2. What we will Cover Sexual Harassment Quiz Videos Sexual Harassment Definitions Role of the HR Manager/How to file a complaint Court case Quid Pro Quo Court case Hostile Environment Sexual Harassment Graph
3. Quiz Sexual Harassment IQ Quiz Answers 1. It is not unlawful harassment for a manager or supervisor to assign unfavorable work duties only to women. ☺ False The act of assigning unfavorable work only to members of a certain gender is a form of discriminatory treatment and may be considered a hostile act that has the effect of creating a hostile work environment for employees of that particular gender. 2. To bring a lawsuit for sexual harassment, a victim does not need to show that he or she suffered a monetary or economic harm, such as being fired or demoted. ☺ True Unwelcome sexual conduct that unreasonably interferes with the ability of a person to work or that creates an intimidating hostile or offensive working environment can constitute sexual harassment, regardless of whether any monetary or economic loss has occurred. 3. It is unlawful for a man to sexually harass another man because of his gender. ☺ True Same-sex harassment violates the law.
4. Quiz 4. An employee who joins in sex jokes or sexual banter in the workplace may be a victim of sexual harassment. ☺ True Although an employee’s participation may indicate welcomeness, it does not automatically follow that the employee was asking to be sexually harassed. 5. An employee who consents to a supervisor’s sexual advances can state a claim for sexual harassment. ☺ True An employee may consent to a supervisor’s sexual advances but still consider the behavior to be unwelcome. 6. An employer that has an anti-harassment policy will avoid liability for sexual harassment committed by a victim’s coworker. ☺ False An anti-harassment policy is necessary, but standing alone, will not completely shield an employer from liability.
6. What is Sexual Harassment? (Cont.) Hostile Environment Sexual Harassment : This occurs when an employee is subjected to comments of a sexual nature, offensive sexual materials, or unwelcome physical contact as a regular part of the work environment. Generally speaking, a single isolated incident will not be considered hostile environment harassment unless it is extremely outrageous and egregious conduct. The courts look to see whether the conduct is both serious and frequent. Supervisors, managers, co-workers and even customers can be responsible for creating a hostile environment.
7. What is Sexual Harassment? Quid Pro Quo Harassment :Something for something;this is the you do something for me and I'll do something for you type of exchange. This occurs when a job benefit is directly tied to an employee submitting to unwelcome sexual advances. For example, a supervisor promises an employee a raise if she will go out on a date with him, or tells an employee she will be fired if she doesn't sleep with him. Quid pro quo harassment also occurs when an employee makes an evaluative decision, or provides or withholds professional opportunities based on another employee's submission to verbal, nonverbal or physical conduct or a sexual nature. Quid pro quo harassment is equally unlawful whether the victim resists and suffers the threatened harm or submits and thus avoids the threatened harm.
8. Role of the HR manager Employers role in sexual harassment claims: Before a complaint is filed, make sure you have posted and informed all employees of your organization’s policy relative to sexual harassment. It won’t be tolerated; it will be investigated. Assign a staff member to “own” the complaint. This individual should be knowledgeable about the organization, the people in the organization, and the history of the organization. Map out a plan that covers the important people and situations to investigate in the initial complaint. Basically, plan the investigation, based on current knowledge. Talk with the employee who is complaining. Guarantee to the employee that he or she is safe from retaliation and took appropriate action in reporting the incident or general situation. Inform the employee that you need to know immediately about any retaliation, purported retaliation, or ongoing harassment the employee experiences. Ask the employee to tell you the whole story in his or her own words. Listen; take notes. Write down relevant facts such as dates, times, situations, witnesses, and anything else that seems relevant. Tell the person accused that a complaint has been filed, and that no acts of retaliation or unethical actions will be tolerated. Ask the person to be patient while you conduct a thorough investigation. Assure the person accused that a fair and just investigation will be conducted on their behalf as well as that of the accuser. Interview any potential witnesses in the same manner. Interview any potential witnesses in the same manner. Ask open-ended questions and seek facts that support or disprove the employee’s allegations.
