Sexual Harassment by Winston & Cashatt
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Sexual Harassment by Winston & Cashatt
- 1. 1 SEXUAL HARASSMENT TRAINING By: Erika Grubbs Winston & Cashatt, Lawyers 601 W. Riverside, Ste 1900 250 Northwest Blvd, Ste 206 Spokane, WA 99201 Coeur d’Alene, Idaho 83814 (509) 838-6131 ebg@winstoncashatt.com (208) 667-2103
- 2. 2 INTRODUCTION: *SEXUAL HARASSMENT *LEGAL ISSUE *RISK MANAGEMENT ISSUE *MANAGEMENT ISSUE
- 3. 3
- 4. 4 SEXUAL HARASSMENT DEFINED: *”Know it when you see it” *Acts and Words *Case by case analysis
- 5. 5 WHAT IS SEXUAL HARASSMENT? (Title VII of the Civil Rights Act) Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute “sexual harassment” when: 1. Submission to such conduct is made explicitly or implicitly a condition of an individual’s employment: 2. Submission to or rejection of such conduct is used as a basis for an employment decision affecting the employee; or 3. The harassment has the purpose or effect of unreasonably interfering with the employee’s work performance or creating an environment which is intimidating, hostile or offensive to the employee.
- 6. 6 SEXUAL HARASSMENT (STATE) DEFINITION: “SEXUAL HARASSMENT” refers to behavior of a sexual nature which is unwelcome and personally offensive to its recipients. Sexual harassment is a form of employee/employer misconduct which is demeaning to another person and undermines the integrity of the employment relationship.
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- 8. 8 WHAT IS SEXUAL HARASSMENT? (cont.) Irrelevant whether or not conduct is motivated by sexual desire. Issue: Are members of different sexes treated differently? (Can be males too!)
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- 10. 10 GENERAL RULE CONSIDER WHETHER YOU WOULD WANT YOUR WIFE OR DAUGHTER SUBJECTED TO THE COMPLAINED OF TREATMENT
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- 12. 12 IS IT SEXUAL HARASSMENT? Unwanted and unwelcome. Interferes with your performance at work or school; creates intimidating or hostile environment. Could be dangerous. Causes uncomfortable feelings. Designed to make victim feel powerless. Negatively influences work performance. Sexual in nature.
- 13. 13 “UNWELCOME” TITLE VII does not prohibit all conduct of a sexual nature…it only forbids unwelcome conduct which becomes a term or condition of employment. 1. Acquiescence in sexual conduct may not mean that the conduct is welcome. 2. The charging party need not have confronted her offending supervisor where she feared retaliation, so long as her actions and comments demonstrated that the conduct was unwelcome. 3. Standard – Plaintiff can not prevail if s/he unreasonably refused to take advantage of corrective measures.
- 14. 14 QUID PRO QUO: Occurs when submission to unwelcome sexual conduct is made a term or condition of an individual’s employment.
- 15. 15
- 16. 16 HOSTILE ENVIRONMENT: The day-to-day working environment is polluted with verbal or physical abuses. Unwelcome sexual conduct unreasonably interferes with job performance or creates an intimidating, hostile or offensive work environment. FACTORS CONSIDERED: •Frequency of the conduct. •Offensive utterances. •The more severe the conduct, the less pervasive it must be. •Environment
- 17. 17 HOSTILE ENVIRONMENT—Factors Considered: (Cont’d) •Did the conduct occur in view of others? •Consequences of conduct upon plaintiff •Plaintiff’s unreasonable delay in reporting harassment
- 18. 18
- 19. 19 CASE LAW: Employers must take timely and effective action to prevent sexual harassment. Employers and managers may be held personally liable for damages due to harassment. A “reasonable woman” standard MAY be used by the court to identify sexual harassment. Ellison v Brady (1991) Unless the conduct is quite severe, isolated incidents of sexual conduct or statements do not create a hostile environment. BUT, they do create an obligation on the part of a concerned employer to prevent a recurrent of the offensive act or statement.
- 20. 20 CASE LAW (continued): Fuller v. Oakland (1995) Once the employer knows or reasonably should know of sexually harassing conduct, the employer has an affirmative duty to take steps to prevent a recurrence of that conduct. If the steps fail and the conduct reoccurs, the employer may be held liable. You must investigate even if complainant asks you not to! Investigations must be. . .
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- 22. 22 APPROPRIATE REMEDIAL CORRECTIVE ACTION? • Severity of conduct • Pervasiveness of conduct • Likelihood for conduct to be repeated • Courts will 2nd guess you … especially if the conduct did continue.
