Questions on sexual harassment, sexual orientation, and reasonable accommodation are answered in separate FAQ's
The following Frequently Asked Questions (FAQ's) are here to help supervisors understand their responsibility under the law, and City and GSD policy.
1. Fine, what is my responsibility under City and GSD affirmative action policy?
In a nutshell, your responsibility is to exercise your authority to SELECT, PROMOTE, ASSIGN, EVALUATE, TRAIN, COMPENSATE, DISCIPLINE AND TERMINATE employees (or applicants) on the basis of merit - alone. To some extent you also share the responsibility to strive for a culturally diverse work force population that mirrors cultural diversity in the population of the City (race, sex, national origin, disabilities, and sexual orientation).
2. But, I have no authority to hire, fire, promote, compensate, discipline or terminate employees. Why, then, should I be held accountable for City policy on affirmative action?
You ARE responsible for all of these personnel decisions. You may not have complete authority, but you have a role in all of these decisions. Your responsibility therefore is to make sure you exercise your level of authority in a manner that is consistent with City policy, and to recommend to your supervisors decisions that are consistent with City policy.
3. I have a real problem with "affirmative action" policy in the City - or lack thereof. Didn't Proposition 209 end affirmative action in California, and isn't the statement above contradictory? How can we expect to have a culturally diverse work force, reflective of the City population, and still make decisions based solely on merit?
This is a tough question. Let us try to answer the question in pieces.
a. Proposition 209 has led to many questions that will have to be answered in the courts. We do not know yet if we can ignore other State and Federal laws requiring employers to have affirmative action policies. Time and court cases will tell.
b. Some argue that Proposition 209 only confirms that it is illegal to consider race, sex, national origin, etc. in employment decisions. Number goals or quotas by race, sex, national origin, etc. are illegal if they lead to decisions based on those categories.
c.On the other hand, affirmative action programs not requiring decisions based on race, sex, etc., will remain. For example, outreach recruitment, training programs, and other programs aimed at achieving cultural diversity in the work force, at all levels and occupational categories, are not illegal under Proposition 209.
d. Also, non-discrimination (EEO) policies are clearly consistent with laws and Proposition 209.
Put all of this together, and the answer to the question is that the City and GSD can continue to promote affirmative action policies (e.g. non-discrimination and programs for recruitment and training) aimed at a culturally diverse work force. Yet the policy does not require employment decisions considering race, sex, national origin, etc.
4. The answer above is really "fuzzy" to put it nicely. I am not sure I buy it. Does that mean that I should not be a supervisor?
Not at all. If this stuff is "fuzzy" or a hard sell, that is okay. All that you need to understand is that, as a GSD supervisor, you cannot make employment decisions on the basis of race, sex, national origin, etc. As a GSD supervisor you also have the obligation to support affirmative action programs, help eliminate biases and discriminatory practices in employment, and be sensitive to diversity among employees and the public.
5. Above you referred to "EEO" (equal employment opportunity). Is that the same as affirmative action?
As a supervisor it is not important to "argue semantics" concerning these two terms. Affirmative action (AA) and equal employment opportunity (EEO) are the same, very similar, or overlap. Regardless of what term we use, the important thing is that you understand the City and GSD policy promoting non-discrimination and cultural diversity in the work force.
6. Several times these FAQ's refer to, "...race, sex, and national origin…." Just what are the bases of unlawful employment discrimination?
Again, different laws refer to these bases in different ways. The best way to answer this question is to give you the City's list. You shall not discriminate on the basis of:
¨ national origin
¨ marital status
¨ sexual orientation
7. Isn't "sexual harassment" also a basis for discrimination?
Yes, but it is technically covered under "sex discrimination."
8. The list above is fine, but how am I to know what is discriminatory? For example, how could I discriminate based on marital status?
