IS THIS THE EXCEPTION OR ... An Employer Should Know When a Potential Harassment Case May have Them by the Throat!

An Employer should know when a potential harassment case may have them by the throat! 


Here are five signs that you might want to answer "Yes, please, and thank you, Sir!" when you get that Equal Employment Opportunity Commission (EEOC) request to mediate.


The accused is a member of management and has admitted to the harassment, OR he hasn't admitted it, but you are pretty sure he's guilty. This one is obvious. Maybe he didn't admit to sending that picture on Twitter, but he can't say "with certitude" that it's not him. He's probably guilty, and even if he isn't, you're going to have a hard time persuading the EEOC, a judge, or a jury that it didn't happen.


If you have an admission, or just a terrible feeling in your gut that won't go away, your case may be a dog. Your work environment is so bad that you "should have known" the harassment was going on. Normally, an employer is not liable for harassment that it's unaware of, which stands to reason. After all, how can you correct a problem you didn't know existed? BUT . . . if a work environment is so bad that anyone with eyes to see and ears would have been aware of it, then a court is likely to find that you had "constructive knowledge" of the harassment. This means that, in the eyes of the law, you knew about it, whether you actually knew or not.


If you had actual or constructive knowledge of the harassment, then you probably won't be able to use the defense to your inaction that the plaintiff didn't report the harassment. Your case may be a dog.


You got a complaint of harassment, and then you sat on it. Ideally, the investigation of a harassment complaint will begin the same day you get it, (or even earlier, if you had actual or "constructive" knowledge of it before you got the complaint.) It looks bad when you get a complaint and don't even start interviewing anybody until two or three weeks later, or even worse, when you wait until the day you get the EEOC charge or the nasty letter from an attorney in the mail.


If a delay cannot be avoided, then be sure to document the reason for the delay, and be sure to do as much you can until the key individual comes back. And, of course, promptly follow up with the employee after he or she returns to work.If there is a delay and you don't have a good excuse, your case may be a dog.


You can't even remember the last time you had harassment training. The EEOC and a good plaintiff's lawyer will always ask members of management whether they've had harassment training, how long ago, who did it, what it covered, etc. There are at least two reasons for this: 

(1) Your agency will look very bad if you haven't done it recently, and 


(2) inadequate training will give the plaintiff an excuse for not having reported the harassment in a timely manner. The Employee can plausibly claim that he or she didn't report it because she didn't know she was supposed to report it, or that she didn't know how to do it.


You should conduct harassment training for supervisors and managers at least once a year, and the training should include how to identify harassment, "high-risk behaviors," what to do if the manager receives a complaint of harassment or sees a situation in which she believes that harassment may be taking place, and retaliation. Ideally, you'll conduct annual harassment training for non-management employees, too, which should cover the same topics, but in more abbreviated form. This can be done live or through web-based programs or videos. (Live and web-based are generally better than videos because they are interactive.)


If your harassment training isn't current, your case may be a dog.
You have established that "quid pro quo" harassment may have occurred. Let's say an employee comes to you and says that she was demoted because she did not surrender to her boss's "charms," whistle blowing, etc. Let's further say that you have done everything right -- you have mandatory annual harassment training for management and non-management employees, which this boss attended last month, you have a great policy, you promptly investigated the complaint, and you fired him and fixed the egregiousness as a "thank-you" for coming forward. 


Unfortunately, you are still liable ("strictly liable") under the law, because the employee suffered what the courts call a "tangible job detriment" as a result of the alleged harassment. All the good things you have done are relevant to damages, but not to liability, meaning that at a minimum you could be stuck with nominal damages and his or her attorneys' fees.


One would hope that an employer this good would not have to worry about getting a charge or lawsuit from the victim, but if he or she chooses to pursue legal action, your case may be a dog. It may be about to bite you in the ASS!

An Employer should know when a potential harassment case may have them by the throat! Here are five signs that you might want to answer "Yes, please, and thank you, Sir!" when you get that Equal Employment Opportunity Commission (EEOC) request to mediate.


