HARASSMENT-YOU CAN’T SAY THAT

1. HARASSMENT-YOU CAN’T SAY THAT

2. Presented By: CAROL S. PETITT 7500 West Highway 146 Pewee Valley, Kentucky 40056 502-243-9797

3. KENTUCKY PERSONNEL CABINET ANTI-HARASSMENT POLICY STATEMENT The Commonwealth prohibits harassment on the basis of race, color, national origin, sex, age, religion, sexual orientation, gender identity, genetic information, disability, political affiliation, or veteran status. Employees shall avoid offensive and inappropriate behavior at work and are responsible for ensuring that the workplace is free from harassment at all times. Examples of prohibited conduct include, but are not limited to, threatening, offensive, or unwelcome conduct or abusive verbal language directed toward an individual or group on the basis of race, color, national origin, sex, age, religion, sexual orientation, gender identity, genetic information, disability, political affiliation, or veteran status; lewd or obscene comments about an individual’s body, attire, or gender, including abusive comments or jokes; bringing or displaying a lewd or obscene object, book, magazine, photograph, cartoon, calendar, picture, or similar item into the workplace; or use of electronic resources to transmit, solicit, display, or download lewd or obscene messages or materials. Complaints of harassment will be promptly and carefully investigated. All employees are assured that they will be free from any and all reprisal or retaliation from filing such complaints. Further, all employees are assured that they will be free from any and all reprisals and retaliation for participating in an investigation of harassment. Any employee who has a complaint of harassment at work, including by supervisors, co-workers, visitors, clients, or customers, has a duty to immediately bring the problem to the attention of management. The employee has the option of notifying their first line supervisor of the harassment, unless the supervisor is the source of the harassment. In that case, they should report the harassment to the second line supervisor. Employees may also notify their agency EEO Coordinator or they may contact the State EEO Coordinator at (502) 564-8000 for assistance. Employees may also contact their human resource office. Any supervisor receiving a complaint of harassment shall report the complaint to the agency human resources office, agency EEO coordinator, or the state EEO coordinator. Failure to do so may be grounds for disciplinary action.

4. What is Harassment ?

5. WORKPLACE HARASSMENT • Workplace harassment refers to any situation in which an employee is being illegally harassed or discriminated against by someone else in the workplace. • Harassment can be caused by many different things and be caused by anyone from another employee to a supervisor to a consultant, vendor or member of the public customer. • In order for something to be considered harassment, it has to be based on a protected trait. • Harassment could also result in and be deemed a type of employment discrimination. • Discrimination is any kind of verbal or physical harassment based on a person’s religion, race, or sex. Harassment often creates a bad work environment and could interfere with an employee’s ability to continue doing their job successfully. If a person feels abused, insulted, threatened, or intimidated at work, that kind of treatment could be considered harassment by the current legal standards.

6. Discriminatory Harassment

7. Discriminatory harassment involves actions or conduct directed at an individual who is a member of a protected class. Racial Harassment • A victim may experience racial harassment because of their race, skin color, ancestry, origin country or citizenship. • Even perceived attributes of a certain ethnicity (curly hair, accents, customs, beliefs or clothing) may be the cause. Racial harassment often looks like: • Racial slurs • Racial insults • Racial jokes • Degrading comments • Disgust • Intolerance of differences

8. Religious Harassment • Religious harassment is often interconnected with racial harassment, • but narrows in specifically on the victim’s religious beliefs. • An individual with a religion that differs from the “norm” of the employees in the department or agency may face workplace harassment or intolerance in a variety of ways: • Intolerance toward religious holiday; • Intolerance toward religious traditions; • Intolerance toward religious customs; • Cruel or off color religious themed jokes; • Degrading stereotypical comments; • Pressures to convert religions

9. Disability-Based Harassment • Disability-based harassment is a type of workplace harassment directed towards individuals who either: • Suffers from a disability themselves; • Are acquainted with a disabled person or people; or • Use disability services (sick leave or workers’ comp) • A person with a disability may experience harassment in the form of harmful teasing, patronizing comments, refusals to provide reasonable accommodations or isolation.

10. Sexual Orientation-Based Harassment • Sexual orientation-based harassment is starting to gain traction and recognition as a legitimate type of workplace harassment. • Currently, while Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the EEOC interprets the statute's sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity. • There are over a dozen cities in Kentucky that have passed Fairness ordinances. • Victims face harassment because their sexual orientation is different from those around them.

