Harassment Avoidance : Employer’s Handbook

1. Harassment Avoidance: Employer’s Handbook Suzanne M. Boy, Esq.

3. Harassment Epidemic? • Harvey Weinstein • Matt Lauer • Bill O’Reilly • Bob Barker • Bill Cosby • #metoo • #timesup

4. Introduction • Harassment problems can occur in any aspect of the employment process. • Problems can arise from the way supervisors treat their subordinates, and from the way co-workers interact with each other. • A well-prepared supervisor or business owner can avoid many of these lawsuits, and help the company effectively defend the lawsuits that are filed, if the supervisor: • understands what typically drives an employee to sue • proactively takes steps to reduce liability.

5. Agenda Harassment Law: Basics Types of Sexual Harassment Supervisor Responsibilities Employer Defenses Important Policies Best Practices Q&A

6. An environment with harassment serves no good purpose, AND it interferes with a company’s work.

7. The prevention/ elimination of harassment is EVERYONE’S responsibility.

8. Reasons for Employer Concern • Employers have many important reasons to ensure their workplaces are harassment-free: • Employee claims filed with the EEOC or stateemployment agencies. • Private lawsuits by employees. • "Intangible" damages from bad publicity and negative impacts on morale, productivity, turnover, and recruitment.

9. What laws are in play? • Many laws prohibit workplace discrimination and harassment: • Title VII of the Civil Rights Act • Florida Civil Rights Act • Is your company subject to these laws?

10. What is Harassment? • Harassment is a prohibited form of discrimination under Title VII. • Remember, harassment isn’t just sexual harassment. • Harassment is unlawful when it is based on any protected class.

11. Typical Handbook Policy Employer does not toleratediscrimination or harassment on the basis of ….

12. What is a protected class? • Race/Color • National Origin • Age • Gender • Pregnancy • Religion • Disability • Marital Status • Veteran’s Status • Genetic Information • Sexual Orientation/Gender Identity?

13. Types of Sexual Harassment Two types of Sexual Harassment have been determined to violate Title VII: • Quid Pro Quo • Hostile Work Environment

14. Quid Pro Quo Something for Something: • A supervisor’s unwelcome sexual advances are made an express or implied condition for receiving a tangible job benefit . . . OR . . .

15. Quid Pro Quo Supervisor/Subordinate: • An individual’s refusal to submit to the supervisor’s sexual demands result in tangible job detriment

16. Hostile Work Environment • An individual is subjected to unwelcome harassment which affects a term, condition, or privilege of employment Occurs when: . . .AND. . .

17. Hostile Work Environment • The employer knew or should have known of the harassment and failed to take prompt remedial action. Occurs when:

18. Hostile Work Environment • The conduct must be unwelcome • The conduct must usually be severe and pervasive

19. Hostile Work Environment:Severe and Pervasive? • There is no bright line test – no list of prohibited words or conduct • Each case must be evaluated on its own particular facts • What do we look for? • Was it based on a protected class? • Was it offensive and unwelcome? • How serious and/or frequent was it?

20. Hostile Work Environment:Severe and Pervasive? • The conduct must be severe enough to “alter the conditions of the victim’s employment and create an abusive working environment” • Offhand comments or teasing is not illegal, but still not okay • An employee must perceive the acts complained of as offensive during employment, and not for the first time after leaving employment

21. Hostile Work Environment Like quid pro quo, hostile work environment can be: • Co-worker/co-worker • Supervisor/supervisor • Non-employee/employee • Supervisor/subordinate But can also be:

22. Hostile Work Environment: Examples Visual: Ogling, staring, posters,magazines, pictures

23. Hostile Work Environment Examples Verbal:Repeated requests for dates, questions about personal life, lewd comments, dirty/sexual jokes, whistling

24. Hostile Work Environment: Examples Written: Love poems/letters,obscene poems/letters, cards, e-mails, text messages, posts on social media

25. Hostile Work Environment: Examples Physical:Violating space,patting, pinching, grabbing/groping, kissing, physical assault

26. Employees should not… • Tell or e-mail sexually explicit jokes; • Make repeated requests for a date with someone who is not interested, even if in jest; • Make suggestive, insulting or obscene comments, or use expressions such as "dear," "sweetheart," "doll" or "broad"; • Massage someone on any part of his or her body; • Discuss sexual thoughts, fantasies or activities; • Engage in unwelcome touching; or • Leer or make catcalls or sexual gestures at someone.

