Preventing Sexual Harassment In The Workplace/Education Setting

1. Preventing Sexual Harassment In The Workplace/Education Setting Academic Business Officers Group THERESE M. LEONE, ESQ. OFFICE OF THE GENERAL COUNSEL April 26, 2004

2. Clarence Thomas / Law Professor Anita Hill The Event Triggering Awareness

3. Although, Some Didn’t “Get It” The Event Triggering Awareness

4. The Event Triggering Awareness Although, Some Didn’t “Get It”

5. Is Sexual Harassment ACurrent Issue? • Jury verdictfor $576,000 upheld to an employee for claims of unrelenting workplace sexual harassment and after-hours "shadowing" by a co-worker (Parker v. Automobile Club of Southern California, Cal. Ct. App., Jan. 10, 2003). • Five former Seattle area employees of Krispy Kreme Doughnuts Inc. sued the company for alleged sexual and racial harassment and wrongful termination (The Vancouver Sun May 21, 2003). • Dial Corp., maker of Dial soap and Purex detergent, will pay $10 million to settle a sexual-harassment lawsuit brought by the EEOC to avoid a trial (Los Angeles Times April 30, 2003).

6. Is Sexual Harassment ACurrent Issue? • “Judge has ordered Costco Wholesale Inc. to pay $508,000 in a sexual harassment case” (The News Tribune, May 24, 2003) • College pays $75,000 to settle lawsuit by • a former (male) vice-president who accused college president of sexual harassment –(NY Times May 25, 2003). • Jury awards former Maui police officer $80,000 in racial/sexual harassment lawsuit. (The Honolulu Advertiser May 21, 2003).

7. Is Sexual Harassment ACurrent Issue? • “Berkeley Law Dean Quits in Scandal” (SF Chronicle) • Lawyer in the Yuma County Attorney's Office filed a sexual harassment and discrimination lawsuit against her boss and two other attorneys in the office. (AP July 10, 2003)

8. How Prevalent is It? • Merit Systems Protection Board Survey • 44% of women • 19% of men • 1992 survey of UCSF interns and residents [New England Journal of Medicine] • 75% of women • 20% of men • 1991 nationwide survey of second-year interns [Journal of the American Medical Association] • 63% of females • 15% of males

9. How do people respond? • 57.2% ignored it • 36.5% confronted the harasser privately • 26.0% joked about it • 13.7% reported it to a supervisor • 4.9% left their job to avoid harassment • 0.4% filed a complaint with govt or lawsuit • 7.4% other

10. 100% 80% 60% 40% Women 20% 0% Men Being Propositioned in the Workplace Is “Offensive”

11. Employment Claims by Type

12. Employment Claims by Cost

13. University’s Systemwide Employment Liability Program: Number of claims filed

14. University’s Employment Liability Program Costs • FY 2003 shows a decrease in costs for employment liability claims. • Univ. risk management says they are seeing fewer employment-related lawsuits brought against the University. • Harassment lawsuits represent the smallest portion of employment liability claims (after discrimination and administrative claims). • 73% of total amount paid in employment liability claims are related to claim expenses (primarily legal) – only 27% represent indemnity expenses.

15. Employment Expenses

16. A Legal Definition Sexual harassment is any unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:

17. Definition of Harassment • Submission to the conduct is made either explicitly or implicitly a term or condition of employment, • Submission to or rejection of such conduct by an individual is used as a basis for making personnel decisions, or • When unwelcome sexual conduct is severe and pervasive enough to create an abusive working environment You got the job!

18. Economic Harassment Threat or promise of a benefit linked to sex Always involves a supervisor • Why? • It’s an abuse of power

19. Environmental Harassment • Unwelcome • Sexual conduct or directed at gender • Offensive to the recipient and to a “reasonable person” • Severe or pervasive to create an intimidating or abusive environment

20. Environmental Harassment • Comprises the majority of sexual harassment litigation • Courts consider a number of factors in determining whether an environment is “hostile” (Harris v. Forklift Systems, Inc. 510 U.S. 17 (1993)) • Nature of conduct • Frequency of conduct • One incident enough? EEOC says yes, if touching involved.

