Non Harassment Training For Managers & Supervisors 2011 RSJ/Swenson LLC This seminar, like all materials, training, and services offered by RSJ/Swenson are offered and sold with the understanding that it is not engaged in rendering legal counseling or other professional service. If legal counseling or other professional assistance is required, the services of a competent practitioner in the relevant area should be sought. Please visit us at www.rsjswenson.com
Overview of Today s Webinar Definitions of unlawful sexual harassment under federal We ll also refer to California law How to recognize unlawful sexual harassment Employer obligation to prevent and correct workplace sexual harassment Complaint process Limited confidentiality
Overview, continued Remedies available No retaliation Strategies to prevent sexual harassment Landmark Cases Your Non Harassment Policy What would you do? Scenarios Quiz
California s AB 1825 Sexual Harassment training required Any organization with 50 or more employees Including independent contractors and temps Each Supervisory Employee, Every Two Years New Supervisory Employees must be trained with six months of hire/promotion Must be effective interactive training (videos aren t good enough) Special requirements for trainers, as well
Federal Law Federal law against sexual harassment evolved from the Civil Rights Act of 1964, also known as Title VII Equal Employment Opportunity Commission (EEOC) enforces Title VII
EEOC Definition of Sexual Harassment Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct: Explicitly or implicitly affects an individuals employment; Unreasonably interferes with an individuals work performance; or Creates an intimidating, hostile, or offensive work environment.
California s Fair Employment and Housing Act (FEHA) bans employment discrimination and based on: Age Color Disability Mental & Physical Includes HIV/AIDS Medical Condition Sexual Orientation Ancestry Religious creed National Origin Sex Cancer, genetic characteristics Race
FEHA Protects: Members in the protected categories; Perceived members in one or more protected class; A person who is associated with a person who has, or is perceived to have, any of FEHA s protected characteristics.
Three Types of Harassment Verbal Physical Sexual
To Whom Does FEHA Apply? All employment provisions of FEHA apply to employers with five or more full time or part time employees. FEHA s anti harassment provisions apply to all employers with only one or more employees.
The DFEH definition of sexual harassment: Unwanted and unwelcome visual, verbal or physical conduct that is sex based or of a sexual nature; Requests for sexual favors; or Offensive third party conduct to which the victim is subjected.
How to recognize workplace Sexual Harassment Unwanted sexual advances Visual conduct Verbal conduct Written conduct Physical conduct Other types of conduct.
Who is Protected from Unlawful Harassment? Employees Job Applicants Independent Contractors Third Parties Customers, vendors, visitors, etc.
Potential Sexual Harassers Supervisors Other Employees Customers Employee Former Employees Vendors Co workers
Who is Liable for Unlawful Harassment? Employers Dual employers Individuals can be held personally liable for sexual harassment
Employer Liability Employer can be liable for conduct of supervisors and managers; AND Employers can be liable for sexual harassment by a coworker, vendor, customer, or visitor, if the employer knew about the conduct and failed to take immediate and appropriate corrective action.
Two broad categories of Sexual harassment: Quid pro quo Hostile work environment
Quid Pro Quo Means something for something Or This For That Most obvious form of harassment Typically occurs when a person with the power to influence an employment decision or condition seeks a sexual favor in return for a positive outcome.
Quid Pro Quo Harassment When an employee is forced to choose between giving in to a superior s sexual demands and forfeiting an economic benefit such as a pay increase, a promotion, or continued employment. Employers are strictly liable
Examples of quid pro quo harassment
Hostile Work Environment Employee was subjected to sexual advances, requests for sexual favors, other verbal or physical conduct of a sexual nature, or where non sexual abusive conduct imposes a greater burden on one sex than the other; Conduct was unwelcome; and Conduct was sufficiently severe or pervasive to alter the conditions of the victim s employment and create an abusive working environment.
Hostile Work Environment Occurs when sexual or other discriminatory conduct is so severe and pervasive that it interferes with an individual s performance; creates an intimidating, threatening, or humiliating work environment; or perpetuates a situation that affects the employee s psychological well being.
Ellison v. Brady Reasonable Woman Standard California 9 th Circuit Court of Appeals said: Would a reasonable woman consider the conduct sufficiently severe or pervasive to create a hostile or abusive working environment?
Non Sexual Gender Stereotyping Negative gender specific comments and gender stereotyping also can lead to claims of sexual harassment in the workplace. Statements such as that s a man s job a woman could never handle it or; women are too sensitive to handle pressure jobs or; men are pigs and cannot be trusted
Harris v. Forklift Systems, Inc. The U.S. Supreme Court stated that the plaintiff was not required to prove psychological trauma in order to have a valid claim of harassment. The two standards the court used to determine sexual harassment in this was the "reasonable person" standard and the victim's feeling that he or she was abused.
