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Written Testimony of Patti Perez Shareholder at Ogletree Deakins and Member California Fair Employment and Housing Council

Commissioner Feldblum, Commissioner Lipnic, members of the Task Force, thank you for giving me the opportunity to provide testimony on the very important topic of prevention and correction of wrongful behavior in the workplace. I am honored to speak with you today on a topic about which I am very passionate, and to which I have dedicated nearly my entire professional career.

My name is Patti Perez and I am here in two capacities. First, I am here as a member of the California Fair Employment and Housing Council, a division of the California Department of Fair Employment and Housing. Formed in 2013, the Council is tasked with issuing regulations interpreting and clarifying California's civil rights laws, with a particular emphasis on the Fair Employment and Housing Act. In addition to sitting on a subcommittee that recently submitted comprehensive changes to regulations covering all areas of employment under the FEHA, I am also working with the Director of the DFEH, Kevin Kish, to study the topic of harassment prevention in the workplace. In this capacity, I am here not only to provide information, but also to learn from the great work the Commission and this Task Force have already performed. Our idea to study the topic of harassment prevention developed because our anti-harassment training law, commonly referred to as AB1825, is now ten years old and we wanted to partner with academics to study the effects this training requirement has had in the workplace. We quickly discovered, however, that we needed to broaden our scope.

I am also here in my professional capacity. I am a shareholder at Ogletree Deakins and also continue to work under the Puente Consulting brand name, serving as Puente's President. I founded Puente Consulting in 2001 to address the issue of workplace conflict in a holistic way. In this capacity, I continue to provide services in a few areas. First, I work with employers, large and small, public and private, unionized and non-unionized throughout the country and internationally to perform crisis management services. This means I am called upon to resolve conflict once issues have already developed. However, this conflict resolution is performed at the workplace level rather than in court which, in my experience, provides immeasurable benefits to employees and employers alike. My work also includes what I refer to at crisis avoidance work - and this is my favorite type of assignment. In this capacity, I am hired to design and implement comprehensive programs to help companies avoid conflict in the first place. This might include the implementation of a large-scale conflict resolution program, a program streamlining the process to handle requests for accommodations, or implementation of a robust diversity program. My practice also includes providing training in English and Spanish. In fact, I have provided training and worked as a monitor under the terms of various EEOC consent decrees.

How is California Different?

I will begin my comments by providing a brief summary of DFEH statistics that will provide background and context to my remarks.

  • In 2014, the DFEH received a total of 19,156 complaints, 17,632 of which were employment complaints (the remaining 1,524 were housing complaints).
  • These numbers, the total number of complaints received by the DFEH, have remained relatively consistent over the last few years.
  • Of these complaints, DFEH received a total of 4,312 complaints of sexual harassment in 2014. In other words, fully one quarter of the employment complaints we received last year were complaints of sexual harassment. In addition, we received a significant number of complaints based on other types of harassment, including harassment on the basis of race, religion, national origin, disability, and age.

How does the research conducted by academics fit into the reality of the workplace?

I read with great interest testimony provided by speakers who presented the social science perspective at the Task Force's meeting in June. I am particularly fascinated by the testimony of Dr. Lilia Cortina who, among other insights, states that "the scientific community widely recognizes that it is organizational conditions, rather than individual characteristics, that most powerfully predict sexual harassment." She goes on to say that "organizational 'tolerance' (sometimes known as organizational 'climate') is the single most powerful factor in determining whether sexual harassment will occur." In my experience, Dr. Cortina's statements about the link between organizational climate and the incidence of wrongful behavior, is accurate.

Though I am not formally trained in organizational psychology, I have studied these issues, with a particular focus on the concept of organizational fairness - the perception of fairness at work, which often carries the same or maybe even greater weight than actual fairness - and use these concepts routinely in my work. Not surprisingly, my experience providing services at the ground level indicates that the companies who show employees - through word and action - that they will be treated fairly, are the ones who not only have satisfied and loyal employees, but who show the best business results: low turnover, increased productivity, commitment and loyalty to the company and the brand, and numerous other advantages that have a tangible effect on the company's bottom line.

What works? What do companies do well?

With this information and these statistics as a backdrop, I will now speak to what I have seen employers do well, taking case studies from my experience conducting over 1,200 workplace investigations, training thousands of professionals on compliance, HR and leadership topics, and implementing hundreds of comprehensive crisis avoidance programs.

