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SAVANNAH tel 912.236.0261
BRUNSWICK tel 912.262.5996
H U N T E R M A C L E A N . C O M
Discrimination and
Harassment: Defining
and Preventing
High Performance Insulation Professionals
Omni Hotel, Hilton Head
April 9, 2015
Harassment
It is illegal for an employer to discriminate against
any applicant or employee in compensation, terms,
conditions, or privileges of employment, because
of race, color, religion, sex, gender, national origin,
disability, age, or genetic information.
Title VII
• Civil Rights Act of 1964
• Race, color, national origin, religion, sex, gender
• Enforced by the Equal Employment Opportunity
Commission
• Burden of proof on the claimant to prove
discrimination
Other Federal Employment Laws
• Age Discrimination in Employment Act—protects
employees age 40 and older
• Americans with Disabilities Act—protects
employees who are “disabled”
• Genetic Information Nondiscrimination Act
Employment Relationship Remains At Will
• Employer retains broad discretion
• Employer’s right to establish work-place standards
and to require compliance
• Employees can be terminated at any time, with or
without notice, for any reason or no reason, a good
reason or a bad reason (but not an illegal reason)
Harassment/Other Discrimination Claims
Federal claim
State claims
• Assault, battery, emotional distress, false imprisonment
Costs
• Reputation
• Time
• Stress and Aggravation
• Emotional
Individuals can be defendants, as well as the company
Two Types Of Harassment
Quid Pro Quo – “This for That”
• Almost always in the context of sexual harassment
Hostile Work Environment
• Sexual
• Also race, color, national origin, religion, disability,
gender
Proving Harassment
Employee Belongs to Protected Group (Age – 40 and over,
Minority, Sex, Disability)
• Everyone belongs to at least one protected group
Unwelcome Harassment Because of Group Status
Harassment Was Sufficiently Severe or Pervasive to Alter Terms
and Conditions of Employment
• Objective Standard
• Subjective Component as well
Basis for Holding Employer Liable—Negligence/Strict Liability
Important Factors
• Employer’s knowledge
• Actual
• Constructive—What Employer Should Have Known
• Employee’s obligation to report
• Employee’s obligation to avoid harm
• Employer’s obligation to act
What Harassment Is Not:
• Remedy for Every Disagreement
• A Remedy when the Boss is a Jerk
• Nepotism is not against the law
• Dating is not against the law (but “no” means no)
• The law does not require good manners (but good
manners are helpful)
What Harassment Could Be:
Male  Male
Male  Female
Female  Female
Female  Male
Homosexual Conduct
Hazing
Unwanted Romance
Non-Romantic Sexual Conduct
Harassment: The Spectrum
COMMENTS
JOKES
CAT CALLS
E-MAILS
CARTOONS
POSTERS
GLARES
SCREENSAVERS
TOUCHING
GRABBING
PINCHING
RAPE
VERBAL . . NON-VERBAL CONDUCT . . PHYSICAL CONDUCT. . SEXUAL ASSAULT
GESTURES
CALENDARS
Retaliation – Against The Law
An employer may not fire, demote, harass or
otherwise "retaliate" against an employee for filing a
charge of discrimination, participating in a
discrimination proceeding, or otherwise opposing
discrimination.
What Retaliation Is Not:
Retaliation does not include stray negative comments
in an otherwise positive or neutral evaluation,
"snubbing" a colleague, or negative comments that are
justified by an employee's poor work performance or
history
What Retaliation Is Not:
The employer may still enforce workplace
standards: employees are not excused from
continuing to perform their jobs or follow their
company's workplace rules just because they have
complained about alleged discrimination
Example 1
A small group of account executives have regular
weekly meetings with their manager, John. John
always asks Susan, the only female executive, to serve
coffee and refreshments to the others (five males).
Is Susan being sexually harassed?
Example 2
Peter, who works in the accounting department
with 5 females, gives each of them candy and
lingerie for Valentine’s Day.
Harassment?
Example 3
Jim picks Calvin for a promotion over Tina, who
has more seniority in the department, better
performance evaluations and more experience in
the industry than Calvin, who plays golf with Jim
on a regular basis.
Is Tina being sexually harassed?
Example 4
Allison’s boss offers her a promotion if she agrees
to sexual favors. Allison declines and is terminated
two days later.
Was Allison harassed?
Example 5
Monica’s boss asks Monica to discuss an important
project over dinner.
Harassment?
Example 6
Joyce, Marissa’s officemate, repeatedly calls Marissa at
home and leaves messages that she wants to get together
with Marissa after work. Marissa does not respond and
reports the phone calls to her supervisor, who says that
Joyce’s calls are Marissa’s problem because it’s not
happening at work.
