HOW TO AVOID SEXUAL HARASSMENT AND RETALIATION CLAIMSA webinar presented for LSCP members

By Deb LaMere, HR Consulting

At the end of this webinar, you will be able to:

1. Explain what sexual harassment is

2. State why it is important to prevent sexual harassment in your workplace

3. Understand what retaliation is and help prevent retaliation claims by employees who complain of sexual harassment

4. Implement or create your policy and procedures on sexual harassment

5. Understand your responsibilities for handling complaints, assisting in investigations and disciplinary action.

WHAT DO WE EXPECT WHEN WE REPORT TO WORK

To be treated with respect For others to be courteous To be able to get our work done To be appreciated To be resourceful Not to feel threatened or intimidated

LAWS

Civil Rights Act Title VII ADEA ADA Michigan CRA – or ELCRA Etc.

WHAT EXACTLY IS SEXUAL HARASSMENT?

Unwelcome sexual advances

Requests for sexual favors

Other verbal or physical conduct of a sexual nature that affects an individuals’ employment, unreasonably interferes with his/her work performance, or creates an intimidating, hostile or offensive work environment

TWO FORMS OF SEXUAL HARASSMENT

Quid pro quo (Latin for “this for that” or “something for something”)

Hostile Work Environment

QUID PRO QUO

Tangible employment action against the victim

Involves monetary loss or change in job

Example: Mary Smith receives smaller pay increase based on performance than other employees with similar performance because she refused to go out with her supervisor, John Doe.

HOSTILE WORK ENVIRONMENT

Speech or conduct that is severe and/or pervasive enough to create an abusive or hostile work environment

Example: Mike Maloney is leering (elevator eyes) at and intentionally brushing against Sally Davis

Repeated actions, comments, or objects that “unreasonably interfere” with work performance or that create a “hostile, intimidating or offensive” work environment.

HOSTILE WORK ENVIRONMENT (CONT.)

In addition to speech and/or conduct, covers explicit or suggestive items displayed in the workplace that interfere with job performance or that create an abusive or hostile work environment Example: Jill Jones has a 9” x 12” calendar of

nude males on her cubicle wall visible to passersby.

WHO CAN BE INVOLVED IN SEXUAL HARASSMENT?

Those who commit – employees at all levels, customers, members of the same sex

Those who are targeted – victims, bystanders and, in some cases, witnesses who are affected by the harassment.

HOW TO PREVENT SEXUAL HARASSMENT

Make sure you have a policy in place. Procedures to follow. Who to report cases to. How do you treat confidentiality?

WHAT IS RETALIATION

Retaliation is defined as an adverse action taken against an employee because he/she complained of harassment or discrimination

• Adverse action includes demotion, discipline, termination, salary reduction, negative performance appraisal, change in job duties or shift assignment

• Any other term or condition of employment

EXAMPLES OF RETALIATION:

Negative performance evaluations Discipline Threats of losing pay, benefits, job Job transfers or changes in work assignments Improper investigations Denial of opportunities for advancement Denial of vacation

RETALIATION CLAIMS

36.3% in FY 2010 for all statutes 31 % for Title VII only Largest complaint area

http://www1.eeoc.gov/eeoc/statistics/enforcement/charges.cfm

WHY THE INCREASE IN CLAIMS?

Greater public accessibility to the EEOC Employees are knowing their rights Economic conditions Demographic shifts in labor force

TO SUCCEED IN A RETALIATION CLAIM, AND EMPLOYEE MUST PROVE THE FOLLOWING:

That he/she engaged in a protected activity, such as complaining of sexual harassment

That he/she suffered an adverse employment action, such as demotion, termination

That the protected activity and adverse action are linked.

YOU CAN AVOID CHARGES OF RETALIATION

Train your supervisors.

Document the reason for any adverse employment against an employee. Make sure that the documentation shows no discriminatory reason for the adverse action.

Do NOT take any action against an employee who has complained of sexual harassment without discussing with and obtaining approval from human resources/senior management.

Implement and follow a zero-tolerance anti-discrimination and anti-retaliation policy.

Recognize employee-protected activity. Timing is important.

YOUR RESPONSIBILITY:

Know and comply with our policy and procedures

Immediately report any complaint that you receive from your employees or incidents that you witness involving other supervisors’ employees to human resources/manager

HOW TO HANDLE COMPLAINTS:

Demonstrate your willingness to hear and objectively discuss complaints

Inform the employee that you must report all complains to human resources/upper management.

Tell the employee that confidentiality will be respected as much as possible but cannot be assured in order to investigate fully and properly

HANDLING COMPLAINTS (CONT.) Do not object if an employee prefers to or

actually does bypass the standard chain of command

Respond to any employee’s complaint as soon as possible.

Do not engage in retaliation against an employee who complains of sexual harassment

WHO SHOULD CONDUCT INVESTIGATIONS?

Investigations are conducted by human resources, a consultant , or the company’s legal counsel

• Be available for interviews and provide as much information as possible.

• Make employees available for interviews

Once an investigation has been completed, if disciplinary action is to be taken, work with human resources/management to make sure that:

• The victim is not adversely affected

• The sexual harassment stops and does not recur

DOES EVERY COMPANY HAVE TO ABIDE?

If you have 15 or more employees, than you have to abide by Title VII and ADA

But, it’s still the right thing to do.

Caveat: ELCRA

IN SUMMARY

Quid Pro Quo and Hostile Work Environment Sexual Harassment

Keep our harassment policies current and conduct anti-harassment training

Actions courts have considered retaliation Investigate any harassment claims quickly

and act with due diligence Recognize employee-protected activity. Train our supervisors – don’t assume they

“know”

Questions?

Thank you for participating in our first webinar! We look forward to serving you again soon!

Deb LaMere, HR Consultingdeblamere@charter.net