Affirmative Defense – a legal defense the employer can use to mitigate liability.
To define and describe harassment To identify situations and behaviors that could be perceived as harassment. To understand a supervisor’s obligations and responsibilities. To apply specific strategies for preventing and eliminating harassment. To appropriately respond to allegations of harassment.
Federal Law: Title VII of the Civil Rights Act of 1964 and other State & Federal legislation Harassment as a form of Discrimination Protected Classes Ethnicity* Disability Orientation Religion Gender/Sex Age (40+) Veterans - Vietnam, Gulf War *Ethnicity includes any combination of race, color, nationality, ancestry, cultural identity, etc.
State Law – Enforced by FEHA Employers must distribute information sheet Employers must post a copy of the DFEH poster 2005 AB 1825 – Mandatory Training ▪ Supervisor/manager training – 2 hours ▪ Every 2 years or within 6 months of employment County Contractual Requirements Required to comply with all mandates
2001 – Durango Steak House Consensual relationship between employee & her manager She broke up but he continued to stalk She reported to management and was fired as a result Sued for QPQ, HWE, retaliation and negligent hiring Jury awarded $252,000 2005 – UltraStar Cinemas, San Diego & Baja Two adult managers’ conduct with 4 minor females Evidence that owner-officers were aware of the conduct Court awarded $1.5 million punitive to each ($6 million) Plus $850,000 in damages - emotional distress
2006 - Warner Brothers The Friends Case – Writers had creative, explicit brainstorm sessions Supreme Court ruled in favor of Warner Brothers Addressed consideration for Job Context 2007 – Jesse James, West Coast Choppers Evidence presented from emails and a T-shirt Out of court settlement for $725,000 2008 – City of Brockton, Massachusetts First grader accused of sexual harassment Boy was immediately suspended, no investigation/due process Debate drew international attention The boy will receive $130,000, total settlement $240,000 Plus $50,000 in legal defense spent by the city
1. Anita Hill/Justice Thomas2. Paula Jones/President Clinton3. The Tailhook Convention4. Mitsubishi Motors5. University of Colorado Football Program How could these have been mitigated?
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature Quid Pro Quo ▪ Employment terms & conditions are offered or withheld as a means of coercing sexual favors Hostile Work Environment ▪ Has the purpose or effect of unreasonably interfering with an individuals work performance or creating an intimidating, hostile, or offensive working environment
Translates to “This for That” submission to unwelcome conduct is made either explicitly or implicitly a term or condition of an individuals employment, and submission to or rejection of unwelcome conduct by an individual is used as the basis for employment decisions effecting such individuals The employer is automatically liable when the harasser is a supervisor. No affirmative defense is available when the harasser is a supervisor.
Focuses on the protected trait of a victim; Is unwanted or unwelcome; and Is severe or pervasive enough to effect the person’s work environment. Repeated less favorable treatment Behavior that intimidates, offends, degrades, threatens, or humiliates A single incident if egregious enough Not necessarily linked to a tangible benefit
Can be harassment without being sexual in nature Other forms of discrimination Perception changes from person to person Welcome vs. Unwelcome behavior Be sensitive to perception Reasonable person doctrine Watch for perceived retaliation Bystander harassment Witness to offensive behavior Third party harassment Excluded from preferential treatment
Policy against Harassment Communicated Management Training Ability to report it to more than one person Effective handling of complaint Promptly, Confidentially, and without Retaliation Prompt, corrective action taken
Report complaint directly to: Supervisor or Manager Human Resources Executive Management Team Member Human Resources will promptly begin an investigation
Examples of possible perception of retaliation Changes in hours Changes in pay Changes in job duties Changes in work shift Changes in the way person is treated Changes in employment status Changes in assignments Changes in work volume Employer can prevail on harassment claims but still lose on the retaliation claim
HARASSERS CAN BE… VICTIMS CAN BE…• Supervisors • Supervisors• Employees • Employees• Clients • Clients• Vendors • Vendors• Male • Male• Female • Female
Verbal – Language that is discriminatory, sexual or offensive Visual – Pictures, drawings, jokes, props Physical – Body language, gestures, lewd expressions Electronic – Inappropriate email, videos, telephone communications Generally derogative communications of any kind; insults or personal criticism
Supervisors can be held responsible forharassment in instances where they knew orshould have known that inappropriatebehavior was taking place, but failed to takeaction.
Supervisors may be held personally and legally liable in circumstances where they were a contributor, either through action or inaction. when they engage in behavior that is harassing, or when they delay or fail to take action in the following circumstances: ▪ a complaint is made to them ▪ they see or hear about behavior that may be offensive ▪ they see or hear about behavior they know is harassment
These styles if directed at one group of people could be perceived as harassing: Dictator – overwork, unnecessary pressure, and unreasonable deadlines Passive Aggressive – Belittling, critical, sarcastic, sabotaging Micromanager – over-detailed supervision, unwarranted checking and lack of trust Isolationist – Exclusionary or laissez-faire, withholding information or resources
Employees depend on their supervisors to provide a safe and respectful work environment. Supervisors can follow six steps to eliminate existing sexual harassment and set the stage for preventing it in the future: 1. Know our sexual harassment policy. 2. Be a role model for your staff. 3. Identify potential problems and report them to HR. 4. Practice our open door policy where people feel comfortable confiding in you. 5. Maintain strict confidentiality. 6. Take action on all complaints even if recipient asks you not to.
MBWA – Management by Walking Around Maintain open lines of communication so everyone is aware of policy, unacceptable behavior, expectations, etc. Periodically review at Staff Meetings Policy 111, Policy against Workplace Harassment Page 17 of CRF Employee Handbook Complying with this Policy is a Condition of Employment with CRF
Be aware of the following: It is your responsibility to take action if you know, or should have known, about questionable behavior in your workplace - even if an employee does not complain to you about harassment. The more severe the behavior is, the fewer times it needs to be repeated before it is considered harassment. The more severe and obvious the behavior is, the less responsibility the receiver has to speak up. Supervisors may be held personally liable for acts of harassment they commit against another individual.
If you become aware of questionable behavior, even if there is no complaint, you should: Call Human Resources immediately. Take prompt and corrective action. Document action taken. Communicate actions taken to the affected employee and explain what he or she should do if the problem should occur again. Maintain strict confidentiality; information about the incident should be shared on a need to know basis.