Preventing Harassment and Creating a Respectful Workplace€¦ · CPS HR Webinar Series. If your...
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Alice J. Baker, J.D. CPS HR Webinar Series If your computer does not have speakers, please dial in at: 1-877-309-2074 Access code: 703-763-293 Preventing Harassment and Creating a Respectful Workplace
Transcript of Preventing Harassment and Creating a Respectful Workplace€¦ · CPS HR Webinar Series. If your...
Alice J. Baker, J.D.CPS HR Webinar Series
If your computer does not have speakers, please dial in at: 1-877-309-2074Access code: 703-763-293
Preventing Harassment and Creating a Respectful
Workplace
Preventing Harassment and Creating a Respectful Workplace
Alice J. Baker, J.D.CPS HR Webinar Series
If your computer does not have speakers, please dial in at: 1-877-309-2074Access code: 703-763-293
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Today’s Schedule
Legally Protected Classes The Evolving Legal Landscape Legal Definition of Harassment Legally Protected Classes (more detail) Issues Unique to Sexual Harassment Creating a Respectful Workplace Questions and Answers (if time permits)
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Current Protected Classes (Federal Law)
Race Color Religion Sex National Origin Age (40 and older) Disability Genetic Information Military/Veteran Status
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Most States Offer Additional Protections
Federal Law Race Color Religion Sex National Origin Age (40 and older) Disability Genetic Information Military/Veteran Status
Example: California Ancestry Sexual Orientation Gender Gender Identity Gender Expression Medical Condition Marital Status
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Liability for Discrimination (Federal)
Employer – Failure to take reasonable steps: to prevent and deter harassment; to stop harassment if it occurs; to investigate claims of harassment; and to protect employees who complain against
retaliation.
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Liability for Discrimination (California)
Employer – Failure to take reasonable steps to prevent and deter harassment; to stop harassment if it occurs; to investigate claims of harassment; and to protect employees who complain against retaliation
Supervisor – Tacitly encouraging harassment Employee – Committing harassment
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The Evolving Legal Landscape
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New Protected Classes
Sexual Orientation & Gender Identity
Lifestyle Discrimination
Criminal History
Domestic Violence
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Regional Hotspots
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Sexual Orientation and Gender Identity
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5
10
15
20
25
30
35
Number of States with Laws Prohibiting Sexual Orientation and/or Gender Identity Discrimination in Public-Sector Employment
Sexual Orientation Gender Identity
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5
10
15
20
25
30
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Number of States with Laws Prohibiting Sexual Orientation and/or Gender Identity Discrimination in Public-Sector Employment
Sexual Orientation Gender Identity
1988
2007
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5
10
15
20
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30
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Number of States with Laws Prohibiting Sexual Orientation and/or Gender Identity Discrimination in Public-Sector Employment
Sexual Orientation Gender Identity
1998
2017
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Sexual Orientation and Gender Identity
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Criminal History
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Lifestyle Discrimination (i.e., Smoking)
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Side Note: But Not This Kind of Smoking
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Domestic or Sexual Violence / Stalking
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New Protected Classes
Sexual Orientation & Gender Identity
Lifestyle Discrimination
Criminal History
Domestic Violence
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The Bottom Line
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Legal Definition of Harassment
“A hostile work environment is created when the workplace is filled with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”
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“Severe or Pervasive”
Severe
Pe
rvas
ive
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“Severe”
Severe
Pe
rvas
ive
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“Pervasive”
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“Pervasive”
Hey, Chica!
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“Pervasive”
Hey, Chica!
You Brazilians are all crazy for soccer.
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“Pervasive”
Hey, Chica!
You Brazilians are all crazy for soccer.
There goes the Mexican
in you.
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“Pervasive”
Hey, Chica!
You Brazilians are all crazy for soccer.
Wetbacks!There goes
the Mexican in you.
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“Pervasive”
Hey, Chica!
Smells like tacos.
You Brazilians are all crazy for soccer.
Wetbacks!There goes
the Mexican in you.
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“Pervasive”
Hey, Chica!
Smells like tacos.
You Brazilians are all crazy for soccer.
Wetbacks!There goes
the Mexican in you.
Migra alert!
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“Pervasive”
Hey, Chica!
Smells like tacos.
You Brazilians are all crazy for soccer.
Wetbacks!There goes
the Mexican in you.