9. Role of the HR manager Interview the person who is accused of sexual harassment. Apply the same listening and respectful approach you accorded the person who filed the complaint and the other witnesses. Take all the information you received and attempt to reach a decision. Make the best decision that you can with the information you have. Consult with other HR colleagues to do the right thing. Make decisions about whether sexual harassment occurred. Provide the appropriate discipline to the appropriate people, based on your findings. Make work or assignment setting adjustments if necessary. Recognize that you are not perfect, no situation can be perfectly investigated. Even when harassment may have occurred, there may be no facts or witnesses that corroborate a complainant’s statement. Assure that no further incidents occur by following up, and documenting your follow-up. with the employee who made the original harassment claim. Keep documentation separate from the personnel file. Afford the employee, who may have been wrongly accused, the same courtesy of follow-up and documentation. Adjust working situations fairly where necessary for the comfort and productivity of all.
10. Role of the HR manager Tips: Legally, the employer will want to avoid any possibility or appearance that the employee’s complaint was disregarded. Respond immediately. Ethically, the employer will not want to allow such behavior to exist in their workplace. The trust, morale, and fair treatment of employees is at stake. An employer’s actions send powerful signals about what another employee can expect in similar circumstances. You may want to consider reposting and reiterating your sexual harassment policies across your whole work place. Let the circumstances guide your judgment. In all cases, make sure you make and keep complete and accurate documentation. Employees who are unhappy with the results of your investigation may take additional legal action. The trust, morale, and fair treatment of employees is at stake. An employer’s actions send powerful signals about what another employee can expect in similar circumstances. You may want to consider reposting and reiterating your sexual harassment policies across your whole work place. Let the circumstances guide your judgment. In all cases, make sure you make and keep complete and accurate documentation. Employees who are unhappy with the results of your investigation may take additional legal action.
11. How to file a complaint. It is sometimes hard to report harassment because you might feel embarrassed or think that it was your fault even though it is not. Reporting sexual harassment to your employer is important. It may stop the behavior and it makes your employer responsible for stopping the behavior. When you are deciding what to do, remember that every situation is different.There is no one best thing to do. You should always report the sexual harassment to your employer. You then have the option to use your company’s sexual harassment complaint process, file a charge with a state or federal agency, and/or go to court. It is important to talk with a lawyer or legal services organization like Equal Rights Advocates to discuss your choices (see “Resources”).They can help you to understand your choices, their benefits and risks as well as the strengths and weaknesses of your case. Say “No” Clearly Tell the person that his/her behavior offends you. Firmly refuse all invitations.If the harassment doesn’t end promptly, write a letter asking the harasser to stop and keep a copy. Write Down What Happened As soon as you experience the sexual harassment, start writing it down.Write down dates, places, times, and possible witnesses to what happened.If possible, ask your co-workers to write down what they saw or heard, especially if the same thing is happening to them.Remember that others may (and probably will) read this written record at some point. It is a good idea to keep the record at home or in some other safe place.Do not keep the record at work.
12. How to file a complaint. Report the Harassment Tell your supervisor, your human resources department or some other department or person within your organization who has the power to stop the harassment. If possible, tell them in writing. Keep a copy of any written complaint you make to your employer.It is very important that you report the harassment because your employer must know or have reason to know about the harassment in order to be legally responsible for a co-worker, client or customer’s actions. Even if your harasser was your supervisor, you may need to show that you reported the harassment to your employer or give a good reason why you didn’t. Start a Paper Trail When you report the sexual harassment to your employer, do it in writing.Describe the problem and how you want it fixed.This creates a written record of when you complained and what happened in response to it. Keep copies of everything you send and receive from your employer. Review your Personnel File It is your right to see your personnel file.If you work for a private employer, in certain states including California, you have the right to request and receive copies of everything in your file that you have signed.
13. How to file a complaint. Use the Grievance Procedure at Work Many employers and schools have policies for dealing with sexual harassment complaints. You may be able to resolve the problem through this process.To find out your employer’s policies, look in your employee manual/personnel policies and/or speak to a human resources officer. It is important to follow your employer’s procedures. Involve your Union If you belong to a union, you may want to file a formal sexual harassment complaint through the union and try to get a shop steward or other union official to help you work through the grievance process. Get a copy of your union’s grievance policy and see if it discusses the problems you are experiencing. If you use your union’s grievance procedure, you must still file a complaint with a government agency if you want to file a lawsuit in federal or state court.
