Harassment
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Harassment Harassment Presentation Transcript

    • Legal Issues in Employment Discrimination
    • presented by
    • William T. Simmons
    • Attorney at Law
    Harassment in the Workplace
  • Employment Discrimination
    • Main thrust of all employment discrimination laws is to make it illegal for employers to treat employees or applicants adversely on the basis of something about themselves that they cannot change, or should not be expected to change
    • “immutable characteristics”
  • Immutable Characteristics
    • One cannot change one’s:
      • race or color
      • gender
      • age
      • national origin
    • should not be expected to change one’s religion, and
    • cannot readily change one’s disability status.
  • Status Not a Basis for Action
    • Applicants or employees should not suffer adverse job actions based on their status or who they are
    • People can be treated according to what they do or fail to do
  • Most important federal employment discrimination statutes:
    • Civil Rights Act of 1964 (Title VII) and amendments from 1991 - 15 employees
    • Rehabilitation Act of 1973 - no employee limit
    • Age Discrimination Act of 1967 - 20 employees
    • Americans with Disabilities Act of 1990 - 15 employees
    • Immigration Reform and Control Act of 1986 - 4 employees
    • Civil Rights Act of 1866 - 1 worker of any type
  • Major employment discrimination statutes in Texas:
    • Texas Commission on Human Rights Act of 1983 - 15 or more employees
    • Texas Workers’ Compensation Act - Article 451 - no employee limit
  • Laws of Common Sense
    • Employee morale
    • Avoidance of turnover
    • Reputation of the business in the community
    • Avoidance of “bad press”
    • Avoidance of winnable, but unnecessary and expensive, lawsuits
  • Bona Fide Occupational Qualification (BFOQ)
    • In rare cases, discrimination can be legal based on:
    • gender
    • age
    • national origin/citizenship
    • religion
    • disability
    • race or color – almost non-existent!
  • Racial Harassment
    • Hostile work environment
      • Racial slurs
      • Racially-oriented jokes or cartoons
      • Singling out racial minorities for obscene gestures or words
      • Loudly criticizing only racial minorities
      • Reminding minority employees that the only reason they’re not fired is because the law won’t let them be fired
  • Racial Harassment Never-Says
    • The “n-word” and similar racial slurs for other groups
    • “ Colored” and other antiquated terms
    • “ Mexican” and other inaccurate terms
    • “ Jungle music”
    • “ You people …” ; “your people”
    • “ wrong side of the tracks”
    • Try not to say:
      • “ Do you prefer being called ‘black’, ‘African-American’, or what?”; “… ‘brown’, ‘Hispanic’, ‘Latino’, ‘Mexican-American’ …”
      • “ Do you like to celebrate MLK Day?”
  • Religious Harassment
    • Hostile work environment
      • ridiculing others’ religious practices or beliefs
      • pressuring others to believe a certain way (proselytizing or an attempt to convert)
      • forcing an ee to take a training course based on religious beliefs that are contrary to the ee’s own beliefs
      • Frequent reminders to minority faiths that they don’t find favor with God
  • Hostile Work Environment - Age
    • “ You can’t teach an old dog new tricks.”
    • “ Geezer”, “old coot”, “old fart”, “old biddy”, “Gramps”
    • “ over the hill”, “past his prime”, “she’s seen better days”, “golden-ager”
    • Referring to older employees as “Prunella” or “Methusaleh” or other names associated with old age
    • “Over-qualified”
    • “We need new blood around here.”
    • “We need fresh faces around here.”
