Nhra sexual harassment training revised again


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  • Agenda: help for those employees who are socially-challenged – both men and women – because it takes two to tango –GENERALLY a man who repeatedly steps over the boundary and GENERALLY a woman who has difficulty knowing or saying what her boundaries are; we’ll also talk about discrimination today and the steps management can take to prevent and correct it – this applies to ALL OF US – we ALL need help with it; This seminar is about help, not blame.
  • Discrimination lectures leave most of us confused, many of us resentful, and, all of us resistant because we believe we’re being criticized about behaving in the way people properly behave in social situations. We also tend to all be fearful about how behavior. Some of us respond with humor because the topics are not those that are usually openly discussed and humor is a good way to get past troubling material. The people who are scornful are the most difficult to reach because they have usually pre-judged the learning objectives as being beneath them, disrespectful and frivolous.
  • Here’s a good example of women’s part in the sexual harassment problem – a reluctance to simply say “no” If management encourages direct speaking in all areas of the business, it will create an atmosphere in which women feel more free to establish and enforce their own boundaries.
  • We’re all on same pit crew here and our sole mission is to win. If the crew pit feels uncomfortable pointing out that there are problems with the brakes, what happens? What is the NHRA’s mission?
  • Group of male workers on an oil rig off the coast of Texas touched, grabbed and threatened to rape a gay male co-worker. Men can harass men even if there’s no sexual interest
  • Male supervisors regularly grabbed them in sexual manner and demanded sex as condition of keeping their jobs. Employer may be liable when supervisor sexually harasses an employee even if employee never reports it
  • The “regarded as” provision of the ADA was meant to combat erroneous views related to impaired individuals, and to keep employers from basing employment-related decisions on myths or stereotypes. “Regarded as” meant to stop reliance on stereotypes and generalizations about an illness when making an employment decision.”
  • Nhra sexual harassment training revised again

    1. 1. Sexual Harassment Training<br />National Hot Rod AssociationOctober 18, 2011<br />
    2. 2. Mandated Learning Objective<br />change or modify workplace behaviors that create or contribute to sexual harassment; and<br />develop, foster and encourage a set of values in supervisory employees that will prevent and effectively respond to sexual harassment incidents.<br />
    3. 3. Confusion<br />Resentment<br />Resistance<br />Denial<br />Fear<br />Scorn<br />Humor <br />
    4. 4. When you combine reluctance to say “no” and the resistance to hearing “no”, you have a situation that is ripe for misunderstanding.<br />
    5. 5. Would you like to go out for a drink after work ?<br />I’d love to but I have to work late.<br />For the next ten years.<br />
    6. 6. If the team isn’t communicating about what’s not going well for them, will the driver win? <br />
    7. 7. rules don’t give us certainty<br />They are categories of behavior that are possibly harassment<br />The appropriate behavior is an exercise in communication<br />The challenge is to respect other people’s boundaries.<br />I’m staying on the road but does it matter how fast or slow, I go, how long it takes me to get there, whether I can stop and start again, what I should do if someone is coming my way . <br />
    8. 8. Are they playing or fighting?<br />
    9. 9.
    10. 10. Romantic Behavior<br /><ul><li>Agreeable and pleasing
    11. 11. Both people respect and accept one another’s wishes</li></li></ul><li>What about this?<br />
    12. 12. Even a dog knows whether he’s been kicked or stumbled over<br />
    13. 13. I don’t like it when you call me [honey, baby cakes, girlfriend, chick, whore, bitch]<br />“I’m not comfortable being touched at work; I’d appreciate it if you’d stop”<br />When you shake hands with the men but give me a peck on the cheek I feel less professional; I’d appreciate a handshake instead”<br />Establish open line of communication with supervisor<br />
    14. 14. Implicit Bias<br />Cognitive biases – universal tendencies of thought<br />Cultural biases – stereotypes associated with the culture in which we live<br />No one is unbiased<br />We need to quickly characterize people to make quick decisions on trustworthiness<br />
    15. 15. We Assume what people do<br />Who they are<br />What they’re are thinking<br />Their Character<br />Their Attitudes<br />Their Beliefs<br />Their Desires<br />Their Needs<br />Their Sensitivities<br />Their Opinions<br />Their Ideas about us<br />And we treat them <br />accordingly<br />
    16. 16. Blind Orchestra Auditions<br />
    17. 17. Tolerance & Inclusion are Key American Values<br />
    18. 18. Diversity Impacts the Bottom Line<br />
    19. 19.
