August 2007 Education and Membership Development Department

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1 August 2007 Education and Membership Development Department

2 Table of Contents Title VII of the Civil Rights Act of What is Sexual Harassment? 3 4 How Can Sexual Harassment Occur? 4 5 When is an Employer Liable? 6 Who Can Commit Sexual Harassment? 7 Who Can Experience Sexual Harassment? 7 Sexual Harassment and the Union 8 Union Options for Dealing with Sexual Harassment 9 10 Guidelines for Talking with Victims 11 Interviewing the Alleged Harasser 12 Remember the Mother/Daughter Rule 13 Appendix A 15 Charge of Discrimination Form This manual is intended to train Staff Representatives and Local Union leaders and provide substantive information that will facilitate understanding of Sexual Harassment and its impact on workplaces and unions. The information provided is general information and does not constitute legal advice or opinion, nor does it address specific individual problems. Individuals should seek professional legal advice before making any decision affecting individual rights based on this specific topic. 2

3 TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers with 15 or more employees from discrimination in employment based on race, color, religion, sex or national origin. This law also covers labor organizations and joint labor, management committees controlling apprenticeship and training. Discrimination based on sex includes sexual harassment. Discrimination in employment generally means discrimination that negatively affects an individual s terms, conditions, or privileges of employment. WHAT IS SEXUAL HARASSMENT? Conduct of a sexual nature in the work place. Unwelcome sexual advances, requests for sexual favors or verbal or physical conduct of a sexual nature constitutes sexual harassment if: Submission to the conduct is made explicitly or implicitly a term or condition of employment; Submission to or rejection of the sexual conduct is used to make or has an impact on employment decisions affecting the individual as an employee; The conduct unreasonably interferes with an individual s work performance or creates an intimidating, hostile, or offensive work environment. The key to whether an act(s) constitutes sexual harassment is if the behavior is unwelcome and is based on sex (i.e. gender). a. What is unwelcome sexual conduct? According to the Equal Employment Opportunity Commission (EEOC), unwelcome means that the employee did not solicit or incite the conduct and regards the conduct as undesirable or offensive. b. Consensual dating, joking, touching, etc. does not amount to harassment under federal law if the conduct is not unwelcome or offensive to the person involved. 3

4 c. A reasonable person standard is most often used. Some courts have used a reasonable woman standard. d. Sexual conduct may be welcome from one person and not from another, i.e. just because a woman allows one man to touch her intimately does not open her up to touching by others without consent. WHAT IS CONDUCT BASED ON SEX? Harassment based on sex is when member of one sex is exposed to adverse terms or conditions of employment to which members of the other sex are not exposed. Title VII applies to same sex harassment if an individual can prove the harassment was because of gender (gender-not-sexual orientation - is the key). HOW CAN SEXUAL HARASSMENT OCCUR? There are two types of sexual harassment: Quid Pro Quo and hostile work environment harassment. Quid Pro Quo This form of sexual harassment is sometimes thought of in terms of something for something or this for that. Quid pro quo harassment occurs when an employer or supervisor: Makes the submission to unwelcome sexual advances or other verbal or physical conduct of a sexual nature an implicit or explicit term or condition of employment; or Bases employment decisions affecting the individual on submission to or rejection of such conduct. An example of quid pro quo harassment is a supervisor s demand for sex from a subordinate in exchange for continued employment or a promotion. Hostile Work Environment A work environment becomes hostile if it is permeated by harassment engaged in by a supervisor, co-worker, or someone else on the job who makes unwelcome sexual advances, requests for sexual favors, or engages in other verbal or physical conduct because of gender, when this behavior has the purpose or effect of: 4

5 Creating an intimidating, hostile or offensive work environment. In order for a hostile work environment to be created, the sexual conduct must be severe and pervasive and must unreasonably interfere with the employees job performance. Evidence of lost employment benefits or advantage, however, is not required. Examples of a hostile work environment include: sexual jokes or suggestive remarks; sexual graffiti or cartoons; sexually derogatory comments; sexual pinups or posters; staring/glaring or elevator eyes ; unnecessary touching; blocking or following employees. WHAT FACTORS ARE LOOKED AT IN DETERMINING IF CONDUCT IS SUFFICIENTLY SEVERE OR PERVASIVE SO AS TO CONSTITUTE SEX- UAL HARASSMENT? 1. The frequency of the discriminatory conduct; 2. Its severity; 3. Whether the conduct is physically threatening or humiliating or a mere offensive utterance; 4. Whether the conduct unreasonably interferes with an employee s work perform ance. 5