    • Frequently asking when someone is finally going to retire
    Age Discrimination Never-Says
  • Hostile Work Environment - Disability
    • Making fun of various disabilities
    • Disability-related jokes and cartoons
    • Disability-related slurs – “cripple”, “gimp”, “wheelchair boy”, “veggie”, “quad”, “Elephant Man”
    • Frequently calling attention to someone’s limitations
  • Hostile Work Environment – National Origin
    • Referring to people in terms of their assumed nationalities
    • Making fun of accents
    • Constantly bringing up shortcomings of their supposed countries of ancestry
    • Latest victims: people who are assumed to be from the Middle East - “camel jockey”, “towel-head”, and worse
  • Gender Discrimination
    • Gender discrimination includes:
    • Treating one gender less favorably than the other, based upon their gender – pay, duties, working conditions, advancement opportunities
    • Pregnancy discrimination
    • Sexual harassment
  • Discrimination Can Be Subtle
    • Right to a fair warning:
    • Court case in Houston: law firm was held liable for Title VII violation for failing to give meaningful, honest job evaluations to a female African-American attorney
    • her subsequent layoff for failing to perform well exposed the discriminatory impact of ER’s practice of not giving her a realistic evaluation
    • an honest evaluation would have given her a fair chance to save her job
  • Worst Boss Awards
    • Boss asked his female employees to do his homework for him on government time because he didn’t think male employees would cooperate
    • Male boss gave female employee an office in the restroom, with a toilet for a desk, while less senior males got regular desks – reason: she was petite and could fit in that small space!
  • Sexual Harassment
    • Most likely to lead to claims and lawsuits
    • Feelings run very high
    • Hostile work environment, quid pro quo harassment
    • Absolute priority: report, investigate, take remedial action
    • Privacy rights of both parties must be respected
  • Sexual Harassment - Examples
    • Unwelcome advances and comments
    • Unwelcome facial and hand gestures
    • Slurs
    • Unwelcome gifts
    • Unwelcome requests
    • Sexually-oriented jokes and cartoons
    • Watch out for same-sex harassment
  • Harassment?
  • Harassment?
  • Examples of Unwelcome Comments and Gestures
    • “ Hey, baby”; “nice dress!”
    • “ Now we’ll have Ms. Smith come up in her bikini – ha-ha - and give us that report [wink].” ;-)
    • Elevator eyes
    • “ You ever go to ladies’ clubs?”
    • In general, any uninvited, unnecessary, non-work-related comments or questions that tend to remind a person about their gender or sexuality
  • Effects of Harassment
    • Victim no longer feels like a member of the team
    • Work loses its appeal
    • Mistakes in work performance
    • Poor attitude evident to others
    • Sometimes the victim wants to withdraw, even from friends
    • Growing desire to quit
  • How You Find Out About Harassment
    • It happens to you
    • You see it happen to someone else and it’s obvious
    • You overhear something about it
    • Your coworker tells you
    • Your subordinate reports it
    • Someone else tells you about it happening to a third party
  • Less-Obvious Signs
    • You see something that doesn’t seem quite right
    • Your coworker or employee just doesn’t seem to be their usual self
    • Someone mysteriously develops a bad attitude
    • Someone starts missing more work than usual
  • Must Harassment Be Reported?
    • In one sense, this depends upon company policy
    • Should it be reported? It depends upon what kind of company you want to have!
  • How to Report Harassment
    • Again, this depends upon company policy
    • Regardless of policy, it should be reported to someone
    • What if someone in the chain of command is the one who did the alleged harassment?
  • Can It Just Be FYI?
    • “I don’t want to get anyone in trouble, but I just thought you ought to know.”
    • Company has no choice but to investigate
    • Discrimination laws require prompt and effective action to ensure violations do not happen again
    • Action presumes an investigation
  • Confidentiality?
    • Both accuser and accused have privacy rights
    • Risk of invasion of privacy and defamation
    • Company must do its utmost to ensure confidentiality, but cannot promise it
    • EEOC and courts may subpoena the investigation records, and statements may come to light
  • Protecting Confidentiality
    • Reports should be confidential
    • Information given to investigators must be kept confidential
    • Free speech does not include the right to gossip about others
    • Whistleblower laws do not apply to private sector employers and employees
  • Punishment for Coming Forward?
    • Discrimination laws include strict penalties for any kind of retaliation
    • What’s protected?
