Steve's comments about the models' physical attributes in front of female co-workers could contribute to creating a hostile work environment, depending on the nature and frequency of the comments as well as how they are perceived by and impact the female co-workers. A single, isolated comment may not be enough, but a pattern of objectifying or sexual comments directed at the female employees could rise to the level of harassment. The totality of the circumstances would need to be considered.

1. McGuireWoods LLP
Labor & Employment
Preventing Harassment in the Workplace
Supervisor Training

2. Agenda
 TheLaw
 PreventingHarassment- WhyIsItImportant?
 What isHarassment?
 Examples
 CrownConsulting’sResponsibility

3. Agenda
 HowtoProtectCrownConsultingandYourself
 CrownConsulting,Inc.’s Policy& Complaint
Procedure
 HowtoRespondtoa Complaint
 Questions

4. The Law
 No discriminationagainstapplicantsor employeesin
termsor conditions
 TitleVIIoftheCivilRightsActof1964-race, color,
religion,nationalorigin,sex
 AgeDiscriminationinEmploymentAct-age (over 40)
 AmericanswithDisabilitiesAct-qualifiedindividuals
withdisabilities

5. Harassmentis Discrimination
 Race
 Color
 Religion
 NationalOrigin
 Sex
 Age
 Disability

6. PreventingHarassment

7. Why Is Preventing HarassmentImportant?
 Negativelyimpactsproductivityandqualityofwork
life
 AdverselyaffectstheCrownConsulting’sabilityto
servethepublic
 Negativelyaffectscareers,familiesandpersonallives
 MayresultinseriousliabilityforbothCrown
Consultingandindividualemployees

8. 3 Reasons to Be Concerned:
Reason 1: Big Co. & Individual
Liability
 Mitsubishi class-action settlement:
$34m (1998)
 Dial Corp. class-action settlement:
$10m (2003)
 Ralph’s Grocery jury award:
$30m (reduced to $8.25m) (2002)
 Baker & McKenzie jury award:
$7.1m (reduced to $3.5m) (1998)

9. 3 Reasons to Be Concerned:
Reason 2: Increasing Claims & Awards
 Sex harassment claims are fastest
growing charge under federal equal
employment statutes.
– 17% increase in number of claims
between 1992 and 2002
– 400% increase in total monetary
benefits awarded between 1992 and
2002 (from $12.7m to $50.8m)
• . . . Not including private awards and
settlements, which in 1999 increased this
total to $150m.

10. 3 Reasons to Be Concerned:
Reason 3: Hidden Costs
 Potential Hidden Costs:
– Investigations
– High Turnover
– Absenteeism
– Public Image
– Safety
– Efficiency
• Total visible and hidden costs to a typical
Fortune 500 company: $10m/year.

11. Liability - Examples
 Swinton v. Potomac Corp.
(Washington State, 2001)
– Racial Harassment
– Employee subjected to racial slurs and
“jokes” featuring racial epithets
– Award: $1,035,612
• $1 million in punitive damages

12. Liability – Examples (continued)
 Zeltwanger v. Webber (Texas,1999)
– Sales representative subjected to
sexual harassment
– Award: $10,600,000

13. What isHarassment

14. HarassmentMay Include:
 Offensive nicknames, negative stereotypes orterms of
endearment
 Unwelcome comments about clothing, body orpersonal
life
 Offensive jokes or unwelcome innuendoes
 Suggesting that sexual activities, race, etc.will affect
hiring, promotions, raises, etc.

15. Sexualharassment
 Unwelcomesexualadvances
 Requestsforsexualfavors
 Otherconduct(verbal orphysical)
 When:
– submission or rejection is term or condition of
employment
– submission or rejection is basis for an employment
decision; or
– condition unreasonably interferes with an employee’s
work or creates a hostile work environment.