14. How to file a complaint. File a Discrimination Complaint with a Government Agency If you want to file a lawsuit in federal or state court, you must first file a formal sexual harassment complaint with the federal Equal Employment Opportunity Commission (EEOC) and/or your state’s fair employment agency (in California, this is the Department of Fair Employment and Housing).(See “Resources” section for contact information.)If you are a federal employee, follow federal guidelines on how to lodge a sexual harassment complaint. You can obtain these guidelines from the Federal Labor Relations Authority at (202) 482-6600. Do not miss deadlines for filing with the EEOC or other government agency!Do not delay in filing a complaint with your employer! If you start to feel that your employer’s process for dealing with the sexual harassment may not help you, don’t wait to file a formal complaint.This is very important! You cannot bring a lawsuit against your employer unless you have first filed a formal sexual harassment complaint with the EEOC or your state fair employment agency. Under federal law in California, you have 300 days from an act of sexual harassment to file a formal complaint.Under federal law in other states, you may have only 180 days to file a formal complaint.It is important to check with the EEOC or a legal organization to find out the time limits.Call Equal Rights Advocates or a lawyer to find out what you need to do and when. Under California law, you have one year from an act of sexual harassment to file a formal complaint.The deadlines under other states’ laws differ. Call Equal Rights Advocates or a lawyer to find out what to do and when. File a lawsuit After you file a formal complaint with the EEOC or your state’s fair employment agency, you can also consider filing a lawsuit.You can sue for money damages, to get your job back, and you can also ask the court to make your employer change its practices to prevent future sexual harassment from occurring.
15. Court Case – Quid Pro Quo Quid Pro Quo Court case:Faragher v City of Boca Raton Facts of the Case: After resigning as a lifeguard, Beth Ann Faragher brought an action against the City of Boca Raton and her immediate supervisors, alleging that the supervisors had created a sexually hostile atmosphere by touching, remarking, and commenting. Faragher asserted that this conduct constituted discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court concluded that Faragher's supervisors' conduct was sufficiently serious to alter the conditions of her employment and constitute an abusive working environment. The court then held that the city could be held liable. In reversing, the en banc Court of Appeals held that Faragher's supervisors were not acting within the scope of their employment when they engaged in the harassing conduct, that knowledge of the harassment could not be imputed to the City, and that the City could not be held liable for negligence in failing to prevent it. Question: May an employer be held liable under Title VII of the Civil Rights Act of 1964 for the acts of an employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination? Conclusion: Yes. In a 7-2 opinion delivered by Justice David H. Souter, the Court held that an employer is vicariously liable under Title VII of the Civil Rights Act of 1964 for actionable discrimination caused by a supervisor. The Court also held that such liability is subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the plaintiff victim. "The City had entirely failed to disseminate its policy against sexual harassment among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors like [Faragher's]," wrote Justice Souter, "[u]under such circumstances, we hold as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors' harassing conduct."
16. Court Case – Quid Pro Quo Burlington Industries Inc, v. Ellerth Facts of the Case: After working for Burlington Industries for 15 months, Kimberly B. Ellerth quit because she allegedly suffered sexual harassment by her supervisor - Ted Slowik. Despite her refusals of Slowik's advances Ellerth did not suffer any tangible retaliation and was, in fact, promoted once. Moreover, while she remained silent about Slowik's conduct despite her knowledge of Burlington's policy against sexual harassment, Ellerth challenged Burlington claiming that the company forced her constructive discharge. Question: Can an employee, who despite refusing sexually harassing advances by a supervisor suffers no adverse job-related consequences, recover against an employer under Title VII of the Civil Rights Acts of 1964, without showing that the employer was responsible for the supervisor's harassing conduct? Conclusion: Yes. In a 7-to-2 opinion, the Court held that employers are vicariously liable for supervisors who create hostile working conditions for those over whom they have authority. In cases where harassed employees suffer no job-related consequences, employers may defend themselves against liability by showing that they quickly acted to prevent and correct any harassing behavior and that the harassed employee failed to utilize their employer's protection. Such a defense, however, in not available when the alleged harassment culminates in an employment action, such as Ellerth's.
