sexual harassment in the work place€¦ · 21/02/2018 · women witnessed harassment source:...

Copyright © 2018 by Strategic Labor & Human Resources, LLC. All rights reserved. Not for quotation,

duplication, distribution or attribution without the express permission of the author.

Sexual Harassment in the Work Place

SHRM at WSUFebruary 28, 2018

Presented byRobert Chiaravalli, Esq.

&Kathy Chiaravalli

Strategic Labor & Human Resourceswww.HRStrategy.biz

This information is general in nature and should not be construed as legal advice, nor the formation of a lawyer/client

relationship. Persons are encouraged to seek independent counsel for advice regarding their individual legal concerns.

#MeToo Ubiquitous

Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.

Ford tackled a factory

harassment culture

before. Why is it still

happening?

Dec 22, 2017 6:40 pm

EST PBS Newshour

RBG – Sundance 2018

THE SALT

Allegations Against

Celebrity Chefs

Reveal Abuse In

The Restaurant

Industry

Under cover of darkness, female janitors face rape and

assault

#MeToo Brief History


Date What

20-JanWomens March

8-FebAnd yet she persisted

19-Feb Former Uber engineer Susan Fowler publishes a blog

19-Apr Fox fires Bill O'Rielly

15-Aug Taylor Swift wins suit against DJ who grabbed her butt

14-SepThree women file class action against Google for pay discrimination

19-Sep Ellen Pao v Kleiner Perkins

5-OctNY Times reports Weinstein

16-OctAlyssa Milano starts #MeToo on facebook18-OctAmazon's Roy Price Resigns

9-NovKeven Spacey replaced

10-Nov Louis CK alleged

16-NovAl Franken accused

21-NovRoy Moore defended by Trump

29-NovGarrison Keillor fired

29-NovMatt Lauer fired

4-DecWomen in film hotline established

6-Dec The Silence Broken by Time

Incidence of Harassment by Type

0 20 40 60 80 100

Sexual Assault

Unwanted Genital Flashing

Being Physically Followed

Cybersexual Harassment

Unwelcomed Sexual Touching

Verbal Sexual Harassment

Men

Women

Source: Stop Street Harassment, as reported in NPR February 21, 2018.

First Experience of Harassment

0 5 10 15 20 25 30

Don't Recall

> 40 years

31 to 40 years

23 to 30 years

18 to 22 years

14 to 17 years

11 to 13 years

6 to 10 years

0 to 5 years

Men

Women

Source: Stop Street Harassment, as reported in NPR February 21, 2018.

#MeToo Movement

Source: American Management Association Survey of 3,247 Executives, Managers, and Professionals, December 2017, as reported in WSJ, January 25, 2018.

Percent of People Who Have Been Direct Victim of Sexual Harassment At Work

12

51

0 10 20 30 40 50 60

Men

Women

Direct Victim in the Work Place

#MeToo Movement

38

51

0 10 20 30 40 50 60

Men

Women

Witnessed Harassment


Percent of People Who Witnessed Sexual Harassment At Work

#MeToo Movement

12

24

0 5 10 15 20 25 30

Men

Women

Uncomfortable Reporting


Percent of People Uncomfortable to Report Sexual Harassment

At Work

SHRM 2018


#MeToo Movement

0 10 20 30 40 50 60

Shame or Shared Blame

Fear of Retribution

Won't Result in Any Action

Avoid Creating a Fuss

Reasons for Not Reporting by Percent

Source: Fairygodboss survey, November 2017, as reported in WSJ, January 25, 2018.

