Workplace Harassment and Sexual Harassment: Laws, Impact, and Prevention

1. Local 1000 Workplace Harassment

2. Sexual Harassment Prohibited by state and federal law • DFEH received 3,863 charges of sexual harassment in 2008 • EEOC received 12,696 charges of sexual harassment in FY 2009 • 16% of those were filed by men

3. Sexual Harassment – Employer Impact • Employee turnover increases • Absenteeism increases • Concentration at work decreases • Morale/teamwork/cooperation all decrease • Trust among employees decreases

4. Sexual Harassment – Employer Impact(cont) • Instead of performing work, time is spent talking about and dealing with sexual harassment • Instead of performing work, time is spent conducting lengthy investigations • Organization or company suffers adverse publicity • Costs to employees involved; money out of pocket

5. Workplace Romance

6. A Changing Workplace • More hours are spent at work • Women make up 46% of the workforce • Americans marry later in life, resulting in more unattached people at work

7. Workplace Romance Statistics 58% of employees have been involved in an office romance (in 26% of the cases, the romances resulted in long-term relationship) 21% of respondents reported dating a boss or superior 32% of respondents have engaged in trysts within the office 65% of respondents reported that their employer did not have a policy regarding workplace dating

8. Workplace Romance StatisticsUnintended Outcomes 29% of romances resulted in favoritism complaints 23% of romances resulted in decreased productivity 21% of romances resulted in harassment complaints

9. Workplace Romance – Recent Case Miller v. Department of Corrections (2005) • Decision made by the California Supreme Court on claims brought under Fair Employment and Housing Act (FEHA) • Plaintiffs claimed that Warden provided preferential treatment (including promotions) to employees he was intimately involved with over those with whom he was not • Court reinstated plaintiff’s claims; Justices held that widespread sexual favoritism in the workplace may create an actionable hostile work environment that demeans other employees

10. Harassment v.

11. Hostile EnvironmentHarassment

12. Hostile Environment Harassment What? Where? Who?

13. What?

14. Hostile Environment Harassment Three Key Elements: • Unwelcome conduct • Based on a protected category • Unreasonably interferes with an employee’s work performance or creates an intimidating, hostile, or offensive work environment

15. Unacceptable Behavior: Verbal EEOC v. National Education Association (2005) • 9th Circuit Court of Appeals • Male supervisor subjected female employees to persistent episodes of loud, hostile, profane shouting and intimidating behavior with little or no provocation • Court held that conduct need not be “facially sex-specific” to qualify • Employer settled the sex discrimination suit for $750,000

16. Other Examples of Unacceptable Verbal Behavior

17. Unacceptable Behavior: Non-Verbal Birschtein v. New United Motor Manufacturing Inc. (2001) • California Court of Appeal • After plaintiff refused several requests from her coworker for a date, he began a “campaign” of staring at her • Court held that “staring” at a fellow employee may constitute sexual harassment under state law

18. Other Examples of Unacceptable Non-Verbal Behavior

19. Examples of Unacceptable Physical Behavior

20. Where?

21. Where Does the Harassment Occur? • Conduct outside the “workplace” • There is no requirement that the harassment occur in the office or the workplace • Liability for harassment does not stop at the workplace door • Liability for harassment may attach to unlawful conduct that occurs in any location found to be an extension of the workplace

22. Where Does the Harassment Occur? Myers v. Trendwest Resorts, Inc. (2007) • California Court of Appeal • Alleged harassment occurred off-site and arose during a relationship that had evidence of becoming consensual • Court held that employer can be liable for sexual harassment even when the alleged misconduct occurs away from the workplace

23. Who?

24. Options

25. Third Party HarassmentLiability Standards Harassment liability arises under state and federal law ONLY IF: • Employer knew or should have known about misconduct; and • Failed to take immediate and appropriate corrective action

26. Duty of Reasonable Care:Supervisor’s Response After Receiving a Complaint • Take all complaints seriously • Listen emphatically • Document the complaint and all facts presented • Cannot promise confidentiality, but can assure employee that information will be limited to a need-to-know basis • Do not pre-judge the outcome • Take prompt, remedial action (when warranted) • Report to HR/Legal departments immediately

27. Duty of Reasonable Care:Taking Corrective Action The employer must take prompt, remedial action reasonably calculated to end the harassment. • Employer can respond adequately by disciplining a co-worker for his or her misconduct • Employer is not necessarily obligated to terminate the harasser or remove him/her from the workplace; it may be sufficient to simply separate complainant from harasser • Don’t punish the victim

28. Personal Liability

29. Personal Liability Individual harassers may be held personally liable under a tort theory • Assault • Invasion of Privacy • Intentional Infliction of Emotional Distress

30. How Would a Court ClassifyUnion Activists?

31. Open Issue: Would a court hold a Union activist personally liable for harassment?

32. Questions?