SEXUAL HARASSMENT. Taylor s Special Care Services, Inc. Simon Pop, MBA Chief Operating Officer

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1 SEXUAL HARASSMENT Taylor s Special Care Services, Inc. Simon Pop, MBA Chief Operating Officer

2 Agenda Overview-Why talk about sexual harassment? Why get training? Statistics What is sexual harassment? Who can commit sexual harassment? Who can experience sexual harassment? How can sexual harassment occur? The specific forms of harassment When is an employer liable? What isn t sexual harassment? The objectives of a workplace sexual harassment policy General guiding principles Follow the FACTS Final thoughts - Important things to remember Test your knowledge - Sexual harassment quiz 2

3 Overview-Why talk about sexual harassment? It s in the news EEOC record settlements It affects employers of all types and sizes - Formal complaints are on the rise It appears in many forms of entertainment music + movies + television + etc. = desensitization 3

4 Overview-Why talk about sexual harassment? It affects employers of all types and sizes - Formal complaints are on the rise Recent Supreme Court decisions and EEOC Guidelines make it clear that employers need to go beyond simply having an antiharassment policy. Employers must also provide training to ensure every employee understands the organization's harassment policy. Employers need to be able to show employees know what sexual harassment is and what to do about harassment if they see it happening to them or anyone else. 4

5 Overview-Why talk about sexual harassment? Managers and supervisors must be aware of management's responsibility to control harassment. They need to know how to prevent sexual and other forms of workplace harassment and what steps to take if harassment claims are made. New developments in sexual harassment laws have place increasing pressure on employers to take proactive approaches to ensure the workplaces is free of harassment. Supreme Court decisions (such as Faragher v. City of Boca Raton) make it clear that sexual training is expected in the workplace. 5

6 Why Get Training? Company objectives A commitment to dignity and respect in the workplace How sexual harassment affects employee morale How sexual harassment impacts the bottom line Managers, supervisors and employees should... Understand what harassment is and its impact. Respond to a complaint and to offensive behaviors. Distinguish between harmless behavior and sexual misconduct. Prevent retaliation. Set appropriate boundaries. Understand responsibilities and potential liabilities. 6

7 Why Get Training? Recognize possible litigation risks such as: constructive discharge retaliation defamation hostile environment quid pro quo wrongful termination invasion of privacy intentional infliction of emotional distress negligent management negligent hiring negligent retention negligent supervision - Legal requirements: Title VII of the Civil Rights Act of 1964 prohibits sexual harassment in the workplace Complying with the law is desirable and necessary 7

8 Training Benefits Knowledge of the laws, rules and regulations on sexual harassment Understand exactly what is defined as sexual harassment Knowing the preventative and corrective measures to take The right way to handle claims and complaints Enforcing company policies on sexual harassment Discussion and question and answer opportunity with a subjectmatter expert Overview of Concepts and Deliverables Provided The exposures and liabilities supervisors and organizations face regarding claims of sexual harassment Identifying and avoiding behaviors that can result in harassment claims Enforcing guidelines on appropriate workplace conduct Handling inappropriate conduct within the work group Maintaining a legally defensible position on sexual harassment compliance How to handle complaints of sexual harassment How to prevent retaliation Deal with confidentiality issues effectively and appropriately Applying your organization s policies on sexual harassment 8

9 Statistics EEOC & FEPAs Combined 2005 Statistics Receipts 12,679 % of Charges Filed by Males 14.30% Resolutions 12,859 Monetary Benefits (Millions)* $47.9 Resolutions by Type Settlement 1,471 / 11.40% Administrative Closures 2,808 / 21.80% No Reasonable Cause 6,364 / 49.50% Reasonable Cause 1,070 / 8.30% Successful Conciliations 324 / 2.50% Unsuccessful Conciliations 746 / 5.80% Merit Resolutions 3,687 / 28.70% 9

