1. w w w. j a c k s o n k e l l y. c o m Jay E. Ingle 175 East Main Street, Suite 500 Lexington, Kentucky 40507 Phone: (859) 255-9500 jingle@jacksonkelly.com www.jacksonkelly.com WORKPLACE HARASSMENT – WHAT SUPERVISORS MUST KNOW BLUEGRASS WORKFORCE INVESTMENT BOARD WORKFORCE SUMMIT

2. w w w. j a c k s o n k e l l y. c o m 2 THE LAW

3. w w w. j a c k s o n k e l l y. c o m 3 THERE IS MORE THAN JUST SEXUAL HARASSMENT Sexual harassment is not the only unlawful harassment –Race/color –National origin –Disability/blindness –Religion –Age –Sexual orientation –And more!

4. w w w. j a c k s o n k e l l y. c o m 4 IT CAN TAKE MANY FORMS Heterosexual harassment is not the only form of sexual harassment –Homosexual harassment –Bisexual harassment –Non-sexual harassment (if based on gender) The accusers are not always women—and the accused are not always men –Just the most common scenario

5. w w w. j a c k s o n k e l l y. c o m 5 LEGAL PROHIBITIONS AGAINST DISCRIMINATION Kentucky Civil Rights Act Title VII of Civil Rights Act of 1964 (“Title VII”) –Race, Color –Religion –National Origin –Sex Fairness Ordinances Age Discrimination in Employment Act (“ADEA”) –Age (Over 40)

6. w w w. j a c k s o n k e l l y. c o m 6 MORE LEGAL PROHIBITIONS AGAINST DISCRIMINATION Pregnancy Discrimination Act (“PDA”) Veterans Act –Veteran Status Americans with Disabilities Act (“ADA”) –Disability Harassment or Discrimination on Any of These Bases Is Illegal –Sexual and Racial Harassment are the most common

7. w w w. j a c k s o n k e l l y. c o m 7 DEFINING SEXUAL HARASSMENT “Unwelcome sexual conduct submission to which is made either explicitly or implicitly a term or condition of an individual’s employment.” May include “unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.”

8. w w w. j a c k s o n k e l l y. c o m 8 COMMON TYPES OF SEXUAL HARASSMENT Quid Pro Quo –Using the power of your position to obtain sex Hostile Environment –Making the workplace hostile to a protected class –This goes for all types of harassment Third-party sexual harassment –Vendors, contractors, customers

9. w w w. j a c k s o n k e l l y. c o m 9 QUID PRO QUO HARASSMENT Means “this for that” Occurs when “submission to or rejection of [unwelcome sexual conduct] is used as the basis for employment decisions affecting that individual.” Involves supervisory conduct

10. w w w. j a c k s o n k e l l y. c o m 10 QUID PRO QUO HARASSMENT Must involve a tangible adverse employment action, i.e., a significant change in employment status, such as: –Hiring –Firing –Failing to promote –Reassigning with significantly different responsibilities –Significant change in benefits

11. w w w. j a c k s o n k e l l y. c o m 11 QUID PRO QUO HARASSMENT Reward if sex is given—the carrot Punishment if sex is not given—the Stick Unfulfilled threats not “quid pro quo.” –Same probably true of unfulfilled promises –But both may be “hostile environment” harassment

12. w w w. j a c k s o n k e l l y. c o m 12 HOSTILE ENVIRONMENT HARASSMENT According to the law it is: “Unwelcome sexual conduct that unreasonably interferes with an individual’s job performance or creates an intimidating, hostile or offensive working environment.”

13. w w w. j a c k s o n k e l l y. c o m 13 HOSTILE ENVIRONMENT HARASSMENT Must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” –If more severe (e.g. sexual assault), need not be as pervasive –If less severe (e.g. sexual jokes), must be more pervasive Must be unwelcome.

14. w w w. j a c k s o n k e l l y. c o m 14 IS CONDUCT “SEVERE” ENOUGH TO CREATE A HOSTILE ENVIRONMENT? Two-Part Test: Subjective –Did this person actually find the conduct offensive? Objective –Would a reasonable person find the conduct offensive?

