HPM 10.12, EEO Flashcards
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HPM 10.12, CHAPTER 1, Policy & Program Responsibilities
Managers and supervisors are responsible for maintaining a work environment free of discrimination and harassment and for providing reasonable accommodation to qualified employees with disabilities to assist them with performing the essential functions of their positions.
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HPM 10.12, CHAPTER 1, Policy & Program Responsibilities
All efforts to provide equal opportunity in employment practices will be made on the basis of merit, efficiency, and fitness consistent with state civil service and merit system principles.
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HPM 10.12, CHAPTER 1, Policy & Program Responsibilities
Harassment on the basis of any of the foregoing protected categories and retaliation for filing a discrimination complaint and/or participating in the discrimination complaint process as a witness, counselor, respondent, or investigator is prohibited.
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HPM 10.12, CHAPTER 1, Policy & Program Responsibilities
All managers and supervisors are responsible and accountable to the appropriate Division chief for personnel practices consistent with the Department’s EEO Program. Managers and supervisors shall be familiar with EEO policies and shall assure the dissemination of EEO Program information to all employees within their command. Further, it is the responsibility of all managers and supervisors to support, implement, and facilitate the Department’s EEO policy, and to assure hiring, promotion, assignment, and training of personnel is conducted consistent with policy.
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HPM 10.12, CHAPTER 1, Policy & Program Responsibilities
Each employee is responsible for ensuring their activities convey a commitment and the Department’s EEO Program policies. As with all departmental policies, any employee who willingly and knowingly fails to adhere to the intent of this policy will be subject to appropriate disciplinary action, up to, and including, termination.
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HPM 10.12, CHAPTER 1, Policy & Program Responsibilities
Office of Equal Employment Opportunity, in accordance with Assembly Bill (AB) 1825, developed an online sexual harassment course for departmental supervisors and managers. This course fulfills the requirements of AB 1825 and can be accessed on the Department’s Intranet.
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HPM 10.12, CHPTER 2, Protected Groups
Employment discrimination, including harassment, based on the following protected groups is prohibited by law:
(1) Race;
(2) Color;
(3) Religion;
(4) National origin;
(5) Ancestry;
(6) Age;
(7) Sex (includes sexual harassment and gender identity);
(8) Physical or mental disability;
(9) Political affiliation/opinion;
(10) Marital status;
(11) Sexual orientation;
(12) Medical condition; and/or,
(13) Retaliation.
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HPM 10.12, CHAPTER 2, Protected Groups
Harassment is defined as pervasive, persistent, unwelcome conduct which is perpetuated by an individual’s status in a protected group. Harassment reaches the level of illegality when the conduct becomes a condition of continued employment, or the conduct is severe or pervasive enough to be considered hostile, intimidating, or abusive; as measured by the reasonable person standard.
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HPM 10.12, CHAPTER 2, Protected Groups
The legal definition of “reasonable person” is:
A standard for determining whether conduct can be considered…harassment. Conduct and behavior may not be considered harassment if a reasonable person would not find the action offensive.
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HPM 10.12, CHAPTER 2, Protected Groups
Petty slights, annoyances, and isolated incidents, unless extremely serious, will not rise to the level of harassment. To be unlawful, the conduct must create a work environment which would be intimidating, hostile, or offensive to a reasonable person.
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HPM 10.12, CHAPTER 2, Protected Groups
Offensive conduct may include, but is not limited to: Offensive jokes, slurs, epithets or name calling, physical assaults, or threats relative to work performance.
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HPM 10.12, CHAPTER 2, Protected Groups
Consistent with state and federal laws and regulations, it is the policy of the California Highway Patrol that all employees and those seeking employment with the Department will be selected, evaluated, and/or promoted only on the basis of job-related performance, experience, and qualifications.
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HPM 10.12, CHAPTER 2, Protected Groups
Protected groups are legally identified groups which are specifically protected by statute against employment discrimination. Protected group status is automatically conferred upon recognized minority group members, females, and disabled persons by virtue of laws and court decisions.
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HPM 10.12, CHAPTER 2, Protected Groups
Race. There are three recognized categories of race: Negroid, Mongoloid, and Caucasoid. Within these three categories there are approximately 6,000 ethnic groups.
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HPM 10.12, CHAPTER 2, Protected Groups
Color. A person’s shade of skin
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HPM 10.12, CHAPTER 2, Protected Groups
Religion. A followed spiritual belief. It does not have to be an organized group, traditional denomination, or world religion. However, the employee must demonstrate their faith is a truly held belief.
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HPM 10.12, CHAPTER 2, Protected Groups
Sex (Includes Sexual Harassment and Gender Identity). Discrimination based on gender (male or female).
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HPM 10.12, CHAPTER 2, Protected Groups
Sexual Harassment. Unsolicited and unwelcome sexual advances, requests for sexual favors, and other verbal, physical, visual/written conduct of a sexual nature when:
1 Submission is made either explicitly or implicitly a term or condition of employment; or,
2 Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such employee or such conduct has the purpose of or effect of unreasonably interfering with an individual’s work performance and/or creating an intimidating, hostile, or offensive working environment.
