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No More 'Business as Usual' - Creating a Safe Work Environment and Avoiding Liability in the #MeToo Era

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Presenters:

Dana C. Shaw-Arimoto, Founder & CEO, Phoenix 5
Diane Geller, Partner, Fox Rothschild LLP

With heightened awareness of harassment brought about by the #metoo and #timesup movements, it’s more important than ever to maintain a safe and professional environment for your entire team. Failure to do so can have a devastating impact on both a business and personal level. In this session, you will learn how to implement an effective preventative approach to sexual harassment, discrimination and workplace bullying without discouraging desirable behaviors that contribute to your company’s success.

This session does not replace legal consultation and should not be considered legal advice. We highly recommend you discuss all of these issues with your own legal counsel.

Published in: Business
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No More 'Business as Usual' - Creating a Safe Work Environment and Avoiding Liability in the #MeToo Era

  1. 1. 1 Dana Shaw-Arimoto CEO and Founder Diane Geller Partner No More 'Business as Usual' Creating a Safe Work Environment and Avoiding Liability in the #MeToo Era
  2. 2. 2 This Session With heightened awareness of harassment brought about by the #metoo and #timesup movements, it’s more important than ever to maintain a safe and professional environment for your entire team. Failure to do so can have a devastating impact on both a business and personal level. In this session, you will learn how to implement an effective and preventative approach to sexual harassment, discrimination, and workplace bullying without discouraging desirable behaviors that contribute to your company’s success. This session does not replace legal consultation and should not be considered legal advice. We highly recommend you discuss all of these issues with your own legal counsel.
  3. 3. 3 To Start How does your company provide sexual harassment training?1 • In-Person • Via Video • Via Website How often is the training?2 • Annually • Only when a new employee starts • Periodically during the year
  4. 4. 4 What is Harassment?
  5. 5. 5 WHAT DO YOU KNOW ABOUT DISCRIMINATION AND HARASSMENT? TRUE/FALSE True False ☐ ☐ It is illegal to treat an employee who is a member of a protected classification differently than other employees. ☐ ☐ Conduct which occurs off-duty and off-premises can be considered harassment. ☐ ☐ Even if you had a consensual relationship, you can be guilty of sexual harassment. ☐ ☐ If you do not intend to offend someone, you cannot harass him/her.
  6. 6. 6 WHAT DO YOU KNOW ABOUT HARASSMENT? TRUE/FALSE True False ☐ ☐ Asking a co-worker for a date cannot be sexual harassment. ☐ ☐ Employers can be held responsible for the harassment of their employees by outsiders. ☐ ☐ If most employees like a working environment, it cannot be hostile. ☐ ☐ The decorations employees have in their cubicle are no one’s business but their own. ☐ ☐ Sexual harassment can only occur when the harasser’s actions are sexual in nature.
  7. 7. 7 WHAT DO YOU KNOW ABOUT HARASSMENT? TRUE/FALSE True False ☐ ☐ You should honor an employee’s request not to do anything about the harassment he or she just reported to you. ☐ ☐ You should put an employee in a room together with the person he/she is complaining about to resolve any misunderstandings. ☐ ☐ If the victim does not want the accused harasser to be terminated, The Company will not do so. ☐ ☐ You should keep an allegation of harassment to yourself until you determine whether or not it has any merit. ☐ ☐ The victim of harassment should always be transferred away from the harasser.
  8. 8. 8 WHAT DO YOU KNOW ABOUT HARASSMENT? TRUE/FALSE True False ☐ ☐ Your prompt remedial action may relieve The Company from liability even if harassment has occurred. ☐ ☐ If an employer is not aware that an employee is being harassed by another employee, it cannot be held liable. ☐ ☐ If an employee does not complain of harassment until after he/she quits, The Company cannot be held liable.
  9. 9. 9 WHAT DO YOU KNOW ABOUT HARASSMENT? TRUE/FALSE True False ☐ ☐ Employees who have had too much to drink are responsible for the things that they say or do. ☐ ☐ If no one has complained, harassment is not a problem in your work environment. ☐ ☐ Only the victim of a harasser’s actions can file a harassment claim.
  10. 10. 10 WHAT DO YOU KNOW ABOUT HARASSMENT? TRUE/FALSE True False ☐ ☐ If you comment on someone’s appearance, it may impact his/her reputation or performance. ☐ ☐ Allegations of harassment by an employee can cloud whether discipline taken against that employee was warranted. ☐ ☐ Managers are responsible for the prevention of hostile working environments.
  11. 11. 11 Harassment Definitions and Types
  12. 12. 12 What is Harassment? DEFINITION • Unwelcome • Unsolicited
  13. 13. 13 Conduct: • Of a sexual nature; or • Because of one’s sex (including pregnancy), race, color, religion, national origin, age, disability, ancestry, marital status, domestic or civil union partnership, gender identity, genetic information, sexual orientation, or other protected classification What is Harassment?
  14. 14. 14 EXAMPLES OF HARASSMENT • Physical assaults or attempts • Unwanted sexual advances • Visual displays of inappropriate pictures of any kind, and gestures • Recognizing a situation with consultants What is Harassment?
  15. 15. 15 EXAMPLES OF HARASSMENT • Vulgar, suggestive, offensive or racist comments or jokes • Sending inappropriate e-mails or accessing pornographic web sites • Behavior that makes others feel uncomfortable What is Harassment?
