##501 – BIAS: THE EVOLVED LAW FIRM WORK ENVIRONMENT

LESSONS FROM THE STARSHIP ENTERPRISE

Presented by: Jacquiline M. Wagner, Esq.

For almost twenty years, Jacquiline Wagner, Esq. has enjoyed the honor of training hundreds of employers and supervisors in an assortment of industries in both private and public sector concerning all aspects of Human Resources law, including sexual harassment prevention, I-9 procedures, no-match letter protocols, alternative work schedules, reasonable accommodations, evolved leadership, cultural diversity awareness, sensitivity, and a wide array of continuing education topics. Currently, Ms. Wagner is the principal sexual harassment prevention, reasonable accommodations, evolved leadership and continuing education trainer on behalf of the Office of General Counsel for the Los Angeles Unified School District, where she is Assistant General Counsel.** Ms. Wagner also the proud President of JMW Seminars, where we specialize in all varieties of HR legal and leadership training, including live-audience, e-learning, webinar and recorded presentations. I invite you to visit my "grassroots" (and very skeletal, yet burgeoning) website, www.jmwseminars.com. **(LAUSD does not sponsor, endorse or assume liability for JMW Seminars. No public funds, materials, resources, supplies or equipment are used for or by JMW Seminars.)

DDISCLAIMER The following materials and accompanying Access MCLE, LLC audio CLE program are for instructional purposes only. Nothing herein constitutes, is intended to constitute, or should be relied on as, legal advice. The author expressly disclaims any responsibility for any direct or consequential damages related in any way to anything contained in the materials or program, which are provided on an “as-is” basis and should be independently verified by experienced counsel before being applied to actual matter. By proceeding further you expressly accept and agree to Author’s absolute and unqualified disclaimer of liability..

OObjectives 2 AR 600-20, Army Command Policy 3 Emotional Intelligence 6 Self-Awareness and Empathy 8 The Prime Directive 15 Harassment 16 What Is The Law? 18 Why Concern Ourselves With Workplace Harassment? 21 Strict Liability 25 Who is a “Supervisor”? 26 Liability for Harassment 30 The Investigation 34 Protocol for Addressing Complaints 35 Outcomes of Investigation 39 Appropriate Corrective Action 40 Avoiding Retaliation Complaints 41 Preventing Harassment 42 Personal Behavior Check-List 45 Georgia’s Lawyer's Creed 46

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Objectives • Understand and Appreciate Concept of

Evolved Law Firm Work Environment • Define and Describe different types of

harassment • List consequences of engaging in

unlawful harassment. • Recent Supreme Court Holdings • Understand the protocol for addressing

complaints. • Know how to prevent harassment.

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• Goal: formulate, direct and sustain a comprehensive effort to maximize human potential based on professionalism, fairness, justice and equity.

• Emphasis on: teamwork, mutual respect, loyalty, and shared sacrifice

AR 600-20, Army Command Policy

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• Sensitivity training is a mandatory annual training requirement for all investigative personnel to emphasize importance of compassion, tact and empathy in delicate situations.

• art of diplomacy is core to Army leadership

Command Training Guidance Oct 2002

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• Four individual values identified to strengthen and support the ethical code: commitment, competence, candor and courage.

• Competence is proficiency in required professional knowledge, skills and attitude.

AR 600-100, Army Leadership

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• to be successful, must be “emotionally intelligent”:

Self-awareness Impulse control Persistence Zeal Self-motivation Empathy Social deftness.

“Emotional Intelligence,” Daniel Goleman

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• Two most important characteristics: ~self-awareness ~empathy.

Emotional Intelligence (cont)

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• Self-awareness, “know thyself,” is an awareness of one’s own feelings as they occur.

• An on-going attention to one’s own internal state.

• Awareness of emotions is the fundamental base on which to build emotional control and empathy.

Self-Awareness

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• Empathy builds on self-awareness; the more we are aware of our own emotions, the more skilled we are in reading the feelings of others.