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HPM 10.12, CHAPTER 2, Protected Groups
Gender Identity. A person’s own sense of identification as male or female, as manifested in appearance, behavior, and other aspects of a person’s life culturally attributed to masculinity or femininity, or the perception of a person’s gender.
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HPM 10.12, CHAPTER 2, Protected Groups
National Origin. An individual’s or their ancestor’s place of origin. The nation in which an individual was born, or any physical, cultural, or linguistic characteristics.
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HPM 10.2, CHAPTER 2, Protected Groups
Ancestry. National or cultural origin of a line of decent (e.g., African-American, Hispanic, Native-American, Polish-American). Where an individual’s parents are born.
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HPM 10.12, CHAPTER 2, Protected Groups
Age. Person’s chronological age. The ADEA applies to persons 40 years of age and over. Age Discrimination in Employment Act was amended to exclude peace officer positions from age restriction. Additionally, Government Code (GC) Section 18932 prevents employers from establishing a minimum/maximum age limit for any civil exam except with regard to public health or safety classifications or those having the power and duties of a peace officer.
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HPM 10.12, CHAPTER 2, Protected Groups
Marital Status. Applies to the legal status of each adult in a relationship.Covered statuses are: single, married, divorced, separated, or widowed.
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HPM 10.12, CHAPTER 2, Protected Groups
Disability. Physical or mental impairment, permanent or temporary, or perception that a person is impaired. May also cover the perception about an employee’s child with a disability.
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HPM 10.12, CHAPTER 2, Protected Groups
Medical Condition. Refers to only two items: Employee/applicant has or had cancer, and genetic characteristics (e.g., sickle cell anemia, Tay-Sachs Disease, hemophilia).
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HPM 10.12, CHAPTER 2, Protected Groups
Sexual Orientation. The direction of one’s sexual affection, and/or emotional attractions involving others. This applies to heterosexual (opposite sex attraction), homosexuals (same sex attraction), and bisexuals (opposite and same sex attraction).
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HPM 10.12, CHAPTER 2, Protected Groups
Political Affiliation/Opinion. Membership in, or support of, political parties, groups, candidates.
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HPM 10.12, CHAPTER 2, Protected Groups
Retaliation. Action taken against an individual because the person opposed an alleged unlawful discriminatory practice, filed a complaint, acted as a witness in a complaint investigation, or assisted in the discrimination complaint process, regardless if the complaint is founded or unfounded.
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HPM 10.12, CHAPTER 2, Protected Groups
Employees who feel they are victims of discrimination should seek informal assistance and counseling from an equal employment opportunity counselor or appropriate supervisory and/or management personnel.
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HPM 10.12, CHAPTER 2, Protected Groups
Employees may file a formal discrimination complaint by utilizing the procedures set forth in Chapter 6, Discrimination Complaint Procedures, of this manual.
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HPM 10.12, CHAPTER 3, Sexual Harassment Prevention
It is the policy of the California Highway Patrol (CHP) that the working environment be free of discrimination, including sexual harassment. The Departmentprohibits and does not tolerate sexual harassment by any departmental employee against another employee, applicant, or non-employee. Sexual harassment in the workplace against departmental employees by non-employees (e.g., a contract employee, a member of the public) or vice versa, is likewise strictly prohibited.
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HPM 1012, CHAPTER 3, Sexual Harassment Prevention
Reporting incidents of sexual harassment will not result in reprisal against employees alleging they are being harassed. Persons determined to have committed acts of reprisal are subject to adverse action.
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HPM 10.12, CHAPTER 3, Sexual Harassment Prevention
Government Code Section 12950.1(a) states: “By January 1, 2006, an employer having 50 or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment prevention to all supervisory employees in California who are employed as of July 1, 2005, and to all new supervisory employees within six months of their assumption of a supervisory position . . . After January 1, 2006, each employer covered by this section shall provide sexual harassment prevention training and education to each supervisory employee in California once every two years.”
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HPM 10.12, CHAPTER 3, Sexual Harassment Prevention
Types of Sexual Harassment. Courts have recognized two types of sexual harassment under federal and state law. These include quid pro quo and hostile work environment.
(1) Quid pro quo harassment occurs when, "submission to or rejection of (unwelcome sexual) conduct by an individual is used as the basis for employment decisions affecting that individual," per EEOC guidelines.
(2) In contrast, a hostile work environment claim occurs when unwelcome sexual conduct unreasonably interferes with an individual's job performance or creates an intimidating, hostile, or offensive working environment, even if it does not lead to tangible or economic consequences.
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HPM 10.12, CHAPTER 3, Sexual Harassment Prevention
The Supreme Court has stated for sexual harassment to violate Title VII, it must be “sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.”
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HPM 10.12, CHAPTER 3, Sexual Harassment Prevention
In order for conduct to be determined to have created an intimidating, hostile, or offensive work environment based on sexual harassment , the following three criteria must exist:
(1) The behavior in question must be of a sexual nature.
(2) The behavior must be unwelcome.
(3) The behavior must be severe or pervasive enough to create a hostile, intimidating, or offensive work environment.