  16. 16. 16 WHO CAN COMMIT HARASSMENT? • Managers • Co-workers • Vendors or consultants or customers • Men or women • People with whom you have a business interaction, regardless of level of authority, race, color, sex (including pregnancy), religion, national origin, etc. What is Harassment?
  17. 17. 17 QUID PRO QUO SEXUAL HARASSMENT: “SOMETHING FOR SOMETHING” • Unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when: • submission to such conduct is explicitly or implicitly made a term or condition of employment; or • submission or rejection of such conduct is used as the basis for employment decisions affecting such individual. What is Harassment?
  18. 18. 18
  19. 19. 19 • HOSTILE ENVIRONMENT HARASSMENT • Conduct that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. • The conduct is taken because of the individual’s protected classification or sex. What is Harassment?
  20. 20. 20 The conduct must be severe or pervasive enough given the totality of the circumstances so that it alters the conditions of victim’s employment and creates an abusive environment. The reasonable victim under like circumstances would perceive, and the victim actually did perceive, that an abusive working environment has been created. What is Harassment?
  21. 21. 21 REMEMBER: Behavior acceptable in some settings can be abusive in a work context. Personal Relationships With Subordinates. What is Harassment?
  22. 22. 22
  23. 23. 23 Handling Harassment
  24. 24. 24 Not Confident Somewhat Confident Neutral Very Confident Completely Confident If I feel I am being harassed by someone, internally or externally, I know that my company has my back. I feel confident that I have the right to say STOP or NO when someone I encounter makes me uncomfortable. I feel equipped to handle myself and/or others I manage in a harassment situation.
  25. 25. 25 Not Confident Somewhat Confident Neutral Very Confident Completely Confident I have the tools and the "how" to stop uncomfortable situations as soon as they start. Although working in sales/marketing/recruiting may lead to unwanted attention and potentially open a door to harassment, I know how to adjust my approach to keep things professional yet relatable. I have recently reviewed my company’s code of conduct. Yes No
  26. 26. 26 Key Facts and Use Cases
  27. 27. 27 Key Facts Out of 1000 people surveyed by Huffington Post: • 1 in 5 women said they’d been harassed by a boss • 1 in 4 women said they’d been harassed by another co-worker • 6% of men said they’d been harassed by a boss; 14% by a coworker • 21% said they’d witnessed someone being sexually harassed at work; only 33% of those people said they’d reported it The US Equal Employment Opportunity Commission • USEEOC says nearly 1/3 of 90,000 complaints in 2015 included harassment allegations; they also estimate that 75% of all workplace harassment goes unreported • A 2016 USEEOC study statistically predicted that one in four people are affected by workplace sexual harassment • The VEIL IS LIFITING with the #metoo movement: Harvey Weinstein, Kevin Spacey, Louis CK, Charlie Rose and Matt Lauer…who is next? Which industry?
  28. 28. 28 The Blazing Fire Sparked By Misconduct & Harassment • There is a simple formula that we are all taught as small children, where there’s smoke, there is fire. And when you’re in a fire, you must STOP, DROP, and ROLL • “Stop is stop. No is no.” • Stop Harassment before it starts – ASSESS THE SITUATION, TRUST BUT VERIFY BY GIVING BENEFIT OF THE DOUBT • Address harassment head on – SPEAK YOUR TRUTH • Get help fast when it’s at the line – ESCALATE AT THE LINE
  29. 29. 29 Survey Results and Real Scenarios
  30. 30. 30 These Are Real Example 1: SVP expenses a night out with a client for $2000…they went to a strip club. Example 2: At an industry event, a frontline sales person feels uncomfortable when a client “gets close” on the tradeshow floor. Example 3: A prospect emails an account executive to spend the weekend together after a sales pitch meeting and continually opens their emails with terms like “Hey, beautiful.” These may be extremes, but situations of this nature happen at smaller degrees all the time.
  31. 31. 31
  32. 32. 32 Excuses and Rationale Excuses/Rationale/Unconscious Choices for NOT addressing innuendo –> full-on harassment and predatory behavior: • Fear of Retaliation, Prohibition of Future Work, Losing Deal/Client • Embarrassment and Bargaining • Lack of Confidence • No Support at Work or at Home • Denial • Minimizing of the Issue(s) • Fear of Ruining Someone’s Life/Livelihood • Normalization – “It’s our culture to flirt.” “That’s just sales.” • Believability • Other? – Let’s discuss
  33. 33. 33 Practice It to Access It 5 Keys To Self Empowerment 1. Zero Tolerance: Your company HAS your back 2. Role Play & Practice: (by yourself and with those you trust), Take A Self Defense Class, GET INTO THE MINDSET AND STAY THERE! 3. Stop Harassment before it starts (CONDUCT YOURSELF PROFESSIONALLY YET RELATABLY and EXPECT THE SAME) 4. Address harassment head on (STOP IS STOP and NO IS NO even when it’s a grey area) 5. Get help fast when it’s at the line (ESCALATE before it crosses the line, YOUR PERSONAL line is BLACK AND WHITE)
  34. 34. 34 The Male Perspective
  35. 35. 35 Q & A
  36. 36. 36 T h a n k y o u f o r y o u r b r a v e r y , o p e n n e s s , a n d w i l l i n g n e s s ! @Danatothe5th Dana Shaw-Arimoto Founder and CEO answers@phoenix5th.com www.phoenix5th.com Diane Geller Partner DGeller@foxrothschild.com 561.804.4469 www.foxrothschild.com Dana Shaw - Arimoto

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