The accused is a member of management and has admitted to the harassment, OR he hasn't admitted it, but you are pretty sure he's guilty. This one is obvious. Maybe he didn't admit to sending that picture on Twitter, but he can't say "with certitude" that it's not him. He's probably guilty, and even if he isn't, you're going to have a hard time persuading the EEOC, a judge, or a jury that it didn't happen.


If you have an admission, or just a terrible feeling in your gut that won't go away, your case may be a dog. Your work environment is so bad that you "should have known" the harassment was going on. Normally, an employer is not liable for harassment that it's unaware of, which stands to reason. After all, how can you correct a problem you didn't know existed? BUT . . . if a work environment is so bad that anyone with eyes to see and ears would have been aware of it, then a court is likely to find that you had "constructive knowledge" of the harassment. This means that, in the eyes of the law, you knew about it, whether you actually knew or not.


If you had actual or constructive knowledge of the harassment, then you probably won't be able to use the defense to your inaction that the plaintiff didn't report the harassment. Your case may be a dog.


You got a complaint of harassment, and then you sat on it. Ideally, the investigation of a harassment complaint will begin the same day you get it, (or even earlier, if you had actual or "constructive" knowledge of it before you got the complaint.) It looks bad when you get a complaint and don't even start interviewing anybody until two or three weeks later, or even worse, when you wait until the day you get the EEOC charge or the nasty letter from an attorney in the mail.


If a delay cannot be avoided, then be sure to document the reason for the delay, and be sure to do as much you can until the key individual comes back. And, of course, promptly follow up with the employee after he or she returns to work.If there is a delay and you don't have a good excuse, your case may be a dog.


You can't even remember the last time you had harassment training. The EEOC and a good plaintiff's lawyer will always ask members of management whether they've had harassment training, how long ago, who did it, what it covered, etc. There are at least two reasons for this:  
(1) Your agency will look very bad if you haven't done it recently, and 
(2) inadequate training will give the plaintiff an excuse for not having reported the harassment in a timely manner. The Employee can plausibly claim that he or she didn't report it because she didn't know she was supposed to report it, or that she didn't know how to do it.


You should conduct harassment training for supervisors and managers at least once a year, and the training should include how to identify harassment, "high-risk behaviors," what to do if the manager receives a complaint of harassment or sees a situation in which she believes that harassment may be taking place, and retaliation. Ideally, you'll conduct annual harassment training for non-management employees, too, which should cover the same topics, but in more abbreviated form. This can be done live or through web-based programs or videos. (Live and web-based are generally better than videos because they are interactive.)


If your harassment training isn't current, your case may be a dog.
You have established that "quid pro quo" harassment may have occurred. Let's say an employee comes to you and says that she was demoted because she did not surrender to her boss's "charms," whistle blowing, etc. Let's further say that you have done everything right -- you have mandatory annual harassment training for management and non-management employees, which this boss attended last month, you have a great policy, you promptly investigated the complaint, and you fired him and fixed the egregiousness as a "thank-you" for coming forward. Unfortunately, you are still liable ("strictly liable") under the law, because the employee suffered what the courts call a "tangible job detriment" as a result of the alleged harassment. All the good things you have done are relevant to damages, but not to liability, meaning that at a minimum you could be stuck with nominal damages and his or her attorneys' fees.


One would hope that an employer this good would not have to worry about getting a charge or lawsuit from the victim, but if he or she chooses to pursue legal action, your case may be a dog. 

California: From Foster Children to Homeless Adults

Human Rights Watch

California Simply Refuses to Spend the Money to Prepare Foster Youth for Adulthood

edited by I, praetorian

originally published MAY 12, 2010

A youth who is homeless sleeps on concrete outside a homeless shelter.

© 2007 Natalie Leimkuhler

RELATED MATERIALS: 

My So-Called Emancipation

 The vast majority of these young people don't have a clue where to start or how to go about it. Within a few years without the intervention of a caring adult, they slide into the abyss of drug addiction, alcoholism and depression. They fill the wards of the county psychiatric units.they are no more prepared now as adults to live in a complex world than they were when they first were taken into the system as children...