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HPM 10.12, CHAPTER 3, Sexual Harassment Prevention
In Ellison v. Brady, the Ninth Circuit U.S. Court of Appeals, the court presented the following
rules for evaluating allegations of hostile environment sexual harassment in accordance with the newly revised reasonable woman standard:
1 The focus should be based on the perspective of the victim;
2 An understanding of the victim's perspective requires an analysis of the different perspectives of men and women:
3 An employee may state a case of hostile environment (sexual harassment) by alleging conduct that a reasonable person would consider sufficiently severe, but this does not mean the employer must accommodate the idiosyncrasies of the rare hypersensitive employee; and,
4 The standard is not static but will change as the views of reasonable women change over time.
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HPM 10.12, CHAPTER 3, Sexual Harassment Prevention
Conduct which does not constitute sexual harassment, but is inappropriate for the workplace may be censured pursuant to GC Section 19572 (m), which states an employee may be disciplined for, among other reasons, “discourteous treatment of the public or other employees." Likewise, an employee may be charged with “inexcusable neglect of duty” for failure to comply with Department policy on this matter.
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HPM 10.12, CHAPTER 3, Sexual Harassment Prevention
The EEOC states, “a single, unusually severe incident of harassment may be sufficient to constitute a Title VII violation; the more severe the harassment, the less need to show a repetitive series of incidents. This is particularly true when the harassment is physical."
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HPM 10.12, CHAPTER 3, Sexual Harassment Prevention
The EEOC also interprets conduct in relation to the perpetrator’s position in the hierarchy of the work setting. In other words, single incidents of sexual conduct (e.g., jokes, comments) perpetrated by a supervisor or manager will carry much greater weight toward establishing a hostile, intimidating, or offensive working environment than similar conduct by a peer of the victim.
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HPM 10.12, CHAPTER 3, Sexual Harassment Prevention
It is important to note this type of hostile environment (sexual harassment) can occur toward the direct recipient of sexual behavior or to an indirect recipient. For example, a third party who is present and is indirectly subjected to sexual behavior, such as seeing inappropriate touching or sexual items, or hearing jokes of a sexual nature directed towards another employee, may lodge a complaint of sexual harassment based on hostile environment.
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HPM 10.12, CHAPTER 3, Sexual Harassment Prevention
Prior Willing Participation. There is a greater responsibility for expressing unwelcomeness in cases where the employee first willingly participates in conduct of a sexual nature, but then ceases this participation and claims any continued sexual conduct has created a hostile environment. According to EEOC, if an employee participates in conduct of a sexual nature, they cannot simply claim later the continued sexual conduct created a hostile work environment. An employee in this situation bears the burden of showing that further conduct is unwelcome, work-related harassment. To do so, the employee must clearly notify the individual that the conduct is no longer welcome.
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HPM 10.12, CHAPTER 3, Sexual Harassment Prevention
TYPES OF SEXUAL HARASSMENT. While sexual harassment may be manifested in various forms, common examples include making unsolicited written, verbal, physical, and/or visual contact with sexual overtones. For example:
a. Written. Suggestive or obscene letters.
b. Verbal. Derogatory comments, slurs, jokes, or epithets.
c. Physical. Assault, touching, impeding, or blocking movements.
d. Visual. Leering or suggestive visuals.
e. Other.
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HPM 10.12, CHAPTER 3, Sexual Harassment Prevention
Incidents of sexual harassment can lead to:
(1) Disciplinary sanctions;
(2) Workers’ compensation claims;
(3) Reinstatement costs and back pay;
(4) Civil liability and compensatory damage awards; and,
(5) Discredit to the Department.
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HPM 10.12, CHAPTER 3, Sexual Harassment Prevention
Supervisors and managers shall have employees initial and sign a CHP 237A, Sexual Harassment Prevention and Discrimination Policy Admonition, during the employee’s annual review or after any training on these policies.
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HPM 10.12, CHAPTER 4, Persons With Disabilities Program
All practices, applications, and conditions of the Department’s Equal Employment Opportunity (EEO) Program shall include and apply to persons with disabilities.
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HPM 10.12, CHAPTER 4, Persons With Disabilities Program
The Department's Persons with Disabilities Program has two major objectives to ensure compliance with federal and state laws. The first objective is to reach, attract, and employ qualified persons with disabilities into the Department at a level commensurate with their representation in the California labor force.
The second objective is to ensure all qualified individuals with physical and/or mental disabilities have access to any programs, services, and/or activities under the jurisdiction of the Department for which they are eligible.
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HPM 10.12, CHAPTER 4, Persons With Disabilities Program
The California Highway Patrol (CHP) is legally mandated to prohibit discrimination against persons with disabilities and is required to encourage their employment.
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HPM 10.12, CHAPTER 4, Persons With Disabilities Program
The ADA prohibits discrimination in employment against persons with disabilities for all employers, both in the public and private sector, who have over 15 employees, regardless of governmental funding.
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HPM 10.12, CHAPTER 4, Persons With Disabilities Program
Not all physical or mental conditions qualify as "disabilities" as defined in federal and state laws. In California, the FEHA definition will be used in most cases for employment actions and the ADA definition for program access.
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HPM 10.12, CHAPTER 4, Persons With Disabilities Program
A physical or mental impairment does not constitute a disability unless it results in a limitation of one or more major life activities. Impairments which do not affect major life activities do not qualify the individual as having a disability under federal and state laws.