      • Reports and complaints
      • Actual claims
      • Lawsuits
      • Being a witness
      • Furnishing documentation
  • Cooperating with an Investigation
    • Giving a statement
    • Signing a written statement
    • Furnishing whatever evidence you have
    • Policy usually requires cooperation with an investigation
    • Remind employees that if they’re a witness, their cooperation now can avoid a similar thing happening to them in the future
  • Cases – “Halloween Toy”
    • Unemployment compensation case – claimant was fired for not going directly to company president with report of sexual harassment by her supervisor and for allegedly circulating a petition to get rid of him
    • She had reported it to a supervisor in another department
  • Halloween - 2
    • That manager told her to report it to yet another manager
    • When clmt did, he told her and a co-complainant that their jobs wouldn’t be in jeopardy
  • Halloween - 3
    • Company offered policy stating that repeated failure to have harmonious relations with other ees would be punished with two written warnings and finally with discharge (“3 strikes”)
    • President fired her after one offense because she felt what clmt did was serious enough to merit discharge
  • Halloween - 4
    • TWC ruled against company for two reasons:
    • No FH testimony regarding petition, so that allegation was tossed out
    • Many flaws in charge of failing to report directly to company president
  • Halloween - 5
    • Problems:
      • Policy was never made clear to clmt
      • Clmt explained president wouldn’t have been appropriate to report to, since she had once asked clmt and the other coworker to celebrate Halloween by coming to work naked and serving as “pull toys” for the alleged offender
  • Halloween - 6
    • Problems (continued):
      • A female supervisor admitted clmt told her about the harassment, yet she never reported it to the president and told clmt to “blow it off” (why wasn’t she fired?)
      • The same supervisor testified she had also been a victim of the same alleged offender
  • Halloween - 7
    • Problems (continued):
      • President admitted she didn’t discuss the problems with clmt prior to discharge
      • Perhaps worst of all, president admitted telling TWC that part of the reason she fired clmt was because the clmt had “turned her in to the EEOC” 
      • Finally, company failed to follow its own progressive disciplinary policy
  • Meritor Savings Bank v. Vinson (Supreme Court, 1986)
    • Sexual relationship is involuntary if it is unwelcome, even if no complaint is made until after work separation
    • Bank VP had relationship with secretary
    • She went along with it for 2 years out of fear she’d lose her job if she refused
    • He fondled her in front of others, followed her into the restroom, and exposed himself to her at work
    • Supreme Court found that the relationship was unwelcome and severe enough to constitute an “abusive working environment”
    Meritor Savings Bank v. Vinson (Supreme Court, 1986)
  • Courts in General
    • Isolated, one-time comments, gestures, or requests for dates are by themselves not sufficient to create a “hostile working environment”
    • Repeated incidents will create liability
    • Offensive touching, even if it happens only once, can create liability
  • What Courts Think About Common Excuses
    • “She invited it.” – nope, doesn’t work!
    • Raw language, sexual jokes from victim do not excuse sexual harassment
    • Motorcycle magazine case: fact that victim once posed nude for a motorcycle magazine did not excuse sexual harassment toward her
  • Airline Pilot Case
    • Female flight attendant complained about harassment by a pilot
    • Airline investigated fully, issued pilot a written warning, advised him to stay away from the flight attendant, and concluded that some of her allegations were baseless
    • Court held that employer acted reasonably and was not obligated to believe every one of her accusations
  • Punishment Too Gentle?
    • Employer promptly investigated the plaintiff’s allegations – results: harasser put on 90-day probation with a written warning
    • Victim sued employer, claiming the employer should have taken harsher measures
    • Court ruled in employer’s favor - employer acted reasonably and was not obligated to fire the offender to escape liability
  • Too Little, Too Late
    • An employer who knew of obscene cartoons depicting the plaintiff failed to act reasonably when he waited until she complained to take the offending pictures down
    • This is one of those “zero-tolerance” things!
  • Prize for Worst Judgment
    • Employer got a complaint from a waitress about sexual harassment by a cook
    • The employer reasoned that it was easier to replace a waitress than a cook, so he fired her
    • Needless to say, the employer lost in court
  • Harassment by Customers
    • Waitress was sexually harassed by several customers, all friends of owner
    • Waitress told owner she wouldn’t wait on them in future and that she’d asked an attorney about her rights
    • Owner fired her, despite her good work performance
    • EEOC ruled that the employer could have prevented the customer harassment and so was liable for their sexual harassment
    • Thanks for your attendance
    • and
    • Good Luck!
    • For more information:
    • www.texasworkforce.org
    • www.eeoc.gov
    • www.employmentlawadvisors.com