supervisors & managers guide to - aspenrmg.com

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Heffernan Consulting | 1350 Carlback Ave, Ste. 200 | Walnut Creek, CA 94596 | Ph: 800-234-6787 | www.heffgroup.com

SUPERVISORS & MANAGERS GUIDE TO:

Understanding, Preventing, and InvestigatingSexual Harassment & Discrimination

Presented by: Heffernan Consulting


• National Certification through the HumanResources Certification Institute (HRCI) as aSenior Professional in Human Resources (SPHR)

• 19 years of practical HR management andcorporate training experience

• Former President of Society of Human ResourceManagement (SHRM) – San Diego Chapter

• Expert witness for legal proceedings related toharassment and discrimination

• Instructor for HR and management courses• Investigator for harassment and discrimination

complaints

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At the end of this Webinar you will be able to:

Define, recognize and prevent SexualHarassment , Discrimination and Retaliation

Understand and Explain:Consequences of harassment and discrimination

Available remedies to victims of harassment

Your role in preventing, handling, andinvestigating claims

Company, Manager and Employeeresponsibilities

Federal and State Statutory Provisions

Complaint process and confidentialityrequirements


Harassment has to be unwelcome for itto be considered illegal harassment.

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“Unwelcome conduct that denigratesor shows hostility or an aversiontoward another person on the basis of… [a] characteristic protected bylaw.”


Diversity

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Race

Color

Sex

__________

__________

__________

__________

__________

__________

__________

__________

__________

__________


Race/Color

Sex/Gender (includinggender identity)

Disability (mental andphysical) including HIVand AIDS

Medical Condition(cancer and geneticcharacteristics)

Sexual orientation

Pregnancy andrelated conditions

Religion

National origin

Citizenship status

Ancestry

Marital Status

Age

Military service

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The act of denying opportunities,resources or access because of his or herlegally protected characteristics .


The California Department of FairEmployment and Housing (DFEH)regulations define sexual harassment asunwelcome sexual advances, or visual,verbal or physical conduct of a sexualnature. This definition includes manyforms of offensive behavior and includesgender-based harassment of a person ofthe same sex as the harasser.

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Harassment only occurs when theharasser is a supervisor.


• Co-workers

• Managers/Supervisors

• Owners

• Customers

• Vendors

• Independent Contractors

• Any person you come into contact withwhile performing your job duties

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Laws That Prohibit Harassment

Federal

› Title VII

› Enforced by EEOC

State Law

› California FairEmployment andHousing Act (FEHA)

› Enforced by DFEH


Employees must quit or be fired beforethey can sue the company forharassment.

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_______________________________

_______________________________


(This for that):

When submission to or rejection ofsexual conduct is used as the basis formaking employment decisions such aspromotions, pay increases, hiring, orfiring.

This for that: “I will…hire you…promoteyou…recommend you for the positionyou want…if you will…”

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(applies to Sexual Harassment)

• Conduct or comments that havethe purpose or effect ofunreasonably interfering with theemployee’s work performance orcreating an intimidating, hostile oroffensive working environment.


Severe or pervasive› Pattern of conduct vs. single incident

Unreasonably interferes with employee’sjob performance or creates a hostileworking environment

From a view point of a “reasonableperson”

The impact matters, not the intention!

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Is This Sexual Harassment?

Two co-workers forward each otheroff-color jokes they receive in e-mails.Is this sexual harassment?

An employee accepts a neck message froma co-worker.Is this sexual harassment?

Two co-workers develop apersonal relationship.

Is this sexual harassment?

NO

NO

NO

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Quid Pro Quo??

Sally Smith rejects hersupervisor’s suggestion thatshe won’t get laid off if shehas an affair with him.

Quid pro quo?

What if Sally Smith insteadagrees to the affair…

Quid pro quo?


Hostile Environment?? One day, John Jones tells Sally Smith

that she has nice legs and she blushes.Hostile work environment? Every time John Jones sees Sally Smith

he tells her that she has nice legs andshe tries to avoid him.

