Local 1000

WorkplaceHarassment

Sexual Harassment Prohibited by state and federal law

DFEH received 3,863 charges of sexual harassment in 2008

EEOC received 12,696 charges of sexual harassment in FY 2009

16% of those were filed by men

Sexual Harassment – Employer Impact

Employee turnover increases

Absenteeism increases

Concentration at work decreases

Morale/teamwork/cooperation all decrease

Trust among employees decreases

Sexual Harassment – Employer Impact(cont)

Instead of performing work, time is spent talking about and dealing with sexual harassment

Instead of performing work, time is spent conducting lengthy investigations

Organization or company suffers adverse publicity

Costs to employees involved; money out of pocket

Workplace Romance

A Changing Workplace

More hours are spent at work

Women make up 46% of the workforce

Americans marry later in life, resulting in more unattached people at work

Workplace Romance Statistics

58% of employees have been involved in an office romance (in 26% of the cases, the romances resulted in long-term relationship)

21% of respondents reported dating a boss or superior

32% of respondents have engaged in trysts within the office

65% of respondents reported that their employer did not have a policy regarding workplace dating

Workplace Romance StatisticsUnintended Outcomes

29% of romances resulted in favoritism complaints

23% of romances resulted in decreased productivity

21% of romances resulted in harassment complaints

Workplace Romance – Recent Case

Miller v. Department of Corrections (2005)• Decision made by the California Supreme Court on claims brought

under Fair Employment and Housing Act (FEHA)

• Plaintiffs claimed that Warden provided preferential treatment (including promotions) to employees he was intimately involved with over those with whom he was not

• Court reinstated plaintiff’s claims; Justices held that widespread sexual favoritism in the workplace may create an actionable hostile work environment that demeans other employees

Harassment

v.

Hostile EnvironmentHarassment

Hostile Environment Harassment

What?Where?

Who?

What?

Hostile Environment Harassment

Three Key Elements:

1. Unwelcome conduct2. Based on a protected category3. Unreasonably interferes with an employee’s

work performance or creates an intimidating, hostile, or offensive work environment

Unacceptable Behavior: Verbal

EEOC v. National Education Association (2005) 9th Circuit Court of Appeals Male supervisor subjected female employees to

persistent episodes of loud, hostile, profane shouting and intimidating behavior with little or no provocation

Court held that conduct need not be “facially sex-specific” to qualify

Employer settled the sex discrimination suit for $750,000

Other Examples of Unacceptable Verbal Behavior

Discrimination/Harassment

SexualHarassment

Racial epithets or slurs Discussing sexual activities

Mocking, ridiculing, or mimicking another culture’s accent, appearance or customs

Remarks about body

Offensive jokes about sex, race, age, etc.

Turning work discussions to sexual topics

Leaving offensive or disturbing voicemails

Repeatedly asking a person out who is not interested

Unacceptable Behavior: Non-Verbal

Birschtein v. New United Motor Manufacturing Inc. (2001)

California Court of Appeal

After plaintiff refused several requests from her coworker for a date, he began a “campaign” of staring at her

Court held that “staring” at a fellow employee may constitute sexual harassment under state law

Other Examples of Unacceptable Non-Verbal Behavior

Discrimination/Harassment

SexualHarassment

Circulating offensive emails “Elevator” eyes

Posting offensive materials on walls or bulletin boards Stalking

Ostracizing someone or playing pranks because of someone’s

protected classGiving unwelcome personal gifts

Sexual gestures, body movements, touching oneself

sexually

Examples of Unacceptable Physical Behavior

Discrimination/Harassment

SexualHarassment

Offensive gestures Massaging, hugging or kissing

Offensive pranks Touching clothing, hair, or body

Continually brushing up against another

Where?

Where Does the Harassment Occur?

Conduct outside the “workplace”There is no requirement that the harassment occur

in the office or the workplaceLiability for harassment does not stop at the

workplace doorLiability for harassment may attach to unlawful

conduct that occurs in any location found to be an extension of the workplace

Where Does the Harassment Occur?

Myers v. Trendwest Resorts, Inc. (2007)

California Court of Appeal

Alleged harassment occurred off-site and arose during a relationship that had evidence of becoming consensual

Court held that employer can be liable for sexual harassment even when the alleged misconduct occurs away from the workplace

Who?

Options

Third Party HarassmentLiability Standards

Harassment liability arises under state andfederal law ONLY IF:

Employer knew or should have known about misconduct; and

Failed to take immediate and appropriate corrective action

Duty of Reasonable Care:Supervisor’s Response After Receiving a Complaint

Take all complaints seriouslyListen emphaticallyDocument the complaint and all facts presentedCannot promise confidentiality, but can assure

employee that information will be limited to a need-to-know basis

Do not pre-judge the outcomeTake prompt, remedial action (when warranted)Report to HR/Legal departments immediately

Duty of Reasonable Care:Taking Corrective Action

The employer must take prompt, remedial actionreasonably calculated to end the harassment.

Employer can respond adequately by disciplining a co-worker for his or her misconduct

Employer is not necessarily obligated to terminate the harasser or remove him/her from the workplace; it may be sufficient to simply separate complainant from harasser

Don’t punish the victim

Personal Liability

Personal Liability

Individual harassers may be held personally liable under a tort theory

AssaultInvasion of PrivacyIntentional Infliction of Emotional Distress

How Would a Court ClassifyUnion Activists?

Open Issue:Would a court hold a

Union activist personally liable for harassment?

Questions?