11. Sexual Harassment

12. Sexual harassment is, simply, harassment that is sexual in nature and generally includes unwanted sexual advances, conduct or behavior. Sexual harassment in the workplace is a form of unlawful discrimination and is taken seriously by the courts. Other types of harassment might take some time and increasing severity to create a hostile work environment for the victim, whereas sexual harassment typically brings about discomfort and negatively impacts the victims’ life immediately. Quid Pro Quo Sexual Harassment Quid Pro Quo, translated to “this for that”, is a type of exchange-based sexual harassment. If job benefits are offered to an employee on the condition that they partake in some form of sexual conduct, it’s typically referred to as quid pro quo sexual harassment. In this situation, the harasser, who is often a manager or senior-level employee, may offer something of value for a sexual favor. It can also be a form of blackmail. Examples of Quid Pro Quo Sexual Harassment In exchange for romantic or sexual services, the victim may: Receive a job offer Receive a promotion Receive a raise Receive opportunities Avoid a demotion Avoid termination Quid pro quo sexual harassment can be either explicit or implicit. The harasser may outright ask for the exchange or may hint at it (“Don’t you want this job?”).

13. 2. Gender Harassment • Gender-based harassment is discriminatory behavior towards a person based on their gender. • Negative gender stereotypes about how men and women should or do act are often the center of the harassment. • Some examples are: • -A female construction worker; • -A male nurse; • -A female hitting the ”glass ceiling” and taunted for not being “leader material;” • -A male colleague displays material (comics, posters) that’s degrading to women.

14. Personal Harassment Personal harassment is a form of workplace harassment that’s not based on one of the protected classes (such as race, gender or religion). Simply, it’s bullying in its most basic form and it’s not illegal but can be damaging, nevertheless. Examples of Personal Harassment Personal harassment includes: Inappropriate comments; Offensive jokes; Personal humiliation; Overly Critical remarks; Ostracizing behaviors; Intimidation tactics; Or any other behavior that creates an intimidating and offensive work environment for the victim.

15. Physical Harassment • Physical harassment, also often called workplace violence, refers to a type of workplace harassment that involves physical attacks or threats. In extreme cases, physical harassment may be classified as assault. • Physical gestures such as playful shoving can blur the line between appropriate or not, since it’s the person on the receiving end who decides whether the behavior makes them uncomfortable. • In order to more clearly define that line, physical harassment should be explained thoroughly in codes of conduct and policies. • Examples of Physical Harassment include: • Direct threats of intent to inflict harm • Physical attacks (hitting, shoving, kicking) • Threatening behavior (shaking fists angrily) • Destroying property to intimidate • Industries at Risk-Employees in some areas are more at higher risk of workplace violence. These include peace officers, social services employees, teachers and educators, retail staff and public transit drivers.

16. 4. Power Harassment • Power harassment is a common form of workplace harassment that’s characterized by a power disparity between the harasser and the harassed. • The harasser exercises their power by bullying a victim who is lower on the office hierarchy. • In many cases, the harasser is a supervisor or manager who victimizes their subordinates. • Power harassment isn’t limited to a certain type of behavior. It can be verbal in the form of intimidation or it can be physical in the form of acts of violence. • More often than not it’s psychological. The harasser subjects the victim to: • Excessive demands that are impossible to meet; • Demeaning demands far below the employee’s capability; or • Intrusion into the employee’s personal life

18. 5. Psychological Harassment • Psychological harassment has a negative impact on a person’s psychological well-being. • Victims of psychological harassment often feel put down and belittled on a personal level, a professional level or both. • The damage to a victim’s psychological well-being often creates a domino effect, impacting their physical health, social life and work life. • Examples of Psychological Harassment • Psychological harassment in the workplace might look like: • Isolating or denying the victim’s presence • Belittling or trivializing the victim’s thoughts • Discrediting or spreading rumors about the victim • Opposing or challenging everything the victim says

19. 6. Cyberbullying • Instant messaging applications such as Snapchat, Instagram and Facebook offer convenience, speed and instant, immediate out-reach and contact, but they also can cause problems. • Examples of Online Harassment • Cyberbullying and online harassment are a serious concern for employers. Among many, many other things, online bullies may: • Share humiliating things about the victim by mass email or mass chat • Spread lies or gossip about the victim on social media • Send harassing instant messages or text messages directly to the victim • Cyberbullying Laws • Federal law doesn’t explicitly cover “cyberbullying” yet (particularly for adults). • However, the Department of Justice has noted that legal action is possible by prosecuting the online misbehavior under another law.

