Greater Liability for Harassment and Discrimination

Do What I Say AND What I Do

Jennifer Jacobus, PHR-CASan Diego Employers Association

February 28, 2014

What We Already KnowEmployers Must :• Provide a harassment and discrimination free work

environment• Make employment-related decisions based on the job,

i.e., essential functions, skills, abilities• Consider reasonable accommodations when it will not

cause undue hardship• Train your employees—whether required or not

Good News for Employers

Vance v. Ball State University

• Supreme Court narrows definition of “supervisor” for Title VII vicarious liability purposes

What Does This Mean?• Prior to Vance, “supervisor” was defined as:

anyone who has the authority to undertake or recommend important employment decisions such as hiring, firing, or transfer, or he or she has the authority to direct the daily activities of another

• After Vance, only a person with the authority to hire, fire, demote, promote, transfer, or discipline workers qualifies as a supervisor

Why Is This Important?In California, an employer is automatically held liable for the harassing behavior of their supervisors, managers, or any other member of management, whether the employer knew or did not know of the behavior. Under the theory that managers act as agents of the employer, the employer will he held vicariously liable.

Really…Why Is This Important?• Has the potential to reduce liability for companies• Has the potential to reduce liability for supervisors and

managers• Practical Tips:

o Review job descriptionso Audit jobso Train your managers

Retaliation…A B$G DealMcCoy v. Pacific Maritime Assn., • Courts affirmed summary judgment on sexual

harassment and emotional distress • Harassment was not so severe and pervasive to

alter conditions of plaintiff’s employment• Substantial evidence in plaintiff’s favor on the

retaliation claim• $660,000 in economic damages, $540,000 in

emotional distress damages

Retaliation Cont.Moran v. Salasha Enterprises• Plaintiff alleged that boss offered 10% raise if she

performed sexual favors

• Plaintiff declined, boss got angry, threatened to fire her; 30 days later she was terminated “at-will”

o $1,000,000 in emotional distresso $250,000 in punitive damageso $800,000 in attorneys fees

Retaliation Cont.Westendorf v. West Coast Contractors• Crude and offensive remarks did not create a

hostile work environment under Title VII wheno Repeatedly inquired if plaintiff was intimidated by

Double D breastso Suggested weekly that plaintiff wear a “French Maid”

outfit to worko Made sexual comments about other women in the

office

What’s the Trend?Court interpretations:

• Courts are becoming more literal in their interpretations of sexual harassment

• Harassment must be “severe or pervasive”• Actions must result in adverse employment action• Must negatively affect employment• Does not have to be sexual in nature

o Reduction of “sex” claims, rise in retaliation claims

RetaliationRetaliation cases are very dangerous• Juries believe in retaliation• “Big Bad” employer• Title VII prohibits retaliation against:

o The complainanto Anyone interviewedo Witnesses

Retaliation

2010 2011 2012 201333343536373839404142

Retaliation Claims on the Rise

Claim Snapshot

Sex Religion Disability Retaliation05

1015202530354045

They Did What?Plaintiff (Miller) filed a claim against his employer (Sparx) for retaliation• Miller complained of offensive display in restaurant• Was fired three weeks after complaint• Jury awarded $15,000 in emotional distress damages,

$41,000 in back pay and interest, plus 15% for tax liability

Retaliation—Not Limited to Sex• Plaintiff requested a leave of absence plus

accommodations due to panic attacks—she was placed on a 30-day medical leave

• Supervisor ignored all attempts at communication• She was terminated without reason• Unanimous jury awarded $16 million in punitive

damages; $5 million in economic and emotional distress damages equaling $27,789,000

Scary Trend?

Employers are successfully defending harassment and discrimination claims, but are unprepared and uneducated on retaliation

Practical Tips• Properly acknowledge all employee complaints• Let the employee explain• Restate the complaint• Make sure you and the employee share

an understanding of the issues• Ask the employee what resolution he or

she would like to see• Don’t agree or disagree until you have

all the facts• Don’t get drawn into a power struggle

Practical Tips Cont.• Consider all options• Follow policies and procedures• Be fair and objective• Seek to bring closure to the issue • Get back to employee with decision• All complaints deserve an answer

Do What You Say• Not so much what the claim of harassment was (is)• Problems arise with lack of action on the side of the

employer• Retaliation claims are very dangerous• Juries believe in retaliation• Train your managers

Handling Chronic Complainers• Give chronic complainers a fair hearing• Listen for a legitimate issue• Take a counseling approach• Involve the employee in positive,

problem-solving tasks

Harassment That Wasn’t• Female subordinate complained of harassment after

male boss smacked her on the buttocks

• Boss “got off” because of “why” he smacked her butto No previous instanceso No one had seen manager act inappropriately to otherso Complainant stated that she had never had problems with boss in the pasto Woman stated she believed that the smack was not meant to hurt her and wasn’t

“sexual”

Key Points to Remember• Occasional employee complaints are

to be expected• Take all complaints seriously• Give employees a fair hearing• Work with employees to find solutions

to their complaints• Always follow established policies and procedures when

handling complaints

Questions…

Jennifer Jacobus, PHR-CADirector of HR Services

San Diego Employers Associationjjacobus@sdea.com

www.sdea.com858-505-0024