- 23. 23 WHAT SHOULD WE NOT DO: • Ignore a complaint or problem • Deviate from or ignore your policy • Discuss with the violator over coffee • Put the victim and perp. in a room to “sort it out” • Punish/Retaliate against the victim • Accept recantations blindly • Half hearted investigations • “Oh, that’s just Joe” • Pass investigation “up the chain” without legal
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- 25. ELEMENTS OF RETALIATION •Plaintiff filed a charge of harassment or engaged in other protected activity •Plaintiff’s employer subsequently took adverse employment action against the plaintiff •The adverse action was causally linked to the plaintiff’s protected activity
- 26. •Once this prima facie showing is made by the plaintiff, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions •If the employer meets that burden, the presumption of retaliation disappears
- 27. 27 RETALIATION EXAMPLES •Unwanted/undeserved lower performance reviews •Transfers, duty changes, taking away or denying privileges •Discipline/discharge •Ridicule/blaming for work problems •Continuing/escalating the prohibited conduct
- 28. 28 •Threats •Ostracism/exclusion in a way that creates an intimidating, stressful environment
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- 30. 30 DAMAGES – WHAT IF WE MESS IT UP??? $3 Million – Female deputy harassed by co-workers. Co-workers were fired, but remaining deputies gave her the cold shoulder. $1.5 Million – Female security officer harassed by co-workers. $50 K – Female jail employee harassed by inmates & fired because she complained. Sergeant & Captain of police department allowed sexually offensive working conditions. $165 K against Captain $230 K against City
- 31. 31 CASE LAW EXAMPLES: Language Hugs Workplace Romance Graffiti, Emails, Notes, Cartoons Same Sex Discrimination Gender Stereotyping Name Calling, Rumors Against One Person Demeaning Comments Blocking Movement Touching Leering, Sexual Gestures Criminal Touching Flirting Quid Pro Quo Centerfolds Comments Made to 3rd Persons
- 32. 32 BE PROACTIVE Policy Manual Prohibits Sexual Harassment Employee Discipline for Violation of Policy
- 33. 33 REMEDIES: Self Help—Ask to Stop Supervisor Formal Complaint per County Policy Employee Discipline EEOC/IHRC Lawsuit—Damages, Costs, Attorney Fees Personal Liability What do most victims want?
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- 35. 35 The 10:00 PM News Approach
Notas del editor
- *Today we’ll learn what is and what is not sexual harassment *We’ll learn the law that applies *We’ll see that it is a risk management issue because this area generates some of the largest claims against agencies *It is a management issue because these claims can be avoided if handled properly.
- *Do you “know it when you see it?” --Sometimes *It can be words or actions or both *Courts will view each case and look at the totality of the circumstances in determining whether the conduct is or is not sexual harassment
- *This is the Title VII definition *1 and 2 are “quid pro quo” = “something for something” = “you scratch my back, I’ll scratch yours.” Examples: Sleep with me if you want the promotion *3 is “hostile workplace environment.” It is harder to distinguish and it is the one that gets us into the most trouble
- *State definition is similar. . .focus on whether conduct is demeaning or undermines the integrity of the work relationship.
- *Focus on the word “unwelcome.” Welcome conduct or consensual relationships would not be sexual harassment. *Motive is irrelevant. . .you can commit sexual harassment without intending to. Also, desire is irrelevant. A person who continually degrades members of the opposite sex doesn’t want them sexually, but does commit sexual harassment. *It can be a 3rd party who files the Complaint (Example: Supervisor has canvassed subordinates for dates. One agrees and then gets the next promotion. Others could file Complaints.) *5 is a good way to decide if you may have a problem. *Important to note that males can also be victims—can be male to male, female to female, male to female, or female to male. *Typically though, the victims have been female because even now, it is usually the females who work for male supervisors or in predominantly male workplaces. Also, males are often too embarrassed to make their discomfort in this area public.
- *If the answer is no, this is probably conduct which is inapproriate and which you need to ensure is changed!
- *These are factors which, if present, make it more likely to be sexual harassment in the Court’s eye. *Dangerous conduct—threats, ultimatums, or stalking behavior—are severe and should be very concerning. *The dynamics are similar to Domestic Violence situations in terms of power and control issues. The victims are degraded and the harasser has the control. *If the conduct is sexual in nature, it is very probably sexual harassment.