Hostile work environment? Brian Brown gives female employees

back rubs.Hostile work environment? Cathy Conrad calls her co-workers

“honey “and “sweetie.”Hostile work environment? John Jones calls Sally Smith “honey.”Hostile work environment?

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What Type of SexualHarassment?

Betsy wants to date Bobby but he hasrefused her repeated suggestions that theymeet for a drink. She won’t take no for ananswer and has begun to call him after workWhat type of sexual harassment?

A supervisor promises a better shift if hisfemale subordinate goes on a date.What type of sexual harassment?

A female manager repeatedly teases afemale subordinate about her sexualrelationships.What type of sexual harassment?

Hostile WorkEnvironment

Quid Pro Quo

Hostile WorkEnvironment


• Racial or ethnic slurs

• Name-calling or belittling

• Off-color jokes

• Suggestive comments

• Disparaging remarks

• Use of patronizing terms or remarks

• Comments about anatomy or dress

• Questions about sex life

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Inappropriate touching

Physically impeding or blockingmovement

Any physical interference withnormal work or movement, whendirected at an individual


Derogatory or offensive:

› Posters

› Cartoons

› Drawings

› Computer transmissions

› Physical Gestures

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If you feel comfortable doing so, youshould tell the harasser to stop.


Discrimination

Harassment

Retaliation

Intentional Inflictionof Emotional Distress

Assault and Battery

Slander

Libel

Negligent hiring,retention orsupervision

Constructive orwrongful discharge

False imprisonment

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As a supervisor I have to be concernedthat I will be accused of harassment if Igive someone a bad performanceappraisal or even if I discipline someonefor being late.


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Defense Hard Costs› Attorney Fees if the case goes to trial:

$250,000.› Attorney Fees if the case settles prior to trial:

$95,000.› Manager time spent in the claim process: 40

hrs.› Employee time spent in claim process: 40 hrs.› Employee time spent investigating the claim:

60 hrs.› Employee time spent preparing for trial: 60

hrs.› Range of settlement costs or jury awards:

$150,000 to $250,000+.


• Defense Soft Costs– Impact on the work group in terms of

distraction and reduced morale.– Impact on the cost of insurance if company

is covered and experiences losses.

• Impact on stock price and reputation ifthere is publicity around the claim.– Potential of copycat lawsuits or other claims

due to internal and external publicity.– Impact on attracting the best employees

given potential negative publicity of a claim.

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100,000 claims in 2010

This is the most ever in theagency’s 45-year history!

7.2% increase over thenumber of charges filed in2009


The median award for all employment-related claims in 2009 was $326,640

Skyrocketed by 60% over 2008

The average cost of defending an EPLIclaim is estimated at $125,000 plus time,damage to reputation, and the anxietysurrounding the claim

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Heffernan Consulting | 1350 Carlback Ave, Ste. 200 | Walnut Creek, CA 94596 | Ph: 800-234-6787 | www.heffgroup.comHR Source Consulting, Inc.

DFEH announced a$150,000 settlement of a lawsuit filedagainst the owners of Esquire CocktailLounge in Bakersfield, California forworkplace sexual harassment.

A Riverside County Superior Court juryawarded $25 million in punitivedamages to the nearly $1 million incompensatory damages to a formerKmart manager for age discrimination.


Under CA law someone accused ofsexual harassment can be heldpersonally liable for damages.

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The Company and ……

Employees -- supervisors & non-supervisors -- can also be personallyliable under CA FEHA


Remedies are what the winner may receive ina lawsuit for harassment:

Lost Wages and Benefits (past and future)

Compensatory Damages for EmotionalDistress

Punitive Damages to Punish theWrongdoer(s)

Reinstatement or Promotion

Attorney’s Fees

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The law requires that employees reportharassment to the company before theycan bring a claim against the company.


If an employee’s job was notnegatively affected, the Companymay avoid liability only if:

› It took steps to prevent the harassingbehavior;

› It responded promptly to correct theharassing behavior; and

› The employee unreasonably failed tocomplain about the harassing behavior.

