PREVENTING HARASSMENT IN THE WORKPLACE.

1. PREVENTING HARASSMENT IN THE WORKPLACE. An Employer Workshop Host Agency: Workforce Solutions Javier Chacon EEO Consultants & Mediators www.eeocconsultant.com

2. Today….. • Reinforce the benefits of a professional harassment-free work environment. • Understand management’s role in preventing and handling harassment. • Review Scope of an Anti-Harassment Policy • Understand the Law and EEOC Guidelines • Review the Costly Mistakes of Others • CONSEQUENCES EXIST FOR HARASSERS! • Enforce Anti-Harassment Policy, Affirmative Defense Procedures!. • Learn Exercises on how to Mentor Employees in Opposing Unlawful Harassment. • Review Suspect Case Scenarios and How to Stop any Potential Harassment!

3. What is the Cost of Harassment? • Employees feel victimized • Decrease in productivity • Attendance problems • Loss of employment for those affected • Legal fees • Settlements • Uncomfortable work environment • Reputation and Credibility

4. Harassment? Now? Later? And by whom? The David Letterman Confession regarding his sexual relations with several members of his staff?

5. Chronology of Harassment Law Precedents • 1980…EEOC interprets Title VII to forbid sexual harassment as a form of sex discrimination.. • 1986.. Meritor Savings…Supreme Ct Decision…woman involved in a sexual relationship with her boss who feared for her job; opposes further relationship…Ct ruled “that employer is liable for sexual harassment committed by supervisor if it knew or should have known and did nothing to correct it” • 1993.. Harris v Forklift Sys.. Supreme Ct established standards for hostile environment: (1) the employee subjectively perceives a hostile work environment; (2) the conduct was so severe and pervasive that a reasonable person would find a hostile work environment. • 1998..Onscale v Sundowner Offshore Serv. Supreme Ct rules that sexual harassment applies to ‘same sex’ harassment at work. • 1998..Farragher v City of Boca Raton/Burlington .Supreme Ct rules that employer has absolute liability for harassment action made by supervisor to subordinate employer if subjected to tangible employment action. Established Affirmative Defense Guidelines for Employers to impose regarding the investigation and correction of any harassment claim. If Employer imposes guidelines in good faith, and harassment victim is not subject to a tangible employment action, defense can be offered if complainant failed to use employer’s proffered affirmative defense procedure for investigating/correcting internal harassment complaints. Also, a ruling that non-tangible actions can also be construed as retaliation…

6. Chronology of Harassment Law Precedents • 1999… Kolstad v American Dental Ass’n.. the Supreme Court ruled that an employer can avoid punitive damages if it can show that it has implemented in good faith its Anti-discrimination policy. • 2000… Casiano v AT&T.. Ct ruled that an employee must use existing avenues imposed by a company for anti-harassment. • 2001… Beard v Flying J, Inc… Ct. ruled that an employee’s participation in ‘sexually provocative discussions’ did not permit inappropriate physical touching . • 2003.. Ocheltree v Scollon Productions, Inc… Appelate Court Decision ruling that Offensive Sexual Bantering created a hostile work environment. • 2005.. Miller v Dept of Corrections.. Calif. Supreme Ct. ruling that sexual favoritism can be grounds for a hostile environment whereby the boss would favor his ‘female lovers’ for favorable employment benefits, and thus demeaning to other women who elected not to partake.

7. RETALIATION OF ANY KIND IS PROHIBITED TO AN EMPLOYEE/APPLICANT: • FOR OPPOSING a perceived discriminatory action under eeoc law. • FOR FILING a previous complaint subject to eeoc law. • FOR PARTICIPATING as a witness subject to eeoc law. • FOR REQUESTING an accommodation subject to eeoc law. • BECAUSE OF CLOSE ASSOCIATIONS with someone engaged in protected activity.

8. Retaliation includes: Tangible Actions • Examples • Demotion • Failure to promote • Reassignments to less desirable positions • Termination • Authority diminished

9. RETALIATION • No Tangible action OCCURRED but subjected to : coercion, intimidation, threats, unjustified negative evaluations and/or references, or increased surveillance creating a retaliatory hostile work environment.