- *Why would a victim acquiesce? *Team player *Fear of retaliation *Give example of showing that conduct is unwelcome but not saying so (continually turning down date offers and not being alone in room with harasser) *New standard—if there is a policy that would provide redress and it would be reasonable for the victim to use it, if s/he doesn’t, s/he won’t be able to sue
- *In determining if there is a “hostile work environment,” courts will look at these factors and view all of the facts and circumstances together *The more frequent the conduct, the more likely it is sexual harassment *For less severe conduct, there would need to be a pattern of ongoing behavior in the workplace for it to be deemed sexual harassment. The conduct would need to be “pervasive.” *The more offensive the utterance, the more likely it is sexual harassment *Court will look at the environment. . .those which are generally accepted as more “rough hewn” will get more latitude (such as auto mechanics shops--but not law enforcement)
- *If in view of others can be more demeaning *Was there a negative employment action, did s/he get blackballed, emotional difficulty, lost house, etc. If so, increased damages *Delay will be considered by court. . .may either add to or take away from victim’s credibility depending upon the circumstances
- *Emphasize personal liability—loss of your house, car, boat, etc. *Typically, conduct would have to offend or affect the work environment of a “reasonable person,” but if the employer knows or should know of a particular vulnerability, that standard may not apply. Idaho has “reasonable person” standard. Fed is permitted to use “reas woman”
- *Investigations must be prompt, thorough and impartial See also – Nichols v. Azteca Restaurant 256 F. 3d 864 (9th Cir 2001) – Male employee of Azteca was subjected to constant taunting and harassment by his male coworkers and supervisor…called “she” and “her” and mocked for walking and carrying his serving tray “like a woman” and was called a “whore” and “faggot”..Happened several times a day most weeks. It was deemed a hostile work environment since his harassment was “because of sex.” Patterson v. State Dept of Health and Welfare, 151 Idaho 310 (2011) Employee resigned b/c of an affair between her superviser and another employee that resulted in favoritism to the paramour and her staff. The favoritism wasn’t directed against, nor did it result in, an unfavorable effect upon a protected person or group, so the hostile work environment claim failed.
- *Courts look at these factors in determining whether the corrective steps taken were appropriate
- You can’t possibly know the appropriate corrective action until you know the entire scope of the problem *Having the victim and perpetrator “sort it out” just revictimizes the victim *Why would victims recant? You need to do 2nd investigation. If recanting because of blackballing, etc., you have a bigger problem to correct *If people say “oh, that’s just Joe”. . .the “knew or should’ve known” element is there and you will be liable *Keep Legal in the loop to retain attorney/client privilege on documents. If you pass the investigation up the chain without involving Legal along the way, you lose the attorney/client privilege on your documents. They will be subject to review by Plaintiff’s counsel.
- *You can be liable for actions of non-employees if you could’ve remedied the problem and didn’t. If you are aware that customers/inmates or some third party is subjecting your employee to sexual harassment, if reasonable, you must take steps to correct the problem.
- *Give examples and invoke discussion “Is it or isn’t it sexual harassment?” *”You look nice today”—depends on other facts. . .if coupled with other statements or leering, it could be. Focus on whether conduct is welcome or not *Hugs, massages, pats on back, pat on leg—is it welcome or not? *Bottom line—all of these could be sexual harassment if coupled with other acts or words and if unwelcome.
- *Have a policy and make sure you and all employees are familiar with it *Have trainings *Follow policy at all times *Understand that you could violate your department policy and subject yourself to discipline and/or termination, with conduct that would be less than what a court would find would constitute a valid Title VII action. (Example: An isolated incident of an improper touching or inappropriate comment with a co-worker could subject you to discipline even though it wouldn’t be pervasive enough for the victim to win a sexual harassment case.
- *These are options when faced with sexual harassment. *A victim can ask the harassment to stop, report it to his/her supervisor, and/or file a formal complaint per policy. *Most policies and the law provide for discipline up to and including termination for sexually harassing conduct. *EEOC (Equal Employment Opportunity Commission) & IHRC (Idaho Human Rights Commission) are federal and state agencies who investigate claims *Victims can file lawsuits regardless of what the outcome is at EEOC or IHRC. There are provisions for damages, costs and attorney fees *Supervisors can be personally liable, so if a victim gets a judgment against you personally, s/he can recover against your house, car, boat, etc. *Can most often avoid all of the above forums if you act appropriately early on. . .most victims just want the harassment to stop
- *Think of Tom Brokow or Peter Jennings—consumate proffessionals—polite, respectful, polished, classy, and dignified. *With that demeanor, you’ll never have a problem.