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Epidemic or Wake-up Call?Where Do We Go From Here?

Mary E. Funk515.283.8029

mef@Nyemaster.com

Copyright 2018

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Why do people harass others?

Means of expressing dominance or power

Keep people in their place

Impress others or to gain approval and fit in

Bullying tactic

HARASSMENT IS A MISUSE OF POWER

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Statutes Prohibiting Discrimination

Title VII of the Civil Rights Act of 1964

Age Discrimination in Employment Act of 1967

Americans with Disabilities Act of 1990

Genetic Information Nondiscrimination Act of 2008

Equal Pay Act

Iowa Civil Rights Act

Civil rights laws generally declare it an unlawful employment practice :

To fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment; or

to limit, segregate, or classify employees or applicants for employment in any way which would deprive or attempt to deprive any individual of employment opportunities or otherwise adversely affect an individual’s status as an employee

because of such individual's age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability

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Harassment is Not Just About Sex

Separate word on gender identity under the ICRC:

July 1, 2007

Iowa Code 216.2 defines “gender identity”

as “gender-related identity of a

person regardless of the person’s assigned sex at birth”

All Iowa workplaces and areas of public accommodations must allow pre-operative genetic males or females to use the restroom, locker room or other typically gender specific facilities, of their choice based on their gender identity and regardless of their external genitalia.

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EEOC Proposed Enforcement Guidance on Harassment

WHY the emphasis?

Preventing systemic harassment has been one of EEOC's national enforcement priorities since 2013.

Between 2012-2015, charges that include harassment increased from 25% to 30%.

In 2015, the EEOC received 27,893 private sector harassment charges

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WHAT are the Core Principles to prevent and address harassment:

Committed and engaged leadership

Consistent and demonstrated accountability

Strong and comprehensive harassment policies

Trusted and accessible complaint procedures

Regular, interactive training tailored to the audience and organization

Effective Harassment Training Guidance requires regular, interactive,

comprehensive training for all employees. This should include:

Descriptions of unlawful harassment

Information about rights/responsibilities

Explanation of complaint process

Explanation of range of possible consequences for engaging in prohibited conduct

Managers / Supervisors should receive additional training on how to prevent, identify, stop, report, and correct harassment and avoid retaliation

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Why is training and understanding important? EEOC expects it (and society is demanding

it). Impact on the work group in terms of

distraction, reduced morale and lower performance/profitability.

Impact on stock price and/or reputation if there is publicity around the claim.

Impact on attracting and retaining the best employees given potential negative publicity of a claim.

Financial cost to defend claim and pay for insurance.

Individual (and Company) Costs…

Lost days

More medical issues

Poor self-esteem

Prevents employees from thriving and doing their best

Fosters negativity

Higher turn-over

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EEOC’s Current Position

Title VII protects against harassment based on sex stereotyping, sexual orientation, gender identity, genetic information, and pregnancy.

May entertain non-traditional claims:

Based on “perceived” membership in a protected class (even if the perception is incorrect);

“Associational harassment,” based on individual’s association with individuals who do not share their protected characteristics;

Where the alleged harassment was not directed at the complainant;

In instances where the alleged harassment occurred outside of the workplace.

NO statutory or regulatory authority; up to enforcement by the courts.

Has anything changed?

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Discrimination vs. Harassment

Discrimination: unfair or different treatment of an individual or class of individuals based solely on a characteristic with which they were born

Unequal pay or benefits

Harsher discipline or performance appraisals

Least desirable shifts, hours or assignments

Fewer chances

Harassment: verbal or physical conduct by an employee which is unwelcome and harasses, disrupts, or interferes with another's work performance or creates an intimidating, offensive or hostile environment

Harassment = a course of conduct, directed at someone, that causes emotional harm and serves no legitimate purpose

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2 Kinds of Harassment:

Quid Pro Quo

“Go along to get along” or “Put out or get out”

Hostile Work Environment

Harassment must be:

UNWELCOME

SEVERE AND PERVASIVE

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Harassment by third parties

Examples with non-employees….

A customer flirts constantly with a salesperson out in the field, making suggestive comments and asking inappropriate personal questions.

A significant customer expects/demands certain behavior from staff when he comes in that may otherwise be inappropriate or demeaning, because he spends a lot of money with the business.

The vendor who stocks your coffee and snack machines repeatedly makes offensive or graphic jokes in the company break room or at the front desk.

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Duty to protect may include…

Terminating your business relationship with the harasser

Confronting the harasser’s boss or supervisor about the behavior

Preventing the harasser from having contact with the employee

Any measure taken must effectively shield your employee from further harm.

How Do Employees Protect Themselves?• Keep your hands to yourself.

• Don’t talk about sex on the job.

• Never mix social life with job related discussions.

• Keep any compliments casual and fairly impersonal.

• Ask yourself whether you would make the comment in front of your spouse or grandmother.

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• Avoid jokes, words, phrases and gestures with sexual meaning.

• Respect a person’s “personal space.”

• Do not respond to seductive or flirty behavior.

• Do not send or forward emails you wouldn’t want attributed to you in a newspaper.

• Respectful behavior facilitates more productive work environment.