• Leaders who have no idea what they feel themselves, are at a complete loss to identify with anyone else’s feelings. They are emotionally tone-deaf.

Empathy

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• The key to intuiting another’s feelings is in the ability to read non-verbal channels: tone of voice, gesture, facial expression.

Empathy (cont)

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Klingons, Romulans, and Vulcans

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“Infinite Diversity in Infinite Combinations”

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The Prime Directive

No interference in another society’s development Lack of racial, gender or other bias

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“Harassment”=

The Ultimate

INTERFERENCE

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• unwelcome behavior

• based on particular characteristic of target

• Target cannot

perform job

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What Is The Law? It is illegal to

harass an employee, applicant, or independent contractor because of:

• Race • National Origin • Religious Creed • Disability • Medical Condition • Marital Status • Sex • Age • Sexual Orientation • Gender Identity • Genetic Background

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“Sex” includes:

• Pregnancy • Childbirth • Breastfeeding • Gender (Can include caregiver status.) • Gender-related appearance and

behavior whether or not stereotypically associated with the person’s assigned sex at birth.

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Race, Religious Creed, Disability, Medical Condition, Marital Status, Sex, Age or Sexual Orientation, Genetic Information, Gender Identity Includes: ► A perception that the person has any of

these characteristics; OR ► The person is associated with a person

who has these characteristics, or is perceived to have these characteristics

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Why Concern Ourselves With Workplace Harassment? Because it’s the law… • Title VII, Civil Rights Act • Specific State Acts

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Why Concern Ourselves With Workplace Harassment?

Because there may be significant personal consequences… • You could be accused in an investigation • You could be subject to disciplinary action • Your career could be ruined • You could be part of a civil lawsuit • You could be personally liable • Or All of the Above

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Because it affects the work environment in many ways such as:

•Morale problems •Tarnished reputations •Decreased trust •Reduced productivity •Increased workload •Turnover/recruiting costs

Why Concern Ourselves With Workplace Harassment?

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Harassment can take many forms: • Harassment may be verbal, from

request for sexual favors, comments, teasing, threats, jokes

• Harassment may be physical from unwanted touching, groping, kissing to nonconsensual sex

• Harassment can be non-verbal, from lewd gestures, leering to circulating sexual materials

• Harassment may be electronic Page 24

Strict Liability • The Firm is strictly liable for supervisor’s harassment • Even if the Firm is not aware of the

conduct • Even if the Firm disciplines after

becoming aware, or • Possibly, even if after hours and/or off

premises Page 25

Who is a “Supervisor”?

• “Supervisor” does not have to be a high-level employee – Partner, Shareholder, etc.

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Per Burlington Industries, Inc. v. Ellerth & Faragher v. Boca Raton, under Title VII, Employer liable for harassment if: CCo-Worker Alleged Harasser Employer knew of or should have known of harassment & failed to take remedial action

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Vance v. Ball St. Univ.

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Vance v. Ball St. Univ. (cont)

Supervisor Alleged Harasser (1) “tangible employment action”; or (2) Employer fails to prove the Ellerth/Faragher defense

Supervisor

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• Vance filed claim in federal court alleging harassment

• Alleged harasser did not have the power to hire, fire, demote, promote, transfer, or discipline

• Vance argued that an employee is a supervisor if the employee has the ability to control another employee’s day to day actions

• Employer argued that the employee had to have the ability to take tangible employment actions in order to qualify as a supervisor for the purposes of Title VII

• The federal court granted summary judgment

• Seventh Circuit affirmed, supervisor status requires “the power to hire, fire, demote, promote, transfer, or discipline an employee.”

• Supreme Court - “employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.”

• Tangible employment actions- “effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”

• Explicit rejection of broad definition of “supervisor” 29

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Liability for Harassment by Coworkers & Non-Employees

• Supervisor knew or should have known of the conduct, AND

• Failed to take immediate and appropriate corrective action (investigate and discipline)

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Univ. of Texas Southwestern Med. Ctr. v. Nassar 133 S. Ct. 2517; 186 L. Ed. 2d 503 (2013)

• Facts: Plaintiff doctor claimed that he was

harassed based on race & religion. After complaining, his job offer at hospital was withdrawn.