21. Environmental Harassment • Nature of Conduct • Verbal (derogatory comments, catcalls offensive jokes, requests for sexual favors, sexual innuendos, repeated propositioning) • Non-verbal (looking person up and down, staring, derogatory gestures, winking, throwing kisses) • Visual (explicit posters, cartoons, calendars, drawings) • Physical (unwanted touching, assault, grabbing, blocking or impeding movement) • Electronic (email)

22. Environmental Environment Frequency of Conduct Repeated incidents create a stronger claim of hostile environment harassment

23. The Reasonable Person • Pervasiveness and severity are judged by a reasonable person standard. • Courts look at the prospective of the reasonable person in the plaintiff’s position considering all the circumstances (Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998)). • 9th Cir. adopted “reasonable woman” standard (Ellison v. Brady, 924 F.2d 871 (1991)).

24. Severe or Pervasive • Pervasive conduct is a pattern of repeated conduct • Severe conduct includes rape, sexual assault, grabbling, fondling, forcibly kissing,

25. SAME SEX HARASSMENT • Actionable under Title VII (Oncale v. Sundowner, 523 U.S. 75 (1998). • Harasser need not be homosexual (Yeary v.Goodwill Indust. Knoxville, 107 F.3d 443 (6th Cir. 1997).

26. SAME SEX HARASSMENT • Also actionable under California law • Kovatch v. California Cas. Mmgt. Co., 65 Cal. App. 4th 1256 (1998). • Delaney v. Superior Fast Freight, 14 Cal. App. 4th 590 (1993). • CA FEHA, codifying Soroka v. Dayton Hudson Corp., 235 Cal. App. 3d 654 (1991)). • AB 196 - gender identity/transgender discrimination

27. EMPLOYER LIABILITY • Economic harassment • Employer is strictly liable for supervisor harassment where tangible employment action taken against employee (Burlington Indus. v. Ellerth, 524 U.S. 742 (1998)) • Tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, significant reassignment of duties

28. EMPLOYER LIABILITY • Environmental Harassment • Employer also liable for supervisor harassment in environmental harassment cases even where no tangible employment action taken against employee, but affirmative defense available (Burlington Indus. v. Ellerth, 524 U.S. 742 (1998)). • Affirmative defense looks at reasonableness of employer’s and victim’s conduct (Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

29. EMPLOYER LIABILITY • Employer Affirmative Defenses • 1) Employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and • (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities

30. EMPLOYER LIABILITY Employer Affirmative Defenses – Prompt Response • 9th Cir. overturned six figure jury award of damages to postal worker because employer took prompt corrective action, including an investigation and keeping employees permanently separated, changing shifts and offering a transfer to another location (Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001). • Court dismissed lawsuit and found employer not liable for circulation of picture of woman with bare breasts that resembled female employee because supervisor immediately began investigation and employees who had a copy or circulated it were disciplined and required to take anti-harassment training (Rheineck v. Hutchinson Technology, 261 F.3d 751 (8th Cir. 2001)

31. EMPLOYER LIABILITY Employer Affirmative Defenses – Employee Delay • Court dismissed case where university police officer waited 7 months to file formal complaint. When notified, University immediately investigated and took disciplinary action and harassment ceased. Gawley v. Indiana Univ., 2001 U.S. App. LEXIS 27353 (7th Cir. 2001). • Court dismissed lawsuit where female employee waited 9 months to report harassment. Employer immediately conducted investigation and disciplined offending supervisor, including rescheduling his hours. Employer also followed up with employee to ensure that no further harassment occurred. Jackson v. Arkansas Dept. of Educ., 272 F.3d 1020 (8th Cir. 2001).

32. EMPLOYER LIABILITY • BUT FEHA STANDARD IS A DEFENSE TO DAMAGES ONLY! • State Dept. of Health Svcs v. Superior Court, 31 Cal. 4th 1026 (2003) • No Faragher/Ellerth affirmative defense applicable to FEHA harassment claims – defense to damages only

33. EMPLOYER LIABILITY • To prevail under this damages defense, an employer must show: • It took reasonable steps to prevent and correct workplace harassment; • The employee unreasonably failed to use the preventive and corrective measures that the employer provided; and • Reasonable use of the employer's procedures would have prevented at least some of the harm that the employee suffered.