(Los Angeles) - California is creating homeless adults by failing to ensure that youth in foster care are given the support to live independently as adults and by ending state support abruptly at 18, Human Rights Watch said in a report released recently. Human Rights Watch said that the state must provide financial support, connections with mentoring adults, shelter, and other safety nets for young people as they make the transition toward independence.  However those services were among the first to go during the Schwartzniger ruination years. The total financial ownness put on the counties who had already made similar cuts.

The 70-page Human Rights Watch report, "My So-Called Emancipation: From Foster Care to Homelessness for California Youth," documents the struggles of foster care youth who become homeless after turning 18, or "aging out" of the state's care, without sufficient preparation or support for adulthood. California's foster care system serves 65,000 children and youth, far more than any other single state. Of the 4,000 who age out of the system each year, research suggests, 20 percent or more become homeless.

"By failing to prepare youth in foster care for adulthood and cutting them off from support abruptly as they become adults, California is failing in its duty to these young people," said Elizabeth Calvin, senior advocate for children's rights at Human Rights Watch and author of the report. "These young people are capable of making the transition successfully, but they cannot do it without the state's help."

This month the state is considering dramatic cuts to child welfare services, which would eliminate an existing transitional living program, over 400 social workers, and other programs for foster youth preparing for adulthood.

"These proposed budget cuts would undermine foster youth's main defense against living on the streets," Calvin said. "The state will bear the costs of the predictable result - increased homelessness."

Most children enter foster care because abuse or neglect at home triggers the duty of the state to step in and protect them. The state becomes their parent and must ensure that children have adequate food, clothing, shelter, health care, and education. But the responsibility to provide the guidance and support necessary for children in foster care to grow into independent adults is no less important, Human Rights Watch said.

Human Rights Watch interviewed 63 young people who became homeless after they left foster care in California. Their stories shed light on the complex array of factors that led to their homelessness: missed opportunities to learn skills, lack of ability to support themselves, a shortage of second chances, and the fact that no one cared what happened to them.

Of those interviewed, 65 percent had not graduated from high school when they were forced out of state care; 90 percent had no source of income. These young people were expected to survive on their own, though the state had provided no real training for adult living skills and was providing no support, financial or otherwise, during the transition. In these cases, homelessness is a predictable outcome.

California state law requires child welfare agencies to develop, in conjunction with each youth in foster care, an "emancipation plan" for what the young adult will do when leaving foster care. A plan that should start at the beginning of high school, and be complete including sources of mentoring and support with the cooperation and help of the foster family. But in practice, plans are most often not made or are unrealistic and unlikely to prevent a youth from becoming homeless, Human Rights Watch said. For those young people who actually had a,  "emancipation plan" described to Human Rights Watch plans that lacked arrangements for housing or the income to afford it.

Human Rights Watch called on California to provide foster youth with a variety of options as they make the transition to adulthood, however in past years, those very options were available and then some. Making the transition years more fruitful and more like their peers in family homes enjoy. In the past these could include more time with paid outside services coordinators, extra time at foster home, if needed, before moving out on their own, or helping with arrangements for somewhere to stay during certain periods, such as during college vacations. that is if they were given enough help to get into a college program.

The state should also maintain a spectrum of other options for housing, mentoring, and support for former foster youth, including transitional housing programs, mental health services, services for those with learning disabilities, and services for pregnant and parenting youth, Human Rights Watch said.

"The science of adolescent development shows that childhood does not end abruptly at a certain age," Calvin said. "In most US families, young people continue to receive a spectrum of support -  emotional and financial - as they make the transition to adulthood, and the youth in California's care deserve no less. "

Selected Testimony

The day I graduated from high school my foster mom told me, "You've been emancipated. You can't live here anymore." My social worker showed up - I was still in my little graduation dress and heels, my flowers, my cap on. My social worker had never talked with me. [She just] told me, "I've called around and found a shelter for you. You have a bed for four months."

- Karen D., age 21, San Francisco.

