Pocaz harassment bullying_and_other_bad_behavior

2018 HR INDIANA ANNUAL CONFERENCE
Date of Presentation
Title of Presentation
Name of Presenter
Presenter Contact Info
August 20, 2018
Harassment, Bullying, and
Other Bad Behavior
Jason Clagg
Barnes & Thornburg LLP
260-425-4646
jason.clagg@btlaw.com

Jason T. Clagg
Partner
260-425-4646
260-424-8316 Fax
888 S. Harrison Street
Suite 600
Fort Wayne, Indiana 46802
Jason Clagg is a partner in Barnes & Thornburg’s Fort Wayne, Indiana, office,
where he is a member of the Labor and Employment Law Department and the
Higher Education and School Law Practice Groups. Mr. Clagg serves as vice
chair of the Higher Education Practice Group.
Dedicating his practice exclusively to management interests, Mr. Clagg
routinely represents employers in state and federal court, before administrative
agencies, such as the Department of Labor (DOL), the National Labor
Relations Board (NLRB), and the Equal Employment Opportunity Commission
(EEOC), and in labor arbitrations. Mr. Clagg has effectively represented
management in Fair Labor Standards Act (FLSA) wage and hour disputes,
unfair labor practices under the National Labor Relations Act (NLRA), and
claims of harassment, discrimination, and wrongful discharge. Mr. Clagg has
also helped employers draft, defend, and contest non-compete agreements
and address the misappropriation of trade secrets in numerous states. In
addition to contested matters, Mr. Clagg devotes much of his practice to daily
client counseling, drafting employment agreements, and training personnel on
a variety of topics.
As a complement to his labor and employment practice, Mr. Clagg also
practices in the area of education law with a focus on employment and student
disability matters. He has represented both public and private schools from the
elementary to the collegiate level in numerous courts and administrative
settings. Specifically, Mr. Clagg has represented schools in court and before
the Office of Civil Rights, the Department of Education, and in due process
hearings. Mr. Clagg has experience with Section 504 of the Rehabilitation Act
as well as the Individuals with Disabilities Education Act and Indiana’s Article 7
and regularly trains and advises schools on these laws.
Mr. Clagg received his J.D. cum laude from the Indiana University Maurer
School of Law. He served as editor of the Indiana Journal of Global Legal
Studies, was the personal research assistant to the school’s dean, and
received a scholarship for his academic achievements. Prior to attending law
school, Mr. Clagg graduated from Krannert School of Management at Purdue
University with a B.S. in industrial management and a minor in information
systems. While at Purdue, he was affiliated with the Acacia International
Fraternity.
Mr. Clagg has been recognized on the “Rising Stars” list by Indiana Super
Lawyers, a “Top Lawyer” by Fort Wayne Monthly magazine, and as a member
of Fort Wayne Business Weekly’s 2015Forty Under 40 class. Since 2017, Mr.
Clagg has been recognized in The Best Lawyers in America list for education
Bar Admissions
Indiana
Ohio
Other Court Admissions
U.S. Supreme Court
U.S. Court of Appeals for the
7th Circuit
U.S. District Court for the
Northern District of Indiana
Southern District of Indiana
Northern District of Ohio
Eastern District of Michigan
Central District of Illinois
Education
B.S., Purdue University
J.D., Indiana University -
Bloomington

law.
Mr. Clagg has been affiliated with the Benjamin Harrison Inn of Court, the
National School Boards Association, Council of School Attorneys, as well as
the American, 7th Circuit, Indiana State, and Allen County Bar Associations.
Active in the community, Mr. Clagg is president of the board of the Jorgensen
Family YMCA; treasurer of the Aboite Girls Basketball League, a local
children’s basketball program, and a former board member of the Fort Wayne
Cinema Center, a not-for-profit cultural organization.

