1 Harassment Prevention for Small Business Owners Compliance Training What you don't know or aren't doing can hurt you.
2 Disclaimer Although this webinar may contain legal information, it does not provide legal advice. Neither the presenters nor Vubiz are in a position to determine whether organizations or individuals have fulfilled their legal duties nor satisfied the applicable standard of care in every circumstance. Individuals and organizations requiring specific advice should consult with a lawyer.
3 Learning Outcomes Learn how to prevent harassment in the workplace Understand the different types of harassment Understand your responsibility and liability for harassment in the workplace Learn how to correct harassment Create best practices to avoid harassment problems and costs
4 Preventing Harassment and Illegal Discrimination Harassment and discrimination are costly to organizations Workplaces that allow harassing and discriminatory behavior have negative consequences on everyone. There are laws that govern discrimination, harassment and retaliation; define behaviors and outline the obligations of employers and the employees.
5 Acceptable Workplace Behaviour How comfortable are you with the following? A co-worker offers to rub your neck when you mention how tense you are (or on other occasions) A supervisor often makes comments about your body, your looks, or sex appeal A co-worker tells you jokes about other ethnic groups A friend frequently refers to you by pet names. A supervisor yells at you about work in front of your co-workers Some employee in the lunchroom are laughing and talking in a language you don t understand while occasionally looking at you.
6 Case Study Linda, a sales clerk, complained that her supervisor, John, made sexual comments about parts of her body and suggested they could have a lot of fun in bed. She also claimed that John grabbed her from behind. Linda complained to senior management because she didn t feel comfortable. Senior management didn t do anything about it because they said this was normal behavior here.
7 Topics Legal Background Illegal Discrimination Defining Sexual Harassment Elements of Sexual Harassment Retaliation Employee Obligations The Supervisor's Role Liability for Harassment Supervisory Case Review
8 Legal Background Federal Law Civil Rights Act of 1964 Discrimination: to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or to limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect status of an employee, because of such individual's race, color, religion, sex, or national origin.
9 Federal Law Civil Rights Act of 1964, Title VII Sexual Harassment (29 CFR ) Sexual harassment is a specific type of discrimination which is prohibited under Title VII of the Civil Rights Act of The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcing Title VII. EEOC Guidelines provide the following definition of sexual harassment: Unwelcome sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when 1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual s employment, 2) submission to or rejection of such conduct by an individual is used as the basis for employment decision affecting such individual, or 3) such conduct has the purpose or effect of unreasonably interfering with an individual s work performance or creating an intimidating, hostile or offensive working environment.
10 Discrimination Governance The federal government has passed laws that prohibit discrimination and harassment. An employer must provide a working environment free of harassment and discrimination. Employers must comply with all rules regarding harassment and discrimination. Organization must have a policy on harassment and discrimination prevention
11 Key Components of the Company Policy These are the key elements of an effective harassment and discrimination policy: Commitment to zero tolerance Description of common types and categories of harassment and discrimination Who to complain to/hierarchy Employer investigative responsibilities Protection from retaliation Disciplinary actions against harasser
12 Illegal Discrimination Discrimination is defined as unfair/unequal treatment of a person or group on the basis of prejudice. Protected Characteristics - Race, Sex, Color, National Origin, and Religion. Additional federal protections apply to: Equal Compensation Age Discrimination Disability Discrimination / Rehabilitation Pregnancy Retaliation Sexual Harassment
13 Discriminatory Behaviour Making racially derogatory remarks, epithets, slurs or insults Using explicit or degrading words to describe someone or a group Using patronizing terms or remarks Telling lies or spreading untrue rumors about someone's race, color, national origin, religion, or any other protected class Name-calling or belittling someone Producing offensive comments through copy machines, , texts, fax or other electronic media Making gestures which may be viewed as lewd by some cultures and that are not necessarily common in the workplace Posting derogatory posters, cartoons, drawings in any media
14 Eliminating discrimination is good business! Benefits for workplaces free from harassment and discrimination: Productivity is higher Morale is higher Business success is higher Liability is lower
15 Problems Created by Harassment and Discrimination Loss of productivity Work disruption as employees are distracted by investigations Reduced employee morale Loss of good employees who think that leaving is their only option Gossip and rumors within the organization Increased stress, absenteeism, costs associated with lawsuits Divisiveness amongst employees Public embarrassment and damaged reputation of the company
16 Sexual Harassment Harassment is conduct that the EEOC defines as: Unwelcome sexual advances Requests for sexual favors Other verbal or physical conduct of a sexual nature.