Unlawful harassment?
Example 7
Harry has recently become a Muslim and changed
his name to Muhammad. He now keeps to himself
and no longer jokes with the guys, who feel
uncomfortable working around him.
Harassment?
Example 8
Sally’s male co-workers constantly use offensive
language and tell “dirty” jokes. Sally told her
supervisor who promptly instructed her co-
workers to stop.
Example 9
Jim has a crude sense of humor and regularly
sends off-color jokes to his friends at work via e-
mail. Jenny works next to Jim and is sick of his
antics.
Is Jenny being harassed?
Jim’s friends?
Example 10
Wanda’s boss always makes remarks about Wanda’s
“sexy legs.”
Wanda complains. Wanda’s boss then gives Wanda
a “needs improvement” for lack of team work.
Harassment? Anything else?
Example 11
Ronald regularly touches his female subordinates
on the shoulder when speaking with them. It
doesn’t bother some of them, but makes others
uncomfortable.
Harassment?
Example 12
Tammy Faye is a devout Christian and doesn’t
mind letting everyone know it. Some co-workers
call her a Jesus freak, but she does not care.
Tammy Faye has met a Hindu at work and
constantly tries to convert him.
Harassment?
Example 13
Bob and Terry are discussing the new computer
upgrades at the office. They ask each other whether
their boss, Rusty, who is 55 years old, will be able to
keep up with the changes. After all, you can’t teach an
old dog new tricks.
Harassment?
Example 14
Carlos Hernandez has recently been hired at the plant.
His co-workers call him Pedro, make jokes about
tacos, and tell him to swim back to Mexico if he
doesn’t like life in America.
Harassment?
Summary Points
Review harassment policy
Communicate concerns constructively
If unresolved complaint, report it to appropriate
Supervisor without delay
Prompt and Appropriate Investigation
• Confidential does not mean secret
Respect and Common Sense go a long way
Final Recommendations
ACT PROFESSIONALLY—THE WORKPLACE IS SET
APART FROM THE WORLD
RESPECT CO-WORKERS’ BOUNDARIES
 Words
 Actions
 Space
WORK IS A MORE DIVERSE PLACE
RISK/BENEFIT ANALYSIS
SAVANNAH tel 912.236.0261
BRUNSWICK tel 912.262.5996
H U N T E R M A C L E A N . C O M
Wade Herring
www.huntermaclean.com
(912) 236-0261

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Wade Herring Employment Law Discrimination and Harassment Defining and Preventing

  • 1. SAVANNAH tel 912.236.0261 BRUNSWICK tel 912.262.5996 H U N T E R M A C L E A N . C O M Discrimination and Harassment: Defining and Preventing High Performance Insulation Professionals Omni Hotel, Hilton Head April 9, 2015
  • 2. Harassment It is illegal for an employer to discriminate against any applicant or employee in compensation, terms, conditions, or privileges of employment, because of race, color, religion, sex, gender, national origin, disability, age, or genetic information.
  • 3. Title VII • Civil Rights Act of 1964 • Race, color, national origin, religion, sex, gender • Enforced by the Equal Employment Opportunity Commission • Burden of proof on the claimant to prove discrimination
  • 4. Other Federal Employment Laws • Age Discrimination in Employment Act—protects employees age 40 and older • Americans with Disabilities Act—protects employees who are “disabled” • Genetic Information Nondiscrimination Act
  • 5. Employment Relationship Remains At Will • Employer retains broad discretion • Employer’s right to establish work-place standards and to require compliance • Employees can be terminated at any time, with or without notice, for any reason or no reason, a good reason or a bad reason (but not an illegal reason)
  • 6. Harassment/Other Discrimination Claims Federal claim State claims • Assault, battery, emotional distress, false imprisonment Costs • Reputation • Time • Stress and Aggravation • Emotional Individuals can be defendants, as well as the company
  • 7. Two Types Of Harassment Quid Pro Quo – “This for That” • Almost always in the context of sexual harassment Hostile Work Environment • Sexual • Also race, color, national origin, religion, disability, gender
  • 8. Proving Harassment Employee Belongs to Protected Group (Age – 40 and over, Minority, Sex, Disability) • Everyone belongs to at least one protected group Unwelcome Harassment Because of Group Status Harassment Was Sufficiently Severe or Pervasive to Alter Terms and Conditions of Employment • Objective Standard • Subjective Component as well Basis for Holding Employer Liable—Negligence/Strict Liability
  • 9. Important Factors • Employer’s knowledge • Actual • Constructive—What Employer Should Have Known • Employee’s obligation to report • Employee’s obligation to avoid harm • Employer’s obligation to act
  • 10. What Harassment Is Not: • Remedy for Every Disagreement • A Remedy when the Boss is a Jerk • Nepotism is not against the law • Dating is not against the law (but “no” means no) • The law does not require good manners (but good manners are helpful)
  • 11. What Harassment Could Be: Male  Male Male  Female Female  Female Female  Male Homosexual Conduct Hazing Unwanted Romance Non-Romantic Sexual Conduct
  • 12. Harassment: The Spectrum COMMENTS JOKES CAT CALLS E-MAILS CARTOONS POSTERS GLARES SCREENSAVERS TOUCHING GRABBING PINCHING RAPE VERBAL . . NON-VERBAL CONDUCT . . PHYSICAL CONDUCT. . SEXUAL ASSAULT GESTURES CALENDARS
  • 13. Retaliation – Against The Law An employer may not fire, demote, harass or otherwise "retaliate" against an employee for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination.
