International Municipal Lawyers Association 1 IMLA Employment Law CLE Dallas, Texas Work Session #2...

International Municipal Lawyers Association 1

IMLA Employment Law CLEDallas, Texas

Work Session #2

They Still Don’t Get It:

Addressing Workplace Sexual

Harassment

November 10, 2008

International Municipal Lawyers Association

Addressing Sexual Harassment

Topics for Work Session #2

A. Prevention & Training Tips/Internal Complaint Handling

B. Trying the Sexual Harassment Case to a Jury

C. Retaliation: The New Fertile Ground for Litigation


Work Session #2

Topic AAddressing Sexual Harassment:

Prevention & Training TipsInternal Complaint Handling

November 10, 2008Attorney Daniel D. Crean


Sexual Harassment – Prevention & TrainingInternal Complaint Handling

The initial premise of this segment of workshop #2 is that the best sexual harassment incident is the one that does not occur . . .Hence, the first topic is prevention and an

understanding of employer practices designed at prevention.


Sexual Harassment Sexual harassment involves subjecting

someone to unwanted sexual attention. It includes a wide array of behavior

ranging from verbal innuendo to overt sexual demands.

Source:

Confronting Sexual Harassment

By Judith Berman Brandenburg


The Legal Framework:Sexual Harassment Definition

Workplace sexual harassment has three components:

1. Unwelcome Conduct of a

2. Sexual Nature (or Based on Gender), which

3. Adversely Affects the Employment Relationship


The Legal Framework:Federal and State Law Federal and State laws make discrimination on the

basis of gender/sex in the workplace unlawful. Title VII of the Federal Civil Rights Act

[42 U.S.C. § 2000e-2(a)(1)] [State Law Example] New Hampshire RSA 354-A:7

Workplace Sexual Harassment, which is a form of sex-based discrimination, constitutes “unlawful discrimination” under these laws.

State law also may prohibit sexual harassment, expressly, as is the case in New Hampshire.


Customary legal definition of sexual harassment:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature constitute sexual harassment when:

(1) Submitting to or rejecting this conduct:(a) explicitly or implicitly affects an individual’s

employment; or

(b) is used as the basis for employment decisions affecting the individual who submits to or rejects such conduct;

or

(2) Such conduct has the purpose or effect of unreasonably interfering with individuals’ work performance or creating an intimidating, hostile, or offensive working environment.

Source: EEOC


Employer Liability

In general, employers (and supervisors) may be held accountable if they did not take reasonable action to: Prevent harassment from occurring, or Remedy harassment if and when it occurs.

Sexual Harassment takes 2 general forms: Economic or “Quid Pro Quo” Harassment Environmental or “Hostile Environment” Harassment

The form of harassment determines the manner in which an employer might be liable or have a defense, but neither form of harassment is acceptable conduct for employees!


The Role of Policies & Practices Although employees can be disciplined

and held accountable for engaging in harassment and retaliation, state and federal law in the first instance hold an employer accountable for conduct in the workplace.

Therefore, employers have adopted specific anti-harassment policies and practices.


Policies and Practices Employer Policies (and implementing practices)

should be designed to: Prevent harassment from occurring

Provide an effective, efficient and non-threatening means of reporting harassment

Provide an effective remedy if harassment occurs

Prevent retaliation

Prevent recurrence


What is in an Effective Policy? Definition and Examples ZERO Tolerance Effective Internal Grievance/Complaint

Mechanism for Reporting and Resolving

Prohibition of Retaliation Requirement and Acknowledgement

for Receipt and Reading of Policy Accompanying Training and Education


Training Tips Policy Adoption is Good – But Policy

Implementation is Better!

Key to Effective Training is Going Beyond Policy to Understanding and Recognition.

Following Slides Seek to Provide Guidance in Achieving those Goals.


Recognizing HarassmentWho Sets The Standards??


Perception Is Reality?Not Always, Right?How Many Squares Are Shown Below?

Remember, the Remember, the Victim Sets the Victim Sets the StandardStandard.


What does the number of squares on the previous slide have to do with workplace harassment?

Perception is a key concept – and it is not our perception of our own conduct, but how others perceive and respond to that conduct!