20. VERBAL HARASSMENT Verbal harassment can be the result of personality conflicts in the workplace that have escalated beyond the casual eye roll or something more serious. Unlike discriminatory types of harassment (such as sexual), verbal abuse is often not illegal. Instead, verbal harassment can be someone who’s consistently mean or unpleasant. For this reason, a lot of verbal harassment can be particularly damaging since it goes unnoticed and unresolved. Examples of Verbal Harassment Obvious verbal harassment behaviors include things like threatening, yelling, insulting or cursing at a victim in public or in private. If this is aimed at someone in a protected class, it is unlawful.

21. Retaliation • Retaliation harassment is a subtle form of retaliation and an often-overlooked type of workplace harassment. • Retaliation harassment occurs when a person harasses someone else to get revenge and to prevent the victim from behaving in such a way again. • What Does Retaliation Harassment Look Like? • This type of harassment typically has three parts: • Employee A files a complaint about Employee B. • Employee B finds out about the complaint and who made it. • Employee B harasses Employee A to get revenge and deter them from filing further complaints. • Employee B, in this case, would be harassing Employee A as retaliation.

22. Third Party Harassment • Third party harassment is a type of workplace harassment that’s perpetrated by a “third party” – someone from outside of the organization. • Instead of the perpetrator being a boss, supervisor or colleague, he or she is a vendor, supplier, customer , patient or member of the public. • Employer is liable for the protection and safe environment of its employees. • IF unwanted or improper conduct of a third party is brought to a manager’s attention, it cannot be ignored. • Because third party harassment doesn’t fit the typical narrative, it remains under-recognized and is often swept under the rug. Regardless of who the harasser is, an employer’s responsibility to take steps to stop the behavior is the same.

23. What is Not Unlawful Harassment? • The anti-discrimination statutes are not a general civility code. • There is no law against being a jerk. • Thus, neither state or federal law prohibits simple teasing, offhand comments, or isolated incidents that are not extremely serious. • The conduct must be so objectively offensive as to alter the terms and conditions of the individual’s employment. • The terms and conditions of employment are altered only if the harassment culminates in a tangible adverse employment action or is sufficiently severe or pervasive.

26. The phrase “hostile work environment” is often misunderstood. In the legal sense, hostile work environment refers to a specific form of harassment that is covered under the federal anti-discrimination laws. Hostile work environment claims are brought by employees who are subjected to unwelcome comments or conduct based on sex, race, color, national origin, age (40 and over), religion or disability, which unreasonably interfere with their work performance or create an intimidating, hostile or offensive work environment. To be a violation the conduct has to be “severe” such as a physical assault or extreme contact of a sexual nature or “ongoing and pervasive.” The two most common are sexual harassment or when the harasser targeted an employee’s “protected class” when he or she created the hostile work environment.

27. Tips to Stop Harassment 1. Implement, Update, Revive Your Policy • Whatever verb is applicable to your policy situation, do it. • If you don’t have a policy yet – create one • If you do but it’s out of date and hasn’t been updated since the last century – update it • If you do but no one cares or knows it exists – dust it off and enforce it. • If there’s a policy, and it’s accurate and enforced, staff will have no reason not to abide by it. But as long as there’s no guiding light for conduct and misconduct, you’re asking for chaos. 2. Train Your Staff • Train your employees on what harassment is, how to recognize it and how to report it. 3. Implement, Update, Revive Your Internal Complaint System • Policy and training can only do so much. • To supplement a policy, and to step in when it’s not enough, an internal complaint system can make employees feel safe and supported. • Unless you have a formal complaint system that acknowledges the victim’s rights to anonymity and security from retaliation, they probably won’t come forward. • Victims will fear the potential backlash, and the lack of support might be worse than the harassment they already face.

29. FEDERAL LAW TITLE VII OF THE CIVIL RIGHTS ACT Title VII of the Civil Rights Act of 1964 bars employers from discriminating against their employees on the basis of sex, race, color, national origin, and religion. The restrictions apply to employers with fifteen or more employees. The restrictions also apply to governments regardless of whether they are federal, state or local county or city governments. Title VII forbids discrimination in any aspect of employment. This includes discrimination in hiring and firing; compensation, assignment, or classification; transfer, promotion, layoff, or recall; job advertisements; recruiting; testing; use of company facilities; training programs; benefits; pay, retirement plans, and disability leave; and more. The law covers intentional discrimination (disparate treatment) and job policies that disproportionately affect persons of a certain race or color and that are not related to the job and the needs of the business (disparate impact). Currently, Title VII does not protect employment rights based on sexual orientation. Many states have their own discrimination and harassment laws that may include more protected classes – such as marital status and sexual orientation.

