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

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Presentation on theme: "Sexual Harassment What You Need to Know Tracey B. Eberling Steptoe & Johnson PLLC."— Presentation transcript:

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 Sexual/Gender Race Race Disability Disability Age Age National Origin National Origin Religious Religious Other Other

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

4 Where’s it coming from? Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 Age Discrimination in Employment Act Age Discrimination in Employment Act Americans With Disabilities Act Americans With Disabilities Act West Virginia Human Rights 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 compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin because of such individual’s race, color, religion, sex, or national origin 5

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

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

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

9 Pretest Can an individual ask a subordinate what she/he is planning to do for an upcoming religious holiday? 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? 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? 9

10 Types of Sexual Harassment Quid Pro Quo Quid Pro Quo Hostile Environment Hostile Environment

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

12 What is Sexual Harassment? Unwelcome sexual advances, requests for sexual favors; Unwelcome sexual advances, requests for sexual favors; Offensive verbal, visual or physical conduct of a sexual nature; 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 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. 12

13 Quid Pro Quo Latin meaning “This for that.” Latin meaning “This for that.” Put out or get out 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: 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 Offensive conduct of a sexual nature or based on victim’s gender Unwelcome Unwelcome Severe and/or pervasive nature Severe and/or pervasive nature Creates a hostile, offensive or intimidating work environment Creates a hostile, offensive or intimidating work environmentand Alters a term, condition, or privilege of employment

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

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

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

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

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

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

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

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

24 Employer Responsibilities Have a policy prohibiting harassment Have a policy prohibiting harassment Let employees know about the policy Let employees know about the policy Have a complaint procedure Have a complaint procedure Promptly and thoroughly investigate complaints Promptly and thoroughly investigate complaints Take effective remedial action if harassment is substantiated 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 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 Discipline up to and including termination for substantiated claims or false claims Consensual relationships unwise Consensual relationships unwise

26 Harassment Policy Must- Haves Explain prohibited conduct 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 Reports by victims or witnesses Report incident to Designated Person Report incident to Designated Person –If Designated Person is involved, report to another Designated Person (or Position) Prompt and thorough investigation will follow Prompt and thorough investigation will follow Disciplinary or corrective action will be taken as appropriate Disciplinary or corrective action will be taken as appropriate

28 Harassment Policy Must- Haves Reporting Process Reporting Process –Clear reporting process –Dual reporting  E.g., report harassing conduct to supervisor or Human Resources Harassment Policy

29 Harassment Policy Must- Haves Reporting Process Reporting Process –Clear reporting process –Dual reporting  E.g., report harassing conduct to supervisor or Human Resources Harassment Policy

30 Harassment Policy Must- Haves Retaliation 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 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 Investigation –Assure employees there will be a prompt, thorough, and impartial investigation –Will take corrective action if harassment occurred –Could be terminated

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 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 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 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 Exists under federal law; WV remains to be seen Two elements: 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. 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 Possible for the employer to be dismissed and the employee to remain a defendant

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

38 Effective Remedial Action Factors considered by courts 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. If warranted, appropriate discipline will be administered. Due to privacy concerns, victim may not learn nature of remedial action/discipline. Due to privacy concerns, victim may not learn nature of remedial action/discipline. NO RETALIATION! NO RETALIATION! Report if harassment continues 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. 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? Should Heather report this conduct to her Manager? What’s the appropriate response? What’s the appropriate response? 41

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. 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? Sexual harassment? Does it matter that Mary joined in at first? 48

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. 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? Sexual Harassment? What if Patricia is a supervisor? 49

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. 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? Does it matter that Steven and Bill are both men? 50


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