If you consider one's marital status (married, not married) when hiring, assigning, training, promoting, etc., you will be discriminating. Where this may come up is when considering only unmarried employees to fill a morning watch position. Maybe you do not want to hire a married person to fill a position requiring a lot of travel.
9. How could I discriminate based on "disability?"
Laws require employers to "reasonably accommodate" qualified disabled applicants and employees, unless to do so would create an "undue hardship." So, we could discriminate by refusing to hire an applicant without really trying to find some way the disabled applicant can do the essential parts of the job.
We will discuss disability discrimination and accommodation/placement in a different section of these FAQ's. For now, you need to know that decisions on what is a reasonable accommodation are made by the GSD Personnel Director - with your help. (See the answers to Questions 1 and 2, above.) A Liaison Analyst in Personnel Services must prepare a report on each occasion where we are considering hiring or placing a disabled person. That report is very complex and requires a great deal of knowledge about the law, federal and state guidelines, the individual's disability, and the many ways in which reasonable accommodations can be made. You do not want to take this issue on alone - turn it over to the Personnel Director.
10. How could I discriminate based on "age?"
Generally laws prohibiting discrimination on the basis of age are designed to protect older workers ("old" is 40-plus). Forcing retirements at a certain age, not hiring someone because of a preference for younger workers, requiring medical exams after a certain age, and distributing assignments based on age can be considered as unlawful.
11. How could I discriminate based on "sexual orientation?"
The "easiest" way to discriminate against gay men and lesbians is to assume you know who is gay or lesbian, and factor in that assumption when making employment decisions. This may sound too obvious, but this happens more than we realize. For example, if you "protect" a gay employee and other employees by refusing to assign the gay employee jobs where he may cut himself, you are discriminating. You are assuming that all gay men have a bloodborne communicable disease. And, even if the employee has the disease, you are assuming that if he cuts himself he will transmit that disease to coworkers. These assumptions will get you in trouble.
The easiest way to not discriminate is to not know or care about the sexual orientation of your employees or applicants. Sexual orientation is not a consideration in any job in GSD.
Also, take strong steps to prohibit any form of harassment among your employees.
12. What is "retaliation" and how does that fit into the discussion on discrimination?
Under the law and City policy, you may not take any action against an employee or applicant who filed a discrimination complaint. Any action you take, after an employee has filed a discrimination complaint, may lead to a claim of retaliation. As with any form of unlawful discrimination, the issue is extremely complex and evidence is hard to evaluate. With retaliation, the biggest hurdle to overcome is simply the "timing" of your action.
The best advice when someone has filed a discrimination complaint (at any level) is to document the reasons (business necessity) for any subsequent employment decision affecting the complainant, including why the decision was made at the time it was made.
13. If an employee wants to file a discrimination complaint, what do I tell him?
File the complaint on an informal basis with the GSD EEO Coordinator in Personnel Services.
Employees who want to file a formal complaint outside GSD may do so by going to the:
¨ EEO Section of the Personnel Department,
¨ State Department of Fair Employment and Housing, or
¨ U.S. Equal Employment Opportunity Commission.
The location of these offices is posted near where employees work - right? (If no poster, call Personnel Services. Laws require that these and safety posters be posted at work sites.)
14. If an employee files a complaint, what happens?
GSD Personnel staff will investigate the complaint either alone or jointly with the Personnel Department or the state or federal agency. The GSD Personnel Director will review the results of the investigation and discuss any further action with the General Manager and your division manager.
Do not do anything out of the ordinary other than gathering documents, records or names of witnesses in anticipation of the investigation. Anything more may appear as retaliation or an attempt to influence the results of the investigation.
15. Sometimes I have a question about affirmative action or discrimination. Who should I call?
You may contact the Department's EEO Coordinator, Debra Marks Newman, at (213) 485-5816, Personnel Services Division, Room 307, City Hall South. Ms. Newman can be e-mailed at dnewman@GSD.lacity.org (or through GroupWise: 'Debra Newman'.)