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Local 1000 WorkplaceHarassment Prohibited by state and federal law DFEH received 3,863 charges of sexual harassment in 2008 EEOC received 12,696 charges.

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Presentation on theme: "Local 1000 WorkplaceHarassment Prohibited by state and federal law DFEH received 3,863 charges of sexual harassment in 2008 EEOC received 12,696 charges."— Presentation transcript:

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2 Local 1000 WorkplaceHarassment

3 Prohibited by state and federal law DFEH received 3,863 charges of sexual harassment in 2008 EEOC received 12,696 charges of sexual harassment in FY % of those were filed by men

4 Sexual Harassment – Employer Impact Employee turnover increases Absenteeism increases Concentration at work decreases Morale/teamwork/cooperation all decrease Trust among employees decreases

5 Sexual Harassment – Employer Impact (cont) Instead of performing work, time is spent talking about and dealing with sexual harassment Instead of performing work, time is spent conducting lengthy investigations Organization or company suffers adverse publicity Costs to employees involved; money out of pocket

6 Workplace Romance

7 A Changing Workplace More hours are spent at work Women make up 46% of the workforce Americans marry later in life, resulting in more unattached people at work

8 Workplace Romance Statistics 58% of employees have been involved in an office romance (in 26% of the cases, the romances resulted in long-term relationship) 21% of respondents reported dating a boss or superior 32% of respondents have engaged in trysts within the office 65% of respondents reported that their employer did not have a policy regarding workplace dating

9 Workplace Romance Statistics Unintended Outcomes 29% of romances resulted in favoritism complaints 23% of romances resulted in decreased productivity 21% of romances resulted in harassment complaints

10 Workplace Romance – Recent Case Miller v. Department of Corrections (2005) Decision made by the California Supreme Court on claims brought under Fair Employment and Housing Act (FEHA) Plaintiffs claimed that Warden provided preferential treatment (including promotions) to employees he was intimately involved with over those with whom he was not Court reinstated plaintiffs claims; Justices held that widespread sexual favoritism in the workplace may create an actionable hostile work environment that demeans other employees

11 Harassment Quid Pro QuoHostile Work Environment v.

12 Hostile Environment Harassment

13 What?Where?Who?

14 What?

15 Three Key Elements: 1.Unwelcome conduct 2.Based on a protected category 3.Unreasonably interferes with an employees work performance or creates an intimidating, hostile, or offensive work environment

16 Unacceptable Behavior: Verbal EEOC v. National Education Association (2005) 9 th Circuit Court of Appeals Male supervisor subjected female employees to persistent episodes of loud, hostile, profane shouting and intimidating behavior with little or no provocation Court held that conduct need not be facially sex-specific to qualify Employer settled the sex discrimination suit for $750,000

17 Other Examples of Unacceptable Verbal Behavior Discrimination/ Harassment Sexual Harassment Racial epithets or slursDiscussing sexual activities Mocking, ridiculing, or mimicking another cultures accent, appearance or customs Remarks about body Offensive jokes about sex, race, age, etc. Turning work discussions to sexual topics Leaving offensive or disturbing voic s Repeatedly asking a person out who is not interested

18 Unacceptable Behavior: Non-Verbal Birschtein v. New United Motor Manufacturing Inc. (2001) California Court of Appeal After plaintiff refused several requests from her coworker for a date, he began a campaign of staring at her Court held that staring at a fellow employee may constitute sexual harassment under state law

19 Other Examples of Unacceptable Non-Verbal Behavior Discrimination/ Harassment Sexual Harassment Circulating offensive sElevator eyes Posting offensive materials on walls or bulletin boards Stalking Ostracizing someone or playing pranks because of someones protected class Giving unwelcome personal gifts Sexual gestures, body movements, touching oneself sexually

20 Examples of Unacceptable Physical Behavior Discrimination/ Harassment Sexual Harassment Offensive gesturesMassaging, hugging or kissing Offensive pranksTouching clothing, hair, or body Continually brushing up against another

21 Where?

22 Where Does the Harassment Occur? Conduct outside the workplace There is no requirement that the harassment occur in the office or the workplace Liability for harassment does not stop at the workplace door Liability for harassment may attach to unlawful conduct that occurs in any location found to be an extension of the workplace

23 Where Does the Harassment Occur? Myers v. Trendwest Resorts, Inc. (2007) California Court of Appeal Alleged harassment occurred off-site and arose during a relationship that had evidence of becoming consensual Court held that employer can be liable for sexual harassment even when the alleged misconduct occurs away from the workplace

24 Who?

25 Options Third partiesA co-workerA supervisor (broadly defined)

26 Third Party Harassment Liability Standards Harassment liability arises under state and federal law ONLY IF: Employer knew or should have known about misconduct; and Failed to take immediate and appropriate corrective action

27 Duty of Reasonable Care: Supervisors Response After Receiving a Complaint Take all complaints seriously Listen emphatically Document the complaint and all facts presented Cannot promise confidentiality, but can assure employee that information will be limited to a need-to-know basis Do not pre-judge the outcome Take prompt, remedial action (when warranted) Report to HR/Legal departments immediately

28 Duty of Reasonable Care: Taking Corrective Action The employer must take prompt, remedial action reasonably calculated to end the harassment. Employer can respond adequately by disciplining a co- worker for his or her misconduct Employer is not necessarily obligated to terminate the harasser or remove him/her from the workplace; it may be sufficient to simply separate complainant from harasser Dont punish the victim

29 Personal Liability

30 Individual harassers may be held personally liable under a tort theory Assault Invasion of Privacy Intentional Infliction of Emotional Distress

31 How Would a Court Classify Union Activists? Co-worker? Supervisor?Customer?

32 Open Issue: Would a court hold a Union activist personally liable for harassment?

33 Questions?


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