has settled, move forward with your legitimate management action -- all sufficiently documented so any outside person can clearly figure out what has transpired. The less "explaining" you have to do about the situation, the stronger your legal position. Hope that helps.

April 21
Private

Bullying...I was bullied at a previous place of employment and at one point physically assaulted (poked in the chest while being accused of something I didn't do. This occurred in 2000 and I saw where bullying and abuse is not 'illegal' but what about the 'assault? Could I have done anything at the time. The individual who did this was very close to our manager as well as department director.

Phyllis bubble Phyllis Cheng

Bullying and abuse is not illegal in the U.S. although certain Canadian provinces have made it illegal (Quebec and Ontario). Poking someone in the chest is certainly offensive and inappropriate workplace conduct, but may not meet the criteria for assault - - at least not sufficiently so to support a legal claim or trigger action from law enforcement.

April 21
Private

When did 'military status' become a factor in prohibition of workplace harassment?

Janine yancey bubble Janine Yancey

The Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA) was one of the first laws passed to prohibit job discrimination against veterans or those serving in the military. Many states have updated their fair employment laws to similarly protect vets from job discrimination, particularly in the wake if active military engagements in Iraq and Afghanistan.

April 21
Private

Would 'National Origin' also comprise the residence of an applicant for employment? If a person resides in a certain neighborhood and all other company personnel live in other neighborhoods and someone in management treats that person differently (in a bad way) merely due to THAT factor - WOULD that be an example of harassment under 'National Origin'?

Janine yancey bubble Janine Yancey

Someone's neighborhood does not qualify as "national origin." You can change which neighborhood you live in (at least theoretically) but you cannot change the country you were born in.

April 21
Private

With specs changes turning up after normal work hours, isn’t the supervisor "setting the employee up to fail?" This seems to deliberately "alter the workplace environment" and earn another orange or red.

Janine yancey bubble Janine Yancey

Hello and I assume you're asking about the engineers in Episode 1? If so, I think it depends on the particular team. If the engineering team typically keeps late hours (as is typical in the start-up software world), then it's part of the conditions of that job and if Joanne wants to be a successful member of the team, then she needs to check in after hours to get any and all updates to the specs. While I think you raise a good point of possibly "setting [Joanne] up to fail" -- your point relates to a diversity and inclusion issue rather than a harassment issue. Meaning, the engineering team is mainly comprised of men who work late, which may exclude a lot of people who can be really productive during the day and even on weekends, but who cannot work evenings. Diversity and inclusion are very important workplace issues but they come after everyone is assured of a harassment-free workplace. Hope that provides some clarification.

April 21
Private

I asked an employee to stock product on the shelf. It is part of their job description. The employee claims harassment. I informed the employee no, it's not harassment, it’s giving the employee direction. Would this be considered harassment?

Janine yancey bubble Janine Yancey

Managing employees and giving them direction and tasks is typically a legitimate business activity and not related to someone's legally protected characteristics. It's very common for employees to use the term "harassment" anytime they experience a work situation they believe is unfair -- regardless of whether it's related to a legally protected characteristic. As a manager, you may want to drill down and ask the person why they believe the directive (stocking shelves) is not fair for them to perform. Depending on the person's response, you may want to explain your legitimate business reasons for assigning that task to the employee. If the person still believes the situation is unfair and somehow connected to his/her legally protected characteristics, then it's time to refer the matter to the appropriate personnel in your organization to follow up and address the matter. Hope that helps provide some guidance.

April 21
Private

Would coworkers who continually break things out of anger (i.e. Punching holes in walls, breaking windows, breaking vending machines) be considered a hostile work environment?

Janine yancey bubble Janine Yancey

Thanks for your question. Coworkers who break things out of anger would not be creating a hostile work environment within the meaning of harassment law, but would be creating a different workplace problem -- workplace violence. Punching holes in walls, breaking windows and vending machines is a red flag and should be reported to the appropriate personnel in your organization immediately so they can address the situation and ensure a safe workplace for everyone.

April 21
Private

If you say "when they see you coming they should scatter like roaches" what color would that be?

Janine yancey bubble Janine Yancey

Thanks for your question and the answer definitely depends on the context of the statement. As you've seen from these episodes -- these concepts are not clear cut and a great deal of the assessment depends on the situation and context. So the statement "when they see you coming they should scatter like roaches" could be yellow or it could be orange if the statement is being made in part based on someone's race or national origin. If the statement is orange based on the particular context and that statement, or similar statements, are made frequently, then the orange situation could turn red. Hope that helps.