30. A. What Does Title VII Say? This law states that it is unlawful employment practice for an employer "…to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. §2000e-2. Specifically as it relates to sexual harassment, Title VII prohibits unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.

31. B. Stating a Case under Title VII As set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the basic allocation of burdens and order of presentation of proof in a Title VII case is as follows: First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). For example, to establish a prima facie case of quid pro quo sexual harassment, the plaintiff must show: 1. That he/she is a member of a protected class; 2. That he/she was the subject of unwelcome sexual harassment in the form of sexual advances or a request for sexual favors; 3. That the unwelcome harassment or advance was based on sex; 4. That submission to the unwelcome advance was an express or implied condition for receiving job benefits or that the refusal to submit to a supervisor's sexual demands resulted in a tangible job detriment; and 5. That the employer was responsible for the supervisor's conduct.

32. C. What Remedies Are Available? Affected employees can file a discrimination complaint with the Equal Employment Opportunity Commission (EEOC). This commission is the agency that enforces many anti-discrimination laws. You usually have 180 days or six months from the date of the incident to file with the EEOC to preserve your rights. After a complaint is filed, the EEOC contacts the employer and lets it know that a discrimination charge was filed. The employer is given an opportunity to respond and the EEOC conducts a further investigation. The EEOC may attempt to settle the issue or they can direct the parties to a mediator. If the EEOC is unable to reach a settlement that both parties agree to, then the EEOC may file their own lawsuit at the federal level (if the defendant is a private employer). The EEOC may also choose to simply dismiss the charge. In this case, or if the EEOC is unable to reach an agreement to settle the complaint, the EEOC will issue a notice called a "right-to-sue" letter letting the employee know of their rights in court. An individual cannot file an action under Title VII in court until this administrative remedy has been exhausted. Failure to do so will result in the dismissal of the complaint. Victims of discrimination may seek damages for lost wages and benefits as well as injunctive relief. Successful plaintiffs also are entitled to attorneys' fees and costs. While plaintiffs can seek punitive damages and compensatory damages for pain and suffering, such damages are capped based on the size of the employer (15-100 employees – $50,000 limit; 101-200 employees – $100,000 limit; 201-500 employees – $200,000 limit; more than 500 employees – $300,000 limit).

33. D. Can an Employer Take Action against an Employee for Filing a Discrimination Charge or Speaking up about a Potential Title VII Violation? Title VII prohibits employers from retaliating against an employee for filing a discrimination charge or speaking out against discrimination. It also protects employees from retaliation if they choose to participate in an investigation, proceeding, or hearing on behalf of a co-worker.

34. Kentucky Law

35. KENTUCKY CIVIL RIGHTS ACT (KRS 344.010 et. seq.) The Kentucky Civil Rights Act prohibits employers with eight or more full-time employees ( or a combination of full-time and part-time employees totaling eight full-time) from discriminating in employment regardless of sex, including pregnancy, childbirth, or related medical conditions q.). Discrimination based on sex includes sexual harassment. Similar to Title VII, the KCRA does not expressly prohibit discrimination based on sexual orientation. In addition to prohibiting sex harassment and discrimination, the Kentucky Civil Rights Act also prohibits discrimination on the basis of age, color, disability, familial status, national origin, race, religion, and tobacco smoking status. Like Title VII, the KCRA also prohibits employers from retaliating against an employee for opposing conduct declared unlawful by the Act. Unlike Title VII, however, supervisors may be held individually liable for retaliation under the Kentucky Civil Rights Act.

36. A. Similarities to Title VII Because the language of KRS 344.040(1) tracks the language in Title VII of the Federal Civil Rights Act, 42 U.S.C. §2000e-2, Kentucky courts interpret the statute consistent with federal interpretation of Title VII. Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 821 (Ky. 1992). Thus, the elements of a prima facie case, as well as the use of the McDonnell Douglas burden-shifting framework, are the same under either the federal or the state law. B. Remedies Available Unlike Title VII, the KCRA has a five-year statute of limitations and allows employees to choose to either file an administrative charge with the Kentucky Commission on Human Rights (or a local commission) or immediately file suit in court. While plaintiffs who elect to first file in court are prohibited from later seeking redress through the administrative process, a recent decision by the Supreme Court of Kentucky allows plaintiffs who first file an administrative charge to effectively take two bites of the same apple. In Owen v. Univ. of Ky., 486 S.W.3d 266 (Ky. 2016), the Supreme Court ruled that the plain language of the statute does not require a plaintiff to elect a procedural avenue to pursue a claim. The Court noted that "there is nothing remaining in the statute to bar claims filed in circuit court, despite final and appealable orders dismissing the exact same claim filed in the administrative agency." Therefore, if a Kentucky plaintiff files an employment discrimination claim in an administrative proceeding, and does not succeed, they can then file the same action in a judicial proceeding. Because KRS 344.450 limits damages to the "actual damages sustained," punitive damages are not recoverable in cases under the Kentucky Civil Rights Act. Employees may recover actual and compensatory damages as well as reasonable attorneys' fees.

