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International Workplace Harassment Prevention: Legal Requirements & Global Training Best Practices
 

International Workplace Harassment Prevention: Legal Requirements & Global Training Best Practices

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    International Workplace Harassment Prevention: Legal Requirements & Global Training Best Practices  International Workplace Harassment Prevention: Legal Requirements & Global Training Best Practices Presentation Transcript

    • International Workplace Harassment Prevention Legal Requirements & Global Training Best Practices February 15, 2012Confidential For Discussion Purposes Only
    • Reid Bowman, Esq. • General Counsel of ELT. • Over 25 years of HR and labor & employment law experience, primarily working with multi-state employers. • Designs strategic ethics, wage & hour, discrimination prevention, and employment law compliance programs.Confidential For Discussion Purposes Only
    • Margaret Hart Edwards, Esq. • Margaret Hart Edwards is a shareholder of Littler Mendelson, San Francisco office. • Represents multi-national employers, past member of US delegation to International Labor Conference • Widely published article and book author, frequent presenter on critical employment law subjects.Confidential For Discussion Purposes Only
    • Agenda • Why is this issue important • A benchmark: US law • Overview of International Harassment prevention laws, including key differences from US law. • Best practices for international workplace harassment preventionConfidential For Discussion Purposes Only
    • Harassment a Worldwide IssueOne in 10 employees surveyed in 22 countriesaround the world indicate that they’ve beenintentionally physically assaulted out of anger on thejob by a co-worker or manager during a workday(7%), while another (9%) say they’ve been harassedon the job for sex by a senior person simply becausethey work for them and not because they want a truerelationship.Source: The Reuters/IPSOS Poll on Assault andHarassment in the Workplace (August 2010) Confidential For Discussion Purposes Only 5
    • Global Trends – Workplace Harassment6 Confidential For Discussion Purposes Only
    • And This Means...• Ever-increasing importance of the Personnel, Human Resources, and Employment Law functions within any global organization. Confidential For Discussion Purposes Only
    • A Question For You Does your organization currently provide any workplace harassment prevention training to employees working outside the US?  Yes, to all International Employees  Yes, but just in certain countries  Not yet, but we are considering it  NoConfidential For Discussion Purposes Only
    • U.S. LawConfidential For Discussion Purposes Only
    • U.S. Federal LawTitle VII (1964)Faragher and Ellerth (1998) • Economic and Environmental Harassment • Workplace Harassment vs. Sexual Harassment • The Affirmative Defense  Policy  Education • Train Everyone Periodically Confidential For Discussion Purposes Only
    • U.S. Supreme Court Decision Kolstad (1999) • Workplace discrimination training (not just harassment) •Punitive damage defense •Good faith efforts to educate all managers on basic anti-discrimination principles, or ―Title VII‖ • Policies are not enoughConfidential For Discussion Purposes Only
    • 1999 EEOC Enforcement Guidelines ―[T]he employer should provide training to all employees to ensure they understand their rights and responsibilities [concerning workplace harassment]… Source: Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (6/18/99)Confidential For Discussion Purposes Only
    • State laws: ME (‘91) and CT (‘93) ME requires employers: • With 15 or more employees; • To conduct sexual harassment training for all new employees; • Within one year of employment commencement. CT requires employers: • With fifty or more employees; • To provide two hours of sexual harassment training; • To all supervisory employees; • Within six months of the assumption of a supervisory position.Confidential For Discussion Purposes Only
    • California• Requires employers who do business in California, and who have more than 50 employees, to provide 2 hours of high quality, ―interactive‖ harassment training to all supervisors.• Training must be repeated every two years.• Newly hired or promoted supervisors must be trained within six months of the assumption of a supervisory position.Confidential For Discussion Purposes Only
    • International Law 15Confidential For Discussion Purposes Only
    • A Question For You Does your organization have different harassment prevention polices for U.S. and international employees?  Yes, we use different policies  No, we use one policy  I don‘t knowConfidential For Discussion Purposes Only
    • Sources of Anti-Harassment Law• International treaties addressing fundamental rights• In the 27 states of the European Union: • Charter of Fundamental Rights of the European Union • Numerous Directives against discrimination • Member countries must implement directives with legislation • Growing body of case law, including European Court of JusticeConfidential For Discussion Purposes Only
    • Harassment More Broadly Defined • Prohibited harassment is not just a form of prohibited discrimination • Prohibited harassment may include repeated behaviors that have an adverse affect on the dignity of the person • As focus on sexual harassment, need to keep this larger principle in mindConfidential For Discussion Purposes Only
