march 2018 nonprofit luncheon - sexual harassment ......mar 15, 2018 · microsoft powerpoint -...
TRANSCRIPT
© 2018 Venable LLP
Thursday, March 15, 2018, 12:30 pm – 2:00 pm ET
Venable LLP, Washington, DC
Sexual Harassment:What Should Your Nonprofit Be Doing to Keep ItselfOut of the Headlines and Out of Legal Hot Water?
ModeratorCindy Lewin
Partner, Nonprofit Organizations Practice, Venable LLP
SpeakersTodd J. Horn
Partner, Labor and Employment Practice, Venable LLP
Jennifer G. ProzinskiCounsel, Labor and Employment Practice, Venable LLP
© 2018 Venable LLP 2
CAE Credit Information
*Please note that CAE credit is availableonly to registered participants
in the live program.
As a CAE Approved Provider educational program related to theCAE exam content outline, this program may be applied for
1.5 credits toward your CAE application
or renewal professional development requirements.
Venable LLP is a CAE Approved Provider. This program meets the requirements for fulfilling the professional developmentrequirements to earn or maintain the Certified Association Executive credential. Every program we offer that qualifies forCAE credit will clearly identify the number of CAE credits granted for full, live participation, and we will maintain recordsof your participation in accordance with CAE policies. For more information about the CAE credential or ApprovedProvider program, please visit www.whatiscae.org.
Note: This program is not endorsed by, accredited by, or affiliated with ASAE or the CAE Program. Applicants may use anyprogram that meets eligibility requirements in the specific time frame toward the exam application or renewal. There areno specific individual courses required as part of the applications—selection of eligible education is up to the applicantbased on his/her needs.
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© 2018 Venable LLP
Upcoming Venable Nonprofit EventsRegister Now
• April 19, 2018: Post-Award Noncompliance Disclosuresand Audit Resolution
• May 17, 2018: Election-Year Opportunities forNonprofits
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Goals of the Presentation
• Provide an understanding of unlawful harassment
• Provide an explanation of a nonprofit organization’s legalobligations
• Provide steps a nonprofit may take to minimize potential liability
• Format – real life examples
• Please hold your questions until the end
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Air Kiss or Assault:The Spectrum of Harassment
• Demeaned me with gender stereotyping
• Uncomfortably touched my shoulder
• Pried into my sex life
• Subjected me to vulgar language
• Commented on my short skirt
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Air Kiss or Assault:The Spectrum of Harassment
• Frequency
• Duration
• Severity
• Physical vs. verbal
• Interference with job performance
• Working relationship
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The Smiling Subordinate:The Unwelcomed Requirement
• Jokes told on a regular basis
• Subordinate laughs
• Subordinate tells jokes, too
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The Smiling Subordinate:The Unwelcomed Requirement
• Engagement
• Reciprocity
• Unintended audience
• Litmus test
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A Dated Claim Brought to Life:The Current Reporting of Past Events
• Incident between former employee and currentemployee
• Happened two years ago
• No other issues with or complaints regardingcurrent employee
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A Dated Claim Brought to Life:The Current Reporting of Past Events
• Is there a need to investigate?
• EEOC view on non-actionable claims
• How to conduct the investigation
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“Please Don’t Tell Anyone!”:A Victim’s Request for Confidentiality
• Incident at holiday party
• Request of confidentiality/no action
• Doesn’t want to file a “formal” complaint
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“Please Don’t Tell Anyone!”:A Victim’s Request for Confidentiality
• Agree to request?
• Obligation to prevent reoccurrence
• Formal complaint myth
• Train managers and supervisors
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The Accused and Angry Supervisor:Retaliation
• Employee complaint alleging harassment by supervisor
• Supervisor is shocked and angered by complaint
• Finding of no unlawful harassment or violation of policy
• Three months later, supervisor wants to terminateemployee
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© 2018 Venable LLP
The Accused and Angry Supervisor:Retaliation
• Is an unfounded complaint protected activity?
• What can be considered an adverse employment action?
• Casual connection and temporal proximity
• Are you telling me I can’t discipline or terminate anemployee who’s made a complaint?
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© 2018 Venable LLP
Zero Tolerance:Determining Appropriate Action
• I bet you have a “zero tolerance” harassment policy
• I hate math, so what does that really mean?
• One strike – you're out
• Opens door wide to discrimination claims
• Two strikes? That’s not zero tolerance, Todd
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© 2018 Venable LLP
Zero Tolerance:Determining Appropriate Action
• A. S. M. A.TM
Assessment (what happened) Scale (put it on the 1-10 scale)Movement (up or down the scale as appropriate) Action (make it stop)
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They Need to Know (or do They?):Disclosures and Liability
• Horrific complaint against John Doe
• Witnesses credible
• Confesses to “something” and quits
• Phone call from “Gentle Visits, Inc.”
• Neutral reference policy
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© 2018 Venable LLP
They Need to Know (or Do They?):Disclosures and Liability
• Follow neutral reference policy – sued by new victim
• Spill the beans – sued by John Doe
• No win situation?
• Advice – follow policy
• Reference release middle ground
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© 2018 Venable LLP
Questions?
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Cindy LewinPartner, Nonprofit Organizations Practice, Venable LLP
Todd J. HornPartner, Labor and Employment Practice, Venable LLP
Jennifer G. ProzinskiCounsel, Labor and Employment Practice, Venable LLP
To view an index of Venable’s articles and presentations or upcoming programs on nonprofit legal topics,see www.Venable.com/nonprofits/publications or www.Venable.com/nonprofits/events.
To view recordings of Venable’s nonprofit programs on our YouTube channel,see www.YouTube.com/VenableNonprofits or www.Venable.com/nonprofits/recordings.
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