Learn Exercises on how to Mentor Employees in Opposing Unlawful Harassment.
Review Suspect Case Scenarios and How to Stop any Potential Harassment!
What is the Cost of Harassment?
Employees feel victimized
Decrease in productivity
Loss of employment for those affected
Uncomfortable work environment
Reputation and Credibility
QUALITY WORKPLACE COMPLIANCE INTERVENE RESPECT
Indicators for Hostile Environment Claim:
The conduct is very egregious and pervasive & the employer should have known about it;
There exists no policy regarding Prohibited Harassment and Retaliation subject to EEOC statutes.
Employees do not use the Complaint Process as the Process has been tainted due to no commitment from the CEO regarding its enforcement;
Notification Procedures for filling complaints are flawed and ineffective;
There are no consequences for Managers who learn of the complaints yet fail to Report or Stop the Harassment/Retaliation;
The Employer does nothing to stop the alleged unlawful conduct and has no real consequences for those involved in the harassment/retaliation.
And by whom?
The David Letterman
Chronology of Harassment Law Precedents
1980…EEOC interprets Title VII to forbid sexual harassment as a form of sex discrimination..
1986.. Meritor Savings…Supreme Ct Decision…woman involved in a sexual relationship with her boss who feared for her job; opposes further relationship…Ct ruled “that employer is liable for sexual harassment committed by supervisor if it knew or should have known and did nothing to correct it”
1993.. Harris v Forklift Sys.. Supreme Ct established standards for hostile environment: (1) the employee subjectively perceives a hostile work environment; (2) the conduct was so severe and pervasive that a reasonable person would find a hostile work environment.
1998..Onscale v Sundowner Offshore Serv. Supreme Ct rules that sexual harassment applies to ‘same sex’ harassment at work.
1998..Farragher v City of Boca Raton/Burlington .Supreme Ct rules that employer has absolute liability for harassment action made by supervisor to subordinate employer if subjected to tangible employment action. Established Affirmative Defense Guidelines for Employers to impose regarding the investigation and correction of any harassment claim. If Employer imposes guidelines in good faith, and harassment victim is not subject to a tangible employment action, defense can be offered if complainant failed to use employer’s proffered affirmative defense procedures …Finally, a ruling that non-tangible actions can also be construed as retaliation…
Chronology of Harassment Law Precedents
1999… Kolstad v American Dental Ass’n..
the Supreme Court ruled that an employer can avoid punitive damages if it can show that it has implemented in good faith its Anti-discrimination policy.
2000… Casiano v AT&T.. Ct ruled that an employee must use existing avenues imposed by a company for anti-harassment.
2001… Beard v Flying J, Inc… Ct. ruled that an employee’s participation in ‘sexually provocative discussions’ did not permit inappropriate physical touching .
2003.. Ocheltree v Scollon Productions, Inc… Appelate Court Decision ruling that Offensive Sexual Bantering created a hostile work environment.
2005.. Miller v Dept of Corrections.. Calif. Supreme Ct. ruling that sexual favoritism can be grounds for a hostile environment whereby the boss would favor his ‘female lovers’ for favorable employment benefits, and thus demeaning to other women who elected not to partake.
RETALIATION OF ANY KIND IS PROHIBITED TO AN EMPLOYEE/APPLICANT:
FOR OPPOSING a perceived discriminatory action under eeoc law.
FOR FILING a previous complaint subject to eeoc law.
FOR PARTICIPATING as a witness subject to eeoc law.
FOR REQUESTING an accommodation subject to eeoc law.
BECAUSE OF CLOSE ASSOCIATIONS with someone engaged in protected activity.
Retaliation includes: Tangible Actions
Failure to promote
Reassignments to less desirable positions
LAKE RIDGE ACADEMY TO PAY NEARLY $1 MILLION FOR RETALIATORY DISCHARGE, JURY RULE IN EEOC SUIT The jury reached its unanimous verdict in the EEOC lawsuit after hearing testimony which proved that James Whiteman was fired in retaliation for opposing sex-based wage discrimination. The jury awarded back pay of $50,000, front pay of $50,000, and compensatory damages of $500,000. While the jury was deliberating the matter of punitive damages, the parties agreed to settle the case for a total of $950,000. The EEOC's suit was filed in U.S. District Court Northern District of Ohio, Eastern Division, in Cleveland.
No Tangible action OCCURRED but subjected to : coercion, intimidation, threats, unjustified negative evaluations and/or references, or increased surveillance creating a retaliatory hostile work environment.