    • Moral Harassment• Article L. 122-49 of the French Labor Code provides that:• [E]mployees must not be victims of repeated moral harassment aiming at damaging working conditions likely to alter their rights or dignity, mental or physical health or to compromise their professional future.• Employees cannot be sanctioned, dismissed or be subject to a direct or indirect discriminatory measure for having been subject or having refused to be subject to harassment from any person or having attested or recounted the facts described above. Confidential For Discussion Purposes Only
    • ―Malevolent Employer v. Bad Employee‖• Moral Harassment recognized under French Law (Art. L. 1152-1 of the Labor Code)• ―Acts that result in degradation of working conditions . . . undermine his rights and dignity‖• No need to prove intent to harm• Employer had the burden of proof after employee makes prima facie case Confidential For Discussion Purposes Only
    • Sexual HarassmentNo employee or applicant for a job, work placement ortraining course may be sanctioned, dismissed orsubjected to any act of discrimination as a result of beingsubjected to or refusing to be subjected to acts ofharassment ―by any person whose object is to obtainfavours of a sexual nature for his own or another‘sbenefit.‖Law 2002-73 (Jan. 17, 2002)Confidential For Discussion Purposes Only
    • France • Employers have a duty to protect the physical and mental health and safety of employees, and must prevent sexual harassment at work. • There is less emphasis on written policies against harassment, and more on punishing harassment.22 Confidential For Discussion Purposes Only
    • EnforcementHigh Authority Against Discrimination and for Equal Treatment• Since 2004, France has fought discrimination through the High Authority against Discrimination and for Equal Treatment (―HALDE‖), a governmental agency akin to the U.S. Equal Employment Opportunity Commission (EEOC), but with much broader powers beyond employment.• HALDE has the duty of fighting discriminations prohibited by law, to provide any useful documents to French citizens, to support and accompany victims of discrimination, to identity and promote good practices to encourage equality, and to investigate violations. Confidential For Discussion Purposes Only
    • Is There Individual Liability for Harassment? • Yes. Pursuant to case law, the employee who is guilty of harassment is personally liable and can be sued by the victim before Civil Courts in order for the victim to have his or her moral damages compensated. • In addition, the guilty employee can be subject to a disciplinary sanction by the employer. • Harassment is punished criminally by a EUR 15,000 fine and one year of imprisonment. Confidential For Discussion Purposes Only
    • Prohibitions Against Harassment• Harassment on grounds of sex, race, disability, religion or belief, sexual orientation or age is recognized as a form of discrimination.• Harassment is unlawful even if it is not based on the sex, race, etc. of the victim. ―Stalking,‖ bullying and intimidating conduct of a physical or verbal nature might be covered.• Employers may be vicariously liable for harassment perpetrated by their employees. Confidential For Discussion Purposes Only
    • UK – Sexual and Sex Harassment • Unwanted conduct of a sexual nature, or related to sex or gender reassignment that has purpose or effect of either violating EE‘s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. • Harassment by less favorable treatment because of rejection of or submission to conduct that is sexual harassment.26 Confidential For Discussion Purposes Only
    • UK – Employer Duties Employer may have defense to liability if: • Has good policies in place • Makes employees aware of policies and implications • Trains managers and supervisors on equal opportunities and harassment • Takes steps to deal effectively with complaints, including appropriate discipline27 Confidential For Discussion Purposes Only
    • Special UK Guidance • Statutory Code of Practice of Equality and Human Rights Commission interpreting Equality Act 2010 taken into account by courts. • 2009 Acas Code of Practice on Disciplinary and Grievance Procedures sets forth means to complain, investigate, and discipline. Tribunals adjust compensation awards up to 25% for unreasonable failure to follow Acas Code.28 Confidential For Discussion Purposes Only
    • Prohibitions Against Harassment• Sexual harassment in the workplace is any unwanted sexual conduct that harms the dignity of the employee in the workplace.• Sexual harassment may be punished under criminal law if it constitutes ―insult‖ (intentionally degrading), ―abuse of position of trust,‖ ―sexual assault,‖ ―sexual coercion‖ or ―causing bodily harm.‖ Confidential For Discussion Purposes Only
    • Other Approaches to Harassment• ILO Convention No. 111 concerning Discrimination in Respect of Employment and Occupation.• 169 countries adhere to this treaty, which requires the countries implement its terms as a ―floor‖ in legislation. • Example: Russia• Creation by case law: India Supreme Court decision in Vishaka v. State of Rajasthan Confidential For Discussion Purposes Only
    • Other Examples • China (PRC) prohibits sexual harassment, but only as to women. • South Africa‘s Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace suggests appointing a trained counselor to advise those who think they are victims, to give extra sick leave to victims of serious harassment, and trauma counseling31 Confidential For Discussion Purposes Only
    • Other Approaches • Implementation of constitutional guarantees of rights to equality at work and a safe working environment as a means of personal fulfillment – Peru, Venezuela • Prohibitions on harassment may extend to members of the employee‘s family – Turkey • Law may require employer to have ―Internal Rules of the Company‖ to respect the dignity of employees, covering harassment - Chile32 Confidential For Discussion Purposes Only
