What is Offensive

1. 8/17/2012 1 What is Offensive? Determine whether an environment is hostile or offensive by looking at all of the circumstances through the eyes of a �reasonable person.� Check: Frequency of harassment; Severity of harassment; Whether it was physically threatening or humiliating; Whether it was offensive utterances; Whether it interfered with employee�s work. How do you determine if behavior is just in bad taste or is bad enough to create a hostile or offensive working environment? The courts have said that it has to be severe or pervasive enough to create an abusive working environment. The Courts have also found that to be offensive, the behavior has to be unwelcome. If a woman willingly participates in vulgar language, sexual banter or joking, then it�s not unwelcome and not offensive and therefore, not sexual harassment. In the case, Harris v. Forklift Systems, the Supreme Court ruled that the law bars conduct that would be perceived by a reasonable person and is perceived by the victim as hostile or abusive. The test for this is not mathematically precise and whether the environment is hostile or abusive can be determined only by looking at all of the circumstances-the frequency of the harassment, the severity of the harassment, whether it was physical, etc. This requires a case-by-case analysis. How do you determine if behavior is just in bad taste or is bad enough to create a hostile or offensive working environment? The courts have said that it has to be severe or pervasive enough to create an abusive working environment. The Courts have also found that to be offensive, the behavior has to be unwelcome. If a woman willingly participates in vulgar language, sexual banter or joking, then it�s not unwelcome and not offensive and therefore, not sexual harassment. In the case, Harris v. Forklift Systems, the Supreme Court ruled that the law bars conduct that would be perceived by a reasonable person and is perceived by the victim as hostile or abusive. The test for this is not mathematically precise and whether the environment is hostile or abusive can be determined only by looking at all of the circumstances-the frequency of the harassment, the severity of the harassment, whether it was physical, etc. This requires a case-by-case analysis.

2. 8/17/2012 2 Employer Liability If a co-worker is the harasser, then the employer is obligated to take immediate and appropriate action when it knew or should have known of the harassment. The same standard applies to harassment by a non-employee third party. The employer must take prompt and appropriate action to stop the harassment. If an employee is sexually harassed by another employee, the employer is responsible for correcting the behavior. Employers must take prompt and appropriate action when a non-supervisory employee is accused of sexual harassment. What is �appropriate� action? Actions should be designed to stop any harassment found. They must correct the situation or liability continues. In determining appropriate disciplinary action for any harassment found, employers should keep in mind that they could be found liable if the harassment doesn�t stop. Discipline should be proportional to the seriousness of the offense. An employer can be held responsible for the actions of a non-employee. The copy machine repairman may be sexually harassing the support staff. If so the employer must take immediate action to stop the harassment. If an employee is sexually harassed by another employee, the employer is responsible for correcting the behavior. Employers must take prompt and appropriate action when a non-supervisory employee is accused of sexual harassment. What is �appropriate� action? Actions should be designed to stop any harassment found. They must correct the situation or liability continues. In determining appropriate disciplinary action for any harassment found, employers should keep in mind that they could be found liable if the harassment doesn�t stop. Discipline should be proportional to the seriousness of the offense. An employer can be held responsible for the actions of a non-employee. The copy machine repairman may be sexually harassing the support staff. If so the employer must take immediate action to stop the harassment.

3. 8/17/2012 3 Employer LiabilityContinued For Quid Pro Quo harassment, the employer is always liable when the alleged harasser is a supervisor or manager. For Hostile Environment harassment, the employer is always liable for harassment by supervisors/managers unless�� Employers are more liable for the action/harassment by their supervisors. Managers or supervisors are given power and authority by the employer to act in the employer�s name. So employers are responsible for the actions of those managers and supervisors. For supervisors, the extent of liability also depends on the type of harassment. The employer is always liable for quid pro quo harassment. In a hostile environment situation, where there�s no TEA, no tangible loss, the employer is still responsible for that harassment unless�Employers are more liable for the action/harassment by their supervisors. Managers or supervisors are given power and authority by the employer to act in the employer�s name. So employers are responsible for the actions of those managers and supervisors. For supervisors, the extent of liability also depends on the type of harassment. The employer is always liable for quid pro quo harassment. In a hostile environment situation, where there�s no TEA, no tangible loss, the employer is still responsible for that harassment unless�

4. 8/17/2012 4 Employer Liabilitycontinued The employer can prove : It exercised reasonable care to prevent and correct any harassing behavior, and that The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or otherwise avoid harm. If the Respondent can show that it is diligent about preventing and promptly correcting any sexual harassment in its workplace, then it creates the inference that if the Complainant had filed an internal complaint, the harassment would�ve been prevented before it rose to the level of violating the law or it would have been corrected much sooner.If the Respondent can show that it is diligent about preventing and promptly correcting any sexual harassment in its workplace, then it creates the inference that if the Complainant had filed an internal complaint, the harassment would�ve been prevented before it rose to the level of violating the law or it would have been corrected much sooner.

