Presentation on theme: "Sexual Harassment What You Need to Know Tracey B. Eberling"— 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/GenderRaceDisabilityAgeNational OriginReligiousOther
3 Purpose of Training Types of discrimination and harassment Ways to minimize the risk of liabilityWorkplace free of unlawful harassment
4 Where’s it coming from? Title VII of the Civil Rights Act of 1964 Age Discrimination in Employment ActAmericans With Disabilities ActWest Virginia Human Rights Act
5 Federal Discrimination Laws Title VII of the Civil Rights Act of 1964Makes 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 employmentbecause 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:RaceReligionColorNational OriginAncestrySexAge (40 and above)BlindnessDisabilityIndividual Liability
7 PretestCan 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 PretestAm 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 PretestCan 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 QuoHostile Environment
11 What is Harassment? Off-color remarks, jokes Offensive or derogatory commentsVerbal or physical conductbased 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 sexThat 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 QuoLatin 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 employmentSubmission/rejection used as basis for employment decisionsConduct unreasonably interferes with work performance or creates an intimidating, hostile or offensive working environment
15 Hostile EnvironmentOffensive conduct of a sexual nature or based on victim’s genderUnwelcomeSevere and/or pervasive natureCreates a hostile, offensive or intimidating work environmentandAlters a term, condition, or privilege of employment
16 Offensive ConductVerbal: profanity, lewd jokes, derogatory terms, propositions, sexual banterPhysical: pinching, fondling, assaultDemonstrative: sexually oriented calendars, cartoons, and objects; indecent gesturesOther: threats and sabotage
17 Hostile Work Environment Unwelcome or improper touching or statements of a sexual natureRequests for sexual favorsDisplaying or circulating pornographic material or literature—watch your !Discussing details of your or someone else’s intimate personal relationsTeasing an employee about his or her sexual activities, marital status or physical appearanceSexual/Racist, other bigoted jokes, off-color jokes or humorPersistently seeking a “date” or other social relationship with an employee who has expressed disinterest in such a relationship
18 Unwelcome ConductConsensual 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 conductSeverity of the conductEffect upon the victim’s workMore severe requires less frequencyRoll 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 requiredHorseplay
23 Employee Responsibilities Make it clear to co-workers when conduct is unwelcomeAsk yourself: Would I say or do this if my spouse, parent, or child was present?Use your employer’s complaint procedureCooperate in investigations
24 Employer Responsibilities Have a policy prohibiting harassmentLet employees know about the policyHave a complaint procedurePromptly and thoroughly investigate complaintsTake effective remedial action if harassment is substantiated
25 Model Harassment Policy Sexual harassment, as well as harassment based upon other protected characteristics, is strictly prohibitedDiscipline up to and including termination for substantiated claims or false claimsConsensual relationships unwise
26 Harassment Policy Must-Haves Explain prohibited conductProhibit harassment based on protected characteristicsHarassing behavior WON’T be tolerated in ANY form
27 More…. Reports by victims or witnesses Report incident to Designated PersonIf Designated Person is involved, report to another Designated Person (or Position)Prompt and thorough investigation will followDisciplinary or corrective action will be taken as appropriate
28 Harassment Policy Must-Haves Reporting ProcessClear reporting processDual reportingE.g., report harassing conduct to supervisor or Human ResourcesHarassment Policy-Make sure reporting process is easy to understand
29 Harassment Policy Must-Haves Reporting ProcessClear reporting processDual reportingE.g., report harassing conduct to supervisor or Human ResourcesHarassment Policy-Make sure reporting process is easy to understand
30 Harassment Policy Must-Haves RetaliationEmployees who report harassment won’t be retaliated againstWon’t be retaliated against for reporting harassment or assisting in investigating another person’s report
31 Harassment Policy Must-Haves ConfidentialityBe careful here!Reports will be kept confidential to the extent possibleSome circumstances require disclosureNo confidentiality guarantees – could violate NLRA
32 Harassment Policy Must-Haves InvestigationAssure employees there will be a prompt, thorough, and impartial investigationWill take corrective action if harassment occurredCould be terminated-Last harassment policy must-have is an investigation
33 Employer LiabilityFor Harassment by Co-workers: where the employer knew or should have known of the conduct or expressly/implicitly authorized or ratified such conductFor Harassment by Supervisors: employer responsible regardless of knowledge or whether the acts were authorized or even forbiddenFor 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 behaviorEmployee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer
35 Affirmative DefenseThe defense is lost if a tangible employment action, e.g. demotion or discharge, occurs
36 Individual LiabilityUnder 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 confidentialityInterviews will be conducted: alleged victim, alleged harasser, and witnessesEvidence gathered/reviewedConclusion will be reached
38 Effective Remedial Action Factors considered by courtsGravity of the harmNature of the work environmentDegree of acquiescence by supervisorsPromptness of employer responseSincerity of employer’s actionsExtent 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.
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?