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and employment law.
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including breaking labor and employment topics
www.btlaw.com
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www.btlaborrelations.com
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@BTLawE

CONFIDENTIAL © 2018 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
• Jason
– L&E Partner at Barnes & Thornburg
• Licensed in IN and OH
– Defends employers in labor and employment
– Enforces non-compete agreements
– (And represents schools)
Who is this guy?!?
What is this all about?
• This is not sensitivity training
• Instead, we will discuss
– The renewed focus on workplace harassment and
discrimination;
– The legal/financial risks that come with it;
– Recent shifts in the law; and
– How to best position ourselves and our
supervisors to avoid trouble

In 1999, Clinton Settled Paula Jones
Lawsuit for $850,000
President Clinton reached an
out-of-court settlement with
Paula Jones, agreeing to pay
her $850,000 to drop the
sexual harassment lawsuit
that led to the worst political
crisis of his career and only
the third presidential
impeachment inquiry in
American history.
In 2017, Fox Settles Gretchen Carlson’s
Sex Harassment Claims
Fox News’s parent company
recently spent $20 million to
settle a lawsuit brought by a
former anchor, Gretchen
Carlson, whose allegations of
sexual harassment toppled the
network’s powerful chairman,
Roger Ailes, and engulfed the
company in crisis.

From the news …
Texas Man Wins Sexual Harassment Case
Against Female Boss: Jury Awards $567K
• A Texas lawman was awarded $567,000
by a jury who found that he was the victim
of sexual harassment from his female
boss.
• Former Galveston County Deputy
Constable James Gist sued the county
and claimed ex-Constable Pam Matranga
repeatedly sexually harassed him by
asking him to touch her breasts, pulling
her shirt over his head and pretending to
give him a lap dance.
• “They rejected this whole notion that you get away with [sexual harassment] because
you are a female," Gist’s lawyer said.

Takeaways from Recent Publicity
• No one is above the law
• Employees are more likely to make a claim as
opposed to remaining quiet (#metoo)
• Lesser misconduct is more likely to be reported as
harassment
• Text of the law has not changed, but words are
being redefined
Our Talk Today is Interactive
• Please feel free to ask
questions
• If I don’t have your answer
today, I will track it down
ASAP

Quick Overview
• Every Supervisor is “the Company”
• Employment Laws Our Supervisors Must Know
• How Legal Problems Arise (and How to Avoid
Them)
• In writing or it didn’t happen?
EVERY SUPERVISOR IS
“THE COMPANY”

There is no “them” or “they”
• Legally, once a supervisor, they are the Company
– And, attributing things to “they” or “them” only
undermines supervisory authority
• What a supervisor says and does can be
attributed to the Company
• For example
– Telling a sexual joke to staff
– Asking an employee to work off the clock
There is no “them” or “they” (con’t)
• What a supervisor hears and sees, the
company knows
• For example
– Hearing employees making fun of a Muslim or gay
employee
– Watching an employee have a hard time with their
job due to their bad back

Supervisors are the Company
• Since a supervisor has increased
authority and can bind the
Company, they are more
accountable – both legally and in
public opinion
• Make sure supervisors
understand consequences this
can have on the company and
their careers
MUST KNOW EMPLOYMENT LAW

Illegal Discrimination
• Discrimination can include more than termination
– Hiring, discipline, pay, promotions, job assignments,
etc.
• Harassment or discrimination is illegal based on:
– Race, color, sex, age (over 40), disability, religion,
national origin, pregnancy, FMLA leave, military
status, sexual orientation, transgender status, and
maybe more
Sexual Orientation &
Transgender Issues
• Title VII’s prohibition on discrimination because
of sex is unchanged
• However, the Seventh Circuit now interprets
“sex” more broadly
– No controlling supreme court case yet
• Both discrimination based on sexual orientation
and gender identity will almost surely be covered

Accommodating
Gender Identity Issues
• We have been accommodating disabilities and
religion for many years
• The approach to gender identity can be similar
• Issues related to name changes, pronoun use,
restroom and locker room use, etc.
– So what is required?
• Supervisors must know to bring this to you ASAP