38. While the specifics of any investigation of workplace harassment depends on the nature of the circumstances that are involved and exist, any investigation should consider the following steps. • Timely Reporting • In order to have effective harassment policies that encourage adequate investigation it is essential that employees and supervisors recognize the necessity of timely reporting allegations of harassment. • Typically an employer's harassment policy will require that such complaints be reported to the human resources department. However, it is probably advisable, in order to assure all complaints are appropriately investigated, that an alternative source to the human resources department be designated for reporting of harassment, and in particular claims of sexual harassment, in the event that a complaining employee(s) does not feel a report to HR will ensure an investigation.

39. B. Commencing the Investigation • Claims of workplace harassment, especially sexual harassment claims, should mandate that any investigation begin as soon as possible. • Any delays following receipt by an employer of a report of harassment can be used to infer that the employer failed to take the complaint seriously. • This can be the case even if the employer has both great policies in place as well as a thorough investigation process.

40. From the Big Bang Theory:Sheldon Goes to HRhttps://www.youtube.com/watch?v=O3l5_MjR0Dw

41. C. Determine Who is the Investigator(s) • Policies should designate the individual(s) responsible for investigating complaints of harassment. • Often the investigator or investigation team will be internal and conducted by employees. However, depending on the parties involved it may be necessary to retain an independent investigator. Because of this employers should always be cognizant that the selection of investigator meets the substance of the complaint as there could be many complaints for which an "internal" investigation only by employees may be insufficient in ensuring a thorough investigation. • The policy should be broad enough to provide notice that a third-party investigator may be designated or retained to conduct the investigation.

42. D. Document, Document, Document • Every step of the investigation process needs to be documented in writing. This includes any witness interviews and statements. • If written statements of witnesses are taken, they should be signed and contemporaneously dated where possible. • Poor documentation or the existence of a thorough record can not only cast doubt on an investigation, even if the conclusion was otherwise spot on, but can also lead to claims that the investigation was arbitrary if it did not follow established policies or was not consistent with previous investigations.

43. GET THE FACTS • The investigation should confirm whether or not: • The employee did, in fact, commit the act; • There is substantial evidence establishing the conduct; • The employee was aware or should have been aware of the consequences of the act. • The employee’s entire work record, good and bad, has been considered. • The same rules are applied uniformly to all employees. • There are credible witnesses to corroborate the conduct; • Discipline is reasonably related to the seriousness of the offense and was consistent with similar incidents. • DOCUMENT DOCUMENT DOCUMENT DOCUMENT

44. E. When in doubt, follow the EEOC Guidelines • Any investigation should ensure that, at a minimum, the Equal Employment Opportunity Commission's own guidelines are met. • The EEOC Guidelines provide a step by step Guide for employer evaluation of complaints of harassment that would be applicable to harassment, and in particular sexual harassment complaints. • If you are looking for an outline to develop a policy, these guidelines are a great resources and actually very specific as to the steps, specifics of the investigation and even corrective actions and remedial measures to address complaints. • https://www.eeoc.gov/policy/docs/currentissues.html

45. F. Consistency • Investigations should be consistent and should follow the established processes and procedures and comply with existing policy. • Also, the investigation process should be consistent as to procedure for similar complaints/circumstances. • Finally, the outcomes should be consistent for similar investigation results. • Any deviation form policy or procedures can lead to challenges to the investigative report, and if different disciplinary measures have been handed out, the employee who has been disciplined may have claims for wrongful termination or they may be able to claim they were selectively targeted.

46. At the end of the day conducting thorough investigations of all complaints of harassment benefit everyone involved in the workplace by ensuring prompt resolution, better work environment for all employees, a team atmosphere, a productive and motivated workforce and reduced risk of loss associated with claims in litigation either without any investigation or a poor investigation.