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HPM 10.12, CHAPTER 4, Persons With Disabilities Program
For the purposes of participation in the Department's Persons with Disabilities Program, as well as entitlement to reasonable accommodation, a person with a disability is someone who:
(1) Has a physical or mental impairment which limits one or more of that person's major life activities.
(2) “Has a record of or history of” such impairment means that person has a history of, or has been classified as, having a physical or mental impairment that limits one or more major life activities.
(3) “Is regarded as having” such an impairment as identified below:
(a) A major physical or mental impairment which does not limit a major life activity, but is being treated by an employer as having such an impairment.
(b) A physical or mental impairment which limits major life activities as a result of the attitudes of others towards such impairments.
(c) Not having an impairment but being treated by an employer as having an impairment. This includes individuals who may be discriminated against because of their association with a person with a disability.
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HPM 10.12, CHAPTER 4, Persons With Disabilities Program
For employment purposes, a person with a disability must be qualified to perform the essential functions of the position they are seeking, wants to retain, wants to transfer to, or wants to promote to, whether or not a reasonable accommodation is implemented.
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HPM 10.12, CHAPTER 4, Persons With Disabilities Program
Temporary, non-chronic impairments which do not last for a long time and have little or no long-term impact usually are not disabilities.
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HPM 10.12, CHAPTER 4, Persons With Disabilities Program
A person who is an alcoholic is an individual with a disability under the law. However, the Department may discipline, terminate, or deny employment to an alcoholic whose use of alcohol impairs job performance or conduct no longer qualifies them as a person with a disability.
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HPM 10.12, CHAPTER 4, Persons With Disabilities Program
An applicant or employee who tests positive for an illegal drug cannot immediately enter a drug rehabilitation program and seek to avoid the possibility of discipline or termination by claiming they are in rehabilitation and are no longer using drugs illegally.
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HPM 10.12, CHAPTER 4, Persons With Disabilities Program
Limited Examination and Appointment Program began as a demonstrationproject in March 1984. The LEAP was subsequently made a permanent state program by Senate Bill 2697 (Chapter 738) effective January 1, 1989. The purpose of LEAP was to provide a means of minimizing the obstacles to employment for persons with disabilities that frequently occurred in the traditional selection process. In addition, it was designed to provide an alternative method of assessing the qualifications and skills of job applicants with disabilities.
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HPM 10.12, CHAPTER 4, Persons With Disabilities Program
ADVISORY COMMITTEE FOR PERSONS WITH DISABILITIES
Pursuant to GC Section 19795(b), the CHP has established the ACPD. This Committee serves in an advisory capacity to the Commissioner on the implementation of ADA and Sections 502, 503, and 504 of the Rehabilitation Act of1973. The Committee also provides assistance in the identification and resolution of program access issues, and assists in the area of equal access to employment for persons with disabilities.
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HPM 10.12, CHAPTER 4, Persons With Disabilities Program
It is the policy of the CHP that no person shall be denied the right to participate, or be limited from participating, in any activity simply because that person has a disability.
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HPM 10.12, CHAPTER 5, Reasonable Accommodation
Who is Entitled to Reasonable Accommodation. A qualified individual who meets the definition of a person with a disability; someone who has a physical or mental impairment which limits one or more major life activities, and who possesses the requisite job requirements, is entitled to reasonable accommodation.
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HPM 10.12, CHAPTER 5, Reasonable Accommodation
Reasonable accommodation has been commonly defined as a logical adjustment made to a job and/or the work environment which enables a qualifiedperson with a disability to perform the essential duties of their position.
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HPM 10.12, CHAPTER 5, Reasonable Accommodation
POLICY. It is the policy of the California Highway Patrol (CHP) to provide reasonable accommodation to the known physical and/or mental disabilities of all qualified persons. This includes applicants and incumbent employees in all classifications utilized by the Department. Commanders, managers, and supervisors are required to engage in the interactive process whenever a request for reasonable accommodation is presented or discussed. The interactive process includes responses from employees requesting an accommodation. Requests for reasonable accommodation can be denied if the request would cause an undue hardship on the operation of departmental programs or if it can be shown that the person would pose a direct threat to the health or safety of themselves or others.
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HPM 10.12, CHAPTER 5, Reasonable Accommodation
Requests for reasonable accommodation must be submitted by the employee to their Division/Area/section commander utilizing the CHP 163.
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HPM 10.12, CHAPTER 6, Discrimination Complaint Procedures
Employees who serve as employee representatives or alternate employee representatives in personnel actions can also serve as an EEO counselor, at their Division chief’s discretion, but may not dually represent an employee as an EEO counselor and employee representative for the same issue.
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HPM 10.12, CHAPTER 6, Discrimination Complaint Procedures
The following are the basic distinctions between the grievance/complaint process and the discrimination complaint process:
(a) A grievance is defined as a dispute involving the interpretation, application, or enforcement of the expressed terms of respective bargaining unit (BU) agreement(s).
(b) An employee complaint is defined as a dispute involving the application or interpretation of existing written departmental rule and/or policy.
(c) A discrimination complaint is defined as an allegation of illegal discrimination of which the primary or partial basis of the complaint or cause is the employee’s or applicant’s race, color,
religion, national origin, ancestry, age, sex (includes sexual harassment, gender identity), physical or mental disability, political affiliation/opinion, marital status, sexual orientation, medical condition, and/or retaliation.