Migra alert!
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“Severe or Pervasive”
Severe
Pe
rvas
ive
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Forms Harassment Can Take
Physical Harassment Verbal Harassment Non-Verbal Harassment Inappropriate Visual Displays
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Jack O’ Lantern
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Amanita Phalloides
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Death Cap
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Physical Harassment: Danger Spots
Horseplay Hugging Invading Personal Space
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Off-Duty Conduct
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Verbal Harassment: Danger Spots
Slurs Insults Jokes Teasing
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Reasonable “Woman” Standard
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Participant Questions
How do I respond to an employee who claims to be a victim of unlawful harassment, when it appears that what is actually going on is a simple personality conflict?
How do I respond to an employee who is overreacting to what she perceives as being a discriminatory comment from a coworker, when it appears that the offense was inadvertent?
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Non-Verbal Harassment: Danger Spots
Gestures Stalking Staring Practical Jokes
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Inappropriate Visual Displays: Danger Spots
Cell Phones Clothing Magazines Pictures Screensavers
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Legally Protected Classes (more detail)
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Race / Color / National Origin
English-only rules are presumptively illegal in the workplace.They may be justified: If the employee must communicate with coworkers or
customers who only speak English; In emergencies or other situations in which workers
must speak a common language to promote safety; or
For cooperative work assignments in which the English-only rule is needed to promote efficiency.
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Religion
Definition of “religion” Failure to accommodate Imposing religious beliefs on others
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Disability
Paternalism Stereotype Reasonable accommodation
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Sexual Orientation / Gender Identity
Double standards Pronouns and forms of address Restrooms
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Issues Unique to Sexual Harassment
Attraction / Animus Tangible Employment Action Content of harassment Same-sex harassment
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Attraction vs. Animus
I’m Horny!
Stupid Chick! You operate
like a girl.
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Attraction vs. Animus (Chopourian)
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Tangible Employment Action
Firing / Promotion
Submit to Sexual Demands
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Hostile Environment Defined
“Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature . . . when . . . such conduct has the purpose of interfering with an individual’s work performance or creating an intimidating or offensive work environment.”
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Hostile Environment Defined (California Law)
Harassment based on sex Harassment of a sexual
nature
The legal test is satisfied if either of these conditions is met. Federal law works the same way.
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Sexual Content (but not based on sex)
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Based on Sex (but lacking sexual content)
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Same-Sex Harassment (Oncale)
Heterosexual victim Heterosexual harassers None of the harassment
was motivated by sexual desire
About 1/6 of all sexual harassment complaints are filed by men
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Summary to This Point
Protected classes “Severe or pervasive” Reasonable victim standard Forms harassment can take Sexual harassment
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Creating a Respectful Workplace
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Participant Questions
How do I ensure that the employees I supervise will comply with the antidiscrimination laws, when I work in a field where discrimination is rampant?
How do I get the employees I supervise to stop addressing female coworkers as “Honey,” “Sweetie,” “Darling,” etc.?
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Setting the Tone
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Model the Behavior You Expect
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Bullying and Abusive Conduct
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Bullying and Abusive Conduct
“Conduct, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”
(California state law definition)
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Conflict Resolution
Define acceptable behavior Do not postpone conflict resolution Choose your battles Listen, then speak Remain impartial Promote problem-solving Discipline if necessary
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Disciplining Appropriately
Onboarding Procedures Investigation Consistency All relevant factors Documentation Confidentiality
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Professional Behavior
Alice J. Baker, J.D.CPS HR Webinar Series
If your computer does not have speakers, please dial in at: 1-877-309-2074 Access code: 703-763-293
Preventing Harassment and Creating a Respectful
Workplace
cpshr.us
Participant Questions
How does Equal Employment Opportunity (EEO) and Sexual Harassment Prevention (SHP) training affect actual workplace behavior?
Isn’t there a risk that providing EEO and SHP training could backfire and trigger discrimination complaints?
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Participant Questions
How should I respond to an employee who damages property or throws things at people?
How should I respond to an employee who violates the personal space of other employees?
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Participant Questions
How should I deal with an employee who has a non-binary gender identification?
Alice J. Baker, J.D.CPS HR Webinar Series
If your computer does not have speakers, please dial in at: 1-877-309-2074 Access code: 703-763-293
Preventing Harassment and Creating a Respectful
Workplace