April 21
Private

Why is putting up a Christian holiday item in your cube a problem, whereas other religious or national holidays like Passover, Chinese New Year, Kwanzaa, or Ramadan are protected or encouraged as a part of diversity campaigns? This should be an all or nothing situation that isn't biased against any one religion.

Janine yancey bubble Janine Yancey

Thanks for your question. Placing any religious items in a cubicle is fine, as long as it isn't so large or noticeable that it becomes less of a personal item and more of a workplace item. The goal is to make it personal without impacting those around you. The more the religious item is in the common workplace areas, or so large that everyone notices it, the less personal it becomes and the greater the possibility that it negatively impacts others in the workplace. I hope that provides some guidance on the issue.

April 17
Private

You give two reasons the overall situation is orange rather than red. The second, that the employer responded promptly when informed, seems accurate to me. The first, "probably was not so severe or pervasive to make the workplace intolerable enough for someone to quit." seems out of sync with the fact that Jeff explicitly mentioned looking for other work.

Janine yancey bubble Janine Yancey

Thanks for your comment and you raise a good point. And while looking for other work does evidence someone's discomfort with the workplace, it doesn't necessarily reflect how pervasive the problem is ... and some people are more sensitive than others. Ultimately, whether a problem is "pervasive" requires an objective assessment and a determination that the average reasonable person in the same situation would find the issue pervasive. In the episode with Jeff, there are a few incidents but there's also a question of whether another person in Jeff's shoes would be similarly offended at the exchange about Sambos restaurant or recounting what a comedian said or asking whether he played basketball over the weekend (when the two people have in fact played basketball together). So while the incidents are clearly upsetting to Jeff, it's not clear they would be equally upsetting to another and/or that they "pervade" and change the nature of the workplace. I hope that helps clarify the issue for you.

April 17
Private

If an employee of another department who has no direct oversight from me creates a hostile work environment with my employees and his/her director is made aware of the situation, does this fall on his/her director to address the issue? Or do I have responsibility to address it should the situation not improve with that person directly or higher up in the reporting chain?

Janine yancey bubble Janine Yancey

Excellent question! If you manage employees and you see actions that could be creating a hostile work environment for them, then it's your responsibility to report the situation even if you don't manage the person causing the problem. Ideally, you want to apprise the person who does manage the offending person, but either way, the employer needs to address the situation without undue delay and therefore, reporting the issue to ensure the situation is addressed is a safe way to proceed. Hope that provides some guidance.

April 17
Private

Hello… I don't know if this falls into this category, but I have an employee who is often inappropriate, but not in an extreme way. For example, just in this last week she went around the building claiming that someone took her frappaccino out of the company fridge; she regaled one of the VP's with her shoulder pains while he was touring the building with a visitor; she overshared her personal life (her husband is disabled) on the phone with one of her off site co-workers while borrowing the desk of a co-department working while her computer was being fixed; she moved items around to her preference...and that was just this week. Generally, in the building, she is considered a bit of a 'wing-nut' and her off-site co-worker find her services great. s\She does do her work in a timely manner. However, the people in her department find her behavior embarrassing and think it give a bad impression of the department to the company. Her life is a series of bad decisions..but her intent is good. Any suggestions?

Janine yancey bubble Janine Yancey

Thanks for sharing. While we cannot provide advice on specific workplace situations, your description doesn't sound like it necessarily relates to protected characteristics. Instead, the general situation as outlined indicates a person who could really benefit from skilled coaching and mentoring. If everyone outside her building perceives her as a solid worker, but those who work more closely with her perceive her as a "wing-nut" as you say -- she's suffering from how she presents herself to people -- and that can be modified and improved with solid coaching and mentoring. If you don't feel like you have the coaching expertise needed to make a positive change in your employee, then partner with an HR business partner or more senior manager for help. Hope that helps.

April 17
Private

Is recording a verbal conversation without both parties consent illegal?

Janine yancey bubble Janine Yancey

Thanks for the question and in California and many other states, you need consent from the other person to record a conversation.

April 14
Private

In the scenario where the CTO openly shredded the woman’s code contributions and intimidated her, what's a realistic way the scenario could've turned red? Her coworkers let it happen, and gawked at other women in the office. Your course’s conclusion was, there was some yellow and orange, but no red. After such a realistic portrayal, and observing such a brutal environment, I found it anticlimactic there was no red. So, how could this situation suddenly cross the line? I now know hitting red is not the point. Things can be hostile far before that. Perhaps that’s worth emphasizing in the course.