17 Types of Sexual Harassment There are two types of sexual harassment: 1. Quid pro quo Submission to such conduct is made a condition of an individual s employment. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting that individual. 2. Hostile work environment Unwelcome Unreasonably offensive Severe or pervasive
18 Scenario Clarence, who supervises eight people, holds mandatory staff meetings every Thursday. For the past seven months, Clarence has started each meeting with ten minutes of morale building, during which the staff exchanges jokes. The jokes are almost always of a sexual nature. Jake, a member of Clarence's staff, never participates in the "morale builders" and avoids them by arriving ten minutes late. Clarence summons Jake into his office and tells him that his habit of arriving late is unacceptable and that he will receive a written reprimand the next time he is late. Jake tells Clarence he arrives late because he finds the dirty jokes offensive. Clarence just repeats his warning.
19 The Forms of Harassment and Illegal Discrimination They can be: Physical Verbal Visual
20 Intent or Impact? Intent is not relevant in determining whether or not a behavior is sexual harassment.
21 Key Elements of Workplace Sexual Harassment 1. The conduct is of a sexual nature Overt acts (physical abuse, quid pro quo) Hostile environment (verbal, physical, visual abuse) 2. The behavior is unwelcome Unsolicited (the victim did not invite it) Undesirable (the victim did not want it, objected to it) 3. The behavior is unreasonably offensive Objective evidence (lewd, crude behavior, reasonable person standard) Subjective evidence (the perception of the receiver) 4. The behavior is severe or pervasive (so as to create an intimidating or abusive work environment) Severe (once is one time too many physical assault) Pervasive (frequent behavior is repeated over time)
22 Unwelcome Behavior Sexual harassment is defined as unwelcome behavior of a sexual nature (that is sufficiently severe or pervasive to create an intimidating or abusive work environment). What does "unwelcome" mean? Unwelcome behavior is just that it is behavior that is not welcome, not solicited and not wanted by the offended person. Behavior that one person perceives as harmless may be offensive to a co-worker.
23 The Reasonable Person Standard The law does not require that all conduct at work be totally inoffensive to everyone. Whether or not unwelcome behavior amounts to sexual harassment is judged based on a reasonable person standard. Conduct is considered harassment only if a reasonable person from the victim's perspective would consider the behavior to be so severely or pervasively offensive that it affects the conditions of employment or creates an abusive environment.
24 Harasser and Harassed Harassers can be: Employees on the work premises or away from the workplace Employees off the work premises but involved in work-related activities In California, contract workers hired through a third party
25 Harasser and Harassed Persons who can be harassed include: Any and all employees People who are the same sex as the harasser Outside visitors, customers, contract employees, service people, and so on anyone who comes into contact with employees
26 Consensual Relationships Consensual, romantic relationships at the workplace can create several problems: Issues of favoritism and distract others Create a hostile work environment for others The risk of liability for sexual harassment is greatly increased
27 Favoritism The U.S. Equal Employment Opportunity Commission has issued a policy statement identifying favoritism as a possible form of unlawful sexual harassment.
28 Retaliation It is against the law to punish someone for complaining about discrimination or harassment. Protected Activities Adverse Employment Actions
29 Real Case Retaliation In Hour Fitness was sued for $3.5 million for sexual harassment in a private arbitration decision in Costa Mesa, California. Malek alleged that she was subjected to sexual harassment by managers, salesmen and personal trainers at the club According to Malek's complaint, the harassers were never disciplined because they were deemed big money makers for the company. After Malek reported the harassment, she was written up for various transgressions and ultimately terminated for not being a "team player." The arbitrator awarded Malek $1.18 million in compensatory damages and $1.25 million in punitive damages. The arbitrator also awarded $1.1 million in attorney fees.
30 Employee Liability In some states, any employee can be held personally liable for harassment, whether the employer knew about it or not.
31 What can you do to prevent harassment? Know and understand your organization s harassment policy Follow company policy by setting an example for co-workers. Refuse to participate in any activity that may have the slightest risk of being viewed as harassment or discrimination. Alert your supervisor or human resources to any behavior that appears to violate company policy and let HR or your supervisor investigate and make the necessary determination. Protect the integrity of the investigation and the morale of the workplace by keeping complaints and investigation information as confidential as possible and only known to those persons who have a valid need to know.
32 Understand Personal Liability If the employee is named as a defendant and found guilty, that employee can be held personally liable. In addition, the employer will not pay any damages assessed against an employee as an individual. Understanding the facts about personal liability tends to prevent harassing behavior.
33 Complaint Handling The claim must be investigated promptly and thoroughly. The employer must use an effective investigator. Information must be communicated only on a need-to-know basis. The investigation must arrive at a conclusion.
34 Are complaints confidential? The employer cannot guarantee complete confidentiality. Employees who complain should expect limited confidentiality from supervisors and managers.
35 How are complaints resolved? Immediate corrective action to end the harassment Disciplinary action when a violation of the harassment and discrimination policy is found to have occurred.