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HPM 10.12, CHAPTER 6, Discrimination Complaint Procedures
The departmental internal discrimination complaint process is available to departmental employees, including cadets, and contains two distinct levels: The informal level (EEO counselors) and the formal level (EEO investigators).
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HPM 10.12, CHAPTER 6, Discrimination Complaint Procedures
The complainant has 11 months from the last incident to contact an EEO counselor regarding discrimination-related issues.
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HPM 10.12, CHAPTER 6, Discrimination Complaint Procedures
The complainant who is not satisfied with the results of the EEO counselor’s inquiry may file a discrimination complaint with the Division chief within ten working days from the date of receipt of the EEO counselor’s CHP 612B.
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HPM 10.12, CHAPTER 6, Discrimination Complaint Procedures
A complainant who is not satisfied with the Division chief’s Letter of Determination may file an appeal via a CHP 612A with the appropriate Assistant Commissioner, in care of the OEEO commander within ten working days from the date of receipt of the letter.
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HPM 10.12, CHAPTER 6, Discrimination Complaint Procedures
Appeal Process for Allegations of Discrimination Related to Adverse Actions and Rejection During Probation. Employees who allege discrimination as the motive for an adverse action (AA) or rejections during probation (RDP) must file an appeal directly with SPB. State Personnel Board is the final level of appeal for allegations of discrimination; therefore, appeals filed through SPB are resolved through an evidentiary hearing process offered by the SPB Hearing Office.
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HPM 10.12, CHAPTER 6, Discrimination Complaint Procedures
If any employee believes they have been discriminated against and brings it to the attention of a supervisor and/or manager but does not wish to file a discrimination complaint, the supervisor/manager shall notify the affected commander.
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HPM 10.12, CHAPTER 7, Discrimination Complaint Investigations
POLICY. It is the policy of the California Highway Patrol (CHP) to initiate a prompt and effective investigation of any Equal Employment Opportunity (EEO) related issues concerning alleged discrimination or retaliation in employment practices covering recruitment, selection, appointment, compensation, transfer, training, and other terms and conditions of employment. Once the CHP is advised of allegedly discriminatory actions, the Department has a legal obligation to determine if an investigation is warranted and should attempt resolution of issues to take appropriate action to address and prevent inappropriate conduct.
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HPM 10.12, CHAPTER 7, Discrimination Complaint Investigations
The gathering of facts and evidence concerning a specific event(s) or allegation(s) of misconduct. The key to any EEO investigation is the basis – the determination that the discrimination is the result of an individual’s status as a member of a protected group or participant in a protected activity. All events, facts, and evidence must be verified and documented. Complaints shall be investigated to the degree necessary to reach a logical conclusion and investigations shall be completed in a timely manner.
Equal Employment Opportunity Investigation
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HPM 10.2, CHAPTER 7, Discrimination Complaint Investigations
The statistically demonstrable results of a policy or practice that has a significant negative effect on members of a certain group or groups.
Adverse Impact
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HPM 10.12, CHAPTER 7, Discrimination Complaint Investigations
The nature or type of discrimination alleged (i.e. sexual harassment), or the protected group(s) (i.e. sexual orientation or disability) of the complainant.
Basis
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HPM 10.12, CHAPTER 7, Discrimination Complaint Investigations
A term interpreted to mean that employment decisions based on protected group status (Chapter 2 of this manual) may be acceptable when such characteristic (i.e. women) is shown to be genuinely necessary to the person’s ability to perform the job. Race is never an acceptable bona fide occupational qualification.
Bona Fide Occupational Qualifications
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HPM 10.12, CHAPTER 7, Discrimination Complaint Investigations
The causal connection or nexus is the critical element in any employment discrimination case. The complainant is required to provide sufficient evidence to show the causal link between the issue(s) and the basis of their complaint.
Causal Connection
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HPM 10.12, CHAPTER 7, Discrimination Complaint Investigations
An individual of a protected group is shown to have been singled out and treated less differently, usually less favorably, than other employees similarly situated.
Disparate Treatment
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HPM 10.12, CHAPTER 7, Discrimination Complaint Investigations
A practice that does not appear to be discriminatory on its face; rather it is one which is discriminatory in its application or effect.
Facially Neutral Employment Practice
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HPM 10.12, CHAPTER 7, Discrimination Complaint Investigations
Determining whether the Department has the legal power to act on a complaint.
Jurisdiction
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HPM 10.2, CHAPTER 7, Discrimination Complaint Investigations
The standard used for evaluating the weight of the evidence. Under this standard or test, the trier of fact must believe that it is more possible that the facts are true or exist than it is that they are false and do not exist. The quality of evidence, its reliability, and the credibility of witnesses are weighed when considering the preponderance of evidence.
Preponderance of Evidence
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HPM 10.12, CHAPTER 7, Discrimination Complaint Investigations
Evidence that would, if uncontested, establish a fact or raise apresumption of a fact. Evidence, at first glance, which appears to be true and factual.
Prima Facie
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HPM 10.12, CHAPTER 7, Discrimination Complaint Investigations
After an investigation, a determination that there is a reason to believe the charge of discrimination has validity.
