Presented By:

HAWAII EMPLOYERS COUNCIL

Avoiding Sexual and Other Harassment

Claims

Disclaimer These seminar materials are provided by the Hawaii

Employers Council for illustrative and general informational purposes only, are not intended to constitute legal advice, and should not be interpreted by you as legal advice.

Because legal advice is dependent upon the specific circumstances of each situation, and because relevant law often changes, you should consult with competent legal counsel before relying upon or using any informational materials provided to you.

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Learning Objectives

• Understanding Harassment

• Avoiding Harassment

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Negative Impacts of HarassmentHarassment can result in:– Lawsuits and criminal prosecution– Individual liability– Disciplinary actions– Damage to reputation– Decreased productivity and morale– Employee turnover

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Case Study• Female flight attendant harassed by male pilot

• Plaintiff’s claims:– Pilot grabbed her buttocks while passengers

deplaned– Tried to rub her back

• Numerous witness accounts of similar behavior by pilot

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Definition of Sexual Harassment

UNWELCOME sexual advances, requests for sexual

favors, other verbal or physical conduct or visual

forms of harassment of a sexual nature, when…

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Definition of Sexual HarassmentQuid Pro Quo:– Submission to that conduct is made a

condition of the individual’s employment

– Submission to or rejection of that conduct is used as a basis for employment decisions

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Definition of Sexual HarassmentHostile Work Environment:(1) Employee is subjected to sexual advances, requests for

sexual favors, or other verbal or physical conduct of a sexual nature,

(2) The conduct is unwelcome,

(3) The conduct is sufficiently severe or pervasive so as to alter the terms and conditions of employment; and

(4) The conduct has the purpose or effect of either (a) unreasonably interfering with an individual's work performance or (b) creating an intimidating, hostile, or offensive work environment

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Unwelcome

• Victim’s perspective– Does not have to be declared– Might change– May be selective

• Harasser’s intent is irrelevant

• Situations vary

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Verbal, Physical or Visual Conduct• Words, comments, jokes, whistling• Touching, blocking somebody’s path, hugging • Posters, magazines, pictures, etc. • Posturing, staring, leering, gestures, etc.• Can happen electronically– Text messages– Emails– Social media sites– Company’s IM system

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Severe OR PervasiveFactors:– Severity of conduct vs. frequency of conduct

– Whether its physically threatening or humiliating, or a mere offensive utterance

– Single incident can constitute unlawful harassment

– Multiple minor incidents can constitute unlawful harassment 11

Impact of Harassment• Conduct had the purpose or effect of

either:– Unreasonably interfering with the victim’s work

performance, or– Creating an intimidating, hostile or offensive work

environment

• Victim’s Perception:– Actually perceived conduct as having such purpose

or effect, and – Perception was objectively reasonable to a person in

the same situation12

Fact Check• You don’t need to tell the company about

harassment by a vendor or customer, right?

• You don’t need to tell the company if you’re upset after observing offensive conduct that was not directed at you, right?

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Applicability to Other Protected Classes

• Race• Sex, including

gender identity or expression

• Age• Religion• Color• Ancestry• Sexual Orientation• Citizenship• National Origin

• Military / Veteran status

• Disability• Marital / Civil

Union Status• Arrest and Court

Record• Genetic

Information• Credit History• Domestic or

Sexual Violence Victim Status

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Employee’s Responsibilities• Review Anti-Harassment policy.

– Ask questions if unclear• Don’t harass others!• Express objection to unwelcome conduct• Promptly file complaint with supervisor or HR• Don’t retaliate against co-workers who file

complaints or participate in investigations• Promptly report any retaliation that occurs as a

result of any report you make• Cooperate with any harassment investigation as

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Company’s ResponsibilitiesThe company is committed to the following actions with respect to employee complaints

of harassment:• Taking complaints seriously• Investigating when appropriate• Maintaining confidentiality to the extent possible• Administering appropriate discipline• Being fair to all parties

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• Joe and Jeanette are co-workers who enjoy trading “adult” jokes, the naughtier, the better. Martha is also their co-worker, and she doesn’t like to hear them joking and giggling while at her desk. When she told them so, Joe and Jeanette called her uptight, and said she needed to get a life.

• Mr. Chinen is an important client of the company. He often greets female employees with a hug and a kiss on the cheek. Once he even kissed a new hire on the lips. Some of the women feel he’s harmless, some tend to avoid him if he’s around, but no one has complained because everyone knows how much money he brings in to the company.

Is it Harassment?

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• John is the new member on the team. His co-workers, Mary and Joe, thought it would be a good idea to initiate John into the group by putting a live toad in his locker.

• Nani is an employee who normally weighs about 100 pounds. Since becoming pregnant, she's gained 60 pounds and her co-workers love taking the opportunity to tease her about it.

• Mary is part of a three person work team. Her two male co-workers tell her she is responsible for cleaning the refrigerator in the employee lounge and making the coffee for the department in the morning. When Mary complains to her co-workers about having to make the coffee, they tell her it’s her job because she’s the “office girl.”

Is it Harassment? (continued)

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• Joe has a crush on co-worker John’s sister. When she comes in to look for a car, Joe texts her to tell her how HOT she looks today.

• Stan has been working 15 - 20 minutes late almost every day. His manager, Sue, keeps asking him, “What are you doing now?” “How long is this going to take” and “If you don't punch out and go home now, I'm going to have to write you up.”

Is it Harassment? (continued)

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• Jennifer is a new supervisor. She hasn’t had a lot of training, so when her employees question her about an assignment, or suggest a better way of doing things, her answer is, “If you don’t like it, go find another job.”

• Faye and Lei are two employees who have been friends since childhood. They are often seen walking arm in arm, or with one person’s arm around the other’s shoulders. George has started teasing them, saying things like “Which one of you is the husband?” or “You guys really make a cute couple. Call me when either of you decide to try a man.”

Is it Harassment? (continued)

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QUESTIONS

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