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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
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Work Session #2
Topic AAddressing Sexual Harassment:
Prevention & Training TipsInternal Complaint Handling
November 10, 2008Attorney Daniel D. Crean
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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.
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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
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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
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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.
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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
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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!
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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.
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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
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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
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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.
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Recognizing HarassmentWho Sets The Standards??
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Perception Is Reality?Not Always, Right?How Many Squares Are Shown Below?
Remember, the Remember, the Victim Sets the Victim Sets the StandardStandard.
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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.
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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.
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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.
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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!
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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
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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
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Fears That Prevent Reporting
Branded As TroublemakerBranded As Troublemaker
Fear Of Disciplinary ActionFear Of Disciplinary Action
Fear Of RetaliationFear Of Retaliation
EmbarrassedEmbarrassed
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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
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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?
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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.
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Any Questions?
Thank you!
Contact:
www.creanlaw.com
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