16. Sexualharassmentmay include:
 Touching,hugging,patting,pinching,or kissing
 Repeatedunwantedsexualovertures
 Leeringor suggestiveor offensivecommentsor
gestures
 Displaying(orsending)sexuallyexplicitor offensive
picturesor materials

17. Two Types of SexualHarassment:
 Quid Pro Quo
 Hostile Work
Environment

18. Quid Pro Quo
 Promise or threat in
exchange for sexualfavors
(“Sleep with me or you’re
fired”)
 Only supervisors
 Most blatant type

19. HostileWork Environment
 Unwelcomeconduct
 Purpose or effect of
– unreasonably interfering with an individual’s work
performance or
– creating an intimidating, hostile oroffensive
environment
 Need not result in the loss of any tangible job
benefit

20. HostileWork Environment - Factors
 Unwelcome
 Severe and pervasive enough to alter working
conditions
 Because of the victim’s protected class (i.e., sex,
race)
 By supervisors, co-workers
or outside third parties (vendors, customers, etc…)

21. Objective& subjectivehostility
 Objective: thework environmentwouldbe
consideredhostileorabusivebya "reasonable
person"and
 Subjective:theemployeeperceivestheenvironment
tobesoabusiveas tohaveactuallyalteredthe
conditionsofhis/heremployment

22. NotNecessarilyIntentional
 Employees have different:
– Mindsets
– Cultural backgrounds
– Senses of humor
– Beliefs about what is appropriate in the workplace

23. How bad does it have to be?
A Continuum of Severity…
 SIMPLE TEASING:
– “[S]imple teasing, off-hand comments, and
isolated incidents” will not amount to sexual
harassment.
• NOT ACTIONABLE
 SINGLE VERBAL TIRADE:
– One obscene verbal tirade by a co-worker
was sufficient to defeat defendant’s motion
for summary judgment.
• ACTIONABLE

24. How bad does it have to be?
A Continuum of Severity…
 ROUTINE INCIDENTS:
– Plaintiff's supervisor asked plaintiff out on dates,
called her a "dumb blond," placed his hand on
her shoulder several times, placed "I love you"
signs in her work area, and attempted to kiss her
in a bar on one or more occasions.
• NOT ACTIONABLE: NO HARASSMENT FOUND.
 ROUTINE INCIDENTS:
– Defendant made sexual jokes and discussed
sexual positions and experiences every day.
Defendant also routinely asked Plaintiff “if she
liked to be spanked” and made comments “about
the size of her buttocks.”
• ACTIONABLE: Court reversed grant of summary
judgment for defendant and remanded for trial.

25. How bad does it have to be?
Continuum of Severity…
 PHYSICAL HARASSMENT:
– Plaintiff being subjected to propositions, lewd
comments and a slap on the buttocks.
• NOT ACTIONABLE: Court found that these instances
were these were “relatively isolated.”
 PHYSICAL HARASSMENT:
– Defendant grabbed Plaintiff’s face and stuck his
tongue down her throat, and on a separate
occasion tried to kiss her again and began to
unfasten her brassiere. When she struggled to
evade him he threatened to ‘undo it all the way.’
On another occasion Defendant also told Plaintiff
“that he could perform oral sex on her so
effectively that ‘[she] would do cartwheels.’
• ACTIONABLE: Court reversed grant of summary
judgment and remanded for trial.

26. Three Common Problem Areas
 E-mail
 Display of Offensive Materials
 Consensual Romances

27. 3 Common Problem Areas:
Offensive Email
Almost every workplace lawsuit today,
especially a sexual harassment case,
has an email component.
– 70% of cases use email as evidence.
– 27% of Fortune 500 Companies have
had email lead to sexual harassment
suits.
… and it’s happening in your office
– Over 60% of people have received
adult-oriented or offensive email at
work.