Perception is a key element of another basic concept: Boundaries.


The prohibition of sexual harassment is not designed to purge the workplace of vulgarity. Drawing the line is not always easy.

On one side of the line, lie sexual assaults; other physical contacts, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures.

On the other side of the line, lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.

Stewart v. Mary Hitchcock Mem. Hosp., U.S. Dist. Ct. for New Hampshire (1997)

Recognizing Harassment – The purpose of the law is limited.


So, is “occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers,” acceptable workplace conduct?

The court’s comment about vulgar conduct emphasizes that sexual harassment law seeks to protect employees from sex-based discrimination – nothing more.

Other unacceptable conduct is dealt with by other workplace conduct policies.


Context Counts & So Does Employee Interaction

As guides to when questionable conduct may “cross the line” & become unacceptable:Keep in mind both sexual component and

control/dominance factors;Reaction of recipient (fear, blushing, anger),

indicating actor has created a reaction;Perception of co-workers to conduct and

situation.

Boundaries are a key factor!


Spectrum of ConductLikely Acceptable Caution Ahead Problematic

Joking, perhaps even some light teasing

Teasing with gender/sexual innuendo

Pervasive atmosphere of sexual or gender comment

Friendly comments Singling employee out for special attention without real reason

Frequent sexual comments about individual

Compliments that are limited and welcome

Frequent overly demonstrative compliments

Touching, close observation, blocking passage, notes

Genuine Offers of Help

Offers to help in isolated place – closed door

Private sessions in locked room, “conditional” help


Handling ComplaintsGoalsGoals

1. Stop the Harassment1. Stop the Harassment2. Maintain Morale & Productivity2. Maintain Morale & Productivity3. Minimize Liability 3. Minimize Liability

All Complaints Will Be Promptly Investigated All Complaints Will Be Promptly Investigated 1. Statements of Employees1. Statements of Employees2. Records of investigation2. Records of investigation3. Confidentiality - Limited3. Confidentiality - Limited

Appropriate Action Will Be TakenAppropriate Action Will Be Taken1. Based on Reasonable Conclusions1. Based on Reasonable Conclusions2. Personnel Files Are Confidential 2. Personnel Files Are Confidential


Fears That Prevent Reporting

Branded As TroublemakerBranded As Troublemaker

Fear Of Disciplinary ActionFear Of Disciplinary Action

Fear Of RetaliationFear Of Retaliation

EmbarrassedEmbarrassed


9 Steps to Effective SexualHarassment Prevention and Correction

1. Having an Effective Anti-Harassment Policy

2. Distributing that Policy and Communicating it to All

Employees

3. Making Intelligent Hiring Decisions

4. Conducting Training for Entire Workforce —New Employees and Periodic Refresher Training

5. Auditing Employee Actions & Monitoring Supervisors

6. Promptly Investigating ALL Complaints

7. Taking Prompt and Effective Remedial Action

8. Following Up On Remedial Actions

9. Preventing and Remedying Retaliation


Practice Tips for Municipal Attorneys Advise clients of dangers and costs of “I should

have called you earlier.” Assist clients in understanding need for proper

policy adoption and training. Ensure that all complaints are handled promptly

and effectively. How to respond to “I really don’t want to make a fuss,

but . . .”

Create capacity for effective investigation that is deemed to be credible. Is the “Hooksett Four” model an effective response?


Guidance AppliedForrest v. Brinker International Payroll Company, LP,

D/B/A Chili's Grill & Bar No. 07-1714

(1st Cir., 12-19-2007) Analysis of “jilted lover” workplace harassment.

Concludes harassment was based on sex. Complaints followed by immediate investigation and

verbal warning: After further incident, written warning; After further incident, termination of harasser. Occurring within about a month of initial complaint

Trial Court’s summary judgment (finding that harassment was not based on sex overturned), but ruling sustained, on ground of adequate and timely response by employer.


Any Questions?

Thank you!

Contact:

[email protected]

www.creanlaw.com

International Municipal Lawyers Association 1 IMLA Employment Law CLE Dallas, Texas Work Session #2...

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Transcript of International Municipal Lawyers Association 1 IMLA Employment Law CLE Dallas, Texas Work Session #2...