Overview

� Quid Pro Quo

� Hostile Environment

� Reasonable Person

� Severity and Pervasiveness

� Unwelcomed

� Liability

� Retaliation

� Prevention, Investigation and Correction of Harassment


Sexual Harassment Is Illegal


� Civil Rights Act of 1964, Title VII

� Civil Rights Act amendments

� Affirmed and Expanded in Court Decisions

� Enforce by the EECO

Stakeholders

� Employers

� Employees

� Unions

� Schools

� Hospitals

� Patients

� Visitors

� Vendors

� Regulatory Agencies

� Courts

� Media

� Investors

� Military


Forms of Harassment


� Quid pro quo

� Hostile work environment

Quid Pro Quo

� An exchange that involves sexual conduct

� Supervisory Conduct

� Express or Implied

� Adverse Employment Action


Hostile Work Environment

� By definition, an illegal hostile work environment is:

Discriminatory or sexual conduct that is 1. unwelcome, and, 2. severe or pervasive enough to interfere with work, and, 3. the employer knew or should have known about the conduct and failed to take effective corrective action

� Does not necessarily involve an exchange, but is evidence that the environment involves words and deeds regarding illegal sexual conduct or sex-related subjects that are unwelcome


Hostile WorkEnvironment

� Applied to conduct of supervisors, coworkers, vendors, etc.

� Offensive to victims and has a “reasonable person” standard for judging the words or deeds

� Involves degrees of severity and pervasiveness


� Show #That’s Harassment Video Clip


Retaliation

� Companies may not retaliate against employees that

� Are alleged or actual victims

�Make a claim

�Oppose illegal activity

� Exercise a legal right

� Refuse of violate the law

�Whistleblow

� Assist in an investigation


Company Duty

� In most cases, develop a written policy

� Encourage reporting

� Prompt and thorough investigation

� Prompt remedial action


HR’s Compliance Duty

� Policy

� Procedure

� Licensing Standards of Behavior

� Regulatory or Governmental Standards

� Law


Common Mistakes

� Suffer in silence

� Denial of inappropriate or illegal conduct

� Harmless work place joking

� Part of the job

� Stereotypes


Liability

� Company liability for acts of supervisors

� Company Liability for acts of non-supervisors where the company knew or should have known and did nothing

� Personal liability


Impact of Our Conduct

Non-Compliance

� People Feel Disrespect

� Employee Distrust and Disengagement

� Lessened Public Distrust

� Lessened Safety and Security

� High Litigation Cost

Compliance

� People Feel Respect

� Employee Trust and Engagement

� Enhanced Public Trust

� Enhanced Safety and Security

� Low Litigation Cost


Risk Management

� Eliminate or Reduce Non-Compliance

� Develop Effective Policies and Practices

� Train

� Ensure Proper Documentation and Record Keeping

� Remediate Non-compliance Timely

� Use Friendly and Professional Approaches

� Perform Regular Periodic Reviews and Audits

� Work Closely with Compliance Office

� Read and Understand The Company Plan Compliance Policy

� When in Doubt Ask

� Use formal and informal indicators

� Assume Higher Levels of Scrutiny


Investigation Considerations

� Who should do the investigation?

� What is the investigative strategy?

� Internal

� External

�Due process

�Completeness

� How should the investigation be done?

� What is the investigative authority?

� How do you treat confidentiality

�Right to know

�Need to know

� Issues of defamation


Trends

LGBTQIA

� Identify Pitfalls Involving Transgender Transitioning

� Determine the Difference Between Sexual Harassment, Discrimination, and Stereotyping

� Ensure Compliance with the Duty of Confidentiality

� Where Appropriate LGBTQIA-related training


Trends

� Harassment by EMOJI

� Traditional evidentiary standard of review for hostile work environment to a non-traditional trend

� Severity

� Pervasiveness

� Unwelcome

� Emoji’s are a fast growing language.

� Ninety-two percent of worldwide mobile messages during 2016

� Seventy-one percent of texts/messages in USA

Source: Polls by Harris 2017 and Emogi Technologies 2016, as reported in Workforce, January/February 2018.

Is There a New Role for HR?

� Is HR an advocate?

� Is HR a neutral?

� Is HR an investigator?

� At what level of the organization are HR roles?

� Is HR a policy maker?

� Is HR a risk manager?


Thank You

Robert Chiaravalli, Esq.

And

Kathy Chiaravalli

Strategic Labor & Human Resources, LLC

[email protected]

[email protected]

www.HRStrategy.biz

sexual harassment in the work place€¦ · 21/02/2018 · women witnessed harassment source:...

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