28. 3 Common Problem Areas:
Offensive Email
 Types of Email found to be Sexual
Harassment
This ranges from the extreme:
• emails asking for sex using the acronym
HGTWM (“horizontal good time with me”)
(7th Circuit 1996)
• email asking about claimant’s sexual
experience with women and relating a sexual
dream in which defendant had sex with both
her and his wife (D. Md. 2002)
– Result: sufficient evidence of sexual
harassment

29. 3 Common Problem Areas:
Offensive Email
 To the innocuous:
• an email calling claimant “Brown Sugar”
(E.D. Penn. 1996)
– Result:
• the email combined with these acts:
– open display of pornographic
material
– incidents where claimant was
touched in sexual ways
… constituted harassment

30. 3 Common Problem Areas:
Offensive Email
 Remember
– 1) That although email may not always be
enough to prove sexual harassment,
combined with other incidents it can prove a
hostile work environment.
– 2) That the person you are sending the
email to may not be the only recipient.
• Forwarding is a tool that makes it easy to
pass on any message.
 Rule of Thumb
– If you would not hit “reply all”, then maybe
you should not be sending the message.

31. 3 Common Problem Areas:
Offensive Email
 EMAIL POP QUIZ
 1. True or False: The personal email
I send at work has no effect on the
company.
– Answer: False. The company can be held liable
for everything you send through its server. Email
sent over company systems is recognized as an
official company communication.
 2. True or False: Email can be
deleted.
– Answer: False. The typical office records all
email on its server. This information can be kept
for years and is accessible by subpoena.

32. Tips to Overcome Common
Problem Area Number One: Good
E-Mail Practices
 Ask yourself:
– Would I say this out loud?
– Would I put this in a letter?
– What if I pressed “Send All”?
– Is this Alexandria Sanitation Authority
business?
– Could someone find this offensive?
 Remember: No real deletion!

33. 3 Common Problem Areas:
Displaying Offensive Material
 By itself, occasional display of sexually
offensive materials probably will not
constitute sexual harassment…
– BUT, It could be an element that
contributes to creating a hostile work
environment under the “totality of the
circumstances”…
– Additional physical or verbal abuse
almost invariably constitutes sexual
harassment.

34. 3 Common Problem Areas
Displaying Offensive Material – the temperate to the
absurd…
 “Websites”:
– Plaintiff discovered 800 pornographic websites
on the laptop computer of the company’s general
counsel while performing a routine maintenance
check.
• NOT ACTIONABLE; Court found that these mere
presence of websites, without having been actually
displayed publicly, did not create a hostile work
environment.
 “Posters and Pin-ups”:
– Plaintiff found a “digitally altered” picture of
herself in the restroom, received two unsolicited
subscriptions to Playboy at work, and observed
two “pornographic” photos in her work area.
• NOT ACTIONABLE; Court found that these were
isolated incidences and that the plaintiff’s superiors
promptly corrected the situation after being notified.

35. 3 Common Problem Areas
Displaying Offensive Material – the temperate to the
absurd…
 “Websites + Physical/Verbal Abuse”:
– Plaintiff observed her supervisor viewing
pornographic websites, printing
pornographic pictures, and received emails
with sexually explicit content. Plaintiff
complained to management and was told to
“shut her goddamn mouth and sign the
f****** sheet as her supervisor asked.”.
• ACTIONABLE; Court found that frequent
viewing, dissemination, and intimidation
of the plaintiff by the supervisor created a
hostile work environment.

36. 3 Common Problem Areas
Displaying Offensive Material – the temperate to the
absurd…
 Posters and Pin-ups + Physical/Verbal
Abuse”:
– Plaintiff saw pornographic pictures, and
cartoons with her name in the caption in
the work area. The defendant said he
and the plaintiff “would look good in this
sexual position” to a coworker and “if
you let me massage your breasts they
will grow larger.”
• ACTIONABLE; Court found that these
were continuing incidences to which the
plaintiff consistently objected and
management took no remedial action.

37. 3 Common Problem Areas:
Consensual Romances
 Jack and Diane are co-workers who are dating.
A few weeks into their relationship, Jack is
promoted, which requires Diane to report to
him. They stay involved, but break up a year
later. The break up is bad, and their colleagues
complain about the tension and outbursts.
Ultimately, Diane quits. Soon after, she sues
her employer for sexual harassment.
– Was the relationship “consensual?”
– Does it matter that Jack was her peer, and
then became her superior?
– Can their colleagues sue for the creation of a
hostile work environment?
– Might matters look different had the company
a policy on consensual romances?

