1. Sexual Harassment What You Need to Know Tracey B. Eberling
Steptoe & Johnson PLLC

2. Harassment: It’s Not Just About Sex Anymore
Sexual/Gender
Race
Disability
Age
National Origin
Religious
Other

3. Purpose of Training Types of discrimination and harassment
Ways to minimize the risk of liability
Workplace free of unlawful harassment

4. Where’s it coming from? Title VII of the Civil Rights Act of 1964
Age Discrimination in Employment Act
Americans With Disabilities Act
West Virginia Human Rights Act

5. Federal Discrimination Laws
Title VII of the Civil Rights Act of 1964
Makes it unlawful for an employer to fail or refuse to hire or discharge any individual, or to otherwise discriminate against any individual with respect to:
compensation, terms, conditions, or privileges of employment
because of such individual’s race, color, religion, sex, or national origin

6. West Virginia Human Rights Act
The West Virginia Human Rights Act prohibits discrimination and harassment on the basis of:
Race
Religion
Color
National Origin
Ancestry
Sex
Age (40 and above)
Blindness
Disability
Individual Liability

7. Pretest
Can an individual invite someone who reports to them for coffee or lunch? What about a date?
Can an individual invite a peer for a date?
Can an individual comment to a co-worker about physical appearance?

8. Pretest
Am I creating a hostile work environment if I talk about the Howard Stern Show? Jersey Shore?
Can an individual ask a co-worker about his/her sex life?

9. Pretest
Can an individual ask a subordinate what she/he is planning to do for an upcoming religious holiday?
Out of concern for an employee, can an individual suggest that the employee retire because she/he is getting old and the employee doesn’t need the aggravation?

10. Types of Sexual Harassment
Quid Pro Quo
Hostile Environment

11. What is Harassment? Off-color remarks, jokes
Offensive or derogatory comments
Verbal or physical conduct
based on an individual's protected status constitutes unlawful harassment,
if the conduct creates an intimidating, hostile, or offensive working environment or interferes with the individual's work performance.

12. What is Sexual Harassment?
Unwelcome sexual advances, requests for sexual favors;
Offensive verbal, visual or physical conduct of a sexual nature;
Any harassing conduct, even conduct of a non-sexual nature-directed at someone because of his or her sex
That explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

13. Quid Pro Quo
Latin meaning “This for that.”
Put out or get out

14. What is it?
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
Submission is made a term of employment
Submission/rejection used as basis for employment decisions
Conduct unreasonably interferes with work performance or creates an intimidating, hostile or offensive working environment

15. Hostile Environment
Offensive conduct of a sexual nature or based on victim’s gender
Unwelcome
Severe and/or pervasive nature
Creates a hostile, offensive or intimidating work environment
and
Alters a term, condition, or privilege of employment

16. Offensive Conduct
Verbal: profanity, lewd jokes, derogatory terms, propositions, sexual banter
Physical: pinching, fondling, assault
Demonstrative: sexually oriented calendars, cartoons, and objects; indecent gestures
Other: threats and sabotage

17. Hostile Work Environment
Unwelcome or improper touching or statements of a sexual nature
Requests for sexual favors
Displaying or circulating pornographic material or literature—watch your !
Discussing details of your or someone else’s intimate personal relations
Teasing an employee about his or her sexual activities, marital status or physical appearance
Sexual/Racist, other bigoted jokes, off-color jokes or humor
Persistently seeking a “date” or other social relationship with an employee who has expressed disinterest in such a relationship

18. Unwelcome Conduct
Consensual joking and touching is not harassment if it is neither unwelcome nor offensive to the persons involved.
No means NO!

19. Severe or Pervasive Three factors considered:
Frequency of the conduct
Severity of the conduct
Effect upon the victim’s work
More severe requires less frequency
Roll the dice with the jury

20. Who is the harasser? Superiors Co-workers Clients or customers Vendors
Contractors or consultants

21. Harassment Scenarios Men harassing women Women harassing men
Same-sex harassment

22. Same-Sex Harassment Gender hostility between members of the same sex
Homosexuality not required
Horseplay

23. Employee Responsibilities
Make it clear to co-workers when conduct is unwelcome
Ask yourself: Would I say or do this if my spouse, parent, or child was present?
Use your employer’s complaint procedure
Cooperate in investigations

24. Employer Responsibilities
Have a policy prohibiting harassment
Let employees know about the policy
Have a complaint procedure
Promptly and thoroughly investigate complaints
Take effective remedial action if harassment is substantiated

25. Model Harassment Policy
Sexual harassment, as well as harassment based upon other protected characteristics, is strictly prohibited
Discipline up to and including termination for substantiated claims or false claims
Consensual relationships unwise

26. Harassment Policy Must-Haves
Explain prohibited conduct
Prohibit harassment based on protected characteristics
Harassing behavior WON’T be tolerated in ANY form

27. More…. Reports by victims or witnesses
Report incident to Designated Person
If Designated Person is involved, report to another Designated Person (or Position)
Prompt and thorough investigation will follow
Disciplinary or corrective action will be taken as appropriate

28. Harassment Policy Must-Haves
Reporting Process
Clear reporting process
Dual reporting
E.g., report harassing conduct to supervisor or Human Resources
Harassment Policy
-Make sure reporting process is easy to understand