Janine yancey bubble Janine Yancey

Thanks for the question. The situation portrayed in Episode 1 of the course is similar to an incident that occurred at a well known Bay Area tech firm last summer (2014) where the workplace investigator found some inappropriate conduct, but no illegal harassment that was actionable. Whether conduct crosses the line from "orange" to "red" depends on how often the conduct is occurring and whether it is more than a few sporadic situations. You're right that hitting "red" conduct is the not the point to emphasize here ... when you've hit "red," the people in the workplace are clear and obvious problems. But workplace situations are rarely so clear and obvious and usually more nuanced. Realistically, people are not all bad or all good .. they are a mixture of both. The idea is to spot when you and/or your colleagues are starting to cross over into the "orange" zone and get back to a more respectful, productive place. I hope that helps clarify the issue for you.

April 13
Private

If an employee makes a complaint to a manager about a workplace matter but does not necessarily file an official HR complaint, does the manager have any obligation to protect the employee's privacy and ask for permission before discussing with others (such as HR or more senior leadership)? If the employee doesn't feel comfortable with the manager consulting HR or other managers, but the manager is unsure whether the situation needs stronger action, what is the right course of action? Should the manager still consult others, but anonymize the situation? Or if there is a concern, should the manager simply escalate to HR, with or without the employee's permission and ensure a full investigation is conducted?

Janine yancey bubble Janine Yancey

Thanks for your question. It depends on the nature of the employee's complaint and whether it concerns a protected characteristic (race, age, gender, etc.) If it does, the manager has an obligation to report the matter -- whether or not there's been an "official" complaint. The manager is a legal agent of the employer, which means the employer is technically on notice of the workplace issue. So if the workplace issue doesn't get resolved and the problem escalates, then the employer is automatically responsible because the manager (and legal agent) knew about it. As a best practice, the manager should let the employee know that he/she needs to inform the appropriate person at the organization so the situation can be addressed and resolved, but the matter will be handled as discreetly as possible and shared with only those who "need to know." Thereafter, the manager should share the details of the workplace complaint with the HR professional on staff. I hope that provides some guidance.

April 13
Private

If a customer calls me a f****b*** via phone and I hang up the phone, is this considered unprofessional? This was reported to my superiors and he said I need to act professional and allow customer to continue with obscenities, then attempt to help him. He needs me to apologize for my disconnect of phone to the customer. Is this appropriate??

Janine yancey bubble Janine Yancey

Thanks for your question, but we cannot provide advice on specific workplace situations. However, as a best practice, you typically want to inform a customer that he or she may not speak to you in a rude disrespectful fashion and provide the angry customer an opportunity to self-correct their behavior. It's a best practice to give the rude customer that opportunity rather than simply ending the call.

April 13
Private

Would encouraging an overweight coworker to get on a new exercise/healthy living schedule with you, if they've previously expressed interest in getting healthy, be considered harassment?

Janine yancey bubble Janine Yancey

Thanks for your question! Weight is not a protected characteristic in California or in most states... therefore, comments concerning someone's weight could not be harassment (unless the weight stems from a disability issue). But, as a practical matter, comments about someone's physical characteristics can easily offend, even when made with the best of intentions. So it's best to know your audience really well before commenting on a person's physical characteristics. Hope that provides some guidance.

April 13
Private

When investigating a complaint, if the manager is a personal friend or colleague, should they defer to a third party to avoid bias in the complaint. Can a bias of about a profession lead to harassment and hostile work environment even though not protected status?

Janine yancey bubble Janine Yancey

Thanks for your question and yes, to the extent possible, the workplace investigator should be neutral and not biased towards one party or the other so there is credibility in the investigator's evaluation of the situation.

April 11
Private

Sarah's very first complaint to HR doesn't seem to involve a protected trait. She states that she didn't trust Travis to make the right promotion decision because Travis is friends with Brad (implying cronyism). Isolating this first HR complaint, is there a protected trait? While I disagree with any form of retaliation, do the retaliation rules change if the HR complaint only questions the manager's business judgment?

Phyllis bubble Phyllis Cheng

Great question! To trigger a retaliation claim, the original "complaint" needs to be referencing some perceived legal violation. Whether the original complaint has merit or not has no bearing on the ability to bring a retaliation claim for bad consequences that seem to occur after the original complaint. Sarah's first complaint seemed to involve a bit of cronyism and gender bias. The nature of her first complaint is murky enough that you want to be careful that any management actions that impact Sarah after her complaint are obviously based on legitimate business issues and don't lend themselves to someone viewing the actions as retaliatory. The best way to do that is to be very transparent and document the situation in enough detail that any third party can quickly get an accurate read on the situation. Hope that gives some guidance.

