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California Stopped Tracking Sexual Harassment Complaints Years Ago. That Left Leaders Without Answers In The Me Too Era

The California State Capitol in the early evening in Sacramento, Wednesday, A...

Credit: Associated Press

Above: The California State Capitol in the early evening in Sacramento, Wednesday, Aug. 31, 2016.

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California stopped tracking sexual harassment complaints in 2012. Some observers fear that hampered the state’s ability to monitor, and prevent misconduct.

Aired: July 17, 2019 | Transcript

At the height of the Me Too movement, California leaders couldn’t answer basic questions about the prevalence of sexual harassment complaints across state agencies.

That’s because the state eliminated its system for tracking harassment and discrimination complaints in 2012, amid budget cuts and government consolidation.

Some observers fear the seven-year gap in tracking sexual harassment was a significant setback in the state’s ability to monitor, and prevent, misconduct.

“It is just unbelievable to me to think that, when you consolidate state government, the one thing that falls off the table is the tracking of sexual harassment,” said Sarah Reyes, a former assemblywoman who made sexual harassment training and prevention a focus while in office. “We shouldn’t wonder why we are talking about the Me Too movement in the Legislature when they didn’t make it a priority.”

For years, California law required the State Personnel Board to file an annual report to the Legislature, detailing discrimination and harassment complaints at agencies. The reports included information on the type of complaint, the outcome and the time it took to reach a resolution.

But the state eliminated the system in 2012, when former Gov. Jerry Brown overhauled its human resources departments.

The impacts of eliminating the system would eventually emerge. Government leaders said they had no ability to track sexual harassment complaints and identify trends, which hindered prevention efforts.

Then, as harassment allegations against high profile public officials surfaced in recent years, the Brown administration scrambled to improve state policies. The administration assembled a working group of agency directors to identify improvements. One key finding: bring back the complaint tracking system.

The Department of Human Resources, or CalHR, is currently building out the tracking system. Originally planned to launch in December 2018, the program is running behind schedule. The department now expects it will be ready in early 2020.

It will centralize the collection of data on harassment complaints from employees at state agencies, and make that data available to the public.

“We often see workplaces, both private and public, where there are serial harassers who target workers,” said Jessica Stender, senior counsel with the group Equal Rights Advocates. “The tracking mechanism can help employers identify repeat offenders who need to be disciplined, moved or even terminated. … You can’t fix what you can’t see.”

‘It surprised many of us’

In the lean years following the recession, California embarked on wholesale spending cuts, bureaucratic consolidation and program elimination.

In 2012, the Brown administration eliminated the Department of Personnel Administration and consolidated human resources responsibilities under the State Personnel Board and newly formed CalHR. The consolidation was complex, requiring changes to more than 70 sections of state law.

Buried among those changes was the elimination of the state’s system for tracking harassment and discrimination complaints at government agencies.

It remains unclear why the state eliminated it.

Suzanne Ambrose, who has served as head of the State Personnel Board since 2007, says she doesn’t have a clear recollection of what led to it being scrapped. In written testimony from 2011, she did not mention the elimination of the tracking system.

“In hindsight, certainly now we can see that having that data would be valuable,” she said.

She noted that agencies still have to submit complaint information to the Department of Fair Employment and Housing. But the department does not regularly analyze the data to identify trends, nor does it produce reports that examine complaints across all agencies, according to a department spokesperson.

Marybel Batjer, who led California’s Government Operations Agency until Gov. Gavin Newsom recently appointed her to head the California Public Utilities Commission, says the working group under Brown discussed the elimination of the tracking system — which came as an unexpected revelation.

“It did surprise me,” she said. “It surprised many of us.”

Batjer did not work in state government in 2012. But she says her impression is that officials did not have a clear understanding of why the data was being collected and how it was being used.

She adds that “it was a minor thing at the time, given how large the reorganization and consolidation was.”

Legislative records appear to support Batjer’s impression. Bill analyses reference the elimination of the tracking system only once, noting that a coalition of state employee and civil rights organizations expressed concern. Nevertheless, the bill had little debate when taken up on the floor of either houses in the Legislature. The state Senate and Assembly do not have video or written records from when policy committees voted on the bill.

The bill also eliminated a requirement that the State Personnel Board hold hearings to assess the effectiveness, accessibility and fairness of the state's process of reviewing discrimination and harassment complaints.