10. SEXUAL HARASSMENT CONDUCT: Based on Sex m/f:f/m:m/m:f/f Unwelcome Unreasonable Offensive Severe or Pervasive Unwanted behavior of sexual advances Requesting sexual favors in exchange for employment benefits

11. PROHIBITED CONDUCT-SEXUAL NATUREWITH CLIENTS& COLLEAGUES • Cartoons/drawings/pictures; • Insisting on dates when someone is not interested; • Referring to someone as Babe, doll, hot stuff; • Showing sexually explicit pictures, cartoons, games, other visuals • Porno screen savers, e-mails, text messages, twitters. • Probing into someone sexual experience; • Sexual stories or jokes; • Inappropriate physical touching; • CONSENSUAL RELATIONSHIP -TWO EE’S ON Company’s property. • Making quid pro quo demands ; • Making suggestive gestures or body movements; • Brushing up against a person; • Making suggestive sounds at a person.

12. UNWELCOME Subjective Test: How does the employee view it? How about other witnesses, 3rd parties? Express Opposition: Offensive; Not Appreciated: Stop It! Say NO, STOP IT!; Don’t Do This Again! REPORT THE ACTION TO A MGR OR HR!

13. If you are feeling uncomfortable… • You can ask the person to stop…”please stop” the behavior • You can write a note or email asking the person to stop the behavior • You can tell anyone in management…they want to know and are required to investigate • You will be expected to cooperate • Every effort will be made to keep investigations confidential • Management wants to maintain a positive, professional workplace

14. Employer Liability Subject to Unlawful Conduct by: • Co-worker • Supervisor • Top Management • Non Employee

15. CO-WORKER/ CLIENT HARASSMENTLiability Standard • Employer knew or should have known • Frequency and Severity • Supervisor involvement • Employer thru Agent Supervisor or HR did nothing!

16. SUPERVISOR HARASSMENTLiability Standard • Tangible Employment Action Absolute Vicarious Liability • No Tangible Employment Action ( Affirmative Defense Applicable)

17. A well defined strong anti-harassment/retaliation policy which defines the scope of anti-harassment/retaliation behavior and consequences for harassment and/or retaliation. (EXAMPLES HELPFUL) Defines a ‘user friendly’ method for filing complaints and with whom by title or name including procedure for filing against supervisor or senior executive. Assurances that no retaliation will come about for filing a complaint; Policy affirmatively promoted through periodic training and employee handbooks. Train employees & managers to recognize inappropriate conduct. Train employees to oppose ‘unwelcome conduct’ and report it accordingly. Require employees and mgrs to acknowledge they are aware & understand company policy on an annual basis. (no exceptions) FIRST ELEMENT-PROACTIVE PREVENTION

18. Confidentiality where possible Investigate all complaints Interview the complainant and all witnesses. Interview the alleged harasser and ALL WITNESSES. Other Neutral Witnesses Interview former employees of alleged Harasser Check Resource File for Sample Questions for Interviews & Credibility Assessments. CREATE A FILE, AND OBTAIN STATEMENTS FROM ALL PARTIES including Policies. Determine Appropriate Action (1) policy violation occurred; (2) no clear violation; (3) claim not substantiated. FIRST COMPONENT-AFFIRMATIVE DEFENSE

19. SEVERE OR PERVASIVEConduct(Applies to Sexual, Race, other) • Non-Tangible Actions/Tangible Actions • Determined by nature and frequency • Name Calling; Unfulfilled Threats; removal of authority; demeaning behavior; humiliating assignments; unjustified performance reviews. • Can a reasonable person still come to work under these conditions? • Do we have an intimidating, hostile, retaliatory or offensive work environment? • Is this occurring because of harassment or because the aggrieved party filed a complaint, or both? • Was this reported, and what happened? • HR must Investigate, Stop & Correct any potential violation!

20. SECOND PHASE-AFFIRMATIVE DEFENSE • Survey your employees & determine if case is isolated or systemic? • Can be used as a Defense if Employer has implemented its Anti-Harassment Procedures in good faith and Aggressively Communicated & Acted on all Inquiries and Conducted Training periodically. • Reiterate policy and Notification Procedures and Consequences for Non-Compliance.