Based on Sex
Severe or Pervasive
Unwanted behavior of sexual advances
Requesting sexual favors in exchange for employment benefits
PROHIBITED CONDUCT- SEXUAL NATURE WITH CLIENTS& COLLEAGUES
Insisting on dates when someone is not interested;
Referring to someone as Babe, doll, hot stuff;
Showing sexually explicit pictures, cartoons, games, other visuals
Porno screen savers, e-mails, text messages, twitters.
Probing into someone sexual experience;
Sexual stories or jokes;
Inappropriate physical touching;
CONSENSUAL RELATIONSHIP -TWO EE’S ON Company’s property.
Making quid pro quo demands ;
Making suggestive gestures or body movements;
Brushing up against a person;
Making suggestive sounds at a person.
CONDUCT WHICH IS UNREASONABLE OFFENSIVE:
PLASTIC MOLDING COMPANIES SUED BY EEOC FOR SEXUAL HARASSMENT ………… .. Industries, LLC, allowed Dean Miller, a male supervisor, and other male co-workers, to harass press operator Cathy Johnson and other women at the Sherman plant. The EEOC says the female workers were forced to endure myriad sexually explicit comments and propositions, and many of the victims were grabbed and touched by Miller. Several women quit because of the harassment, and one woman quit her job after Miller phoned her at work threatening to sexually assault her in the employees' parking lot. Although several complaints were made by victims to management, the company failed to properly investigate complaints and stop the misconduct, the EEOC contends. … FRED MEYER STORES TO PAY $485,000 FOR SEXUAL HARASSMENT AND RETALIATION … the company's practice of harassing female employees occurred during 2004 through 2005 at the Fred Meyer Oregon City store. The EEOC says the sexually hostile work environment started at the top, with illegal conduct by the store director and operations manager. The EEOC further asserted in the litigation that the store director and operations manager repeatedly subjected females to graphic sexual discussions, unwanted touching, and requests for sexual favors.
Employer Liability Subject to Unlawful Conduct by:
CO-WORKER/ CLIENT HARASSMENT Liability Standard
Employer knew or should have known
Frequency and Severity
Employer thru Agent Supervisor or HR did nothing!
SUPERVISOR HARASSMENT Liability Standard
Tangible Employment Action
Absolute Vicarious Liability
No Tangible Employment Action
( Affirmative Defense Applicable)
SEVERE OR PERVASIVE Conduct (Applies to Sexual, Race, other)
Non-Tangible Actions/Tangible Actions
Determined by nature and frequency
Name Calling; Unfulfilled Threats; removal of authority; demeaning behavior; humiliating assignments; unjustified performance reviews.
Can a reasonable person still come to work under these conditions?
Do we have an intimidating, hostile, retaliatory or offensive work environment?
Is this occurring because of harassment or because the aggrieved party filed a complaint, or both?
Was this reported, and what happened?
HR must Investigate, Stop & Correct any potential violation!
HARASSMENT APPLIES TO: Race Ethnicity Color AGE
CONDUCT WHICH IS UNREASONABLY OFFENSIVE: REASONABLE PERSON STANDARD
LOCKHEED MARTIN TO PAY $2.5 MILLION TO SETTLE RACIAL HARASSMENT HONOLULU __ The U.S. Equal Employment Opportunity Commission (EEOC) announced a major settlement of a race discrimination and retaliation lawsuit against Lockheed Martin, the world's largest military contractor, for $2,500,000 and other relief on behalf of an African American electrician who was subjected to a racially hostile work environment at several job sites nationwide - including threats of lynching and the "N-word." EEOC SUES KMART FOR AGE HARASSMENT , RETALIATION EEOC charged in its suit that the pharmacy manager of a Kmart in Honolulu subjected the ,woman to age-based Insults, such as telling her she was "too old to work," that she "should retire, should retire from pharmacy work now," and other discriminatory conduct. Although Kmart received notice of the harassment, the company failed to take appropriate action to investigate and correct the hostile workplace, as the law requires. Instead, the EEOC said, Kmart subjected the woman to a hostile work environment by berating her for lack of competence, discriminatory comments In performance evaluations, telling her again to retire, and wrongfully accusing her of regulatory Violations. Finally, the pharmacist was forced to resign to escape the discriminatory conduct.
