Workplace Harassment

1. Jack Lipovac, HR-OneSource and Matthew Brick, Brick Gentry P.C. Workplace Harassment Handouts and presentation are available online at www.iowaleague.org

2. 1. Litigation & Liability

3. Jurors think ... • 75 % of jurors feel employers must: • Give the employee fair warning prior to termination; • Ensure that the employee understands what went wrong; and • Work with the employee to correct the problem.

4. Jurors think … 60% believe the best evidence of work performance is the employee’s performance evaluation. 60% believe companies need to be “sent a message.” 90% believe that a company is negligent if it does not properly document performance problems.

5. Average Judgment Amounts • The average jury award in an employment lawsuit exceeds $250,000, with 15% of all verdicts exceeding $1 million. • 56% of all cases tried result in verdicts for the plaintiff (employee).

6. Average Defense Costs in State and Federal Court The average civil lawsuit lasts 2 years from inception to trial, and longer on appeal. One-half of all companies defending employment lawsuits spent over $50,000, and one-third spend over $100,000, in litigation costs alone – this doesnot include any jury or settlement award!

7. Recent Examples: In 2007, Indianapolis settled with Fire Captain for $350,000 after she alleged discrimination based on her gender by denying her promotions and retaliated against her when she complained. The Texas Dept. of Criminal Justice paid former state employee $1.5 million for retaliation. She was fired after seeking reasonable accommodation – removal of aerosol room deodorant which aggravated her chronic asthma.

8. Recent Examples: • New York City judge upheld verdict awarding Sergeant Sorrenti of the N.Y.P.D. $1.5 million after being denied an opportunity in the Youth Services Section because a supervisor thought that Sorrenti was a homosexual and therefore should not be dealing with minors. • Sorrenti is not a homosexual • Judge found supervisor guilty of discrimination based on perceived sexual orientation. • Sorrenti v. City of New York, 2007 WL 2772308

9. 2. Definition of Harassment

10. Harassment is: • A type of discrimination, based on a protected class, such as race, sex, religion, disability or age, made illegal by state and federal statutes, including: • Title VII of the Civil Rights Act of 1964 (“Title VII”); • The Pregnancy Discrimination Act of 1978 (“PDA”); • The Americans with Disabilities Act (“ADA”); • The Americans with Disabilities Act Amendments Act (“ADAAA”); • The Equal Pay Act (“EPA”); • The Age Discrimination in Employment Act (“ADEA”); and • The Iowa Civil Rights Act (“ICRA”).

11. Harassment is: • Employee belongs to a protected group; • Employee was subject to unwelcome conduct; • Harassment was based on the employee's protected status; and • Harassment affected a term, condition or privilege of employment.

12. Unwelcome Conduct Unwelcome in the sense that the employee did not solicit or incite conduct, and he/she regarded it as undesirable or offensive. Your intent does not count. The Court does not care if you were ‘only joking.’

13. Protected Classes Sex & Gender Race & Color Religion & Creed National Origin Disability Age Sexual Orientation & Gender Identity Other Protected Classes (i.e., veteran status)

14. Protected Class – Sex & Gender Conduct based on sex includes sexual advances, requests for sexual favors, sexually motivated physical contact and other verbal, physical or visual conduct or communication of a sexual nature. Conduct based on gender includes non-sexual conduct because of a person’s gender (such as pregnancy discrimination).

15. Protected Class – Race & Color Conduct based on race includes actions based on a person’s heredity. Color-based conduct is, obviously, based on a person’s color. Racial animus can exist even where the harasser and the plaintiff are of the same group (i.e., same race or gender).

16. Protected Class - Religion & Creed Creed-based conduct is based on a person’s system or codification of belief or opinion.

17. Protected Class - National Origin Ethnic jokes and derogatory remarks are most often the basis for national origin harassment claims, even when they originate from others of the same national origin.

18. Protected Class – Disability Conduct based on: Current disability, Record of a disability, or Perception of a disability. Hostile work environment claims of disability-based harassment are recognized under the ADA and Iowa Code Chapter 216.

19. Protected Class – Age Conduct based on the fact that an employee is 18 years old (Iowa law) or 40 years old (federal law), or older.

20. Protected Class – Sexual Orientation & Gender Identity As of July 1, 2007, sexual orientation and gender identity are protected classes under Iowa Code Chapter 216. "Gender identity" means a gender-related identity of a person, regardless of the person's assigned sex at birth. "Sexual orientation" means actual or perceived heterosexuality, homosexuality or bisexuality. There are several cities in Iowa that prohibit this type of discrimination, including Des Moines and Iowa City.