21. PROMPTLY CORRECT AND PREVENT • Did your action • End current harassment? • Deter future harassment?

22. POST INVESTIGATION (supportive of violation) • Restore any salary loss and benefits for complainant, i.e , sick and annual leave, other benefits; • Provide Compensatory and Punitive Damages to Complainant; • Correct any inappropriate Policy and Practice. • Discipline Harassers and Others who did not follow Policy in pursuit of EEOC guidance.

23. CONDUCT WHICH IS UNREASONABLE OFFENSIVE:

24. ………….. Industries, LLC, allowed

25. Indicators for Hostile Environment Claim: • The conduct is very egregious and pervasive & the employer should have known about it; • There exists no policy regarding Prohibited Harassment and Retaliation subject to EEOC statutes. • Employees do not use the Complaint Process as the Process has been tainted due to no commitment from the CEO regarding its enforcement; • Notification Procedures for filling complaints are flawed and ineffective; • There are no consequences for Managers who learn of the complaints yet fail to Report or Stop the Harassment/Retaliation; • The Employer does nothing to stop the alleged unlawful conduct and has no real consequences for those involved in the harassment/retaliation.

26. Manager Responsibilities • Accept your leadership role and responsibility • Understand company policy and basics of the law • Understand the importance of follow-up and preventing retaliation • Understand how to coach employees to say ‘no’ to offensive behavior • MAKE A DIFFERENCE, STOP ANY INAPPROPIRATE CONDUCT !

27. INFORM THE COMPLAINANT AND THE ACCUSED • Communicate your Company’s commitment to take complaints seriously, the results of the investigation should be shared with the complaining employee and the accused. • Other employees should normally not be advised of the outcome of the investigation—even witnesses. • Any employee making inquiries should be advised their assistance was appreciated, but the outcome is confidential.

28. HARASSMENT APPLIES TO: Race Ethnicity Color AGE

29. CONDUCT WHICH IS UNREASONABLY OFFENSIVE: REASONABLE PERSON STANDARD

32. POST INVESTIGATIONALL CASES • Reiterate anti-harassment policy • Reiterate anti-retaliation policy • Offer refresher training to supervisors and/or employees on a periodic basis

33. If Inappropriate Conduct Is Not Egregious Enough To Meet Legal Standard…(resource) • You Should Still Take: • Corrective Action • Disseminate Harassment Policies • Disseminate Anti-Retaliation Policies • Check in With Complainant DO NOT BE DISMISSIVE!!

34. WHO IS PROTECTED? • Any of these people are protected by discrimination laws: • Employee • Temporary employee • Contract employee • Applicant • Former employees

35. CONSULT WITH HR. • Avoid liability, consult with appropriate supervisors and HR. • Have consensus in pursuing the best employment action; • Make Hard Decisions even if it affects someone you know; • Be Fair and CONSISTENT in Recommending/Approving any Employment DECISION BASED ON Company’s ADMINISTRATIVE POLICIES in pursuit of Equal EMPLOYMENT OPPORTUNITY LAWS.

36. Guidelines for ManagersLet’s PracticeCommunicating the Policy! • Communicate the Policy, the law, code of conduct and Zero Tolerance for discrimination of any kind. • Explain and Confirm the reporting procedures. • Explain your ‘open door policy’ and commitment to ‘zero’ tolerance for discrimination • Let’s practice.. With case studies and Teaching Employees to say “NO” to offensive behavior.

37. Case Studies….. Sexual Harassment: SERIOUS BUSINESS ADVANTAGE MEDIA: DISTRIBUTED BY KANTOLA PRODUCTIONS, LLC. Discussion follows, video, other exercises and presentation.

38. THANK YOU! • For Questions, Please Call: HR, “YOUR Company” . “They are Your Consultants available to help you in pursuit compliance with your Policies and EEOC Law. • JAVIER CHACON, www.eeocconsultant.com jchacon@eeocconsultant.com 713-503-2857; FOR INFORMATION FROM EEOC, CHECKWWW.EEOC.GOV RESOURSE SLIDES- REFERENCES FOLLOW.