1. Abusive Workplace Behavior: Bad for SEIU 1000, Worse for You
Presented By:
Joseph L. Beachboard

2. Dignity & Respect Expectation of SEIU 1000 Expectation of Employees
Expectation of Courts
Expectation of Juries

3. Workplace Harassment Prohibited by federal and state law/SEIU policy
It’s not just about sex – all protected classes are entitled to protection from harassing behavior

4. Protected Classes Sex Race Citizenship Religion National Origin
Marital Status
Sexual Orientation
Color
Disability
Age
Medical Condition
Military Status

5. Workplace Harassment – Employer Impact
High employee turnover
Absenteeism
Lowered concentration at work
Lowered morale/teamwork/cooperation
Time spent talking about/dealing with sexual harassment instead of performing work

6. Workplace Harassment – Employer Impact (Cont’d)
Time-consuming investigations
Distrust among employees
Adverse publicity
Costs to the employees involved; money out of their pocket

7. Case Study Issa v. FedEx Ground (Oakland, CA)
$61 million / $1 million individually
$12 million / $250,000 individually

8. Hostile Environment Harassment
Three key elements
Unwelcome conduct
Based on a protected category
Unreasonably interferes with employee’s work performance or creates an intimidating, hostile or offensive work environment

9. Hostile Environment Harassment
Intent is irrelevant
Need not complain

10. Examples Of Unacceptable Workplace Behavior That May Lead To Harassment Litigation

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

12. Examples Of Unacceptable Non-Verbal Behavior
Posting offensive materials on walls or bulletin boards
Circulating offensive s
Sexual Harassment
Discrimination/Harassment

15. Non-Verbal Communication
When communicating verbally, not just what you say but how you say it and to whom. Remember – when you talk in person, 80% of what you say is in tone and body language.
Harassment is harassment, regardless of how it’s communicated – face-to-face, , texting, Facebook, Twitter, LinkedIn, MySpace, YouTube – it makes no difference.
Be careful with social media – you don’t always know who your audience is, hard for recipient to assess tone, can’t see body language – easy for comments to be misconstrued.

16. Social Media
Facebook – more than 500 million active users; average user has 130 friends (Sept 2010)
Blogs – more than 400 million active blogs (Sept 2010)
Twitter – more than 105,000,000 registered users tweeting an average of 55 million tweets per day; new users signing up at the rate of 300,000 per day (Sept 2010)

17. It’s Not Just What You Speak
RULE – If you would not say or show something to someone face-to-face, don’t communicate it in any other way.

18. Textual Harassment
Sending offensive or inappropriate text messages to co-worker (i.e., boss sending flirty text to subordinate, asking for dates)
46 states (including CA and NY) have laws that refer to electronic forms of communication in stalking or harassment laws. A single text message in CA is enough to meet the definition of textual harassment if the message threatens physical harm or is obscene.

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

20. Examples Of Unacceptable Physical Behavior
Continually brushing up against another
Touching clothing, hair or body
Offensive pranks
Massaging, hugging or kissing
Offensive gestures
Sexual Harassment
Discrimination/Harassment

21. Where Does The Harassment Occur?
Conduct outside the “workplace”
Liability for harassment does not stop at the workplace door.
In fact, liability for harassment may attach to unlawful conduct that occurs in any location found to be an extension of the workplace.

22. Case Study Myers v. Trendwest Resorts, Inc. (CA Court of Appeal)
Alleged harassment occurred off-site and arose during a relationship that had evidence of becoming consensual.
Court held employer can be liable for sexual harassment even when the alleged misconduct occurs away from the workplace.

23. Anyone in any type of business relationship with anyone else.
Who Can Harass?
Anyone in any type of business relationship with anyone else.

24. Workplace Bullying

25. TEST???

26. Who Is A Bully?
“Workplace bullying is repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms:
Verbal abuse;
Threatening, humiliating or offensive behavior/actions; and
Work interference – sabotage – which prevents work from getting done.”

27. Who Is A Bully? (Cont’d) Workplace Bullying
Is driven by perpetrators’ need to control the targeted individual(s);
Is initiated by bullies who choose targets, timing, place and methods;
Escalates to involve others who side with the bully, either voluntarily or through coercion; and
Undermines legitimate business interests when bullies’ personal agendas take precedence over work itself.

28. Bullying Statistics
44% of American workers have worked for a supervisor or employer who they consider abusive.
More than 50% of American workers have been a victim of or heard about supervisors/employers behaving abusively by making sarcastic jokes/teasing remarks, rudely interrupting, publicly criticizing, giving dirty looks to, yelling at subordinates, or ignoring them as if they were invisible.
64% of American workers believe that an abused worker should have the right to sue to recover damages.

29. U.S.A. (Now) No workplace anti-bullying law
Harassment based on protected category
Intentional infliction of emotional distress

30. Case Study EEOC v. NEA of Alaska (9th Circuit)
Male supervisor subjected female employees to frequent episodes of loud, hostile, profane, and often public shouting, with little or no provocation.
Court held conduct need not be “facially sex-specific.”
Employer ultimately agreed to pay $750,000 to settle lawsuit. (May 2006)

31. Case Study Raess v. Doescher (Indiana)
First “bullying” case involving Indiana cardiac surgeon
Facts
I’ll “smack the shit” out of you
Charging employee with clinched fists
Backing employee against the wall
You’re over. You’re history. You’re finished.

32. Case Study Raess v. Doescher (Indiana)
Alleged intentional infliction of emotional distress and assault
First admission of expert testimony from “bullying expert”
$325,000 plaintiff’s verdict on assault claim

33. Healthy Workplace Bills
13 states in the past years have attempted to pass, “Healthy Workplace Bills,” which makes it illegal to subject an employee to an abusive work environment.
The proposed California Assembly Bill, AB 1582, would have provided legal recourse to employees who suffered workplace bullying or were otherwise subjected to an abusive work environment.

34. Retaliation

35. Retaliation Claims On The Rise
10,000
20,000
30,000
40,000
50,000
60,000
70,000
80,000
90,000
100,000 FY
2006
2007
2008
2009
Total
Race
Sex
Nat’l Origin
Religion
Retaliation
Age
Disability
EPA

36. Retaliation Claims On The Rise
In 2009, retaliation moved up to tie with race discrimination as the most common type of charge filed with the EEOC
36 percent of the 93,277 federal workplace discrimination charges filed alleged retaliation

37. Key Elements “Protected activity” “Adverse action”
Causal link between the two

38. Juries are predisposed to find retaliation.
Escalated Risk
Juries are predisposed to find retaliation.

39. Case Study Stevens v. Vons (CA Court of Appeal) $18.3 million verdict
Worker claimed that he was fired in violation of state law after reporting he had been sexually harassed by his female supervisor
Jury found the company guilty of illegal retaliation

40. Case Study Blue v. IBEW Local 159 (Wisconsin) $206,000 verdict
Worker claimed that she was subjected to harassment and retaliation after she spoke in defense of an African American electrician in a discrimination action

41. Case Study Dixon v. Int’l Brotherhood of Police Officers (1st Circuit)
$2.2 million verdict
Worker’s claims stemmed “from an ugly incident of verbal abuse of a female police officer by her fellow male officers on a union-sponsored bus trip”
A campaign of retaliation followed

42. Personal Liability

43. Personal Liability – Are You At Risk?
You can be sued for workplace harassment
Outside “course and scope of employment” protection
No insurance protection available

44. The Golden Rule
Treat people fairly and equally – just as you would want to be treated.

45. Abusive Workplace Behavior: Bad for SEIU 1000, Worse for You
Presented By:
Joseph L. Beachboard