38. 3 Common Problem Areas:
Consensual Romances
 How Typical Are Office Romances?
– Nearly 60% of employees say they have
had a romantic relationship with a co-
worker.
– Nearly 25% of managers & executives
say they have had an office fling.
– 33% of all romantic relationships start at
the workplace.

39. 3 Common Problem Areas:
Consensual Romances
The Law
 Romances are legal when “consensual.”
– However, 50% of lawsuits arise out of
relationships that begin as consensual.
 Sexual advances or acts are actionable
when:
– Submission is a “term or condition” of
employment.
– Submission or rejection is used as the
“basis for an employment decision.”
– They create a “hostile work
environment.”

40. 3 Common Problem Areas:
Consensual Romances
Pop Quiz
 A longtime, highly qualified employee applies for a
promotion, but it goes instead to a less qualified
employee who is dating the CEO. Is this sex
harassment?
– No. Since the preferential treatment was isolated and not
based on gender—but rather on a relationship—it is
probably not actionable.
 What if the CEO has a reputation of dating a lot of
his female subordinates, many of whom are
granted favors during the relationship?
– This might be actionable, if the court finds that the CEO
requires female employees to submit to his advances in
order to advance professionally, and that this same
condition is not imposed upon men.

41. What have the Courts said?

42. Court Decision #1
 A group of men on an oil rig call a
male co-worker homosexual names
 Then, as a “joke,” the men hold the
co-worker down and expose
themselves
 Then, they threaten the co-worker
with homosexual rape
 Sexual Harassment??

43. Court Decision #1
 Yes!!
– The U.S. Supreme Court found this to
be sexual harassment in violation of
Title VII
– Lesson: Same-sex harassment is
actionable, but the harassment must be
based on the individual’s gender in
order to be actionable

44. Court Decision #2
 Posters of women in bikinis
 Sexual graffiti on the wall
 One employee
– Asked out a female co-worker regularly
– Boasted about his prowess to her
– Rubbed against her when they passed
 Another employee tried to pull down
co-worker’s shorts as a “joke”
 Harassment??

45. Court Decision #2
 Yes!!
– Court found this to be sexual
harassment in violation of Title VII
– In both of these situations, liability may
have been avoided if prompt remedial
action was taken by the supervisors
involved

46.  Now You Try….

47. Harassment?
 Steve, a Crown Consulting
employee, puts a small Sports
Illustrated Swimsuit Calendar on his
desk. It is visible from the hallway
outside his cubicle.
 Does this create a hostile work
environment?

48. Harassment?
 Probably not.
– Steve should probably not display the
calendar, but the calendar alone is
probably insufficient to create a hostile
work environment.
 What if the calendar was 6-feet long
and hanging on Steve’s wall?
– Again, while the calendar is
inappropriate for the workplace, it will
probably not, by itself, create a hostile
work environment.

49. Harassment?
 What if Steve starts commenting on
the physical attributes of the various
models in front of female co-
workers?
 At this point, Steve is beginning to
cross the line and may be creating a
hostile work environment.
– Remember: it is always best to err on
the side of caution!
– If in doubt, Don’t!!

50.  Let’s try another….

51. Harassment?
 John, who is Italian-American, tells
Mark, who is Hispanic, that he thinks
it is wrong that the signs at Crown
Consulting are in both English and
Spanish because when he came to
this country he only spoke Italian
and had to work hard to learn
English.
 Does this create a hostile work
environment?

52. Harassment?
 Probably not.
– John is voicing his opinion and it is
probably not going to affect Mark’s
working environment.

53. Harassment?
 What if John tells Mark that, while he
is sure Mark is the exception, he
thinks that Spanish people are
generally not as smart as “regular
Americans”?
 John’s comments are certainly
offensive and he may be creating a
hostile work environment for Mark.