Reasonable Cause
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HPM 10.12, CHAPTER 7, Discrimination Complaint Investigations
A standard for determining whether conduct can be considered sexual harassment. Conduct and behavior may not be considered harassment if a reasonable person would not find the actions offensive.
Reasonable Person Standard
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HPM 10.12, CHAPTER 7, Discrimination Complaint Investigations
Investigators have a legal and ethical obligation to maintain the confidentiality of an EEO investigation. This confidentiality specifically includes interviews and/or interrogations conducted by the investigator. Such confidentiality is crucial to ensure investigations are not compromised. Confidentiality is mandated at all levels.
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HPM 10.12, CHAPTER 7, Discrimination Complaint Investigations
Any retaliation against complainants, their representatives, respondents, and Equal Employment Opportunity (EEO) Program officials, witnesses, or other departmental employees/applicants regarding their participation or involvement in any stage of the complaint process, including the counseling stage, will constitute a violation of departmental policy and law, and may result in adverse action.
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HPM 10.12, CHAPTER 9, Cultural Awareness
POLICY. It is the policy of the CHP to treat employees and the public we serve with respect and fairness and to ensure our practices are ethical and equitable. These organizational values are the foundation of cultural awareness training in the Department. This training provides CHP employees with strategies for successful contacts with individuals from differing cultural, racial, or ethnic backgrounds, as well as detailing the importance of recognizing and respecting the complexities of cultural diversity in California. Cultural awareness training is provided to all employees annually and addresses issues of cultural awareness, racial profiling, hate crimes, and ethics.
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HPM 10.12, CHAPTER 9, Cultural Awareness
Penal Code Section 422.55 defines a hate crime as: “A criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim:
(a) Disability;
(b) Gender;
(c) Nationality;
(d) Race or ethnicity;
(e) Religion;
(f) Sexual orientation; and/or,
(g) Association with a person or group with one or more of these actual or perceived characteristics.”
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HPM 10.12, CHAPTER 9, Cultural Awareness
Racial Profiling. Penal Code Section 13519.4(e) defines racial profiling as: “the practice of detaining a suspect based on a broad set of criteria which casts suspicion on an entire class of people without any individualized suspicion on the particular person being stopped.”
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HPM 10.12, CHAPTER 9, Cultural Awareness
Cultural Diversity. Cultural diversity is the representation or existence of individuals with distinctly different group affiliations within one organization, community, state, nation, or social system. Penal Code Section 13519.4(c) states: “Culturally diverse and cultural diversity include, but are not limited to, disability, gender, nationality, religion, and sexual orientation.”
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HPM 10.12, CHAPTER 9, Cultural Awareness
Penal Code Section 13519.6 defines the Hate Crimes training requirement. It requires training for all law enforcement officers and cadets in specific areas including: indicators and impact of hate crimes, pertinent laws, procedures and techniques for handling incidents of hate crimes, criminal extremism, categories of hate crimes, and preparation and response to specific crime waves the Attorney General determines likely.
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HPM 10.12, CHAPTER 9, Cultural Awareness
Penal Code Section 13519.4 defines the Racial Profiling and Cultural Diversity training requirement, and mandates all law enforcement officers in California receive training relative to racial and cultural differences among residents of this state.
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HPM 10.12, CHAPTER 9, Cultural Awareness
The Department provides both classroom and online training onCultural Diversity, Racial Profiling, Hate Crimes, and Ethics.
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HPM 10.12, CHAPTER 10, Bilingual Services Program
Dymally-Alatorre Bilingual Services (Act) (California Government Code Sections [GC] 7290-7299.8): Requires all state departments to provide effective communication between all levels of government in the state, and the people who might otherwise be precluded from utilizing public services because of language barriers.
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HPM 10.12, CHAPTER 11, Upward Mobility Program
Upward Mobility is defined as movement from low-paying classifications with minimal career opportunities into higher paying classificationswithin the Department with broader career opportunities.
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HPM 10.12, CHAPTER 13, Glossary of Terms
Policies and activities implemented to facilitate career opportunities for employees from low paying classifications with minimal career opportunities into higher paying classifications within the Department which have broader career opportunities.
UPWARD MOBILITY
96
HPM 10.12, CHAPTER 13, Glossary of Terms
The portion of the Civil Rights Act of 1964 which forbids employment discrimination on the basis of race, sex, color, religion, or national origin.
TITLE VII
97
HPM 10.12, CHAPTER 13, Glossary of Terms
Protected groups on which agencies are to focus in their EEO efforts as determined by the relative levels of underutilization.
TARGET GROUPS
98
HPM 10.12, CHAPTER 13, Glossary of Terms
Classes which agencies have identified for focused actions, particularly for EEO purposes.
TARGET CLASSES
99
HPM 10.12, CHAPTER 13, Glossary of Terms
Employment policies or practices which, though often neutral on their face, serve to differentiate or to perpetuate a differentiation in terms of conditions of employment of applicants or employees because of their race, color, religion, sex, national origin, disability, age, ancestry, sexual orientation, marital status, or political affiliation. Systemic discrimination normally relates to a recurring practice rather than to an isolated act of discrimination and may include failure to remedy the continuing effects of past discrimination. Intent to discriminate may or may not be involved.
