PREVENTING HARASSMENT AND RETALIATION IN THE WORKPLACE

Transcription

1 PREVENTING HARASSMENT AND RETALIATION IN THE WORKPLACE LULAC National Convention and Expo June 2013

2 Workplace Harassment Identifying, Preventing and Eliminating Workplace Harassment

3 What is Workplace Harassment? Is any unwelcome verbal or physical conduct based on one of the protected bases that is so objectively offensive as to alter the conditions of the victim s employment. This standard is met when: the conduct culminates in a tangible employment action; or the conduct was sufficiently severe or pervasive to create a hostile work environment.

4 Who Can Commit Harassment? A Management Official A co-worker An non-employee

5 Elements of Harassment Conduct must be unwelcome Conduct based on a protected basis: Race, color, religion, sex (whether or not of a sexual nature), national origin, age, disability, retaliation, and/or genetic information. Conduct results in: a tangible employment action; or creates a hostile work environment

6 Unwelcome Conduct Unwelcome conduct is where the employee did not solicit or invite the conduct and regarded it as undesirable. Critical inquiry: Did the complainant explicitly or implicitly communicate that the conduct was unwelcome? Submission does not mean the conduct was welcome Active participation may defeat the claim

7 Harassment: Tangible Employment Action A supervisor s harassment results in a significant change in employment status or benefits (e.g., demotion, termination, failure to promote). Only individuals with supervisor or managerial responsibility can commit this type of harassment. If a tangible employment action results from harassment by a supervisor, the agency is automatically liable.

8 Hostile Environment Harassment Unwelcome comments or conduct based on a protected basis which unreasonably interferes with an employee s work performance or creates an intimidating, hostile or offensive work environment. Anyone can commit this type of harassment, a management official, a co-worker or a nonemployee.

9 Hostile Work Environment: Standard The key issues are frequency and severity: the more severe the conduct, the less frequent it must occur to create a hostile work environment; the less severe, the more frequent it must occur. Is the conduct severe or pervasive enough to create an environment that a reasonable person would find hostile, intimidating or abusive? Does the employee perceive the conduct as such? The individual s job need not to be affected.

10 Agency liability: Hostile Work Environment Harassment by a management official: agency is liable even if management did not know, unless both elements of an affirmative defense are met: if the agency exercised reasonable care to prevent and promptly correct any harassment; and the employee unreasonably failed to take advantage of any preventative or corrective opportunities offered by the agency or to avoid harm otherwise Harassment by high ranking official: agency is directly liable- no affirmative defense available.

11 Agency liability: Hostile Work Environment Harassment by a co-worker or non-employee: Agency is liable if it knew or should have known of the harassment and failed to take immediate and appropriate corrective action. Agency knowledge is assumed if: The victim complains about the harassment, or the conduct occurred in the presence of a supervisor, or the conduct is widespread.

12 Sexual/ Gender-Based Harassment Sexual Harassment Harassment can include sexual harassment or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment Based on Sex Gender-based harassment: conduct that is not a sexual nature, but is based on the gender of the complainant.

13 Preventative Actions for all Employees Know the agency s policy on workplace harassment. Set a positive example by treating other with respect and letting them know the same is expected of them. Avoid making assumptions that jokes, friendly gestures or comments are harmless or welcome. They may not be viewed that way by others. Think before making personal comments or asking questions that may be misinterpreted. Consider whether or not they will make the other individual uncomfortable. Never go along with a crowd or accept behavior that is offensive.

14 Preventative and Corrective Measures Establish an effective workplace anti-harassment policy which meets, at minimum, the following criteria: the policy should be written and well disseminated; protected against retaliation; make sure that the policy prohibits all forms of harassment; establish a procedure outside of the EEO process to address harassment incidents; create multiple points of access to report harassment within the policy; set a time frame for responding to claims of workplace harassment; assure that immediate and appropriate corrective action, including discipline, will be taken; and ensure confidentiality

15 Other Preventive Measures Routinely educate employees about what constitutes unlawful harassment and about the agency s antiharassment policy and complaint procedures. Train management officials and employees concerning actions which may constitute harassment and what they should to if thee are harassed. Monitor enforcement of the anti-harassment policy.

16 Preventing Retaliation

17 EEOC Statutes that Prohibit Retaliation Title VII of the Civil Rights Act; Age Discrimination in Employment Act; Rehabilitation Act; Genetic Information Non-Discrimination Act; and Equal Pay Act

18 Retaliation Actions need not materially affect the terms or conditions of employment to constitute retaliation. Anti-retaliation provisions prohibit any action that is based on a retaliatory motive and is likely to deter the employee or others from engaging in protected EEO activity. Protected activity comes from: participation or opposition.

19 Participation The anti-retaliation provisions make it unlawful to discriminate against an individual because s/he has filed a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, hearing, or litigation under the EEOC statutes. In the federal sector, once someone initiates contact with an EEO Counselor, s/he has participated in the EEO process. Examples: filing an EEO complaint; requesting reasonable accommodation; serving as witness or representing an Individual in an EEO matter.

20 Participation Participation in a failed EEO complaint is nevertheless considered protected activity. EEOC laws and regulations prohibit retaliation against someone so closely related or associated with the individual exercising his or her statutory rights that it would discourage or prevent the individual from pursuing those rights. The practices challenged in prior or pending statutory proceedings need not have been engaged in by the named responsible management official. An individual is protected against retaliation for participating in employment discrimination proceedings even if those proceedings involved an entirely different agency.

21 Opposition The anti-retaliation provisions also make it unlawful to discriminate against an individual because she or he opposed any policy or practice. The manner in which an individual protests must be reasonable. Opposition need only be based on reasonable and good faith belief. Examples of opposition: complaining to a management official about being denied a request for reasonable accommodation; picketing; signing a petition to be presented to the administration about a perceived discriminatory practice at the agency.

22 Post Employment Retaliation Retaliation can occur after the employment relationship between the complainant and the agency has ended. For example, unjustified negative job reference, and informing a prospective agency about the individual s protected EEO activity.

23 Elements of Retaliation Claim Protected activity (i.e., participation in the statutory complaint process or opposition to discrimination); Employment action; and Casual connection between the protected activity and the employment action.

24 Strategies for Avoiding Retaliation Claims In order to prevent or minimize the perception that agency s actions are for retaliatory reasons, it is recommended that all management actions be: Fair and Timely; Transparent; Objective; Consistent; Proportionate to the conduct or performance problem being addressed; and Driven by some legitimate non-discriminatory reason.

25 Contact Information Virginia Andreu-Rosario Attorney Advisor Equal Employment Opportunity Commission