29. Harassment Policy Must-Haves
Reporting Process
Clear reporting process
Dual reporting
E.g., report harassing conduct to supervisor or Human Resources
Harassment Policy
-Make sure reporting process is easy to understand

30. Harassment Policy Must-Haves
Retaliation
Employees who report harassment won’t be retaliated against
Won’t be retaliated against for reporting harassment or assisting in investigating another person’s report

31. Harassment Policy Must-Haves
Confidentiality
Be careful here!
Reports will be kept confidential to the extent possible
Some circumstances require disclosure
No confidentiality guarantees – could violate NLRA

32. Harassment Policy Must-Haves
Investigation
Assure employees there will be a prompt, thorough, and impartial investigation
Will take corrective action if harassment occurred
Could be terminated
-Last harassment policy must-have is an investigation

33. Employer Liability
For Harassment by Co-workers: where the employer knew or should have known of the conduct or expressly/implicitly authorized or ratified such conduct
For Harassment by Supervisors: employer responsible regardless of knowledge or whether the acts were authorized or even forbidden
For Harassment by Non-employees: where employer knew or should have known and failed to take corrective action

34. Affirmative Defense Exists under federal law; WV remains to be seen
Two elements:
Employer exercised reasonable care to prevent and promptly correct any harassing behavior
Employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer

35. Affirmative Defense
The defense is lost if a tangible employment action, e.g. demotion or discharge, occurs

36. Individual Liability
Under WV law, individuals may be held liable for sexual or other forms of harassment.
Possible for the employer to be dismissed and the employee to remain a defendant

37. Investigations Expect cooperation
No guarantee of complete confidentiality
Interviews will be conducted: alleged victim, alleged harasser, and witnesses
Evidence gathered/reviewed
Conclusion will be reached

38. Effective Remedial Action
Factors considered by courts
Gravity of the harm
Nature of the work environment
Degree of acquiescence by supervisors
Promptness of employer response
Sincerity of employer’s actions
Extent to which actions prevent further harassment

39. Effective Remedial Action
If warranted, appropriate discipline will be administered.
Due to privacy concerns, victim may not learn nature of remedial action/discipline.
NO RETALIATION!
Report if harassment continues

40. Is it harassment?
Moe, Joe, and Jane work in the same department. Moe subscribes to a new monthly magazine “Girls with Guns” which he brings to work to share with Joe. Jane overhears their conversations regarding the females featured in the magazine and regularly sees the magazine lying around. Jane feels uncomfortable at work as a result.

41. What Do You Think?
Joe recently asked his co-worker, Heather, if she’d like to join him for a drink after work. Heather felt uncomfortable with the offer and politely declined at first. Joe has since asked several more times, and has also started asking Heather if she works out. Heather feels that Joe’s comments are inappropriate, and she has asked him to stop, but Joe persists.
Should Heather report this conduct to her Manager?
What’s the appropriate response?

42. Is it harassment? Possibly.
It may create a hostile environment. Review the elements: unwelcome, severe, pervasive, offensive to a reasonable person, and alters work conditions?
It doesn’t matter that Jane is not included in the conversations.

43. Is it harassment?
Jack’s locker is next to Jill’s locker. She adorns the inside of her door with pictures of scantily clad male dancers. Jack has asked her to remove the posters, but Jill refuses because it’s her personal space.

44. Is it harassment?
Again, conduct like this can create a hostile environment. The workplace is not an appropriate setting to display provocative materials.
What you might not consider to be harassing, your co-worker might. The focus is on how the victim feels and whether that feeling is reasonable.

45. Is it harassment?
Burke supervises Sally, Bob, and Jim on the night shift at the local Taco Tim’s. One night, Burke yelled at Jim for five minutes, calling him names, for spilling a vat of hot sauce. He told Sally and Bob who were looking on, “You bastards get back to work!”
A few days later, after a particularly good night of business, Burke smacked each of his employees on the rump and told them, “You sons of bitches did a great job tonight!”
A couple of weeks later, Sally forgot to set the timer on the oven and burned a half dozen burritos. Burke got angry and yelled, “You stupid bitch! Can’t you do anything right?” Sally quit and filed a complaint for sexual harassment.

46. Is it harassment?
No.
Burke is a jerk, but he’s a jerk to everyone – male and female alike. Nothing suggests that Sally was singled out based on her sex. Still, while these facts may not arise to the level of illegal harassment, they may still amount to misconduct subject to discipline at PUB.

47. THANK YOU!

48. What Do You Think?
Mary just started a new job. She noticed that several of her co-workers seem to enjoy exchanging “dirty” jokes. Wanting very much to fit in, she even joined in with some of the jokes at first. But lately, the conversations have crossed the line. Mary asks her co-workers to stop, but they just laugh and continue their conversation.
Sexual harassment? Does it matter that Mary joined in at first?

49. What Do You Think?
Patricia stops by Bill’s desk to retrieve a document from him. Bill is not there, but Patricia notes that his cubicle contains several off-color cartoons and some sexually explicit photographs. Bill has never shown these items to Patricia – she only saw them by chance.
Sexual Harassment? What if Patricia is a supervisor?

50. What Do You Think?
Same facts as the Patricia/Bill example before, but instead of Patricia, Steven is the employee who sees Bill’s pictures.
Does it matter that Steven and Bill are both men?