  1. The company that does it right from the start and from the top

    I work with a large company that is based in California but has operations nationwide and internationally. Through my work and interaction with employees in various states and countries, across business units and from entry level to senior executive, I have learned that the secret to this company's success lies, at least in part, on its fantastic culture, including doing the following:

    • In addition to providing employees with competitive wages and benefits, the company embraces diversity, provides numerous avenues for reporting concerns, provides training resources and opportunities for growth and advancement, emphasizes its open and fair culture to leaders at all levels and fully investigates and creatively resolves conflict when it does arise.
    • I have interviewed and trained hundreds of employees at this company and employees constantly refer to the company's commitment to diversity as a reason for their commitment to the company (I routinely speak with employees who have worked for the company for 10, 15 or 20+ years). In fact, the company has a comprehensive, award-winning diversity program. Employees notice that the mission statement for the diversity program has been translated and is placed in every elevator of the corporate office. They also notice the diverse make-up of the employee base. Many also mentioned that they admire the all-embracing nature of the diversity program - it is clear, they say, that the company is not only committed to gender and racial diversity. They admire that the company truly embraces each employee's unique attributes and values the contribution made by each employee. Employees say they feel respected - a hallmark of interactional fairness.
    • The company has established a multi-faceted program to receive and resolve employee concerns. Statistics on this issue are sometimes misleading. Companies might think that an increase in complaints signals failure. In this company's case, it is clear that employees trust the company's complaint system - they have seen that the company takes these complaints seriously and resolves them quickly and creatively. I note that all the professors who previously testified cite the failure to report wrongdoing (which robs all parties of the opportunity to resolve the situation) is quite common. At this company, an increase in complaints is viewed positively - as a testament to the comfort and trust employees put in the system. This is a workforce who believes the process works - they feel they are afforded procedural justice at work.
    • The company provides all its employees numerous training opportunities - offerings that go far beyond simply "checking the box" on compliance training. For example, the company offers comprehensive investigation and conflict resolution training to its internal investigators every year. The training is not run-of-the-mill and includes important topics such as recognizing and eliminating implicit or unconscious bias in investigations. This is a testament to the company's commitment to making decisions that go beyond simply complying with legal requirements.
  2. The companies that identify trends - good and bad - and addresses them

    I have worked with numerous companies who are not afraid to identify, acknowledge and fix problems before they rise to the level of unlawful behavior. Often, companies believe they are not required to act until the behavior might get them in legal hot water. In fact, this is a topic we address in our proposed regulations - the fact that the legal obligation is to correct problems long before they rise to this level. Companies who are doing it right recognize that in order to be truly successful, their culture must be one that goes beyond legal requirements.

    One such company is another large employer who not only resolves individual employee concerns, but also tracks trends. In one case, the company discovered that they received multiple complaints of racial harassment and discrimination. Though they did not find evidence of overt racially-charged behavior, the company was nonetheless concerned about the possibility of widespread perception of race-related behavior, particularly since the complaints were unrelated and involved different managers and different business units. The HR department immediately began designing training programs on this topic and sent a strong and loud message that the company was committed to providing an environment of inclusiveness.

Learning Lessons

I have dozens of examples like these but these provide at least a glimpse into what successful companies are doing well. We have much to learn from these companies who have created a culture that focuses on how to both prevent wrongful behavior from occurring, and to creatively correct issues when they do occur. As these case studies show, companies who do this well have, at a minimum, the following characteristics:

  • Leaders who are committed to providing employees with opportunities to advance and who are loyal to the concept of fostering a sense of justice at work. These leaders embrace programs that enhance workplace justice and walk the walk in addition to talking the talk - they provide a fantastic model for doing the right thing.
  • Implementation of robust programs that emphasize inclusion and a commitment to organizational justice. These are not simply policies that discuss the company's legal obligations, nor are they policies that are only used as a shield. Instead, these are creative programs that send a loud message to employees about the company's dedication to the prevention of inappropriate behavior at work. These include policies prohibiting harassment, procedures on how to lodge complaints and EEO policies. But these are only the minimum requirements. Companies who are truly committed to addressing these issues implement programs, not just policies. They make these programs a part of the fabric of their being - the do not simply distribute updated policies every year.
  • Finally, good companies recognize that, try as they might, they cannot prevent all wrongful behavior. These companies implement wide-ranging complaint mechanisms, take reports of concerns seriously, and implement outside-the-box, creative solutions to problems they identify.

What are we doing through the DFEH and the Fair Employment and Housing Commission to address these issues?

Director Kish and I are working with the Council and the DFEH staff to address the issue of harassment prevention and correction. We are at the beginning stages of our work and we welcome any words of wisdom from the Commission and members of the Task Force. Our hope is to end the process by issuing guidance or FAQs that will not only help our constituents learn how to comply with legal requirements, but to also provide them with resources for addressing these issues in a comprehensive and creative way.

Thank you again to the Commission for putting together this group, and to the members of the Task Force for giving me an opportunity to speak with you today.