54. Harassment?
 Fran, a female Crown Consulting
employee, comes to you and informs you
that one of her co-workers, who is also
female, constantly asks her to have drinks
with her, stands too close, looks at her in a
leering way, tells her jokes of a sexual
nature and asks questions about her
personal life.
 Fran has politely informed the co-worker
that she is not interested in such
discussion, but the co-worker persists.
 What should Fran be told??

55. Harassment?
 That Crown Consulting will promptly
investigate the situation
 That you will protect her
confidentiality to the extent possible
 Thank her for speaking with you,
assure her that you will get back to
her and ask her to let you know if
any further incidents occur

56. Harassment?
 What if Fran used to engage in the
joke telling and the personal
conversations?
 If the person complaining was once
a willing participant, she has an
“affirmative duty” to notify others that
the formerly welcome activity is no
longer welcome.

57. Harassment?
 On Monday morning, a female employee
comes to you in tears and wants to talk to
you about an incident that happened on
Sunday night. Apparently, she had come in
to take care of some office work on the
weekend. A repairman (non Crown
Consulting employee) followed her into the
break room and grabbed her, kissed her
and fondled her before she was able to
break away. There were no witnesses.
 Is this sexual harassment?

58. Harassment?
 An employer is liable for sexual harassment
by third parties (repairmen, vendors, etc.)
 Courts will look to see whether the
employer knew or should have known of
the sexual harassment
 Employers may avoid liability if they take
immediate and appropriate corrective
action
– Investigate
– Take steps to end the conduct

59. Crown Consulting, Inc.’s
Responsibility and Potential
Liability

60. Crown Consulting, Inc.’s Liability for
Supervisor Harassment
 Crown Consulting is responsible
when
– a supervisor commits harassment and
– victim suffers tangible employment
action
 Liability is automatic!
– Regardless of whether Crown
Consulting has a policy against
harassment OR it even has notice of the
harassment

61. Tangible Employment Action
 “A significant change in employment
status” including:
– Hiring
– Firing
– Failing to Promote
– Reassignment with significantly different
duties
– Significant change in benefits
– Denial of raise
– Demotion

62. If No Tangible Employment Action:
 Crown Consulting is still liable for a
supervisor’s harassment UNLESS it
can prove:
– Reasonable care to prevent and correct
promptly any harassing behavior
• (ex: policy with complaint procedure, training,
investigation) AND
– Employee unreasonably failed to take
advantage of any preventive or
corrective opportunities

63. Crown Consulting, Inc.’s Obligations
for Co-Worker Harassment
 Employer must take prompt and
remedial action to end the harassing
conduct that it knows or should have
known about.

64. Crown Consulting, Inc.’s Obligations
for Third Party Harassment
 Employer must take prompt and
effective remedial action to end the
harassing conduct that it knows or
should have known about.

65. What is Prompt and Effective
Remedial Action?
 Skidmore v. Precision Printing
– Plaintiff’s co-worker made repeated
lewd sexual comments to her,
licked/kissed her face and neck and put
his hands on her neck
– Plaintiff’s supervisor overheard an
argument about the problems that
Plaintiff was having and Plaintiff then
told her supervisor about the
harassment

66. What Did the Company Do?
 Moved the plaintiff for the rest of the day
 Instructed co-worker to stay away from her
 Plaintiff returned to the cutting department,
but no longer assigned to work with
harasser
 No investigation was done
 Plaintiff conceded that the harassment
stopped after she was moved

67. The Result?
 The Court held that the response
was adequate in light of the
circumstances
 The Court considered whether the
offending behavior ceased after the
company’s action was taken
 The Court determined that while the
conduct was harassment, the
company could not be held liable for
it

68. What is Prompt and Effective
Remedial Action?
 Dhyne v. Meiners Thriftway
– Co-worker repeatedly harassed the
plaintiff
– He made lewd remarks about her and
asked her to perform oral sex
– Plaintiff complained repeatedly to the
assistant manager and then to the
director of store operations
– She also informed them that the
harassment continued after she
complained