SWISSOTEL PAYS DEVELOPMENTALLY DISABLED EMPLOYEE $90,000 TO SETTLE EEOC HARASSMENT SUIT The EEOC charged in its suit that Swissotel violated the ADA by permitting two supervisors at its downtown Chicago hotel to harass the employee because of his developmental disability. Specifically, the EEOC said, the employee was repeatedly called "retarded" by his supervisors. Further, the EEOC charged, Swissotel then terminated the employee because of his disability. EEOC SUES KMART FOR AGE HARASSMENT , RETALIATION EEOC charged in its suit that the pharmacy manager of a Kmart in Honolulu subjected the ,woman to age-based Insults, such as telling her she was "too old to work," that she "should retire, should retire from pharmacy work now," and other discriminatory conduct. Although Kmart received notice of the harassment, the company failed to take appropriate action to investigate and correct the hostile workplace, as the law requires. Instead, the EEOC said, Kmart subjected the woman to a hostile work environment by berating her for lack of competence, discriminatory comments In performance evaluations, telling her again to retire, and wrongfully accusing her of regulatory Violations. Finally, the pharmacist was forced to resign to escape the discriminatory conduct .
FIRST ELEMENT-PROACTIVE PREVENTION
A well defined strong anti-harassment/retaliation policy which defines the scope of anti-harassment/retaliation behavior and consequences for harassment and/or retaliation. (EXAMPLES HELPFUL)
Defines a ‘user friendly’ method for filing complaints and with whom by title or name including procedure for filing against supervisor or senior executive.
Assurances that no retaliation will come about for filing a complaint;
Policy affirmatively promoted through periodic training and employee handbooks.
Train employees & managers to recognize inappropriate conduct.
Train employees to oppose ‘unwelcome conduct’ and report it accordingly.
Require employees and mgrs to acknowledge they are aware & understand company policy on an annual basis. (no exceptions)
FIRST COMPONENT-AFFIRMATIVE DEFENSE
Confidentiality where possible
Investigate all complaints
Interview the complainant and all witnesses.
Interview the alleged harasser and ALL WITNESSES.
Other Neutral Witnesses
Interview former employees of alleged Harasser
Check Resource File for Sample Questions for Interviews & Credibility Assessments.
CREATE A FILE, AND OBTAIN STATEMENTS FROM ALL PARTIES including Policies.
Determine Appropriate Action
(1) policy violation occurred;
(2) no clear violation;
(3) claim not substantiated.
SECOND PHASE-AFFIRMATIVE DEFENSE
Survey your employees & determine if case is isolated or systemic?
Can be used as a Defense if Employer has implemented its Anti-Harassment Procedures in good faith and Aggressively Communicated & Acted on all Inquiries and Conducted Training periodically.
Reiterate policy and Notification Procedures and Consequences for Non-Compliance.
PROMPTLY CORRECT AND PREVENT
Did your action
End current harassment?
Deter future harassment?
POST INVESTIGATION (supportive of violation)
Restore any salary loss and benefits for complainant, i.e , sick and annual leave, other benefits;
Provide Compensatory and Punitive Damages to Complainant;
Correct any inappropriate Policy and Practice.
Discipline Harassers and Others who did not follow Policy in pursuit of EEOC guidance.
Accept your leadership role and responsibility
Understand company policy and basics of the law
Understand the importance of follow-up and preventing retaliation
Understand how to coach employees to say ‘no’ to offensive behavior
MAKE A DIFFERENCE, STOP ANY INAPPROPIRATE CONDUCT !
INFORM THE COMPLAINANT AND THE ACCUSED
Communicate your Company’s commitment to take complaints seriously, the results of the investigation should be shared with the complaining employee and the accused.
Other employees should normally not be advised of the outcome of the investigation—even witnesses.
Any employee making inquiries should be advised their assistance was appreciated, but the outcome is confidential.
POST INVESTIGATION ALL CASES
Reiterate anti-harassment policy
Reiterate anti-retaliation policy
Offer refresher training to supervisors and/or employees on a periodic basis
WHO IS PROTECTED?
Any of these people are protected by discrimination laws:
CONSULT WITH HR.
Avoid liability, consult with appropriate supervisors and HR.
Have consensus in pursuing the best employment action;
Make Hard Decisions even if it affects someone you know;
Be Fair and CONSISTENT in Recommending/Approving any Employment DECISION BASED ON Company’s ADMINISTRATIVE POLICIES in pursuit of Equal EMPLOYMENT OPPORTUNITY LAWS.
Guidelines for Managers Let’s Practice Communicating the Policy!
Communicate the Policy, the law, code of conduct and Zero Tolerance for discrimination of any kind.
Explain and Confirm the reporting procedures.
Explain your ‘open door policy’ and commitment to ‘zero’ tolerance for discrimination
Let’s practice.. With case studies and Teaching Employees to say “NO” to offensive behavior.
Sexual Harassment: SERIOUS BUSINESS
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Discussion follows, video, other exercises and presentation.
For Questions, Please Call: HR, “YOUR Company” . “They are Your Consultants available to help you in pursuit compliance with your Policies and EEOC Law.