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LIMITING YOUR RISK FROM ANGER, HARASSMENT BASED EMPLOYMENT CLAIMS 2010 GULF STATES ASC CONFERENCE RITZ CARLTON HOTEL, NEW ORLEANS, LOUISIANA JUNE 15, 2010.

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Presentation on theme: "LIMITING YOUR RISK FROM ANGER, HARASSMENT BASED EMPLOYMENT CLAIMS 2010 GULF STATES ASC CONFERENCE RITZ CARLTON HOTEL, NEW ORLEANS, LOUISIANA JUNE 15, 2010."— Presentation transcript:

1 LIMITING YOUR RISK FROM ANGER, HARASSMENT BASED EMPLOYMENT CLAIMS 2010 GULF STATES ASC CONFERENCE RITZ CARLTON HOTEL, NEW ORLEANS, LOUISIANA JUNE 15, 2010 Presented By: Armin J. Moeller, Jr. BALCH & BINGHAM, LLP 401 Capitol Street, Suite 200, Jackson, MS 39201 amoeller@balch.com Tel. 601-965-8156 Fax: 888-594-5405

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3 WHAT IS ANGER? –Strong Feeling of Displeasure/Antagonism; Rage –Intense Emotional State Induced by Displeasure –Identifies the Reaction, not Intensity or Justification –Anger Describes Displeasure but not Loss of Self Control –Rage Suggests Loss of Emotional Self Control

4 WHAT IS HARASSMENT? –To Harass persistently annoy –Create an unpleasant/hostile situation for someone especially by uninvited, unwelcome verbal or physical conduct –To Worry and Impede by Repeated Conduct –Sexual Harassment – Uninvited and Unwelcome Verbal/Physical Behavior of a Sexual Nature Especially by a Superior to a Subordinate (1975)

5 EMPLOYER'S DUTY –Nondelegable Duty to Provide Safe Working Conditions for Employees –Must Provide Competent Coworkers –Reckless/Vicious Disposition = Incompetence –Employer Liable for Lack of Reasonable Care in Selection of Employee with Propensity for Viciousness Duty of care in selecting employees

6 EMPLOYER'S DUTY – Continued –Negligent Hiring Duty of care to hire competent/nonvicious employees Breach of duty Injury/damages to employee(s) –Negligent Training or Supervision Most states recognize claim Failure to adequately train or supervise Resulting injury to coworkers or public –Negligent Retention Knew or should have known employee unfit Injury to coworkers under circumstances type of injury foreseeable –OSHA Duty Safe, healthful workplace free of recognized hazards

7 ANGER/HARASSMENT BASED CONDUCT – WHAT'S ILLEGAL –Title VII, Age Discrimination in Employment Act, Americans with Disabilities Act –Prohibit Race, Sex, National Origin, Religion, Age, Disability Based Harassment –Employer Liability Supervisors – Quid Pro Quo Coworkers – Hostile working environment Affirmative defenses –Policy for complaints –Prompt remedial action to end harassment

8 WHAT IS NOT ILLEGAL – OFFICIALLY –Workplace Bullying –"Being Mean Just for the Sake Of Being Mean – In the Workplace" –Title VII/Current Law Not a "General Civility Code" Oncale V. Sundowner Offshore Services, Inc. (1998) –Three Times More Common than Sexual Harassment? –Fifteen States Considering Legislation –California Healthy Workplace Bill Unlawful Employment Practice to "Subject an Employee to an Abusive Work Environment." Abusive Work Environment – Workplace Where an Employee is Subjected to Abusive Conduct that is so Severe that it Causes Physical or Psychological Harm to the Employee

9 WHAT IS NOT ILLEGAL – OFFICIALLY Continued EU – Framework Agreement – Prohibits Workplace Harassment/Violence –Provides complaints procedure/investigations/remedial action –"Harassment" occurs when one or more workers/managers repeatedly/deliberately abused, threatened and/or humiliated in circumstances related to work. –Includes abuse, threats and humiliation that occur inside/outside workplace –Harassment when "repeatedly and deliberately abused, threatened and/or humiliated in circumstances relating to work” –Violence occurs when worker/manager "assaulted in circumstances relating to work" –Purpose/effect may be to violate individual's dignity, effect his/her health or create a hostile work environment What is Wrong with Prohibiting Workplace Bullying ? –Are your supervisors reluctant to evaluate/discipline now?

10 SEVERE BULLYING – WORKERS' COMPENSATION/AMERICANS WITH DISABILITIES ACT –Mental/Mental Claim "Clear evidence" standard Causal connection between employment and injury –Post Traumatic Stress Syndrome/ “Eggshell” Employee Reduce employee's exposure to traumatic stress inducing events –Interactive Process Knowledge of impairment/limitation? Reasonable accommodation

11 –Assault A threat or attempt to inflict offensive physical contact or bodily harm that places a person in danger or apprehension of harm/contact –Battery Act of battering/beating Offensive touching/use of force on person without their consent FROM ANGER TO RAGE TO VIOLENCE

12 –Harassment Free Environment? Only if based on prohibited characteristics Retaliation? Whistleblowers? Participation? Opposition? –Anger Free Environment? WHAT IS AN EMPLOYER'S DUTY?

13 PROACTIVE MEASURES TO LIMIT RISK –Recruiting/Hiring background investigations –Candidate Profile Assessment testing for personal characteristics service orientation integrity team work discipline racial/ethnic/cultural acceptance emotional stability drug/alcohol use safety interpersonal skill self confidence multitasking psychological toughness

14 PROACTIVE MEASURES TO LIMIT RISK Continued Code of Conduct –Workplace civility code? –Values statement Educating/Training Workforce to Expectations –Do unto others what expect them to do unto you. –Culture of respect, recognition, communication, teamwork Training Our Supervisors –Thou shall not create/foster an abusive work environment –Thou shall not tolerate an environment that creates one –Eliminating abusive conduct enforcing the Code of Conduct recognizing violation counseling/coaching to civility actions reasonably calculated to end abusive conduct communication and interpersonal conflict resolution Values

15 PROACTIVE MEASURES TO LIMIT RISK Continued Abusive Conduct Investigations –Natural extension of sexual harassment investigations? –Abusive workplace conduct complaints policy. complaint investigation findings/determination communication remedial action – reasonably calculated to end abusive conduct

16 PROACTIVE MEASURES TO LIMIT RISK Continued Remedial Options –Mandatory EAP Referral/Leave –Anger management program – abuser's expense –Personal coach/counselor – abuser's expense –Transfer of Abuser/Abused –Suspension without Pay –Demotion –Termination Objective - End Abusive Conduct –Respect, Recognition, Communication, Self-Control –Living Our Values, the Code of Conduct The Law Firm Example –A type personalities vs. collegiality, camaraderie, professionalism

17 Armin J. Moeller, Jr. Phone: 601-961-9900 Fax: 601-961-4466 amoeller@balch.com 401 East Capitol Street, Suite 200 Jackson, Mississippi 39201


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