On the day of my so-called emancipation, I didn't have a high school diploma, a place to live, a job, nothing...The day I emancipated - it was a happy day for me. But I didn't know what was in store. Now that I'm on the streets, I honestly feel I would have been better off in an abusive home with a father who beat me; at least he would have taught me how to get a job and pay the bills.  

- Roberta E., age 24, Los Angeles

 "I wish I could have had ... someone to care about me ... like show me how to separate the whites from the darks [for laundry.] I would have hated it at the time, but I wish I'd had that. They never even asked me, ‘Is something wrong? Talk to me."

- Nikki B., age 18, Sacramento

 "If you're going to put kids in group homes, in foster care - at least give them what they need to survive and take care of themselves. [When I aged out of care] I was expected to know how to get a job, buy a car, all that stuff, but ... I didn't have any idea how to go about doing things. So, I ended up on the street."

- Tony D., age 20, Berkeley

It is this writer's experience

I will weigh in here. It is been my experience with teenagers and young adults who are  homeless at such an early age, 30 – 40% have been recently emancipated from foster care here in California. These are the most unfortunate of the young people emancipated because, without a single exception they did not have a family member to take them in. They were simply dropped off in a different city often because a known family member lived there. Too often that family member had no idea and had little interested in helping. These young people often find each other and form social groups  and for protection. The vast majority of these young people don't have a clue where to start or how to go about it. Within a few years without the intervention of a caring adult, they slide into the abyss of drug addiction, prostitution, alcoholism and depression. They fill the wards of the county psychiatric units. They are no more prepared now as adults to live in a complex world than they were when they first were taken into the system as children. 

Contact Human Rights Watch for more information on how to help.

Just another day and happy to have it! ADVOCACY!

San Deigo USD's Eminent Insolvency: A Harbinger of Moreno Valley USD

Original story by andrew.donohue
voice of sandiego

The public proclamations that the San Diego Unified School District faces a state takeover dropped like bombshells this month, but district leaders have had serious discussions about insolvency both publicly and privately for years.

At one point more than two years ago, former Superintendent Terry Grier was so concerned that school board members didn't grasp insolvency's consequences that he scheduled a private briefing from perhaps the state's foremost expert on it, San Diego County Office of Education Superintendent Randy Ward.

"We'd just had numerous discussions with them about the possibility of insolvency. They just didn't believe the state elected officials could or would allow it to happen," Grier said. "There was even early discussion about how becoming insolvent might be the right thing to do."

Ward knows state takeovers well. The state appointed him to take over Oakland Unified School District after it went broke in 2003. He unilaterally ran the district, cleaning up its finances after the superintendent was fired and the elected school board became an advisory council.

When he met with them, Ward didn't tell the board members they were headed for insolvency. Rather, he explained what would happen and how the district would need to take drastic measures to avoid it. "He also rang that warning bell loud and hard," Grier said.

At least twice since that meeting, while the state continually cut funding to local schools, the school board has made high-stakes gambles that state finances would improve or that school spending would significantly increase. In light of California's continued economic problems and those serious ongoing discussions about insolvency, those gambles have begun to look misguided at best and reckless at worst.

District officials have cast the financial crisis as one wholly of the state's making, but talk of insolvency has always hung over the financial gambles the district's taken in order to keep class sizes small and teachers employed in the short-term. The long-term consequences of those decisions only compound the trouble handed down by the state.

Just a year after Ward's talk, the school board entered into a labor contract that, while providing short-term relief, saddled it with burdens it may well not be able to handle. The contract was, by the board president's own admission, a "gamble." Then, this summer, the board voted to rehire hundreds of teachers based on rosy state projections, despite advice to the contrary from their staff and consultant.

Now, with the state's projections looking unlikely to materialize, school board President Richard Barrera is calling for the state to levy taxes on the wealthy, oil extraction or alcoholic beverages to save school districts from insolvency.

Grier, who left the district in 2009 for Houston, said the district's dynamics changed when the teachers union's slate of school board members, John Lee Evans and Richard Barrera, were elected in 2008 and joined with Shelia Jackson to form a pro-labor voting block.