5. 8/17/2012 5 Prevent & CorrectHarassment Employers should establish, distribute to all employees and enforce a policy prohibiting harassment and setting out a procedure for making complaints. The policy should make it clear the employer will not tolerate sexual harassment. Employers should draft a strong policy to address sexual harassment. Demonstrate by example that the company practices and enforces that policy.Employers should draft a strong policy to address sexual harassment. Demonstrate by example that the company practices and enforces that policy.

6. 8/17/2012 6 Elements of a Complaint Procedure Prohibition Against Harassment Protection Against Retaliation Effective Complaint Process Confidentiality Effective Investigative Process Assurance of Immediate and Appropriate Corrective Action These are the essential elements of a sexual harassment complaint procedure.These are the essential elements of a sexual harassment complaint procedure.

7. 8/17/2012 7 Other Preventive & Corrective Measures Instruct supervisors to report or address all complaints of harassment; Correct harassment regardless of whether an official complaint is filed; Periodic training of staff, supervisors and managers to ensure understanding of their rights and responsibilities; Sometimes Complainants will tell a supervisor about some harassment they have received but they�ll say, �Don�t do anything yet. I can handle it for now.� In terms of liability, an employer has to act when they or their agents are informed of sexual harassment. The supervisor is obligated to pass on the information to whoever is responsible for investigating those matters. Provide early and on-going training to help employees recognize and prevent inappropriate workplace behaviors. Reinforce positive behaviors and confront inappropriate behaviors before they become sexual harassment complaints. When employers are correcting harassment, follow up with the victim and the harasser for several weeks to several months. Check with the victim to be sure that inappropriate behavior has stopped and that there has been no retaliation for bringing forth the complaint. And check with the harasser to be sure they are dealing with the situation in an appropriate manner. Sometimes Complainants will tell a supervisor about some harassment they have received but they�ll say, �Don�t do anything yet. I can handle it for now.� In terms of liability, an employer has to act when they or their agents are informed of sexual harassment. The supervisor is obligated to pass on the information to whoever is responsible for investigating those matters. Provide early and on-going training to help employees recognize and prevent inappropriate workplace behaviors. Reinforce positive behaviors and confront inappropriate behaviors before they become sexual harassment complaints. When employers are correcting harassment, follow up with the victim and the harasser for several weeks to several months. Check with the victim to be sure that inappropriate behavior has stopped and that there has been no retaliation for bringing forth the complaint. And check with the harasser to be sure they are dealing with the situation in an appropriate manner.

8. 8/17/2012 8 Employee�s Duty to Exercise Reasonable Care Employees have a duty to utilize the mechanisms the employer has established to prevent and correct sexual harassment. Legitimate reasons not to file an internal complaint include: Risk of Retaliation Obstacles to Complaints Perception that Complaint Process Is Ineffective. Other Efforts to Avoid Harm The second prong of the affirmative defense requires an employer to show that an employee unreasonably failed to use the internal complaint procedure. There are reasonable, legitimate reasons for an employee not to utilize it. The employee could reasonably fear retaliation. This would be especially so if the employee had seen others complain and suffer adverse actions. It can be reasonable not to complain when there are unnecessary obstacles to get a complaint filed. For instance if the process entailed undue expense to the employee, inaccessible points of contact for making complaints or unnecessarily intimidating or burdensome requirements.The second prong of the affirmative defense requires an employer to show that an employee unreasonably failed to use the internal complaint procedure. There are reasonable, legitimate reasons for an employee not to utilize it. The employee could reasonably fear retaliation. This would be especially so if the employee had seen others complain and suffer adverse actions. It can be reasonable not to complain when there are unnecessary obstacles to get a complaint filed. For instance if the process entailed undue expense to the employee, inaccessible points of contact for making complaints or unnecessarily intimidating or burdensome requirements.