27. HOSTILE WORK ENVIRONMENT Important:Harassment can be actionable even if it is not during working hours!

28. Harassment: Know the Difference *A supervisor in the accounting department constantly and publicly criticizes his employees and calls them stupid and lazy. Is this illegal harassment or workplace bullying? *The same accounting supervisor refers to one of his employees as an “old gal” who is “over the hill” and has problems using a computer because of her age. Illegal harassment or workplace bullying?

29. Trends • Female → Male Harassment • Sexual Orientation Harassment • Non-Employee Caused Harassment • Harassment Via Social Media

30. Supervisor Responsibilities • Treat others with respect and dignity; • Be familiar with company policies; • Respond properly to complaints; • Assist with investigations of misconduct; and • Set the right tone for the workplace.

31. Supervisor Responsibilities • Setting the right tone: • Avoid conduct that may lead to liability for the organization; • Serve as a role model for other employees; • Be sensitive to the potential effects of powerdisparity; • Keep in mind that your actions matter more than your intentions; and • Abide by appropriate workplace behavior — even at off-site functions.

32. Supervisor Responsibilities • Report any issues immediately • Documentation: • Be accurate and truthful • Do not delay • Be thorough • Review your documentation • Have someone else review it

33. Supervisor Responsibilities • Respond properly to complaints: • Listen carefully and take all complaints seriously • Be familiar with our policies; • Don't promise to keep the complaint confidential; • Assure the employee that there will be no retaliation; • Report all complaints to Human Resources; and • Make clear your willingness to receive complaints and take appropriate action.

34. Supervisor Responsibilities • Managers/supervisors are responsible for preventing and eliminatingsexual and other harassment in their work areas • If you see something, say something! • Reference policy • Remind the “offender” that different people have different sensitivities

35. Retaliation Avoidance • Treat an employee who complained about discrimination or harassment the same as every other employee; • Take disciplinary action against any employee whoretaliates; • Do not take disciplinary action unless you can be sureit's fair; • Ensure that your conduct is not only fair in fact, but also fair in appearance; and • Never discourage employees from asserting their legal rights.

36. Supervisor Responsibilities • Pay attention: • Anonymous complaints • Rumors • Informal complaints • Personal observations • The Grandmother Test?

38. Employer Defenses: Quid Pro Quo • Basically no defenses! • Strict liability generally imposed for quid pro quo if there is a tangible employment action. • Employer lack of notice is not a defense.

39. Employer Defenses: Hostile Environment • In some cases the employer can raise the defense that: • it exercised reasonable care to prevent and promptly correct any harassing behavior; and • The employee unreasonably failed to take advantage of these procedures. • Thus, employer notice is often an issue in hostile work environment cases.

40. Important Policies

41. Important Policies • Equal Employment Opportunity Statement • List protected classes • Don’t forget religion and genetic information

42. Important Policies • Anti-Harassment Policy • Describe harassment, give examples of do’s and don’ts • Zero tolerance statement • Anti-retaliation statement • Employer will not retaliate for a good-faith complaint • Reporting procedure • “Shall” report – do not leave wiggle room • Have at least 2 clear reporting channels

43. Important Policies (Reporting) • Managers/supervisors shall immediately notify the following aboutany complaints of sexual or other harassment • ALL employees are responsible for reporting any complaints as well

44. Important Policies • Love Contracts?

45. Best Practices Supervisors/owners must set a good example Treat everyone consistently, and train your employees to do the same Be aware of different sensitivities Make sure you document – accurately and honestly – workplace issues and employee performance

46. Best Practices Be careful of employee complaints, and never sweep a claim/potential claim under the rug Follow reporting policies: report immediately! Avoid retaliation

48. @suzanneboy

49. Thank you! Suzanne M. Boy, Esq. Henderson, Franklin, Starnes & Holt, P.A. suzanne.boy@henlaw.com 239.344.1403 www.swflemploymentlawblog.com @suzanneboy