• Holding: In Title VII retaliation claims, Plaintiff must show “but for” causation.

• 42 U.S.C. § 2000e-2(m) vs. § 2000e-3 Page 31

Don’t…

• Assume it’s okay because the victim did not complain

• Assume that the complaint is bogus because the victim delayed in reporting

• Assume it’s okay because the victim played along

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Don’t…

• Try to discourage or blame the victim

• Assume any discussion is “off the record”

• Try to handle it yourself

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The Investigation • Ask about who, what, when , where, why,

and how often; get the context for the allegation

• Interview Complainant • Interview Alleged Harasser • Interview Potential Witnesses • Follow-Up Interviews • Written Statement Document everything!

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Protocol for Addressing Complaints

• Acknowledge the seriousness.

• Listen carefully to the complaint, without making judgments about truth or validity of allegations.

• Ensure as much confidentiality as possible, but don’t guarantee it.

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• Emphasize that the first desired response is to seek an informal remedy and resolution if possible and appropriate.

• Let the person know that the Firm has both informal and formal procedures for dealing with allegations of harassment.

Protocol for Addressing Complaints

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• Ask what the person wants to be done.

• Assure no retaliation

• If uncertain, let the person know that you definitely will respond but that you want to consult with appropriate parties.

• Follow-up immediately.

Protocol for Addressing Complaints

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Protocol for Addressing Complaints

• Interviewing alleged harasser – Remain calm – Focus on the facts – Encourage confidentiality – Do not tolerate retaliation

• Interviewing witnesses – Reassure witness as much confidentiality as

possible. Encourage confidentiality. – Assure no retaliation for participation

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Outcomes of Investigation • Inconclusive Evidence

– Remind everyone about policy – Explore non-punitive solutions (transfers,

scheduling, training, monitoring)

• Harassment Did Occur – Determine what appropriate action to take – Advise victim and harasser of determination – Follow up

• No Finding of Alleged Action – Confirm that there were no other complaints – Confirm whether complainant is satisfied – Follow up

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Appropriate Corrective Action

• Discipline: verbal counseling up to termination

• Proportional to seriousness of conduct • Reasonably calculated to end

harassment • Discourage harasser and others

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Avoiding Retaliation Complaints

• Control emotions and avoid “knee jerk” reactions

• Give them more than enough rope on performance issues

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Supervisors’ Responsibilities in Preventing Harassment

• Inform all employees that harassment is prohibited by Firm policy and is illegal.

• Educate employees and distribute Firm policies on harassment.

• Encourage an open door policy • Do not condone the conduct

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Warning Signs

• Changes in work habits, behaviors or appearance

• Increase in absenteeism • Recurring health problems

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Take Responsibility!

• Respect each person • Think before you speak • Apologize if you offend someone • Avoid joking about sensitive topics

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Use a Personal Behavior Check-List • Does this behavior contribute to getting our

goals/work accomplished?

• Could this behavior be interpreted as harmful or harassing by an on-looker?

• Would I engage in this behavior if it were going to be published in the Firm’s newsletter/website?

• Would I engage in this behavior if my significant other or my children were present?

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“To my clients, I offer faithfulness, competence, diligence, and good judgment. I will strive to represent you as I would want to be represented and to be worthy of your trust.

To the opposing parties and their counsel, I offer fairness, integrity, and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute a dignified one.

To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to the search for justice.

To my colleagues in the practice of law, I offer concern for your welfare. I will strive to make our association a professional friendship.”

To the profession, I offer assistance. I will strive to keep our business a profession and our profession a calling in the spirit of public service.

To the public and our systems of justice, I offer service. I will strive to improve the law and our legal system, to make the law and our legal system available to all, and to seek the common good through the representation of my clients.

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