  • 14. What Retaliation Is Not: Retaliation does not include stray negative comments in an otherwise positive or neutral evaluation, "snubbing" a colleague, or negative comments that are justified by an employee's poor work performance or history
  • 15. What Retaliation Is Not: The employer may still enforce workplace standards: employees are not excused from continuing to perform their jobs or follow their company's workplace rules just because they have complained about alleged discrimination
  • 16. Example 1 A small group of account executives have regular weekly meetings with their manager, John. John always asks Susan, the only female executive, to serve coffee and refreshments to the others (five males). Is Susan being sexually harassed?
  • 17. Example 2 Peter, who works in the accounting department with 5 females, gives each of them candy and lingerie for Valentine’s Day. Harassment?
  • 18. Example 3 Jim picks Calvin for a promotion over Tina, who has more seniority in the department, better performance evaluations and more experience in the industry than Calvin, who plays golf with Jim on a regular basis. Is Tina being sexually harassed?
  • 19. Example 4 Allison’s boss offers her a promotion if she agrees to sexual favors. Allison declines and is terminated two days later. Was Allison harassed?
  • 20. Example 5 Monica’s boss asks Monica to discuss an important project over dinner. Harassment?
  • 21. Example 6 Joyce, Marissa’s officemate, repeatedly calls Marissa at home and leaves messages that she wants to get together with Marissa after work. Marissa does not respond and reports the phone calls to her supervisor, who says that Joyce’s calls are Marissa’s problem because it’s not happening at work. Unlawful harassment?
  • 22. Example 7 Harry has recently become a Muslim and changed his name to Muhammad. He now keeps to himself and no longer jokes with the guys, who feel uncomfortable working around him. Harassment?
  • 23. Example 8 Sally’s male co-workers constantly use offensive language and tell “dirty” jokes. Sally told her supervisor who promptly instructed her co- workers to stop.
  • 24. Example 9 Jim has a crude sense of humor and regularly sends off-color jokes to his friends at work via e- mail. Jenny works next to Jim and is sick of his antics. Is Jenny being harassed? Jim’s friends?
  • 25. Example 10 Wanda’s boss always makes remarks about Wanda’s “sexy legs.” Wanda complains. Wanda’s boss then gives Wanda a “needs improvement” for lack of team work. Harassment? Anything else?
  • 26. Example 11 Ronald regularly touches his female subordinates on the shoulder when speaking with them. It doesn’t bother some of them, but makes others uncomfortable. Harassment?
  • 27. Example 12 Tammy Faye is a devout Christian and doesn’t mind letting everyone know it. Some co-workers call her a Jesus freak, but she does not care. Tammy Faye has met a Hindu at work and constantly tries to convert him. Harassment?
  • 28. Example 13 Bob and Terry are discussing the new computer upgrades at the office. They ask each other whether their boss, Rusty, who is 55 years old, will be able to keep up with the changes. After all, you can’t teach an old dog new tricks. Harassment?
  • 29. Example 14 Carlos Hernandez has recently been hired at the plant. His co-workers call him Pedro, make jokes about tacos, and tell him to swim back to Mexico if he doesn’t like life in America. Harassment?
  • 30. Summary Points Review harassment policy Communicate concerns constructively If unresolved complaint, report it to appropriate Supervisor without delay Prompt and Appropriate Investigation • Confidential does not mean secret Respect and Common Sense go a long way
  • 31. Final Recommendations ACT PROFESSIONALLY—THE WORKPLACE IS SET APART FROM THE WORLD RESPECT CO-WORKERS’ BOUNDARIES  Words  Actions  Space WORK IS A MORE DIVERSE PLACE RISK/BENEFIT ANALYSIS
  • 32. SAVANNAH tel 912.236.0261 BRUNSWICK tel 912.262.5996 H U N T E R M A C L E A N . C O M Wade Herring www.huntermaclean.com (912) 236-0261