In the coming years, however, the impact of eliminating the tracking system would become clear.

In a December 2017 report — amid the Me Too maelstrom — Richard Gillihan, former CalHR director and current COO at the Department of Finance, sounded the alarm.

“There is currently no method to analyze statewide discrimination complaint activity in California state government,” Gillihan wrote in the report. “Without data to review and analyze ... it is difficult to determine what actions should be taken to proactively address specific issues such as sexual harassment in the workplace.”

In his report submitted to the Government Operations Agency, Gillihan pointed to the elimination of the tracking system in 2012 as the source of the problem. He did not respond to a request for comment.

According to Eraina Ortega, who became head of CalHR in March, officials in the Brown administration were also frustrated by the lack of available information. However, it’s unclear if they recognized the administration’s role in creating the information gap.

“When the issue was at the height of interest last year, there wasn’t an ability to even answer questions about what the state’s experience was,” Ortega said. “There was a lot of public discussion about other industries … and we couldn’t speak to anything about what the state was experiencing.”

Building a new system

Would a complaint tracking system have reduced the number of sexual harassment incidents or settlements in the last seven years? It’s hard to say.

“One would hope so, because that’s why you have a tracking system,” Batjer said. “But that’s a hypothetical. There are lots of things that would need to be considered in that hypothetical.”

In order to reduce the number of complaints, she says, officials would have had to use the data effectively to identify patterns and struggling departments. She adds that the system would have to be paired with preventative measures, like sexual harassment training — a problem area in state government in recent years.

A CapRadio investigation in May found dozens of state agencies failed to train nearly 1,800 supervisors in recent years, in violation of the law.

The Newsom administration set a July 1 deadline for state agencies to come into compliance with training requirements. The administration has not responded to three requests from CapRadio for an update.

“The tracking system is only one of many tools a manager should utilize,” Batjer said.

But she acknowledges that the prevalence of sexual harassment settlements was a factor in the creation of the working group under Brown.

“There were some concerns about some large settlements that came to folks’ attention,” she said. “So then, you pick up the edge of the tent and say, ‘Well what is going on here?’ And then … you realize that you don’t have the kind of data you need to have to know what’s going on, because you don’t have a tracking system in place.”

The working group of agency directors and administrators produced a series of recommendations for improving the state’s sexual harassment prevention policies. One of those recommendations resulted in the governor’s direction to resurrect the complaint tracking system.

Brown wanted the system up and running by December 2018, according to a budget request, but its launch remains about a year behind schedule.

The system will use a program from Salesforce, the cloud-based computer software company. Batjer says the state is in the process of modifying software to fit its needs. Starting this summer, CalHR will begin training agency directors and administrators to use it.

Batjer says the program will automatically collect and centralize complaint data, which is an improvement from the state’s previous system. The State Personnel Board used to collect complaint information and track outcomes manually for its annual report to the Legislature.

CalHR requested the creation of three permanent positions and about $1.5 million in fiscal year 2018-19 to build out and operate the program. The request notes that the new system will address “inconsistency in the manner in which these types of complaints are addressed statewide and tracked for those employees with unresolved complaints against them.”

The system will collect formal complaints filed with the Department of Fair Employment and Housing, which are evaluated and, if necessary, investigated by the agency. It’s unclear if the system will track so-called “informal” complaints — that is, ones filed within a department, but not officially with DFEH.

The previous tracking system monitored informal complaints for a number of years, but stopped in 2007.

Batjer says she hopes the system will track them, since it’s an opportunity to address alleged incidents before they evolve into costly litigation.

“You want to know if there are people who talk to the [equal employment] officer [and] that the officer will still look into that situation,” she said.

The tool will also help the state hold agency directors accountable who fail to meet sexual harassment training compliance requirements.

“Is there a connection between a department that has a higher percentage of untrained folks and a high experience in complaints or settlements?” said Ortega with CalHR. “I think we’ll be able to see some of that and go to that director and say, ‘You need to look at these issues.’”

Ortega says it’s incumbent on the government to track, and publicly disclose, information on harassment complaints and outcomes — especially in a post-Me Too world.

“I think it’s important for the state to be able to be transparent to the public about how this issue is playing out,” she said. “That is something we ultimately owe the public.”

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