10 What is sexual harassment? Title VII Title VII prohibits discrimination in employment based on race, color, religion, sex, or national origin The courts have interpreted discrimination based on sex to include sexual harassment Conduct of a sexual nature in the workplace Includes any unwelcome: Sexual advances Requests for sexual favors Verbal and physical conduct of a sexual nature Display of sexually explicit or suggestive materials An employer may set higher standards of conduct for its employees that the law requires. 10

11 Who can commit sexual harassment? Supervisors Subordinates Co-workers Clients/customers Teachers Students Same-sex 11

12 Who can experience sexual harassment? Direct targets of harassment Bystanders/witnesses to harassment 12

13 How can sexual harassment occur? The specific forms of harassment Quid Pro Quo Consists of: Something for something Usually occurs within the context of a supervisoremployee relationship Hostile Work Environment Consists of: Severe and pervasive conduct Unreasonable interference with an individual s job performance Offensive, intimidating, hostile work environment Can be created by anyone in the workplace 13

14 The specific forms of harassment Hostile Work Environment Considerations: How frequent is the conduct? How severe is the conduct? Is the conduct physically threatening, humiliating, or merely an offensive utterance? Does the conduct unreasonably interfere with an individual s work performance? 14

15 When is an employer liable? Quid Pro Quo Liability is automatic Hostile Work Environment - Supervisors - Tangible employment action vs. - No action - Non-supervisors An employee who consents to a supervisor s sexual advances can state a claim for sexual harassment. 15

16 What isn t sexual harassment? The stray remark The overly sensitive employee Consensual relationships 16

17 The objectives of a workplace sexual harassment policy To provide a uniform statement of expectations To protect employee rights Foster respect for all parties Respect confidentiality Prohibit retaliation To promote compliance and prevention Management and employee responsibilities 17

18 General guiding principles F Familiarize yourself with the company policy A Address incidents of sexual harassment immediately C Cooperation Follow the FACTS T Thorough investigation S Satisfactory resolution 18

19 Follow the FACTS F Familiarize yourself with the company policy Read the policy Ask questions Keep a copy in a safe place (never circular file!) 19

20 Follow the FACTS A Address incidents of sexual harassment immediately Employee must report Management must respond 20

21 Follow the FACTS C Cooperate Full cooperation of all parties is expected and required 21

22 Follow the FACTS T Thorough investigation Documentation of complaints Employee interviews Signed statements 22

23 Follow the FACTS S Satisfactory resolution Swift response and resolution Objective review of the facts Fair and appropriate response 23

24 Final thoughts Important points to remember Same-sex harassment violates the law. An employee may consent to a supervisor s sexual advances but still consider the behavior to be unwelcome. No only can an employer set higher standards, it should. In some states, supervisors and managers can be held personally liable for conduct that violates Title VII and/or state law. In addition, managers and supervisors can also be held liable if their conduct is found to be a common law tort, such as assault or battery. Once an employer has been made aware of conduct that may constitute sexual harassment, it must investigate and promptly take appropriate action. An employer s inaction means tacit approval. 24

25 Sample Quiz 1. An employer may set higher standards of conduct for its employees that the law requires. TRUE FALSE 2. It is unlawful for a woman to sexually harass another woman because of her gender. TRUE FALSE 3. An employee who consents to a supervisor s sexual advances can state a claim for sexual harassment. TRUE FALSE 4. If a supervisor sees that an employee has posted sexually explicit posters in his or her work area, but nobody has complained about it, no further action is required. TRUE FALSE 25

26 Sample Quiz 5. Managers or supervisors can never be personally sued for sexual harassment. TRUE FALSE 6. A manager s threats to retaliate against a subordinate if he or she refuses sexual advances may constitute sexual harassment even if the threats are never carried out. TRUE FALSE 7. If a victim of sexual harassment asks a manager or supervisor not to tell anyone about the sexual harassment incident, the supervisor should not take further action. TRUE FALSE 26

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