17. Court Case – Hostile Environment Harassed Female Wins "Locker Room" Hostile Environment Case For all employees who are subjected to a sexually hostile work environment, the recent case of Gallagher v.. C.H. Robinson from the Sixth Circuit Court of Appeals is fantastic news -- and that's an understatement. There are so many women who are faced with a regular onslaught of dirty jokes, pornography, demeaning references about women, and sexual bantering in the workplace. For those victims, this case is a godsend. Here's what happened in the case. Julie Gallagher worked for C.H. Robinson Worldwide Inc. in a sales position in the Cleveland office. The area in which she worked had 20 employees and 3 support staff. The sales staff worked in cubicles that were organized in pods in an open floor plan. Short dividers between the cubicles provided little privacy. During the four months during which Gallagher worked at C.H.Robinson ("CHR") she described a “locker room” atmosphere characterized by unprofessional behavior and an environment that was hostile to women. Gallagher complained frequently to the branch manager, Greg Quest, but things only got worse. Four months after starting, and following an incident during which some drunk male so-workers “flipped her off”, she finally quit and took a job working for a former employer. Gallagher filed a case for hostile environment sexual harassment under both state (Ohio R.C. 4112.02) and federal law (Title VII of the Civil Right Act of 1964).
18. Court Case – Hostile Environment In order to prove a sexual harassment case, the plaintiff must prove that: she is a member of a protected class (female) she was subjected to harassment either through words or actions, based on sex the harassment had the effect of unreasonably interfering with her work performance and creating an objectively intimidating, hostile, or offensive work environment and there exists some basis for liability on the part of the employer The district court, in placing it's remarkable spin on the facts, and applying that spin to the elements of the claim set forth above, made several reversible errors. Mistake #1: The district court held that the conduct was not "based on sex" based on the following conclusions: Because the offensive conduct Gallagher complained of was in an open forum with both men and women, it was not based on sex A person can't prevail on a discrimination case which is based on indiscriminate conduct. Not so according to the Sixth Circuit which held (joining the 2nd and 11th Circuits): Even though members of both sexes were exposed to the offensive conduct in the Cleveland office, considering the nature of the patently degrading and anti-female nature of the harassment, it stands to reason that women would suffer, as a result of the exposure, greater disadvantage in the terms and conditions of their employment than men.
19. Court Case – Hostile Environment Mistake #2: The district court held that the harassment was not severe or pervasive based on the following conclusions: most of the offensive conduct was not directed at Gallagher the harassment was not objectively hostile Gallagher's work performance didn't suffer Wrong on all three points according to the Sixth Circuit which said: Whether the offensive conduct was intentionally directed specifically at Gallagher or not, the fact remains that she had no means of escaping her co-workers' loud insulting language and degrading conversations; she was unavoidably exposed to it. Mistake #3: The district court held that there was no employer liability based on the following conclusions: C.H. Robinson had sexual harassment policies for reporting and Gallagher didn't follow them reporting the misconduct only to Greg Quast (the office manager) was unreasonable C.H Robinson did not have notice of the harassment Wrong again according to the Sixth Circuit Court of Appeals which wrote: According to Gallagher's deposition testimony, Quast witnessed much of the harassing conduct and participated in some. The facts substantiate a finding that Quast knew or should have known of the offensive conduct and of Gallagher's objection to it.
20. Court Case – Hostile Environment This case is a tremendous win: It interprets Title VII consistently with it's purpose It sets forth very clearly what kind of conduct can constitute a sexually hostile work environment and why that it is so It puts the onus in these cases back on the employer where it belongs It emasculates many of the contrived and nit -picking employer defenses which too many judges have latched on to and used to throw these cases out The bottom line is that no one should have to go to work and face what Julie Gallagher did. That's why we have laws which make a sexually hostile work environment illegal. This decision should help make sure that others aren't subjected to the same miserable experience
22. Conclusion Sexual Harassment Quiz Sexual Harassment Definitions Role of the HR Manager/How to file a complaint Show a Video Court case Quid Pro Quo Court case Hostile Environment Sexual Harassment Graph Questions???