    20. 20. Pick a characteristic <br />2. Blow it out of proportion <br />3. collapse the person into the characteristic <br />4. Ignore individual differences and variations <br />5. Disregard subtleties and complexities <br />6. Overlook commonalities <br />7. Match it to your own worst fears <br />8. Make it cruel <br />
    21. 21. Whose ox is being gored here?<br />
    22. 22.
    23. 23.
    24. 24.
    25. 25.
    26. 26.
    27. 27.
    28. 28.
    29. 29. Why Should We Care?<br /><ul><li>Employees quit
    30. 30. Workplace understaffed
    31. 31. Morale suffers
    32. 32. Harder to attract good people
    33. 33. Time consuming </li></li></ul><li>Bad Press<br />
    34. 34. Our most important assets go down the elevator every night. We have to give them a reason to come back the next morning. <br />
    35. 35. 2011<br /> $10.6 million judgment for hostile work environment (UBS Financial)<br />2009<br />$7.4 million settlement of overtime claims (Met Life)<br />$6 million jury verdict for age discrimination claim (New York Life)<br />$850,000 settlement of disability claim (United Airlines)<br />
    36. 36. Discrimination Charges Filed With the EEOC FY 2000-2010<br />Source: Charge Statistics from the U.S. Equal Employment Opportunity Commission (2010)<br />
    37. 37. FY 2010 EEOC ChargesBy Type of Discrimination<br />Source: Charge Statistics from the U.S. Equal Employment Opportunity Commission (2010)<br />
    38. 38. Sexual Harassment Claims Filed With the EEOC FY 1980-1981 and 2000-2010<br />Source: Charge Statistics from the U.S. Equal Employment Opportunity Commission (2010)<br />
    39. 39. It’s not a law protecting women<br />
    40. 40. What Is Sexual Harassment?<br />Unwanted sex-related behavior plus a particular kind of impact on an employee<br />
    41. 41. IMPACT<br />employee’s work performance suffers OR employee experiences workplace as offensive, intimidating or hostile<br />
    42. 42. Quid Pro Quo<br />Employee’s rejection results in not getting job, losing job, losing job benefits<br />
    43. 43. Employee puts up with it to get a job, keep a job or get some other tangible job benefit<br />
    44. 44. How many victims do you see here?<br />
    45. 45. Who Can Be Harassed?<br />
    46. 46.
    47. 47.
    48. 48. How Do We Know It’s Unwelcome?<br />
    49. 49. Hostile Work Environment<br />
    50. 50. Unwelcome sex-related conduct has the Purpose or Effect of Unreasonably Interfering With an Individual’s Work Performance or Creating an Intimidating, Hostile, or Offensive Working Environment.<br />Hostile Work Environment<br />
    51. 51. Hostile Work Discrimination<br />Age<br />Disability<br />National Origin<br />Race or Color<br />Religion<br />Gender<br />Sexual Orientation<br />
    52. 52. What Behavior is Prohibited?<br />
    53. 53. Is it Obnoxious … <br />or Unlawful?<br />
    54. 54. Objectively<br />
    55. 55. Subjectively<br />
    56. 56. Is it severe or pervasive?<br />
    57. 57. Intent doesn’t matter<br />Effect does<br />
    58. 58. laughter is not enough to kill a hostile work environment claim<br />
    59. 59. What About Flirting?<br />
    60. 60. How Would It Affect a Reasonable Woman?<br />
    61. 61. Morgan Stanley employees fired for taking client to strip club.<br />Client Entertaining Can Be Dangerous<br />
    62. 62. How Would Women Create a Work Environment Hostile to Men?<br />
    63. 63. Gender-specific agenda<br />Flirtatious remarks<br />Comments on body parts<br />Questions about social life<br />Lunch, drinks, dates<br />Advice on dress, make-up, sexiness<br />Signs of unwelcome nature of conduct<br />“that’s offensive”<br />Nervous laugh, cuts conversation off<br />Physically pulls away<br />
    64. 64. Is one time too much?<br />
    65. 65. Can we just ask?<br />Yes, except with subordinates, minors and very young women (18-25)<br />
    66. 66. Misbehave even when told to stop<br />Don’t bother asking<br />Requiring skimpy clothes<br />Talking about sex<br />Giving lingerie, sex toys<br />Showing porn<br />Telling sex jokes<br />Teasing <br />Whistling <br />Mocking someone’s sexuality<br />Hostile Agenda<br />
    67. 67. Nearly Fool Proof Testwould you say the same thing if the person’s gender or sexual preference were different?<br />
    68. 68. Disability Discrimination<br />