Common Misconceptions by Supervisors
• Harassment can be amongst people of the
same group (e.g., a man can harass a man)
• Harassment can be “reverse” (e.g., woman
harasses man, black harasses white, etc.)
• Supervisors are held to a higher legal standard
– It is easier to prove harassment against a
supervisor
Common Misconceptions by Supervisors
• Might be obvious  Ex. Using the “N” word
• But might be subtle  Ex. Male employees are
always assigned the tedious/dirty work (with no
mention of gender)
• Might be negative or “positive”  Ex. “You can’t
do this work because you are a woman.” vs. “I
cannot stop thinking about you.”
– It is really gender harassment, not sexual harassment

Does one off color
comment violate federal law?
• Quid Pro Quo vs. Hostile Environment
– Almost all cases are hostile environment
• Hostile environment = Harassment that is
unwelcome and is so severe or pervasive that
it alters the conditions of employment,
creating an abusive, offensive, or intolerable
working environment.
So when is it a legal issue?
Every isolated incident is not unlawful
harassment
Employees unable to get along, occasional name-
calling, or expletives often will not constitute
unlawful harassment
To be unlawful  severe or pervasive
How bad? vs. How often?
Of course, we do not wait until it is illegal to put
a stop to it

Retaliation
• The law encourages employees to report violations and
prohibits retaliation for making a report (or
participating in an investigation)
– Just as viable as discrimination claims
• Our supervisors are (hopefully) not racist, sexist, etc.
– However, an erroneous report of misconduct may create
hard feelings and animosity
• Retaliation for making a work comp claim is also
protected
A few other supervisory reminders (ADA)
• An employee with a disability is entitled to a
reasonable accommodation
– Cannot require a “clean bill of health” or no
restrictions
– Applies whether or not the condition is work
related
– Applies from day one – actually before that
– Accommodation may be unpaid leave

A few other supervisory reminders (FLSA)
• Employees cannot work off
the clock
– Before their shift, after their
shift, or skipping breaks, etc.
• Overtime cannot be shifted
between weeks
– Ex. You worked 45 hours this
week, but record 40 and I will
only schedule you 35 next
week
HOW LEGAL PROBLEMS ARISE
(AND HOW TO AVOID THEM)

Let’s Start by Getting the Supervisor’s
Attention (i.e., Why Should She Care?)
• Lawsuits where they are at the center
- May be the accused harasser
- Intentions may have been innocent but misunderstood
- They may be liable
• Lawsuits where they failed to act
• Impacts their workforce
- Absenteeism - Stress
- Production inefficiencies - Turnover
- Divisiveness in the workplace
• Their reputation and potentially their job is on the
line...
If Your Supervisors Think This Stuff is a Hassle,
They Should Meet a Plaintiff’s Lawyer . .
• Goal is for your supervisor to spot the trouble
coming, and either avoid it or seek assistance
• They don’t have to know everything about this
stuff, but they do need to know when to ask
you for help

Must be a Supervisor, Not Just a Buddy
• A little like being a parent
– Harder to issue directives, gain respect, and reprimand, if
they are just one of the gang
• Also, the team can turn quickly when something goes
wrong and legal claims start to roll in
– Friendships seem to disappear when people get fired or
don’t get a bonus/raise/promotion
• This has always been true, but made far worse by
technology – so that is where we will start
Facebook, Instagram, etc.
• Your supervisors are close
“friends” with subordinates
on social media
• What could possibly go
wrong?