15. w w w. j a c k s o n k e l l y. c o m 15 SEXUAL HARASSMENT THAT NEED NOT BE PERVASIVE Rape or forced sex Other sexual assault –Forced kiss –Grabbing breast or crotch Coerced sex or other contact –Physical contact without force

16. w w w. j a c k s o n k e l l y. c o m 16 SEXUAL HARASSMENT THAT REQUIRES MORE PERVASIVE ACTIONS Other unwelcome touching –Pat on butt –Hand on knee under table –Candy in breast pocket –Hug Unwelcome propositions –Suggesting sex –Requesting a date –Flirting after being asked to stop

17. w w w. j a c k s o n k e l l y. c o m 17 LESS SEVERE, MORE PERVASIVE ACTIONS Personal Sexual Comments –I bet you’d be good in bed –If I were your husband, I’d never spend a night away from home –Great legs (or other body parts) Other personal comments –Stereotyped comments –Derogatory slurs

18. w w w. j a c k s o n k e l l y. c o m 18 EVEN LESS SEVERE, MORE PERVASIVE ACTIONS Demeaning general comments –Little lady, Missie –Are you gonna let a woman beat you in sales? –We need some younger blood in here –He’s light in the loafers –You’re retarded

19. w w w. j a c k s o n k e l l y. c o m 19 REQUIRES PERVASIVE ACTION TO BE UNLAWFUL Conversations, emails and visuals –Off-color jokes –Sexual stories –Sexual puns –Inappropriate cartoons or photos –Video clips Belittling names for women –Babe, honey, girl, sweetheart

20. w w w. j a c k s o n k e l l y. c o m 20 SAME-SEX HARASSMENT –Recognized by both state and federal law –Plaintiff must show that harassment directed to them was “because of” their gender by presenting evidence that: the harasser used sex-specific/derogatory terms demonstrating general hostility to the gender or the harasser treated one gender worse than another

21. w w w. j a c k s o n k e l l y. c o m 21 EMPLOYER LIABILITY Depends on who is doing the harassment, according to both Title VII and Kentucky law –Supervisors – different standards depending on whether adverse employment action taken. If none, depends on employer’s reasonableness in taking remedial action; –Co-employees - employer liable only if it (management) knew or should have known and failed to take prompt, remedial action; –Non-employees (customers, delivery men) - employer liable only if management knew or should have known and failed to take prompt, remedial action.

22. w w w. j a c k s o n k e l l y. c o m 22 Case Studies – You Be the Judge

23. w w w. j a c k s o n k e l l y. c o m 23 IS IT HARASSMENT? – Case One Employee filed suit against employer for same-gender hostile environment and sexual harassment Evening supervisor (male) began physically grabbing employee’s (male) body parts, calling him sexually explicit names, and making sexual and lewd comments/requests to employee. If other employees were around, supervisor would make the comments loudly Supervisor never suggested that the employee’s job would be in jeopardy if he didn’t comply

24. w w w. j a c k s o n k e l l y. c o m 24 IS IT HARASSMENT? – Case One Employee reported this supervisor’s behavior to the midnight supervisor. Midnight supervisor gave the employee a copy of the company’s harassment policy and informed the employee she would report the conduct to the Manager. Midnight supervisor told the Manager about it, and his response was he did not care what the supervisor said or did as long as the acts were not done on company time. After hearing this, employee testified he made no effort to pursue the matter because he felt no one cared.

25. w w w. j a c k s o n k e l l y. c o m 25 IS IT HARASSMENT? – Case One Employee was then hospitalized for a few days for heart palpitations. The treating physician testified the problems could be related to caffeine intake and stress and the doctor’s notes indicated the employee reported he had lots of conflict at work causing anxiety and stress. Employee did not ever state he was being sexually harassed. Upon returning to work, supervisor’s conduct continued and employee ultimately sought medical help for depression. Employee was off work for several weeks during this period and then upon his return to work, employee finally reported the supervisor’s behavior to the Manager. Supervisor’s conduct stopped.

26. w w w. j a c k s o n k e l l y. c o m 26 IS IT HARASSMENT? – Case One Thoughts????

27. w w w. j a c k s o n k e l l y. c o m 27 IT IS HARASSMENT – Case One Jury returned $75,000 verdict Court of Appeals affirmed –Same gender sexual harassment is cognizable under KCRA –Evidence was sufficient to support jury finding

28. w w w. j a c k s o n k e l l y. c o m 28 IS IT HARASSMENT? – Case Two Former employee brought gender and disability discrimination action against employer after her contract was terminated. Employee was hired as part-time faculty member. Three years later, employee believed she could obtain her doctorate before the next school term and applied for a full-time, tenured track position. Employee did not get that job, stayed on part-time, but failed to get her doctorate. A year later, employee again applied for a full time position and represented her doctorate degree was imminent.

29. w w w. j a c k s o n k e l l y. c o m 29 IS IT HARASSMENT? – Case Two Employer agreed to hire employee full-time with the contract to be executed each year of a five year probationary period during which employee would obtain her doctorate by the fifth year. Shortly thereafter, employee was diagnosed with breast cancer and had several surgeries. Employee tried re-negotiating her contract to remove the time frame when she was to obtain her doctorate degree but was denied.

