IMLA Employment Law CLE Dallas, Texas

1. IMLA Employment Law CLEDallas, Texas Work Session #2 They Still Don’t Get It: Addressing Workplace Sexual Harassment November 10, 2008 International Municipal Lawyers Association

2. Addressing Sexual Harassment Topics for Work Session #2 A. Prevention & Training Tips/Internal Complaint Handling B. Trying the Sexual Harassment Case to a Jury C. Retaliation: The New Fertile Ground for Litigation International Municipal Lawyers Association

3. Work Session #2 Topic A Addressing Sexual Harassment: Prevention & Training Tips Internal Complaint Handling November 10, 2008 Attorney Daniel D. Crean International Municipal Lawyers Association

4. Sexual Harassment – Prevention & TrainingInternal Complaint Handling • The initial premise of this segment of workshop #2 is that the best sexual harassment incident is the one that does not occur . . . • Hence, the first topic is prevention and an understanding of employer practices designed at prevention. International Municipal Lawyers Association

5. Sexual Harassment • Sexual harassment involves subjecting someone to unwanted sexual attention. • It includes a wide array of behavior ranging from verbal innuendo to overt sexual demands. Source: Confronting Sexual Harassment By Judith Berman Brandenburg International Municipal Lawyers Association

6. Workplace sexual harassment has three components: 1. Unwelcome Conduct of a 2. Sexual Nature (or Based on Gender), which 3. Adversely Affects the Employment Relationship The Legal Framework:Sexual Harassment Definition International Municipal Lawyers Association

7. The Legal Framework:Federal and State Law • Federal and State laws make discrimination on the basis of gender/sex in the workplace unlawful. • Title VII of the Federal Civil Rights Act • [42 U.S.C. § 2000e-2(a)(1)] • [State Law Example] New Hampshire RSA 354-A:7 • Workplace Sexual Harassment, which is a form of sex-based discrimination, constitutes “unlawful discrimination” under these laws. • State law also may prohibit sexual harassment, expressly, as is the case in New Hampshire. International Municipal Lawyers Association

8. Customary legal definition of sexual harassment: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature constitute sexual harassment when: (1) Submitting to or rejecting this conduct: (a) explicitly or implicitly affects an individual’s employment; or (b) is used as the basis for employment decisions affecting the individual who submits to or rejects such conduct; or (2) Such conduct has the purpose or effect of unreasonably interfering with individuals’ work performance or creating an intimidating, hostile, or offensive working environment. Source: EEOC International Municipal Lawyers Association

9. Employer Liability • In general, employers (and supervisors) may be held accountable if they did not take reasonable action to: • Prevent harassment from occurring, or • Remedy harassment if and when it occurs. • Sexual Harassment takes 2 general forms: • Economic or “Quid Pro Quo” Harassment • Environmental or “Hostile Environment” Harassment • The form of harassment determines the manner in which an employer might be liable or have a defense, but neither form of harassment is acceptable conduct for employees! International Municipal Lawyers Association

10. The Role of Policies & Practices • Although employees can be disciplined and held accountable for engaging in harassment and retaliation, state and federal law in the first instance hold an employer accountable for conduct in the workplace. • Therefore, employers have adopted specific anti-harassment policies and practices. International Municipal Lawyers Association

11. Policies and Practices • Employer Policies (and implementing practices) should be designed to: • Prevent harassment from occurring • Provide an effective, efficient and non-threatening means of reporting harassment • Provide an effective remedy if harassment occurs • Prevent retaliation • Prevent recurrence International Municipal Lawyers Association

12. What is in an Effective Policy? • Definition and Examples • ZERO Tolerance • Effective Internal Grievance/Complaint Mechanism for Reporting and Resolving • Prohibition of Retaliation • Requirement and Acknowledgement for Receipt and Reading of Policy • Accompanying Training and Education International Municipal Lawyers Association