Facebook & Instagram (II)
• One employee posts sexually aggressive things
toward another. Do they need to do
something about it?
• They find out an employee is Jewish or a
veteran or just found out she is pregnant or
whose spouse has cancer
– Need to discipline/terminate the next day
– Employee says it is because the characteristic
Facebook & Instagram (III)
• They post something meant to be funny online
on a Friday night, but an employee reports it as
harassing on Monday morning
• They see employees complaining about their pay
and posting negative stuff about supervisors
– Try to address it and are accused of unfair labor
practices (e.g., interfering with protected concerted
activity & surveillance)

What Not to Do: The Office
• “When I said before that I
was the king of forwards,
you gotta understand
that I don't come up with
this stuff. I just forward it
along. You wouldn't
arrest a guy for just
delivering drugs from one
guy to another.”
Privacy Settings & Access
• 99% of people have no idea how privacy settings work
or just don’t care
– Often can get online and see what you post, who you are
friends with, where you live and where your kids go to
school, when you are out of town, etc.
• LinkedIn
– Other people likely know when you view their profile
– What if you have to terminate someone you “endorsed”?
• Social media records are often the first stop in litigation

Cell Phones & Texting
• What about sharing personal cell
numbers?
– Some level of separation and
privacy is probably a good thing
• Also, risk that an employee will
claim that conversations and
texts were “work” and they were
not properly paid

Sexting
• So many recent cases involving sexual stuff via text or
snapchat
• Cautionary tales for your supervisors
– Ex. It was all welcomed until a spouse found out
– Ex. It was all welcomed until they are terminated for poor
performance
– Ex. Pictures get shared with others and then claims of
invasion of privacy, infliction of emotional distress, etc.
• Maybe against the supervisor personally?
Take Aways for Supervisors
to Avoid Legal Trouble
• Stick to the plan
– Follow the process for supervision and discipline
– Notice, consistency, and fairness are crucial
• Don’t go it alone
– Confer with HR when issues related to harassment, discrimination,
or retaliation based on a protected characteristic arise
• Don’t be part of the problem
– Supervisors are held to a higher standard and must lead by
example

THE PROCESS
AND RELATED DOCUMENTATION
How to Prevent
Harassment Claims
1. Clean up borderline misconduct (or worse)
– Address “that guy” (or gal) now
2. Make sure employees know how to report and that you
have an “open door” approach
– Communication is key
3. Supervisors must know what to do if they witness or are told
about alleged harassing behavior
– More to come
4. Take action against offenders and the “ostriches”

No Good Deed…
Once a complaint is made, we
cannot fail to investigate -- even if
the complaining employee says
he/she doesn’t want you to do
anything
Do nothing is not an option!
Three Critical Prongs of
Responding to Harassment Complaints
1. A Prompt Investigation
2. Corrective Action In Response
3. Some Follow-up with the Accuser 
can be most important

What Not to Do: The Office
• “Alright, Kevin . . . you are
accused of making
sexually suggestive
remarks to Angela, that
made her feel
uncomfortable. Solution:
Angela, you are to make
sexually suggestive
remarks to Kevin that
make him feel
uncomfortable.”
– Kevin anxiously agreed to
his punishment
Document, document, document
• Allow the complaining employee to write out the
complaints in their own handwriting
• Supervisor or HR documents what complaining
employee reported
• Supervisor or HR documents all interview results
as well as what corrective action (if any) was taken
• Need Evidence of:
– Complaint  Investigation  Conclusion 
Corrective Action  Close Out

Bottom Line:
Uniformly Enforce Rules and Policies
• Where do lawsuits come from?
– Perceived unfairness or favoritism
– Lack of communication
• How are lawsuits lost?
– Exceptions / Lack of Uniform Treatment
– Inaction
• (Documentation allows us to eliminate problem
employees and defend ourselves)
Jason Clagg
(260) 425-4646

Union organizing campaigns. Tough labor
negotiations. Tricky terminations. Collective
bargaining actions. That’s all right in our
sweet spot. Barnes & Thornburg steps up
with a national Tier One ranking for its labor
law and employment law practices. So bring
the heat.
Sweet spot.
Uncommon Value
ATLANTA CALIFORNIA CHICAGO DELAWARE INDIANA MICHIGAN MINNEAPOLIS OHIO TEXAS WASHINGTON, D.C.
btlaw.com

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