30. w w w. j a c k s o n k e l l y. c o m 30 IS IT HARASSMENT? – Case Two A year later, employee was successful in re-negotiating the contract giving her another year to complete the degree and if not her employment would be terminated. Employee asked for another extension but was denied, and subsequently her employment was terminated. Employee brought suit

31. w w w. j a c k s o n k e l l y. c o m 31 IS IT HARASSMENT? – Case Two Thoughts????

32. w w w. j a c k s o n k e l l y. c o m 32 IT IS NOT HARASSMENT – Case Two Employer initially filed summary judgment motion which was denied After years of discovery, employer renewed its motion for summary judgment and the trial court granted it Court of Appeals affirmed, finding: –That the employee failed to establish a prima facie case for discrimination because she was not qualified for the position; and –That similarly situated non-protected employees were not treated more favorably.

33. w w w. j a c k s o n k e l l y. c o m 33 IS IT HARASSMENT? – Case Three Former State Police female cadet filed suit against State Police and associated individuals alleging sexual harassment, constructive discharge, and intentional infliction of emotional distress. While at the training academy, the female cadet was subjected to an environment similar to military basic training. The female cadet alleges that one of the instructors shouted “do you have on a sports bra. You disgust me.”

34. w w w. j a c k s o n k e l l y. c o m 34 IS IT HARASSMENT? – Case Three She also alleged that instructors used profanity, cadets were not allowed to sleep or rest for 24 hours, and that cadets were required to share meal table with people bleeding. The female cadet resigned and filed a complaint with the Kentucky Commission on Human Rights, alleging she had been sexually harassed.

35. w w w. j a c k s o n k e l l y. c o m 35 IS IT HARASSMENT? – Case Three Thoughts????

36. w w w. j a c k s o n k e l l y. c o m 36 IT IS NOT HARASSMENT – Case Three Commission found no probable cause and the female cadet filed a civil action Trial court granted motion for summary judgment, finding insufficient evidence to sustain her claims. The trial court noted that if the female cadet’s allegations were true, that such treatment did not establish a violation of her rights. She had not alleged any disparate treatment based on gender.

37. w w w. j a c k s o n k e l l y. c o m 37 IT IS NOT HARASSMENT – Case Three The trial court further noted that it is undisputed that many women have successfully completed the KSP academy and that the alleged behavior is not outside the bounds of acceptable conduct in a military-style training program in which the cadets are required to be subjected to stressful situations Court of Appeals affirmed the trial court’s decision, finding the alleged misconduct to not be severe or pervasive enough to establish her claim for sexual harassment based on a hostile or abusive work environment

38. w w w. j a c k s o n k e l l y. c o m 38 Prevention, Prevention, Prevention

39. w w w. j a c k s o n k e l l y. c o m 39 A GOOD POLICY

40. w w w. j a c k s o n k e l l y. c o m 40 ELEMENTS OF AN ANTI-HARASSMENT POLICY Prohibition Definition Reporting mechanism Resolution

41. w w w. j a c k s o n k e l l y. c o m 41 PROHIBITION The employer prohibits and will not tolerate harassment on the basis of: ▪ sex▪ race ▪ age▪ color ▪ disability▪ national origin ● Employees engaging in harassment will be subject to discipline, up to and including discharge

42. w w w. j a c k s o n k e l l y. c o m 42 DEFINITION Quid pro quo sexual and hostile environment harassment: Offensive or inappropriate sexual conduct at work, including unwelcome sexual advances, requests for sexual acts or favors, or other verbal or physical conduct of a sexual nature.

43. w w w. j a c k s o n k e l l y. c o m 43 DEFINITION Hostile work environment harassment: Verbal, visual or physical conduct such as comments, slurs, jokes, making gestures, threats, cartoons, touching or other similar conduct Any comment or action that is gender-based, whether it is sexually oriented or not, or derogatory toward a protected class

44. w w w. j a c k s o n k e l l y. c o m 44 REPORTING HARASSMENT Identifying individuals who will hear complaints of harassment Include at least two options (in case supervisor is involved) Prohibition against retaliation

45. w w w. j a c k s o n k e l l y. c o m 45 RESOLUTION No retaliation for legitimate complaints Confidentiality may not be absolute Appropriate action will be taken if harassment is found to exist

46. w w w. j a c k s o n k e l l y. c o m 46 TRAINING FUNDAMENTALS

47. w w w. j a c k s o n k e l l y. c o m 47 IF EMPLOYEES REMEMBER ONLY THREE THINGS ABOUT HARASSMENT Discourage harassment –Don’t participate in harassing activity Don’t do it Walk away when others do –Say Something to the offender Verbally or in writing Publicly or privately Openly or anonymously –Report the conduct to management or HR