36 Five Obligations of Employees 1. Report harassment 2. Confront the situation, if possible 3. Cooperate in investigations 4. Report retaliation 5. Expect follow-up
37 The Supervisor's Role Model the behavior Eliminate risky conduct Understand the organization s policy and explain it to employees Monitor employees and address problematic situations
38 Step-by-Step Guide Immediate Attention Contact Human Resources Ensure Privacy Take Complaint Seriously Thank Them
39 Who is liable for harassment? Employers may be found liable for harassment that occurs in their workplace or in the course of their business. The degree of liability depends on who the harasser is and what type of offense has been committed. Although employers must prohibit harassment by all employees, a higher legal standard exists for those who act on behalf of the company, such as managers and supervisors. The EEOC divides individuals into three categories for purposes of defining employer liability: Managers and supervisors Non-supervisory employees Non-employees
40 What s the Difference? Tangible Employment Action (quid pro quo) Firing Demotion Failing to promote Reassigning to a less desirable position or title Removing benefits or perks Hostile Work Environment (without a tangible employment action) Creates abusive environment
41 Liability When a non-supervisory employee commits harassment against another employee, the employer is liable only if it was negligent. Non-Employee Liability - An employer can be held liable for harassment committed against its employees by a non-employee such as a vendor or customer. Personal Liability
42 Remedies Available to Employees Awarding back pay to a victim who has quit or been fired. Reinstating a victim who has quit or been fired. Awarding compensatory damages to a victim to compensate for lost wages, physical and psychological damage, and legal costs. Awarding punitive damages to a victim or class of victims in order to further punish the employer and force them to change the way they treat protected classes of employees. Requiring employers to adopt anti-harassment policies, train supervisory staff, and take other proactive steps to end harassment in the workplace.
43 Retaliation Any employee who makes a complaint, or who participates in the complaint procedure or in the investigation is protected from retaliation. This means that the employee may not be demoted, transferred (to their detriment), terminated, etc. as a result of the harassment situation.
44 Scenario Chris coached the softball team at a California university for 11 years, 5 of them as head coach. The university s athletic director discovered that team members drank alcohol and had eaten marijuana-laced brownies on a bus trip returning from a game. Shortly thereafter Chris was suspended. When her contract came up for renewal, Chris was not offered another coaching position. Chris alleged that her dismissal constituted disparate treatment under California s Fair Employment and Housing Act. She claimed that the university dealt less harshly with male coaches whose athletes were accused of drinking
45 Actual Case Outcome A California Superior Court (Sonoma County) jury found that sex was a motivating factor in Sonoma State University's decision to suspend Chris Elze and then not offer her another one-year coaching position. The jury awarded Chris $329,000 ($179,192 in economic damages, $37,876 for future economic loss, and $112,000 in noneconomic damages). Sonoma State University said that the decision not to renew Chris's contract after her suspension was based on many factors, including four consecutive losing seasons and complaints from student athletes about her leadership and professional abilities. "We remain convinced that [athletic director] Bill Fusco made the right decision at the right time and that there was no gender bias in his actions. Bill Fusco has an excellent reputation with his coaches and staff, both male and female. The university was given 30 days to decide whether to appeal the decision.
46 Scenario Tennie is a firefighter with the City of Los Angeles. In November 2005, Tennie arrives at the fire station where he works and is told there is a plate of spaghetti waiting for him on the stove. As he is eating, he notices other firefighters laughing at him. He is later informed the dish was been prepared with dog food. Tennie is black. Tennie files a lawsuit under California's Fair Employment and Housing Act, citing harassment based on his race.
47 Tennie Actual Case Outcome On September 21, 2007, Los Angeles City Council approved a $1.43 million settlement of Tennie Pierce s lawsuit. Under the terms of the agreement, Tennie was paid $1.43 million, plus $60,000 in back pay. The latter provision qualifies him for a 20-year pension.
48 The Lawyers In 1999, a group of partners in a large law firm were demoted from partner to counsel status. Most of them were in their 50s and 60s. The firm claimed that the demotions were based on performance, but the former partners alleged that they were demoted because of their age. The U.S. Equal Employment Opportunity Commission brought a discrimination suit on behalf of 32 former partners.
49 Actual Case Outcome The law firm agreed to pay a $27.5 million settlement to the 32 former partners. The settlement was paid into a fund administered by the EEOC, which distributed it among the demoted partners. Payments to individual partners ranged from $122,169 to $1.84 million.
50 Online Resources U.S. Equal Employment Opportunity Commission (EEOC) U.S. Department of Education, Office for Civil Rights
51 NFIB.com Resources How to Address a Sexual Harassment Complaint Federal Employee Law Handbook (PDF)
52 Questions or Comments If you have a specific question on Harassment Prevention, contact James or Robin at: James Howe, Vice President Robin Rapino, Vice President US Operations Free Online Training for NFIB Members
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