    69. 69. “Regarded As” Disability<br />
    70. 70. An employee may be entitled to the protections of the Americans with Disabilities Act if he is “regarded as” disabled by his employer. An employer regards an employee as disabled when it mistakenly believes that the employee’s impairment substantially limits his ability to work. <br />
    71. 71. Sick  Disabled<br />FMLA“serious medical condition”<br />ADA“long term disability thatsubstantially affects a major life activity”<br />
    72. 72. What’s an Employee to Do?<br />
    74. 74. Don’t<br />
    75. 75. $63,000 to lesbian worker for disparaging remarks about her appearance being masculine + withheld tools provided to me<br />$1 million lost wages + $50 million punitive damages<br />Man awarded $475K for harassment by gay supervisor<br />1st woman police officer $2 million – men watched Howard Stern & made vulgar remarks, compared her physique to those women on show<br />The price of the jokes we tell and disrespect we show<br />
    76. 76. 5 or more employees<br />(does not include non-profit religious association or corporation)<br />15 Employees<br />© 2011 Dickstein Shapiro LLP<br />
    77. 77. Who is Protected?<br />40 and over<br />40 and over<br />+ mental disability<br />+ marital status<br />+ sexual orientation <br />+ pregnancy <br />© 2011 Dickstein Shapiro LLP<br />
    78. 78. Exercising reasonable care to prevent and correct sexual harassment<br /><ul><li>Adopt anti-harassment policy
    79. 79. Create swift and accessible complaint procedure
    80. 80. Advise and train supervisors and managers to avoid sexual behavior toward subordinates
    81. 81. Distribute policy and procedure to all employees
    82. 82. Train all employees in the policy and procedure
    83. 83. Place the policy and procedures in conspicuous places</li></li></ul><li><ul><li>Document Ees who received the policy
    84. 84. Train those authorized to receive complaints in receiving, investigating and evaluating complaints
    85. 85. Monitor effectiveness of the complaint procedure
    86. 86. Make periodic reports to employees about the results of complaints under the procedure</li></li></ul><li>Have perfect paper<br />Establish an internal complaint procedure<br /> Publicize policies and procedures<br />Train all employees on the law<br /> Train the “investigators”<br />Prevention<br />
    87. 87. Once reported NHRA will . . . <br />Investigate and take corrective action<br />
    88. 88. Affirmative Defenses<br />The Employer Was Reasonable<br />It had practices in place<br />èto prevent<br />èto correct<br />}<br />misconduct<br />The Employee Was Unreasonable<br />èS/he knew about the policies<br />èbut didn’t use them<br />
    89. 89. How to Correct?<br /><ul><li>Showcase internal complaint procedures
    90. 90. Investigation must be</li></ul>èprompt (reasonable)<br />èadequate (thorough)<br /><ul><li>Sanctions must be</li></ul>èeffective<br />èend current harassment<br />èdeter future harassment<br />
    91. 91. Privacy Concerns Employee Monitoring<br />Employers have legitimate business interest to review emails and technology usage (e.g., stop sexual harassment, prevent disclosure of confidential info, ensure policy compliance)<br />
    92. 92. Employer’s Duty To:<br />Respect employee privacy <br />Create secure/lawful workplace <br />
    93. 93. Educate Managers about the Importance of their Conduct<br />
    94. 94. must report<br />
    95. 95. Reinstatement and front and back pay, actual damages, punitive damages, administrative fines, pre-judgment interests, reasonable attorneys fees, witness fees, other equitable relief including training for supervisors and/or managers.<br />
    96. 96. “It shall be an unlawful employment practice . . . (h) For any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”<br />Retaliation California Fair Employment and Housing Act<br />
    97. 97. Retaliation Charge StatisticsFY 2000 Through FY 2010 <br />Source: Charge Statistics from the U.S. Equal Employment Opportunity Commission (2010)<br />
    98. 98. “It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . to discriminate against any individual . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”<br />Title VII.  42 U.S.C. sec. 2000e-3(a)<br />
    99. 99. Hiring and Firing<br />
    100. 100. <ul><li>Supervisors To Subordinates?