69. What Did the Company Do?
 After each complaint, the assistant
manager talked to the alleged harasser and
warned him about his conduct
 The director of store operations also spoke
with the alleged harasser and told him the
harassment would not be tolerated
 The alleged harasser denied the
allegations and said the complaints were
racially motivated
 After two months, he was transferred to
another shift

70. The Result?
 The Court denied the employer’s motion for
summary judgment as a matter of law
 The Court held that the two-month delay
was “unacceptable” and did not constitute
prompt and effective remedial action
 However, the Court noted that an employer
should be allowed some time to gauge the
credibility of the complainant and the
seriousness of the situation

71. How to Protect Yourself, Your
Colleagues and Crown Consulting
 Know the Policy
– Effectively implement
– Regularly communicate
– Follow and enforce
 Complaint Procedure
– Communicate policy to all employees
– Training in identifying and responding to
complaints

72. Your Behavior As Supervisors Is
Key
 “Squeaky Clean”
– Set an example
– Make it part of your culture
 Language
– Cursing, nicknames, offensive
conversations
 Physical Actions
– Innocent conduct misconstrued

73. Be Aware and Educate Others
 Explain Crown Consulting, Inc.s’
commitment to preventing
harassment in the workplace
 Explain Crown Consulting, Inc.’s
complaint procedure
 Encourage reporting
 Confirm that Crown Consulting, Inc.
will investigate
 Assure there will be no retaliation

74. Crown Consulting, Inc.’s
Harassment Policy & Complaint
Procedures

75. Crown Consulting, Inc.’s
Commitment to Prevent
Harassment
 Sexual harassment of employees in any
form is prohibited and all employees shall
be treated with respect
 Employees have the right to work in an
environment that is free of conduct that is
harassing or abusive
 Any employee who engages in harassment
shall be subject to disciplinary action,
including termination

76. Crown Consulting, Inc.’s Definition
of Sexual Harassment
 Sexual advances;
 Requests for sexual favors; and
 Verbal or physical conduct of a
sexual nature.

77. Crown Consulting, Inc.’s Definition
of “Prohibited Conduct”
 Explicit or implicit promises of career
advancement or preferential
treatment in return for sexual favors
 Explicit or implicit threats that an
employee will be adversely affected
if sexual demands are rejected
 Verbal comments and gestures of a
sexual nature
 Repeated and unsolicited touching
of any kind

78. Crown Consulting, Inc.’s Complaint
Procedure
 Complainants must complain about
harassment through proper
management channels
 Supervisors must act promptly and
affirmatively
 Human Resources Department will
facilitate counseling and conduct
investigations

79. Upon Receipt of Harassment
Complaint
 The Human Resources Department
will conduct an investigation
ensuring confidentiality and take
appropriate action under the
circumstances involved
 Crown Consulting prohibits any form
of retaliatory action against any
employee complaining of
harassment

80. What to do when
someone complains
of harassment….

81. On Receipt of Complaint:
 Take seriously!
 Report to Human Resources Immediately
 The Human Resources Department will
Investigate promptly, discretely and
thoroughly
– What happened, when, where, who
involved?
– Witnesses? Isolated incident or pattern?
– Effect on Complainant?
– Any documentation?
– Ulterior motive?

82. On Receipt of Complaint:
 Provide any notes or documents of the
incident to Human Resources
 Document, document, document!
 Fully cooperate with Human Resources to
resolve the issue and take appropriate
disciplinary action
 Human Resources will follow up with victim
 Do not agree to forego action at the request
of the victim
– Crown Consulting always has an obligation
to take remedial action to stop harassment,
therefore, you are required to report any and
all complaints to the Human Resources
Department for immediate action

83. Questions?

84. Summary:
Why Is It Important to Report
Harassment?
 Crown Consulting cannot do
anything to stop the harassment if it
does not know that it exits
 Crown Consulting is committed to
preventing harassment and expects
all employees to help stop
harassment in the workplace

85. McGuireWoods LLP
Ronda B. Esaw
© 2004 McGuireWoods LLP