21. Terms & Conditions of Employment • Hostile Work Environment • Quid Pro Quo - Tangible Employment Action • Retaliation

22. Hostile Work Environment • When an environment is objectively and subjectively offensive so that a reasonable person would find it hostile and the victim actually perceived it to be so. • Factors considered include the frequency of the conduct; its severity; whether it is physically threatening; and whether it unreasonably interferes with an employee's work performance.

23. Tangible Employment Action Recruiting and selecting applicants Hiring and firing Training Promoting and demoting Assigning and classifying employees and/or jobs Discipline Compensation and benefits Any other term or condition of employment

24. Problems Unique to Cities What do you do when the mayor or a council person asks you out? What happens when a Police Chief grabs his crotch whenever a female employee talks to him? What do you do with volunteers when: They are accused of having affairs with elected officials; or Fire-fighters make inappropriate comments to each other.

25. Examples of Potential “Harassment” • Obscene gestures • Inappropriate pictures, cartoons, posters, graffiti, e-mail • Off-color jokes, comments, slurs, epithets • Threats or Insults • Exposing oneself • Propositions • Inappropriate touching • Stalking, staring, leering • Inappropriate gifts

26. Examples which are not “Harassment” • Just being a jerk. • Constantly complaining to other employees about your job and/or your personal life. • Threatening to fire an employee for poor performance. • Criticizing other employees for their behavior problems or work mistakes. • Calling someone a “bitch.”

27. 3. Procedures

28. Why Supervisors Fail to Document • It’s not my responsibility-they know if they are doing a good job. • I am uncomfortable criticizing people. • I am too busy. • I have a good relationship with my employees & they wouldn’t sue me.

29. They Wouldn’t Sue Me. • Both federal and state courts in Iowa allow plaintiffs to sue companies AND individual managers. • Insurance companies may refuse to defend individual managers if he/she fails to take appropriate action.

30. Management Responsibilities • Refraining from inappropriate behavior. • Includes not only sexual, but also racial, ethnic and all other forms of unlawful harassment • Key is inappropriateness, not illegality

31. Management Responsibilities • Reporting all complaints to Human Resources, even if employee: • Requests that nothing be done • Asks for absolute confidentiality

32. Management Responsibilities • Responding proactively to inappropriate behavior, even in the absence of a complaint. • Silence equal tacit support • Respond to complaint immediately • Consult with Human Resources

33. Management Responsibilities • Remedying inappropriate behavior by way of counseling and/or discipline and/or termination. • Focus on inappropriateness, not illegality • Consult with Human Resources

34. Management Responsibilities • Refraining from unlawful retaliation. • Applies not only to complainants but also to witnesses • Covers not only tangible employment actions but also working environment

35. SupervisoryLiability • Failure to prevent • Supervisor knew or should have known • Failure to investigate • Failure to investigate properly

36. Employers Best Defense – Ellerth/Faragher

37. Typical Harassment Policy Harassment policies typically provide equal employment opportunities to employees and applicants in compliance with all applicable laws. They also prohibit discrimination, harassment and retaliation. These policies should prohibit all forms of harassment. These policies must include all protected classes. Policy should apply to all terms, conditions and privileges of employment. While management has the overall responsibility, the policy needs the assistance of employees. Any employee who witnesses or experiences conduct violating the policy needs to be told to promptly contact one of the individuals listed in the policy.

38. Investigating Employee Complaints It should be made clear that the employer will investigate complaints of alleged policy violations, which: Will be coordinated by HR and/or legal counsel; Will be prompt, both in terms of initiation and completion; Will be conducted by appropriate personnel; Will be thorough and complete; Will include analysis of relevant documentation if appropriate; Will include analysis of relevant physical evidence if appropriate; Will include interviews with relevant witnesses if appropriate; & Will be as discreet as possible.

39. Remedial Action If policy violations or inappropriate conduct occurred, appropriate discipline will be issued. The severity of the discipline depends on the circumstances. The goal of the discipline is to punish the accused and prevent future reoccurrences.

40. Retaliation • No adverse employment action may be taken for engaging in protected activity, including participating in an investigation or reporting unlawful conduct

41. Avoiding Harassment Know the Harassment Policy Follow the Harassment Policy Enforce the Harassment Policy

42. 4. Conclusion