13. Training Tips • Policy Adoption is Good – But Policy Implementation is Better! • Key to Effective Training is Going Beyond Policy to Understanding and Recognition. • Following Slides Seek to Provide Guidance in Achieving those Goals. International Municipal Lawyers Association

14. Recognizing HarassmentWho Sets The Standards?? International Municipal Lawyers Association

15. Perception Is Reality?Not Always, Right?How Many Squares Are Shown Below? Remember, the Victim Sets the Standard. International Municipal Lawyers Association

16. What does the number of squares on the previous slide have to do with workplace harassment? • Perception is a key concept – and it is not our perception of our own conduct, but how others perceive and respond to that conduct! • Perception is a key element of another basic concept: Boundaries. International Municipal Lawyers Association

17. The prohibition of sexual harassment is not designed to purge the workplace of vulgarity. Drawing the line is not always easy. On one side of the line, lie sexual assaults; other physical contacts, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side of the line, lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers. Recognizing Harassment – The purpose of the law is limited. Stewart v. Mary Hitchcock Mem. Hosp., U.S. Dist. Ct. for New Hampshire (1997) International Municipal Lawyers Association

18. So, is “occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers,” acceptable workplace conduct? • The court’s comment about vulgar conduct emphasizes that sexual harassment law seeks to protect employees from sex-based discrimination – nothing more. • Other unacceptable conduct is dealt with by other workplace conduct policies. International Municipal Lawyers Association

19. Context Counts & So Does Employee Interaction As guides to when questionable conduct may “cross the line” & become unacceptable: • Keep in mind both sexual component and control/dominance factors; • Reaction of recipient (fear, blushing, anger), indicating actor has created a reaction; • Perception of co-workers to conduct and situation. • Boundaries are a key factor! International Municipal Lawyers Association

20. Spectrum of Conduct International Municipal Lawyers Association

21. Handling Complaints Goals1. Stop the Harassment2. Maintain Morale & Productivity3. Minimize Liability All Complaints Will Be Promptly Investigated 1. Statements of Employees2. Records of investigation 3. Confidentiality - Limited Appropriate Action Will Be Taken 1. Based on Reasonable Conclusions2. Personnel Files Are Confidential International Municipal Lawyers Association

22. Fears That Prevent Reporting Branded As Troublemaker Fear Of Disciplinary Action Fear Of Retaliation Embarrassed International Municipal Lawyers Association

23. 9 Steps to Effective SexualHarassment Prevention and Correction 1. Having an Effective Anti-Harassment Policy 2. Distributing that Policy and Communicating it to All Employees 3. Making Intelligent Hiring Decisions 4. Conducting Training for Entire Workforce —New Employees and Periodic Refresher Training 5. Auditing Employee Actions & Monitoring Supervisors 6. Promptly Investigating ALL Complaints 7. Taking Prompt and Effective Remedial Action 8. Following Up On Remedial Actions 9. Preventing and Remedying Retaliation International Municipal Lawyers Association

24. Practice Tips for Municipal Attorneys • Advise clients of dangers and costs of “I should have called you earlier.” • Assist clients in understanding need for proper policy adoption and training. • Ensure that all complaints are handled promptly and effectively. • How to respond to “I really don’t want to make a fuss, but . . .” • Create capacity for effective investigation that is deemed to be credible. • Is the “Hooksett Four” model an effective response? International Municipal Lawyers Association

25. Guidance Applied Forrest v. Brinker International Payroll Company, LP, D/B/A Chili's Grill & Bar No. 07-1714 (1st Cir., 12-19-2007) • Analysis of “jilted lover” workplace harassment. • Concludes harassment was based on sex. • Complaints followed by immediate investigation and verbal warning: • After further incident, written warning; • After further incident, termination of harasser. • Occurring within about a month of initial complaint • Trial Court’s summary judgment (finding that harassment was not based on sex overturned), but ruling sustained, on ground of adequate and timely response by employer. International Municipal Lawyers Association

26. Any Questions? Thank you! Contact: creanlaw@comcast.net www.creanlaw.com International Municipal Lawyers Association