48. w w w. j a c k s o n k e l l y. c o m 48 HOW DO I TELL IF CONDUCT IS UNWELCOME? Only “Yes” means “Yes” Everything else means “No” “No” need not be verbal A clear response avoids confusion

49. w w w. j a c k s o n k e l l y. c o m 49 RULES TO REMEMBER What is welcome to you may not be welcome to others What is welcome from someone else may not be welcome from you What was welcome yesterday may not be welcome today What is welcome in one setting may not be welcome in another setting

50. w w w. j a c k s o n k e l l y. c o m 50 THERE ARE LOTS OF GOOD RULES While every dog gets one bite (if it’s not severe), steps need to be taken to stop it If it persists, it’s probably harassment Mixed messages create confusion

51. w w w. j a c k s o n k e l l y. c o m 51 MORE RULES TO REMEMBER When it stops being welcome, it starts becoming harassment In workplace relationships, beware an imbalance of power Report the relationship if with a subordinate

52. w w w. j a c k s o n k e l l y. c o m 52 WHAT TO DO ABOUT IT Employers must always be alert, aware and pro- active to workplace conduct If management becomes aware of any harassing behavior, it must react quickly and effectively Teach supervisors to bring all complaints to the attention of HR immediately Conduct training

53. w w w. j a c k s o n k e l l y. c o m 53 INVESTIGATING COMPLAINTS

54. w w w. j a c k s o n k e l l y. c o m 54 INVESTIGATING HARASSMENT Consider the complaint and map out a plan –Who will you interview? –What documents do you have? –What documents do you need? –Do you need to get anyone else in management or legal involved? Get ready to document it from beginning to end

55. w w w. j a c k s o n k e l l y. c o m 55 GEEZ, LAWYERS Don’t think information you document is privileged just because you send it to a company lawyer Ask for in-house counsel’s advice if you want the communication to be privileged—or just ask for help Don’t use legal terms: “Our investigation suggests that your conduct was harassing” is better than “you created a hostile work environment.”

56. w w w. j a c k s o n k e l l y. c o m 56 WHO? Who was involved in the action? Who witnessed the allegedly unacceptable action? Who did you interview and what did each person say? From whom do I need to get a written statement?

57. w w w. j a c k s o n k e l l y. c o m 57 WHAT? What did the employee do (or not do)? What policy, practice, rule (but not necessarily law) did the employee violate? What did you do to investigate the problem? What did you do to address the issue?

58. w w w. j a c k s o n k e l l y. c o m 58 WHAT? What documentation exists? –Check and print emails and downloads –Get photos of grafitti and vandalism –Take cartoons, calendars, comic books and the like

59. w w w. j a c k s o n k e l l y. c o m 59 WHAT? What happened to the last employee who did (or didn’t do) the same thing? What else do I need to know that I don’t know already? Don’t be afraid to go back and get more information if you think it might be important (or even if you think it might not be important)

60. w w w. j a c k s o n k e l l y. c o m 60 WHERE? Where did all this happen? Where is all this going? How did we get where we are?

61. w w w. j a c k s o n k e l l y. c o m 61 WHEN? When did significant actions take place? Assess specific dates and times Document timeliness of investigation

62. w w w. j a c k s o n k e l l y. c o m 62 WHY? Why did the employee do (or not do) what he did (or didn’t do)—what is his or her explanation? Why do you not buy his or her story? Why do you believe others over the employee? If you are taking different action than the past, why are you doing it this way now?

63. w w w. j a c k s o n k e l l y. c o m 63 WHY NOW? Why did you decide to terminate the employee now? What triggered the decision to discharge the employee? How long have you tolerated the behavior? What is the difference this time?

64. w w w. j a c k s o n k e l l y. c o m 64 AM I DONE? Is the investigation complete, including written statements from witnesses? Was the employee given chance to explain the problem? Is the proposed action consistent with personnel policies or collective bargaining agreement? Was the employee aware of the rules or standards he or she is charged with violating?

65. w w w. j a c k s o n k e l l y. c o m 65 LEVEL OF DISCIPLINE Does the punishment fit the crime? What is the employee’s length of employment? What do the employee’s past performance appraisals show? Is there any record of discipline or counseling?

66. w w w. j a c k s o n k e l l y. c o m 66 ADDRESSING HARASSMENT THROUGH DISCIPLINE Document oral counseling to make a record--just date and sign it Always give the employee a place to comment and disagree on the action.

67. w w w. j a c k s o n k e l l y. c o m 67 THE BIG PICTURE Make sure that you understand all the factual circumstances leading up to the decision and all the issues surrounding the decision Always put everything in context

68. w w w. j a c k s o n k e l l y. c o m 68

69. w w w. j a c k s o n k e l l y. c o m 69 THE END QUESTIONS? CONCERNS? COMMENTS? THANKS!