SYSTEMIC DISCRIMINATION
100
HPM 10.12, CHAPTER 13, Glossary of Terms
Any discriminatory acts taken against an employee or applicantbecause the person has opposed any unlawful employment practice or has filed a discrimination complaint.
RETALIATION
101
HPM 10.12, CHAPTER 13, Glossary of Terms
Person, group, entity alleged to have engaged in discrimination.
RESPONDENT
102
HPM 10.12, CHAPTER 13, Glossary of Terms
Alterations, adjustments or changes in thejob, the work place, and/or term or condition of employment which will enable an otherwise qualified disabled individual or disabled veteran to perform a particular job successfully, or to accommodate the religious beliefs of an applicant/employee, as determined on a case-by-case basis depending on the individual circumstances.
REASONABLE ACCOMMODATION
103
HPM 10.12, CHAPTER 13, Glossary of Terms
Legally identified groups which are specifically protected by statute against employment discrimination. Protected class status is automatically conferred upon recognized minority group members, females, and disabled persons by virtue of laws and court decisions interpreting laws.
PROTECTED CLASSES
104
HPM 10.12, CHAPTER 13, Glossary of Terms
Any individual who has a physical disability which constitutes or results in a substantial barrier to employment.
PHYSICALLY DISABLED
105
HPM 10.12, CHAPTER 13, Glossary of Terms
A condition in which the percentage participation of protected classes in an organization (and/or it units, job classes) is identical to the equivalent percentages in the relevant area labor force.
PARITY
106
HPM 10.12, CHAPTER 13, Glossary of Terms
The lack of prejudice or partiality in attitudes and actions in employment practices to ensure EEO.
NONDISCRIMINATION
107
HPM 10.12, CHAPTER 13, Glossary of Terms
A class of people who constitute less than the majority and who possess similar traits, which traits are the basis of discrimination for that class of people.Minority traits generally recognized as being valid by EEO law as the basis for different treatment are race, color, religion, national origin, sex, age, ancestry, sexual orientation, marital status, medical condition, political affiliation, and disability.
MINORITY
108
HPM 10.12, CHAPTER 13, Glossary of Terms
Under EEO legislation, organizational or personal intentionnot to discriminate are irrelevant to the issue. The laws related to discrimination are concerned with effects of actions by an organization and its managers.
INTENT VS. EFFECT
109
HPM 10.12, CHAPTER 13, Glossary of Terms
The state body which administers state laws, regulations, or ordinances prohibiting employment discrimination pursuant to FEHA and hears cases referred by DFEH.
FAIR EMPLOYMENT AND HOUSING COMMISSION
110
HPM 10.12, CHAPTER 13, Glossary of Terms
A group identified on the basis of culture, race, color, or national origin.
ETHNIC GROUP
111
HPM 10.12, CHAPTER 13, Glossary of Terms
A law which forbids pay differentials on the basis of sex. It is enforced by the Wage and Hour Division of the United States Department of Labor.
EQUAL PAY ACT OF 1963
112
HPM 10.12, CHAPTER 13, Glossary of Terms
The EEOC was created by the Civil Rights Act of 1964 to enforce the provisions of Title VII which prohibits discrimination in employment.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
113
HPM 10.12, CHAPTER 13, Glossary of Terms
The right of all persons to be accorded full and equal consideration for employment, retention, and advancement on the basis of merit.
EQUAL EMPLOYMENT OPPORTUNITY
114
HPM 10.12, CHAPTER 13, Glossary of Terms
Basic procedural process which, when followed, assures fairnessand the most equitable results to all. The key elements of due process are as follows:
1. Notice of specific charges and responses.
2. Reasonable timing.
3. Right to present evidence (written or oral, includes witnesses).
4. Right to question others who present evidence.
5. A decision based solely on evidence which each party has had the opportunity to refute.
DUE PROCESS
115
HPM 10.12, CHAPTER 13, Glossary of Terms
Underutilization of minorities, women, and/or disabled persons. Specifically, the difference between existing representation reasonably expected in the appropriate relevant labor force.
DISPARITY
116
HPM 10.12, CHAPTER 13, Glossary of Terms
The result of treatment that is quantitatively different for a protected class than for other employees. In itself, disparate effect may not constitute a Title VII violation, but its existence usually creates suspicion and indicates the need to closely examine the employment practices causing the disparity.
DISPARATE EFFECT
117
HPM 10.12, CHAPTER 13, Glossary of Terms
Popularly used to refer to exclusion of white males in favor of females and minorities in employment practices. Such a practice is unlawful as the laws protect all races and both sexes.
DISCRIMINATION, REVERSE
118
HPM 10.12, CHAPTER 13, Glossary of Terms
Illegal treatment of a person or group (either intentional or unintentional) based on race, color, religion, sex (includes sexual harassment, gender identity), national origin, ancestry, age, marital status, physical or mental disability, medical condition, sexual orientation, political affiliation/opinion, veterans status, pregnancy, victims of domestic violence, or retaliation. The term also includes the failure to remedy the effects of past discrimination.
DISCRIMINATION
119
HPM 10.12, CHAPTER 13, Glossary of Terms
Generally, a disability is defined as a condition of impairment, physical or mental, having an objective aspect which can usually be diagnosed by aphysician.