April 11
Private

Can a manager harass another manager?

Janine yancey bubble Janine Yancey

Thanks for your question. Yes, it is possible for one manager’s behavior or actions with another manager to be considered harassment. Let us know if you have any further questions.

April 11
Private

Wouldn't the Christmas decorations of Jesus be considered discriminatory because of different beliefs around religious icons?

Janine yancey bubble Janine Yancey

Good question -- it really depends on where the Christmas decorations are placed within the office. If they were within someone's cubicle and/or personal space, then no. If placed in common areas so that it appears the Christmas decorations reflect the whole workplace, then yes there would be a problem. Hope that provides some guidance.

April 9
Private

When any type of abuse from an outside source such as a vendor or sales person occurs, who is it generally reported to?

Janine yancey bubble Janine Yancey

Good question! If experiencing abuse from an outside, third party, you want to use the same reporting process that you would use if the actions are coming from someone internally. Typically, you would connect with a senior manager or HR.

April 9
Private

I found this course very relevant especially with a case in the news recently: NEWS LINK. How was it that that Ellen Pao lost her gender discrimination lawsuit against her former venture capital firm employer in Silicon Valley? Did she fail to establish all the criteria for workplace harassment, thus creating reasonable doubt as to the validity of her claim?

Janine yancey bubble Janine Yancey

Hi and thanks for your question. Ellen Pao sued for gender discrimination -- not harassment - and the jury found that management did not treat her differently because of her gender. The jury found she was denied promotion due to her individual characteristics -- not because she was a woman.

April 8
Private

Do you discourage coworkers from interacting on personal social media sites such as Facebook?

Janine yancey bubble Janine Yancey

As an employer or manager, you cannot discourage coworkers from communicating or connecting on social media. However, you can consistently remind people of treat colleagues in a respectful manner both within and outside of the workplace. I hope that provides some guidance.

April 8
Private

Is there ever a situation where an employee is held responsible for harassing their direct supervisor and/or creating a hostile work environment?

Janine yancey bubble Janine Yancey

Hello and thanks for your question. You can't create a hostile work environment for your direct supervisor as the supervisor ostensibly has the authority to terminate a harassing employee. One element of a hostile work environment is that the complaining person has no power to change the situation and make it better.

April 8
Private

If I'm a manager in CO for a company based in CA, will I be subject to CA laws because the company is based there or just to CO laws since I'm only managing our CO location?

Janine yancey bubble Janine Yancey

Good question! If you're working in Colorado and managing people in Colorado, then Colorado law applies. If you work in Colorado, but manage people in California, then California law applies to how your actions impact the California employees.

April 7
Private

If someone commits an offensive act, and it is their first time being told that they have committed something in the spectrum of workplace harassment, should this be grounds for immediate termination?

Janine yancey bubble Janine Yancey

Thanks for your question! It all depends and it's up to the employer. It depends on the severity of the offensive act and the impact of that action to the workplace. And, it depends on the employer's judgment of the risk of maintaining that person's continued employment. If the employer believes continued employment poses a significant risk of claims or other workplace problems, it's within the employer's discretion to immediately terminate employment. Let us know if that answers your question.

April 7
Private

What if a person has a diagnosis of a medical condition but it doesn't prevent or inhibit that person from doing his job can the employer or management change the way they interact with the person based on the probability that it could or has affected his ability without any evidence to prove it.

Janine yancey bubble Janine Yancey

Thanks for your question. Those are two separate questions. First - can an employer change the way it interacts with someone based on the possibility of a disability impacting his/her performance? No - -an employer cannot make management decisions based on what may potentially happen in the future. Second -- can an employer change the way it interacts with someone because a disability is impacting his/her performance? Yes -- when someone's work performance is impacted due to a disability, the employer can/should engage in what we call the "interactive process", which is essentially a dialogue with the employee to determine which tasks and responsibilities the person can or cannot perform and identify whether there are any reasonable accommodations the employer can make to help the person successfully perform the job. I hope that helps clarify the issue.

April 7
Private

So, the ‘bullying’ form of harassment does not need to meet the 'protected class' criteria? i.e. a 35 year old white male can bully a 30 year old white male, but neither is in a protected class.