Sexual harassment can occur in a variety of circumstances: The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex. The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co worker, or a non employee. The victim does not have to be the person harassed but could be anyone affected by the offensive conduct. Unlawful sexual harassment may occur without economic injury to or discharge of the victim. The harasser's conduct must be unwelcome.
Oncale v. Sundowner Offshore Services Same Sex Harassment Even without motivation of sexual desire
Employer s Obligation to Prevent and Correct Workplace Sexual Harassment FEHA requires that employers take all reasonable steps to prevent discrimination and harassment from occurring. When an employer is aware of an allegation of harassment, the employer must take immediate and appropriate corrective action to stop the harassment and protect the complainant from being further victimized.
Employer Posting and Notice Requirements EEOC requires employers post a prevention notice and advise emnployees of their right to a harassment free workplace California employers are required to provide employees with an information sheet on sexual harassment RSJ/Swenson website
Three Steps Employers Can Take Issue a formal sexual harassment policy Establish a complaint process that provides for prompt, thorough, and impartial investigation. Conduct training on the subject of sexual harassment.
What Is Your Organizations Non Harassment Policy? and what should it include?
Establish A Complaint Procedure Take all complaints seriously Do not ignore a complaint or conclude that it s not your place to do anything about it Do not discount claims by trouble makers or employees having difficulty at work Supervisors must take reasonable care
What is Reasonable Care? You must do something when you learn about harassment; You are responsible; You have to pay attention
Investigation Procedure Actively encourage victims of sexual harassment to report the behavior. Identify more than one person to whom the behavior should be reported. Apply policy neutrally and consistently.
Retaliation Occurs When An: Employer takes adverse actions against an employee because s/he complained of unlawful discrimination or harassment. Employee suffers adverse employment action because of her/his participation in an investigation into a harassment or discrimination complaint, such as by giving information in an interview. Employer takes adverse action against someone because of his/her association with or sympathy for a person protected under the law.
Retaliation Burlington Northern & Santa Fe Railway v. White RSJ/Swenson Retaliation Investigation The missing computer files
Express Disapproval Take down offensive jokes and cartoons. If you overhear sexually explicit conversations or language that it is inappropriate in the workplace. If you hear discriminatory language. Do not laugh at racy jokes, no matter who tells them. You are a role model You set the tone. Say it is not okay.
What Not To Do If you get a complaint, do not suggest that it is trivial or that the complaining person has simply misinterpreted the facts. Do not ignore it or conclude that it is not your place to do anything about it. Do not discount claims made by trouble makers or by employees who are having other difficulties at work.
What would you do? A co worker from another department keeps asking one of your employees out and brings candy. Your employee is not interested and you are on a diet.
What Would You Do? You receive a sexual joke as an e mail attachment
What would you do? A co worker checks personal e mail at work and occasionally opens mail from friends that contain pornographic pictures. He shuts them down quickly and no one has complained of seeing one.
What would you do? Your best employee has approached you with a problem. She is being hit on by her department supervisor, but she doesn t want you to do anything. She just wants it to be on record that she told someone. She s handling the situation, and she asks you to promise not to discuss the matter with anyone.
Which of these behaviors would you consider sexual harassment? Making unwanted sexual overtones Telling sexually explicit jokes Touching a co worker suggestively Male or female bashing
Maybe, maybe not. Any of these behaviors could be examples of sexual harassment. Then again, any could be the result of: Simple misunderstanding Poor judgment Ignorance
What offends one person may seem funny to another One guideline: Mother, wife, or daughter test Is this something that you would do or say in front of your mother, wife, or daughter? If not, chances are good that the behavior or language is not appropriate. It s How It s Perceived
Legal experts agree that the person who is the target of sexual jokes, innuendoes, suggestions, or other gender based actions determine what harassment is by the way he or she responds.
What Happens If Harassment Claims Are Filed? Major costs and exposure to business Owners, Managers and Supervisors can be held personally liable as well!
Remedies Available for Sexual Harassment Hiring Back Pay Front Pay Reinstatement Cease and Desist Orders Damages for emotional distress Reasonable attorney fees and costs Expert witness fees Administrative fines and Court ordered Punitive Damages
Recent California Cases Robb v. Starbucks Corp. Hope v. California Youth Authority
A male employee tells an off color joke in front of a female co worker: Is this a case of sexual harassment? Yes No
A male employee tells an off color joke in front of a female co worker: Is this a case of sexual harassment? Yes. The male employee was engaging in unprofessional behavior and exercising poor judgment.
What do you see?
What Is Your Process? Report it to your supervisor/ed Act quickly Consult counsel/hr rep Consider a third party investigator AVOID RETALIATION
RSJ/SWENSON HR & Management Consulting On Site Training Independent Workplace Investigations The Chapman Hotline www.rsjswenson.com Click Chapman Benefits Clients at bottom of the page
Questions?