When Barrera and Evans joined the board, Jackson put together a plan to cancel teacher layoffs that had been issued before their election, a move the new board approved unanimously.

Grier said the move went against staff's advice and had little justification as the district's enrollment had been shrinking for the better part of a decade and the teachers simply weren't necessary.

At the time, then-board member Katherine Nakamura said schools were fully staffed and it would be hard to even find places to put the teachers. She warned of the bad timing, too, considering the state's plight. "You don't eat a jelly donut in the middle of a heart attack, no matter how sweet it might be."

Nakamura ended up voting for the plan, though, saying she wanted to move the board forward.

Barrera said his decisions have nothing to do with his relationship with, and support of, labor unions. He said his relationship with the teachers union has soured thanks largely to his vote in favor of layoffs earlier this year.

Make no doubt about it: The state Legislature has made severe changes to the way it funds K-12 education, offering districts 15 percent less money than it did just a few years ago. And it's not even giving the districts the smaller checks it promised, forcing them to borrow money every year and bank on IOUs. That's put districts around the state in serious trouble.

In response, San Diego Unified has made its own harsh changes. It's cut staffing by 15 percent since 2009 and this year it ultimately laid off more than 1,000 workers, including 500 teachers. The threat of insolvency, for example, popped up during the school board's public deliberations about whether to issue layoff warnings to teachers this March.

Today, district leaders say they've cut to the bone and are now evaluating closing some schools. Teachers agreed to shorten the school year by five days the last two years, taking five unpaid days off and saving the district about $20 million.

But, despite those major changes, the school board has been banking on the state Legislature upping education funding or a roaring economy to come to the rescue before the consequences of some of its long-term decisions come due. Every cut that wasn't made a year ago compounds now, and only deepens the budget pain when it eventually has to be made.

Barrera said every budget decision he's had to make has involved risk. "We either risk the education of kids or we risk the financial health of the district, that's the situation we've been in, over and over and over again," he said.

The issue to Barrera is one of drawing a line in the sand.

The board has already made cuts that have raised class sizes to an unacceptable level and impacted the welfare of children, he said, but there's a point the board simply can't cross. If refusing to make cuts entails gambling against the financial health of the district, then that's what he's got to do, he said.

Choose against the financial health of the district too often, though, and you eventually run out of money to even keep a school district functioning.

That's the situation the district faces today.

It's already staring at a $60 million deficit for next year after managing a roughly $80 million deficit this year. It has a rather vague list of solutions to fund that deficit, from closing schools, to selling off land, to asking the union to make concessions on teacher salaries and benefits. All that will have to be decided soon.

If the state's optimistic revenue forecast fails to materialize, next year's deficit could nearly double for and the district will have to find more ways to cut without laying off teachers. So far, the only solution that's been floated for that problem is shortening the school year by seven days, a proposal that, again, the district would have to negotiate with its unions.

If the state goes ahead with the threatened midyear cuts, Barrera and Superintendent Bill Kowba say the district will be on its way to insolvency. If the district goes insolvent, it will get taken over by the state and local control would be eviscerated.

Budget decisions would be made unilaterally by a state-appointed trustee. The superintendent would be fired. The school board would be advisory. The state would have some power over school finances for decades as the district paid back its bailout loan.

Kowba, a former rear admiral in the Navy, served as Grier's chief financial officer. Grier said Kowba had continually raised red flags for the school board.

However, he said, often staff's warnings to the board went unheeded.

"We knew the cuts were going to be painful. We also knew from everyone we talked to that this was not going to get better. We kept sharing that with the board. They were in a hard position, I don't envy them," Grier said. "But they kept going in the opposite direction that staff recommended."

You can reach us at andrew.donohue@voiceofsandiego.org orwill.carless@voiceofsandiego.org. Follow us on Twitter:

Alice's Bucket List-Hello   :) "Well you know that I had a break away in a cottage. That was really nice because we were allowed to take Mabel with us and that made it perf..."