6 WHEN IS AN EMPLOYER LIABLE? Quid Pro Quo Harassment: When the harassment culminates in a tangible employment action (such as discharge, failure to promote, demotion, undesirable reassignment, or a significant change in benefits), the employer is automatically liable and has no defense. When the harassment does not lead to any tangible employment action, the employer is liable unless it can show that its actions were reasonable and the employee s actions were not. Hostile Work Environment: Hostile environment harassment by a supervisor resulting in a tangible, adverse employment decision leads to automatic employer liability. Hostile environment harassment by a supervisor not resulting in a tangible, adverse employment decision will lead to employer liability unless the employer can show that its actions were reasonable and that the employee s actions were not reasonable. For example, if the employer can show that it made a reasonable effort to prevent and immediately correct work place harassment by implementing, communicating and enforcing a sexual harassment policy and that an employee unreasonably failed to make a complaint under the available policy, then liability may be avoided. If the hostile work environment is created by someone other than a supervisor, an employer may be liable if it knew, or should have known, of the harassment and did not immediately or adequately address it. 6

7 WHO CAN COMMIT SEXUAL HARASSMENT? Any employee can commit sexual harassment, including supervisors, subordinates to supervisors, and co-workers. As such, unlawful sexual harassment can travel up, down, and sideways in any organization. Clients or customers of an employer can also commit actual harassment against the employer s employees. Males can commit sexual harassment against females or other males and females can commit sexual harassment against males or other females. The discrimination must be based on sex in order to be actionable; the conduct, however, need not be motivated by sexual desire. Thus, the sexual orientation of the parties is irrelevant; so long as the conduct is because of the victim s sex, the harassing conduct is prohibited. REMEMBER: Same-sex harassment is prohibited by Title VII. It cannot be as the result of a gay and/or lesbian desire or sexuality. Harassment based upon sexual orientation is not covered under Title VII; it is not harassment based upon gender. WHO CAN EXPERIENCE SEXUAL HARASSMENT? 1. An employee may experience sexual harassment as an intended or direct target. 2. Some courts have held that bystanders, or mere witnesses to unlawful acts of sexual harassment may also be victims. 3. Employees that are denied advancements or favors as a result of another employee s submission to a supervisor s sexual demands may also be victims of sexual harassment. 7

8 Legal Obligations SEXUAL HARASSMENT AND THE UNION Labor organizations, like employers are forbidden by Title VII from discriminating on the basis of sex. 42 USC 2000(e) 2(c),(d). The Union has an affirmative duty to help create and maintain a work place free of sexual harassment and could be liable for not doing anything if the union is aware that unwelcome sexual conduct is occurring in the workplace. When the Union May be Liable Title VII liability may result where: The Union intentionally has failed to file a grievance concerning workplace harassment; The Union has failed to impose discipline on union members who engaged in the harassment; Union agents have engaged in the harassment; Or The Union has acquiesced in the harassment (failure to assist/failure to investigate) Under the Duty of Fair Representation, the union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion; failure to investigate may result in the union s liability. The union must conduct some minimal investigation of grievances brought to its attention. This may result in a conflict between employee interests but that cannot deter the investigation. It is permissible for the union to take conflicting positions, as long as the conflict is the result of a good faith attempt to investigate claims or charges of discrimination/harassment 8

9 Union Options for Dealing with Sexual Harassment Resolving cases informally through investigation and intervention Workers who experience sexual harassment should be encouraged to speak with their steward, local union officers, or International Representatives. The victim should tell the representative exactly what happened. When both the accused and the accuser are union members, every effort should be made to stop the harassment without involving management if this can be done to the victim s satisfaction. Sometimes an inquiry from the union representative to the harasser is all it takes to stop the harassment. Other times, more action is necessary. Union representatives should tell the harasser in no uncertain terms to stop the harassment. If this does not work, the Union should inform the harasser that their behavior is inappropriate and illegal. Efforts to find informal resolutions must be done quickly, making sure that any time limit for filing a grievance, if needed, does not expire. It is essential that union representatives maintain confidentiality when dealing with sexual harassment complaints. Sexual harassment cases feed the rumor mill. All discussion regarding charges should be held in private and on a need-to-know basis. Filing a grievance under the grievance procedure. If efforts to resolve the sexual harassment dispute informally fail, the union can file a grievance. The employer has the responsibility to provide a harassment free workplace, so harassment from a union member is still the employer s fault. Most contracts contain anti-discrimination clauses, which make sexual harassment (as a form of discrimination) grounds for a grievance. If your contract does not contain an anti-discrimination clause, it should. Some contracts contain explicit prohibitions against sexual harassment. Sexual harassment can also be grieved under a fair treatment standard. Finally, some contracts contain a duty of management to maintain a safe and healthy working environment, and sexual harassment as a work hazard, can be grieved under this provision. There is a higher level of proof for discharges based on behavior such as sexual harassment. 9