An effective anti-harassment policy

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Components to a Comprehensive and Effective Policy:

1. State the company’s commitment to a discrimination and harassment-free workplace

2. Explain what harassment is and provide specific examples

3. Describe harassment complaint system4. Encourage reporting, even if unclear

whether the harassment was unlawful5. Statement that employer will provide

prompt, impartial, and thorough investigation

6. Confidentiality regarding reports of harassment, to extent possible

7. Encourage participation in investigations

8. Confidentiality regarding investigation process, to extent possible

9. Assurance that harassment will be addressed

10. Prohibition against retaliation

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What IS retaliation…

Conduct of an adverse or negative nature –something that would dissuade someone from making a complaint

Directed at a person because the person made a complaint or cooperated in some fashion in the investigation or the processing of a discrimination or harassment complaint, charge or lawsuit

Serves no legitimate purpose with an intent to punish, intimidate, demean, deride

Employees Who Complain About Harassment Cannot: Be transferred involuntarily

or have action taken against them for refusing a transfer

Have their title, job duties, hours, opportunities for advancement, salary or benefits reduced

BUT they must still follow all company expectations regarding work performance and attendance – this is NOT a get out of jail free card.

Not everything that makes an employee unhappy is retaliation!

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Cardinal rules to avoid retaliation complaints

Notwithstanding the suit or charge, the employer must remain in control of the work environment

Make decisions supported by objective information and based on data from objective sources

Treat similarly-situated people the same and even-handedly

Make sure you have a legitimate business reason for enforcing a work rule or disciplining an employee

DOCUMENT, DOCUMENT, DOCUMENT

Involve other management personnel

LISTEN

The Harassment Complaint

Company Must Take Prompt Remedial Action the options available to the employer, such as

training, reassignment, written warnings and reprimands, or termination; with the focus on whether the actions end the harassment

Confidential? Anonymous?

Communication of Result

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Indicators that an investigation was inadequate:

Failure to interview the individuals accused of harassment;

Failure to interview witnesses identified by the complainant;

Failure to follow all the steps outlined in the employer’s anti-harassment policy and complaint procedure;

Failure to make credibility determinations;

Failure to conduct an investigation proportionate to the seriousness of the complaint.

Increasingly High Standards and Exposure for Employers:

Employers are being held to increasingly high standards regarding:

The quality of policies and harassment prevention efforts

The quality of investigations

The promptness and adequacy of the response

Making valid credibility determinations

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Increasingly High Standards and Exposure for Employers: Failure to meet higher standards increases exposure

exponentially if coupled with evidence of:

Lost/destroyed or hidden evidence

Insensitivity or arrogance by corporate witnesses

Lack of experience by HR staff

When to call in the experts?

Sympathetic plaintiffs (financial issues, family problems or status, health issues)

Failure to follow internal processes in a timely manner

WHAT ABOUT BULLYING?Bullying is aggressive behavior that is intentional and that involves an imbalance of power. Most often, it is repeated over time.

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35% of Workers Feel Bullied at Work

16% Suffered Health Problems as a Result

17% Quit Their Jobs to Escape the Bullying Much of the complained of bullying is same-

sex bullying Women = 58% of the Perpetrator Pool

Half of all reported bullying is woman-on-woman

Bullying is psychological violence often misclassified as “personality clashes”

3x more prevalent than sexual harassment

PPT-086-01

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Source:CareerBuilder.com survey

The Numbers:

Bullying Behavior Examples of obvious and aggressive behavior:

abusive, insulting or offensive language

behavior or language that frightens, humiliates, belittles or degrades, including criticism that is delivered with yelling and screaming

regularly making someone the brunt of practical jokes

displaying material that is degrading or offending

spreading gossip, rumors and innuendo of a malicious nature

mobbing – A group of co-workers targeting another employee

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Workplace bullying can also be subtle and may include behavior such as: Deliberately excluding, isolating, or

marginalizing a person from normal workplace activities

Intruding on a person’s space by pestering, spying, or tampering with their personal effects or work equipment

Intimidating a person through inappropriate personal comments, belittling opinions, or unjustified criticism

Covert behavior that undermines or treats others less favorably could also be considered bullying: overloading a person with work setting timelines that are very difficult to

achieve, or constantly changing deadlines setting tasks that are unreasonably beyond

a person’s ability ignoring or isolating a person deliberately denying access to

information, consultation or resources unfair treatment in relation to accessing

workplace entitlements, such as leave or training

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Individual Responsibilities

Personal Liability

Supervisors or managers can be INDIVIDUALLY liable for harassment, assault and battery, failing to correct the problem, and creating a hostile work environment

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EEOC Guidance: Employer liability depends “on the basis of the total facts and circumstances of each case, including employer knowledge, corrective action, control, and other legal responsibility.”

An employer who condones or tolerates the creation of a hostile work environment should be held liable regardless of WHO created the hostile work environment, because the employer ultimately controls the conditions of the work environment.

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Employer Liability

Obligations of a Supervisor

Ensure employees understand company’s policy and what is prohibited conduct

Lead by example – do not condone inappropriate conduct

Answer employees’ questions

Refer them or report it to Human Resources

Know the complaint procedure

Maintain open lines of communication

Keep accurate documentation

Listen seriously to employees

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Obligations of a Supervisor Cont’d: Have eyes and ears open

Keep it confidential, to the extent possible

Make sure employees understand harassment is illegal even if exhibited by a client, family member or vendor

Act immediately upon a report or a suspicion Enforce discipline, if necessary Cooperate in necessary investigations Publicly emphasize your commitment to provide a

harassment-free workplace NEVER retaliate against a complainant or a witness

Obligations of HR

Be well-trained, objective and neutral

Have authority, independence and resources required to receive, investigate and resolve complaints

Take all questions, concerns and complaints seriously and respond promptly and appropriately

Create an open door environment

Follow stated policies

Appropriately document every aspect and retain in correct locations

Know when to call the experts

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Questions?