    101. 101. If Tangible Employment Action Resulted Even if Employer Did Not Know About Discrimination
    102. 102. Co-Workers To Co-Workers?
    103. 103. Same
    104. 104. But if Employee Fails to Use Internal Complaint Procedure,</li></ul>When Are Employers Liable For Employment Discrimination?<br />YES<br />YES <br />NO<br />
    105. 105. Clients Or Customers?*<br />Same; If The Employer Knows or Should Have Known, but Does Nothing But if Employee Fails to Use Internal Complaint Procedure,<br />Consensual Relationships Among Employees?*<br />If Isolated, <br />If So Widespread That it Creates a Hostile Work Environment for Others,<br />Are you personally liable?<br />Employers Liable For Employment Discrimination?<br />YES <br />NO<br />NO<br />YES<br />YES<br />
    106. 106. Lawful and Unlawful Interview Topics: DISABILITY<br />LAWFUL INFORMATION<br />PROHIBITED INFORMATION<br />General inquiries that would elicit information about disabilities or health conditions which do not relate to job performance<br />Examples: Whether there are any types of jobs for which candidate should not be considered because of a disability or health condition. Is there any health related reason you may not be able to perform the job? Pre-offer inquiries about Worker’s Compensation history.<br />Whether the candidate can perform the essential functions of the job, with or without reasonable accommodation.<br />Whether the candidate can comply with the attendance and tardiness policy, with or without reasonable accommodation.<br />
    107. 107. Establish a Work Environment That Is NOT Us v. Them . . .<br />
    108. 108. . . . but us together  <br />Partners<br />Staff<br />
    109. 109. Within World of Social Media<br />Email #1 threat<br />In 2010:<br />35% companies investigated email leaks of information<br />20% of companies fired employee for violating email policies<br />50% of companies disciplined employees for violating email policies<br />
    110. 110. E-mail belongs to the Company, not to its employees; do not expect it to be private because it is not.<br />
    111. 111. Within World of Social Media:<br />Blogs #2 threat<br />In 2010:<br />25% investigated information leak <br />24% disciplined employee for blog activities<br />
    112. 112. 500 million monthly active users <br />200 million account holders<br />95 million tweets a day<br />
    113. 113. Social networks (Facebook, LinkedIn, et al) #3 threat<br />In 2010:<br />20% investigated <br />20% disciplined for violating policy<br />7% fired for violation<br />Within World of Social Media<br />
    114. 114. Within World of Social Media:<br />Videos #4 threat<br />In 2010:<br />18% investigated for misuse of media sharing (YouTube, etc.)<br />21% disciplined an employee<br />9% fired an employee<br />
    115. 115. “Data loss in 140 characters or less”(e.g., Twitter/SMS texts)#5 Threat<br />In 2010:<br />17% investigated<br />51% of companies “highly concerned about risk of information leaks”<br />
    116. 116. <ul><li>"Mr. Burgundy, you have a massive erection!" (pause) "it's the pleats in these pants,
    117. 117. I always make sure to tell a joke the first time any woman sees my erect penis, so I wouldn't know. 
    118. 118. Friend: I just had an ass baby. Me: Was it a boy or a girl? Friend: What gender is soup?
    119. 119. I keep telling myself I'm lucky to be employed, but some days it's not easy to believe
    120. 120. If you fantasize about a particular person while masturbating, the polite thing to do is to tell them. They won't find it creepy at all.
    121. 121. Finally watching Louie. Hysterical. "…And my dick is bigger than a monkey's paw…"</li></ul>Recent firing based on Tweets in restricted account by senior manager of non-profit<br />
    122. 122. <ul><li>70% of porn is downloaded between 9am and 5pm
    123. 123. 37% of at-work Internet users in the US visit an X-rated Web site from work  
    124. 124. 21 million people accessed porn from their work computers in March of 2010—29% of the workforce</li></li></ul><li><ul><li>Respect and understanding
    125. 125. Raising Implicit Bias to Awareness
    126. 126. Clear communication among workers and management
    127. 127. Guidelines for appropriate behavior
    128. 128. Fair and effective procedures to prevent and address discrimination and harassment</li>