    • Familiar Protected Categories • Age • Race • Color • Pregnancy or maternity status • Gender • Genetic information • Sex • Sexual orientation • Nationality or nation origin • Gender identity or gender • Disability (mental or expression physical) • Ancestry • Religion (including • Immigration status nonreligious beliefs and nonbeliefs) • Marital or same-sex partner status • Union membership33 Confidential For Discussion Purposes Only
    • Different Protected Categories • Social origin • Property ownership • Birth • Caste • Language spoken • Parental status • Political beliefs • World view • Criminal convictions • Alcohol or drug abuse • Migrant worker status • Culture34 Confidential For Discussion Purposes Only
    • Social Origin Harassment Harassment (such as making comments, ostracizing, or humiliating someone) because of: • Social class into which a person is born (most often a lower class) • Where they live • The fact that they speak a different dialect • Economic status (rich/poor) • Family background35 Confidential For Discussion Purposes Only
    • Mobbing & Bullying • General harassment - may not be tied to a protected category • Co-workers, subordinates and superiors can engage in it • Common behaviors: rumor, innuendo, intimidation, humiliation, discrediting, and isolation36 Confidential For Discussion Purposes Only
    • Retaliation Also know as reprisal or victimization37 Confidential For Discussion Purposes Only
    • Prohibitions on Retaliation• Antidiscrimination legislation in each jurisdiction prohibits ―victimization‖.• In general, defined very broadly to include subjecting individuals to ―any detriment‖ because they have made a complaint, intend to make a complaint or have given evidence in antidiscrimination proceedings. Confidential For Discussion Purposes Only
    • Prohibitions on Retaliation• Dutch law prohibits victimization of employees and those who assist them with a discrimination complaint.• Protected against dismissal or other adverse treatment by the employer as a reaction to a complaint on the basis of discrimination.Confidential For Discussion Purposes Only
    • Prohibitions on Retaliation Japan ‗s Ministry of Health, Labor and Welfare issued guidelines requiring employers to establish a policy to prevent retaliation against female employees who make sexual harassment complaints.40 Confidential For Discussion Purposes Only
    • Discrimination and Harassment in Italy: Third Parties‘ Role • Recent Italian Supreme Court decision allows third parties to pursue discrimination and harassment cases on behalf of employees (April 2009) • Created the ―Equal Opportunities Adviser‖: member of the regional and central employment commission. Appointed by the Minister for Labour • Goal is to foster principles of equal treatment for men and women in employment matters Confidential For Discussion Purposes Only
    • Italy• Where allegations of harassment exist (unwelcome touching, comments, etc.), the Equal Opportunities Adviser can claim damages in court as an injured party• Collective action allowed on behalf of group of employeesDecision 16031 (by Italy’s Supreme Court),April 16, 2009. Confidential For Discussion Purposes Only
    • Similar Rulings• The decision follows Court´s earlier ruling (February, 2008) that trade unions may seek compensation in their own right if an employee is a victim of sexual violence in workplace Confidential For Discussion Purposes Only
    • A Question For You If your organization provides workplace harassment training to workers outside the U.S., do you:  Use the same training as is used with U.S. based employees  Use different training with overseas workersConfidential For Discussion Purposes Only
    • The Challenge in Training Overseas • Variations in laws • Multiple Global Stakeholders • Cultural differences • Different learner sensibilities • Possibility of Multiple Policies45 Confidential For Discussion Purposes Only
    • Best Practices• Don‘t roll out a U.S. centric training course• Anchor the training with a great policy• Be conscious of Works Councils• Set expectations and engage Management stakeholders early Confidential For Discussion Purposes Only
    • Best Practices (Con‘t)• Focus on deploying the training, not on creating the content• Cover issues that are important outside the U.S.• Ensure that training is engaging—both in content and visual elementsConfidential For Discussion Purposes Only 47
    • Best Practices (Con‘t)• Train on retaliation (Victimization & Reprisal)• Distribute the right policy & track completion• Consistency matters – avoid opt outs Confidential For Discussion Purposes Only
    • A Question For You If your organization provides harassment prevention training outside the U.S., how is training delivered?  Online  Live  A combination of online and live  I don‘t knowConfidential For Discussion Purposes Only
    • ELT’s International Workplace Harassment Course Topics Covered: • Sexual and other forms of prohibited harassment • Retaliation • Bullying and moral harassment • Stereotypes • Obligation to report suspected misconduct • Organization-specific reporting procedures and policies • Responsibility to respond to and help prevent harassment • How to properly handle complaints (for managers)Confidential For Discussion Purposes Only
    • A Question for You… If your organization may be interested in purchasing ELT‘s online training solutions, and you would like an ELT Sales Executive to follow up with you, type "YES" in the box below.Confidential For Discussion Purposes Only
    • Interested in our solutions? info@elt.com www.elt.com │ 877.358.4621 Additional substantive questions? mhedwards@littler.com rbowman@elt.comConfidential For Discussion Purposes Only