DISABILITY
120
HPM 10.12, CHAPTER 13, Glossary of Terms
Persons who meet the legal definition or have been identified as developmentally disabled. This includes autism, cerebral palsy, epilepsy, mental retardation, and other neurological impairments.
DEVELOPMENTALLY DISABLED
121
HPM 10.12, CHAPTER 13, Glossary of Terms
The state agency empowered to receive, investigate, and conciliate complaints alleging discrimination in employment pursuant to the Fair Employment and Housing Act (FEHA).
DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING
122
HPM 10.12, CHAPTER 13, Glossary of Terms
Right of an employee to displace another in the event of a layoff or reduction in force.
DEMOTION RIGHTS
123
HPM 10.12, CHAPTER 13, Glossary of Terms
Where individuals or groups suffer the current effects of past discrimination which have not been remedied. This may include loss of income or other benefits, lower job seniority, or other injuries.
CONTINUING DISCRIMINATION
124
HPM 10.12, CHAPTER 13, Glossary of Terms
An attempt to settle a discrimination complaint through agreementof both parties. Required of the EEOC by Title VII, and Department of Fair Employment and Housing (DFEH)/Fair Employment and Housing Commission after a finding of reasonable cause to believe there is discrimination.
CONCILIATION
125
HPM 10.12, CHAPTER 13, Glossary of Terms
Use of employment practices which discourage qualified members of protected groups from applying for employment seeking promotion or utilizing the EEO counselor or EEO complaint process.
CHILLING EFFECT
126
HPM 10.12, CHAPTER 13, Glossary of Terms
The individual who alleges (charges) they have been discriminated against. May also be called complainant, plaintiff, grievant, or aggrieved person.
CHARGING PARTY
127
HPM 10.12, CHAPTER 13, Glossary of Terms
Justification for an otherwise prohibited employment practice based on proof that: (1) the otherwise prohibited employment practice is essential for the safety and efficiency of the business, and (2) no reasonable alternative with a lesser impact exists.
BUSINESS NECESSITY
128
HPM 10.12, CHAPTER 13, Glossary of Terms
In discrimination cases, the plaintiff must show an action, practice, or policy used by the employer has an adverse effect. Once adverse effect is shown, the burden of proof shifts to or policy is job related.
BURDEN OF PROOF
129
HPM 10.12, CHAPTER 13, Glossary of Terms
Characteristics shown to be necessary requisites to a person’s ability to successfully perform a job (i.e., physical, age). Race is never a bona fide occupational qualification.
BONA FIDE OCCUPATIONAL QUALIFICATION
130
HPM 10.12, CHAPTER 13, Glossary of Terms
Any non-job-related employment consideration which excludes individuals, otherwise capable of doing the work, from consideration for employment. For example, an artificial barrier is created when the hiring command includes a testing assignment during the interview process which cannot be tied to job performance or business necessity for the vacant position.
ARTIFICIAL BARRIER
131
HPM 10.12, CHAPTER 13, Glossary of Terms
A federal law which protects individuals who are 40 years of age or older from employment discrimination based on age. It is enforced by the Wage and Hour Division of the Department of Labor in cooperation with Equal Employment Opportunity Commission (EEOC).
AGE DISCRIMINATION IN EMPLOYMENT ACT
132
HPM 10.12, CHAPTER 13, Glossary of Terms
Positive activity initiated by an employer which contributes to equal employment opportunity for minorities, women, and disabled persons. The overall goal is to achieve labor force parity in the employer’s workforce. Affirmative action is still a term used at the federal level; however, with the passing of Proposition 209 in California, the term affirmative action was changed to equal employment opportunity.
AFFIRMATIVE ACTION
133
HPM 10.12, CHAPTER 13, Glossary of Terms
A group of people of the same race, color, religion, national origin, ancestry, age, sex (includes sexual harassment), physical or mental disability, political affiliation/opinion, marital status, sexual orientation, medical condition, pregnancy, veteran status, or victim of domestic violence who have been denied equal opportunity in specific instances.
AFFECTED CLASSES
134
HPM 10.12, CHAPTER 13, Glossary of Terms
One or more employees, former employees, or applicants whohave been denied employment opportunities or benefits because of discriminatory practices and/or policies by the employer, its employees, or agents. Evidence of the existence of an affected class requires: (1) identification of the discriminatory practices; (2) identification of the effects of discrimination; and (3) identification of those suffering from the effects of discrimination.
AFFECTED CLASS
135
HPM 10.12, CHAPTER 13, Glossary of Terms
A substantially different rate of selection in hiring, promotion, transfer, training, or in other employment decisions which works to the disadvantage of members of a race, ethnic, or sex group. If such rate is less than 80 percent of the selection rate of the race, sex, or ethnic group with the highest rate of selection, this will generally be regarded as evidence of adverse impact. Determining adverse impact is also referred to as the “80 percent Rule.”
ADVERSE IMPACT
136
HPM 10.12, CHAPTER 13, Glossary of Terms
A disabled individual’s ability to approach, enter, and use facilities easily, particularly such areas as personnel office, worksite, and public areas.
ACCESSIBILITY