10 Filing Internal Union Charges Against the Harasser. Sexual harassment can be the subject of internal union charges that are brought by a Union member. The rights of union membership come with responsibility. The backbone of unionism remains solidarity and mutual respect among all members. Sexual harassment violates the PACE Constitution, which recognizes the equality of all workers regardless of gender and which makes it a violation for a member to knowingly wrong a fellow member. If asked about bringing internal union charges, the union should provide the harassed individual with the PACE Trials and Appeals manual which instructs members on the charge process. If charges are filed against a member for harassment, a neutral steward should represent the accused in order to assure that his rights are protected through the process. (If the Company disciplines the harasser, the union may need to file a grievance for him. While this is tricky, it is possible to find a solution acceptable to both parties.) Filing a Charge with the Equal Employment Opportunity Commission (EEOC) or comparable state Fair Employment Practices Agency (FEPA). Filing a grievance does not prevent victims from taking other action against the harasser. In addition to the steps outlined above, victims of sexual harassment can file a formal complaint with the EEOC. Filing a charge with state or federal anti-discrimination agencies may provide employers the pressure they need to settle a sexual harassment grievance. Under federal anti-discrimination laws, an EEOC complaint must be filed within 180 days of the harassing conduct. Some states have longer statutes of limitations 300 days. Where a state or local anti-discrimination clause has a longer deadline, the EEOC deadline is likewise extended. Victims of sexual harassment cannot usually take their complaints to court until after they have exhausted the EEOC option. 10

11 GUIDELINES FOR TALKING WITH VICTIMS Do not stop processing a grievance just because a complainant files a charge with the EEOC or FEPA unless the grievant requests the same. Tell the victim you are glad she (he) came forward and that you want the Union to represent her (him) properly. Make sure the member feels comfortable with the union official who is representing her (him). Be sensitive to the fact that the individual is likely to be upset by the experience. Avoid asking Why questions or questions that imply the individual did something wrong. Simply ask the individual what happened and pay careful attention to what the person says. Do not ask leading questions such as did he say x, y or z? Instead ask open-ended questions like: What did the person say? Encourage the victim to talk specifically. Ask how long the harassment has been going on. Ask the victim if she (he) has told anyone about the harassment. If so, find out who, when, what was said, reactions. Ask if the member has evidence. Evidence can include notes, a journal, answering machine messages, etc. Encourage the victim to document everything that occurs. Gather as much information as possible about the case and keep thorough records. Tell the member what you plan to do to investigate the charge. Assure her (him) you will keep all information confidential, inform her (him) that you will question the accused. Be sure that she (he) agrees to this. If the harasser is a bargaining unit member, ask another steward or representative to work with the accused member. Determine what the individual wants to have happen with her (his) situation. Check in with the member periodically as the investigation progresses and be sure to inform the individual as to the results of the investigation 11

12 INTERVIEWING THE ALLEGED HARASSER NOTE: There is a conflict of law as to who the client is when a lawyer is involved in the harassment claim/grievance. Remember that the general authority is that the client is the union if the attorney is brought in by the union to handle the arbitration or represent the accused. As stated, it may be necessary to bring in another representative to assist the accused vs. the accuser. The accuser should not be prohibited from seeking advise from their own attorney regarding EEOC charges or other remedies beyond the grievance/arbitration process. During the interview: Set a serious tone to the conversation letting the alleged harasser know what the purpose of the meeting is: This meeting is to talk about an allegation of sexual harassment. Bring sensitivity to your discussion the harasser may not have intended to harass and maybe shocked and hurt to hear of the allegation. Keep in mind that the allegations may be untrue. If the alleged harasser is a fellow union member, appoint another union representative to represent her (him). Focus on the effects of the behavior on the victim, not the intention of the alleged harasser. Remain neutral. Stay on the topic. Do not deviate or allow the harasser to take the conversation off track. Let the harasser know if she (he) admits to the behavior that it must stop immediately, no matter if the intentions were harmless or misunderstood. Ask the harasser to respond to each allegation separately. Tell the harasser that sexual harassment is against the law and will not be tolerated at work. If the harasser indicates that the incident never occurred or denies that it was sexual harassment, explain that you have two sides to the story and that you will take both seriously. Advise that you will be handling the situation like any other grievance and will be conducting additional fact finding before making a determination. Once a determination concerning harassment is made, communicate that determination to the individual with the reasons underlying the determination. 12

13 REMEMBER the Mother/Daughter Rule: Do not engage in conduct or conversation with any individual that you would not engage in with your mother/daughter. This is a pretty good indicator of whether something is sexual harassment. 13

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