34. EMPLOYER LIABILITY- FEHA Defense to Damages • Courts will examine whether employer has: • Appropriate anti-harassment policies and procedures that are communicated to employees • Anti- retaliation prohibitions • Reporting and enforcement procedures that protect confidentiality to the extent practical • Consistent and firm policy enforcement • Effective steps to encourage victims to come forward with complaints and effective responses to complaints

35. EMPLOYER LIABILITY- FEHA Defense to Damages • Courts will examine “reasonableness” of employee’s conduct by looking at past circumstances. • allows a jury to determine whether a victim's failure to file a complaint immediately was unreasonable. • a jury may consider a victim's fear of retaliation and feeling of humiliation.

36. EMPLOYER LIABILITY- Practical Implications of McGinnis • Training/education is key! • Ensure FEHA-mandated environment free of harassment • Launch immediate, thorough investigations by trained individuals • Apply University policy consistently – take remedial action designed to end harassment if policy violations are found

37. EMPLOYER LIABILITY- Litigation Implications of McGinnis • Plaintiffs will attack the University’s internal procedures, experience and expertise in dealing with sexual harassment issues • These issues will be the subject of extensive discovery and attack by plaintiffs when the University asserts the “avoidable consequences” defense.

38. EMPLOYER LIABILITY- Litigation Implications of McGinnis • Because this defense does not preclude liability, it will be more difficult to use it affirmatively to dismiss a case through summary judgment • The University may be liable for an employee’s attorneys’ fees after a plaintiff’s verdict at trial even if successful in proving the defense.

39. EMPLOYER LIABILITY Co-worker harassment Courts impose a “knew or should have known” negligence standard (Reitter v. City of Sacramento, 87 F. Supp 2d 1040 (E.D. Cal. 2000).

40. Liability For Third-Party Harassment • Mackey v. Dept. of Corrections, - on review to CA Supreme Court - Appellate court held that female employees (non-paramours) had not shown a concerted pattern of harassment sufficiently pervasive to have altered the conditions of their employment on the basis of sex. • AB 1229 in the legislature

41. Liability For Third-Party Harassment • An employer may be responsible for sexual harassment of non-employees where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. • AB 76 overruled Salazar v. Diversified Paratransit

42. Personal Liability for Harassment? • Supervisors can be liable for sexual harassment of a subordinate • Employees at all levels who sexually harass a coworker also liable (Cal. Gov. Code § 12940(j)(3)

43. Workplace Romance • Can it be prevented? • Problems that can arise: • Favoritism claims – from “non-paramours” • Retaliation when a romance breaks up • Ongoing pursuit by one when the other no longer wishes to continue can lead to SH claims • May violate APM 015 (if with student for whom you have oversight). .

44. University Preventative Measures – Policy Changes • Policy Workgroup has revised the systemwide sexual harassment policy • There will be one systemwide policy • Certain aspects of the procedures will be mandatory (time limits for filing complaint), others will be up to each campus (responsibilities of the Title IX coordinator, types of training programs, etc.) • Expect the policy to be issued this year

45. University Preventative Measures – Policy Changes • APM 015 – Strict prohibition against relationships with students for whom faculty members have instructive, evaluative or supervisory relationship

46. Preventative Measures - Conduct Employee Training • Ensure that all new employees are trained about the anti-harassment policy • Conduct training for current employees • Distribute the policy annually • Discuss procedures for bringing the complaint • Ensure that complainants know their complaints will be taken seriously and will be investigated • Assure confidentiality to the extent possible • Provide assurances of no retaliation

47. Preventative Measures to Reduce Liability • Provide Effective Remedies • Discipline should be commensurate with the severity of the offense – reasonably calculated to end the harassment (Ellison v. Brady, 924 F.3d at 882). • Remedy should be targeted at the harasser not at the victim (Intlekofer v. Turnage, 973 F.2d 773, 779 (9th Cir. 1992).

48. UC RESOURCES • Campus Title IX Officers • Location specific sexual harassment training • Coordinated systemwide training for new UCOP policies • Campus counsel/OGC advice/counsel during investigative process

49. QUESTIONS AND ANSWERS THANK YOU FOR YOUR KIND ATTENTION!