Phyllis bubble Phyllis Cheng

Hello and thanks for your question! While bullying does not require a "protected characteristic," you also cannot file a lawsuit or claim for bullying. Bullying behavior is "yellow" on the workplace conduct spectrum because it detracts from a good workplace culture, but it's not illegal. I hope that helps clarify the topic.

March 29
Private

I'm interested in learning more; I have recently worked in a hostile work environment and didn't know what actions to take. Is there any books I can purchase to gain more knowledge so I can make a positive impact (know what to say or do) when it happens again?

Phyllis bubble Phyllis Cheng

Hello and thanks for your question! There is a printed guide in the online course that provides a nice summary of this topic and best practices for responding to situations. Further, a good best practice when you find conduct unwelcome is to identify the conduct and why you find it unwelcome and communicate it to the person at issue and/or an HR Business Partner to quickly address a situation before the situation deteriorates.

March 29
Private

An assistant manager here frequently posts rules regarding housekeeping issues (taking out the trash) and removing items off the sales floor for department use without transferring using a device none of us are familiar its use. The posts have frequent misspellings and very poor grammar...and there is ALWAYS the threat that one will receive a written warning for infractions. This Asst Manager appears to be in such a hurry to claim her dominion over us that she won’t take the time out to have posts proof read. In her zeal to be threatening/bullying, she misspells words, uses terrible grammar and punctuation, and always includes a threat that an 'offender' can be written up at HER will. This sounds an awful lot like bullying. In a sense saying "I’m bigger than you, I’ll harm you if you don't comply." These posts are meant to be intimidating and create an environment of discomfort…

Phyllis bubble Phyllis Cheng

Hello and thanks for your comment. We cannot provide advice on any specific workplace situations. However, abusing authority and/or managing poorly undermines the workplace culture and eventually impacts productivity. Therefore, it's best to bring these types of challenges to an HR business partner to resolve. Even though bullying is a workplace problem, it is not illegal and people cannot file a claim or lawsuit based on bullying conduct. Hope that helps clarify the issue for you.

March 29
Private

What would be an expected follow up when an accuser makes false and very derogatory remarks thru a complaint that are found to be untrue and completely fabricated?

Janine yancey bubble Janine Yancey

Thanks for your question. Generally, there is no recourse for responding to frivolous complaints. Everyone has the legal right to make a complaint, whether it has merit or not. Any management actions taken in response to a frivolous complaint would be viewed as "chilling" someone's right to complain and therefore, retaliatory.

March 29
Private

Where can I get more information about protected disabilities?

Janine yancey bubble Janine Yancey

You can enroll in our course about disabilities protections (free access for the first 25 people). Just go on the emtrain site and click on Free Sign Up (blue button) at top of the page. That course will list examples of common protected disabilities. Or you can get an overview from the EEOC website. Hope that helps.

March 20
Private

Would multiple condescending and/or arrogant e-mails be considered a form of Harassment?

Janine yancey bubble Janine Yancey

Hello and thanks for your question. Remember, you need a protected characteristic to move conduct from "unpleasant" to borderline or potentially harassing. So, condescending or arrogant communications, by themselves, would not be considered harassment.

March 20
Private

I know a male colleague in my office with the same position/have the same job responsibilities whom starting salary was $16,000/year more than my starting salary and I am a female. Is that considered breaking The Equal Pay Act of 1963? If so, how do I prove this?

Phyllis bubble Phyllis Cheng

We are precluded from providing legal advice or guidance on specific workplace situations. However, it's a good practice to have a candid and polite conversation with your manager and/or HR business partner if you have questions regarding the fairness of your compensation as compared to others. During that conversation, you can ask the person to explain the business reasons for the pay differential and to put those reasons in writing as that typically makes employers focus on the issue.

March 20
Private

If your direct manager tells you that you owe them, can that be taken as a form of bullying? If so, what steps can you take?

Janine yancey bubble Janine Yancey

First, bullying is not legally actionable right now. Second, one comment or phrase, without further incidents, probably would be viewed as common workplace conflict (which every workplace has) and not bullying. Hope that helps clarify the issue.

March 20
Private

Slide 17 re AB2617: Are we still ok to include class action waivers in our Dispute Resolution Agreements? Or is waiver of class action also not permissible by this new law?

Janine yancey bubble Janine Yancey

On your dispute resolution agreement, you can apply a waiver provision as it relates to class actions. However, any waiver of civil rights protections must be knowing and voluntary, and in writing, and expressly not made as a condition of entering into the agreement.