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The company is not responsible forharassment that might have occurred ifno complaints are made and no rumorshave surfaced.


The Company will be Liable for Harassmentby a Non-Supervisor if the Harassment:

› Occurred because of the employee’sprotected characteristic;

› Occurred regularly;

› Affected the complaining employee;

› Would have affected a reasonable person;and

› Was known/should have been known by theCompany.

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An employee named Gary, who you haveknown for a number of years, tells you thathis co-worker, Cassie, is making sexualadvances towards him and he finds ituncomfortable

You offer to speak with Cassie, and Garyresponds by insisting that this is a privatematter and demands that you do nothingto respond

What should you do?

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Even when an employee requests noaction, the employer must respond

› Even when an employee makes “off therecord” reports, the employer must respond

Even when there is no “complaint” theemployer must investigate

› Just witnessing the conduct is enough torequire a response by the employer


Suppose Gary, the employee whocomplained to you about Cassie, nevercame to you, but instead went over yourhead and talked to your boss about theproblem.

What if anything should you say to Garyabout coming to you first on suchmatters?

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› Any employee may not be questioned orcriticized for bypassing the “chain ofcommand” when reporting harassment


Gary, the employee who complained toyou about Cassie, comes into your officevery upset

He indicates that he is uncomfortablewith the investigation of Cassie and hefears retaliation

He indicates that he has decided to quit

What should you do?

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Retaliation is forbidden by law

› An employee who reports harassment ordiscrimination may not be retaliated againstin any fashion


There are certain situations such asrumors, hearsay or denial by the victimwhere the supervisor is not required toinvestigate.

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Don’t ignore, bury or

deny

Be prompt and

thorough

Don’t promise

confidentiality

Communicate on a

“need to know” basis


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Inform employees of the law

Require employees to report harassmentthat they experience or know of

Alternate reporting channels, including3rd party “hotlines”

Require supervisors/managers to reportto upper management or HR

No retaliation

Zero Tolerance


Employees: IMMEDIATELY notifyyour supervisor, any member ofHR, or any manager

Supervisors & Managers: Afterreceiving a report, IMMEDIATELYnotify upper management or HR

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• Responsible for preventing unlawfuldiscrimination and harassment

• Must not only implement a policyagainst harassment, but must have aneffective mechanism to prevent andpromptly correct problems

• Cannot ignore or permit harassingbehavior in the workplace


Refrain from harassing others

Report any harassing behavior theyexperience or observe

Participate/cooperate ininvestigations

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•Lead by example

•Show respect for EVERYONE

•Be consistent

•Base employment decisions on bona fideoccupational qualifications

•Keep documentation

•Focus only on job duties and tasks whentalking to employees about performance

•Avoid retaliation


Monitor the workplace

Correct problems immediately

All problems or complaints should betaken seriously, no matter what youbelieve to be true

Notify: HR immediately

Keep as confidential as possible

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Sue has worked as a sales rep for the past 3 years and herperformance has always been good. Just recently herperformance took a turn for the worse and, as her supervisor,you are responsible to document her performance and put heron a performance improvement plan. When you sit down withher to do so, she blames her slip in performance her reaction tounwanted sexual advances by and important client.

You are held responsible for the sales goals of your departmentand have put all other sales people who have failed toachieve their sales quotas on an improvement plan.

What would you do?


Will be investigated› Promptly

› Thoroughly

› As confidential as possible

If an investigation confirms thatharassment has occurred, theCompany will take appropriatecorrective action, up to and includingtermination

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– Refusal to hire or rehire

– Increased scrutiny by supervisor

– Denial of promotion

– Undeserved, negative reviews

– Written disciplinary action

– Demotion or Transfer

– Exclusion / Ostracism / Snubbing

– Constructive Discharge

– Termination


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Type them into the chat box

Email: [email protected]

Speak to your HR representative

or manager

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Sign the Acknowledgment of Receipt ofCompany Policy

Thank you for your valuable time!!!


Thank youThank you

Certificate available for printing onWebinar resource page

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