Navigating the “Me Too” Movement in Public Transit

Navigating the “Me Too” Movement in Public Transit Robbie L Sarles RLS & Associates, Inc.

Session Objectives • What is the “Me Too” Movement? • What is Sexual Harassment? • What are the Challenges Facing Employers? • What are the Unique Challenges Facing Public Transit Systems

“Me Too” Movement • A Single Tweet—October 15, 2017 • Tarana Burke—Battle Cry of Rape and Trauma Victim Advocate a Decade Ago • Alyssa Milano--Social Media Campaign to Draw Attention to the Epidemic of Sexual Harassment and Assault

“Me Too” Movement • Provided a Sense of Magnitude of the Problem • Within 24 hours 12+ Million Posts on Facebook • Within 48 hours Twitter posts > 1 Million • 45% of Social Media Users in the US Posted about “Me Too”

“Me Too” Movement • Two Issues Came to Light • Sexual Harassment • Silence

“Me Too” Movement • Everyone Impacted • Personal • Emotional • Divisive • Generational • Conflicted • Complicated-Multiple Layers • Political

Why Now • Direct Access to Media • Social Media Allows Direct Access to the Masses • Social Media is Not Influenced or Controlled by Power Brokers, Employers, Risk Managers, Public Relations • Political Environment that is Oppressive to Women’s Rights • Celebrities Speak Out • “Enough is Enough”

Implications for Employers • Legal Liability • Law Suits • Title VII of the Civil Rights Act of 1964 Violations • Sexual Harassment is Unwelcome Conduct that is Sexual in Nature and Based on Sex. • Social Media • Not Legal Standard • Political

What Does This Mean For You? • Sexual Harassment Is Real and Prevalent • Impacts Both Genders • New Normal • Speak Out—Silence Breakers • Expectation to Report • People Are Angry

What Does This Mean For You? • Prevalent in News Media and Social Media • Issues Are Confused By News and Political Agendas

Actions To Take • Separate Politics from Personal • Every Situation Should Be Addressed Based on the Facts • Acknowledge Sexual Harassment Is Real and is Prevalent • Avoid blanket responses

Actions to Take • Create a Culture of Respect and Civility of All People • Create a Safe Space for the Silent and Vocal • Genuine Commitment to Combatting Harassment • Zero Tolerance • All Concerns Will Be Taken Seriously and Addressed Objectively on a Case-by-case Basis • Provide Resources

Actions to Take • Hold Everyone Accountable • Perpetrator • Bystander • Strong, Comprehensive Anti-Harassment and Anti-Retaliation Policies and Training • Provide Alternative Outlet to Legal and Social Media Channels • Provide Neutral, Third Party Experts To Encourage Anonymous Reporting

Actions to Take • Create a Policy and Establish Guidelines • Prohibit Harassment • Provide Examples of Improper Conduct for Employees • Have Employees Acknowledge Receipt and Understanding of Policy • Prohibit Retaliation

Employer Legal Responsibilities • Be Prepared To Handle Claim • Conduct Insurance Carrier • Consult with Employment Attorney • Prepare As If EECOC Claim

Employer Legal Responsibilities • Duty to Investigate • Formal or Informal Complaint • Employer Knew or Should Have Known and Failed to Stop It • Liability Can Be Minimized by Investigating and Taking Prompt Corrective Action to Stop the Harassment • Tangible Employment Action • Employer Is Liable

Employer Legal Responsibilities • Duty to Investigate (Continued) • Intangible Employment Action—Hostile Work Environment • Vicariously Liable For Supervisors Actions • Affirmative Defense • Exercised Care to Prevent and Correct • Individual Failed to Take Advantage of Opportunities Provided by Employer or to Otherwise Avoid Harm • Complaints by a Third Person or Supervisor Observations • Investigate Even When Individual Does Not Request or Consent to Investigation

Employer Legal Responsibilities • Duty to Investigate (Continued) • Complaint Does Not Have to Use the Word Harassment • Observation of Inappropriate Conduct • Inappropriate Comments • General Office Knowledge of Harassing Behavior • Requests that Inappropriate Conduct Stop • Conduct must be Unwelcomed based on Sex and Unreasonable Based on Objective and Subjective Standards

Employer Legal Responsibilities • Duty to Investigate (Continued) • Take Immediate Action to Neutralize Situation • Remove Harasser, Not Alleged Victim • Protect Alleged Victim from Retaliation or Hostile Work Environment • Conclude Quickly

Employer Legal Responsibilities • Conduct the Investigation • Establish Written Internal Complaint Procedure • Employees • Supervisors, Managers, Human Resource Personnel • Do Not Make Employees Discuss with the Supervisor First • All Anonymous Reporting • Provide Multiple Avenues to Report

Employer Legal Responsibilities • Conduct the Investigation (Continued) • Determine Who Should Conduct Investigation • Respected By Employees • Objective • Understanding of Issues • Willing and Able to Devote Necessary Time and Resources to Investigation

Employer Legal Responsibilities • Conduct the Investigation (Continued) • Interview Individual Making Complaint • Each Incident Described In Writing • When, Where, What • Witnesses • Effects of the Incident • Documentation • Knowledge of Other Incidents • Protect Individual from Retaliation • Limit Information to Only Persons with Legitimate Need to Know

Employer Legal Responsibilities • Conduct Investigation (Continued) • Interview the Alleged Harasser • Explain Circumstances that Led Up to the Investigation • Investigation Conducted Confidentially • Refrain from Reprisal (or Appearance of ) • Avoid Contact If Possible • Investigate Alleged Harasser’s Take on the Events • Claims the Accuser Lied

Employer Legal Responsibilities • Conduct Investigation (Continued) • Interview Others With Knowledge of the Events • Get Statement in Writing • Re-interview Individual and Alleged Harasser as Necessary • Attempt to Substantiate Allegations • Monitor Current and Future Behavior

Employer Legal Responsibilities • Conduct Investigation (Continued) • Conclude the Investigation • Evaluate Facts • First-hand Knowledge, Hearsay, Rumors, Gossip and Motivations to Lie or Embellish • Intent Does Not Matter in Whether Sexual Harassment Has Occurred if a Person Feels Harassed or Humiliated • Delays In Reporting Should Not Be Construed As Weakening the Complaint • Document • File Separately from the Personnel File

Employer Legal Responsibilities • Take Prompt Action • Communicate Conclusion to Both Parties • Others Only on a Need to Know Basis • Protect Confidentiality

Employer Legal Responsibilities • Take Prompt Action (Continued) • Result—No Action • Future Events Should Be Reported and Policy will be Enforced in the Future • Follow-up Occasionally and Monitor • Retaliation Will Not Be Tolerated • If Possible, Minimize Contact Between Parties • Do not Force Move or Transfer of Individual Making the Complaint • Acknowledge Legal Standard for Harassment Was Not Met—Do Not State or Insinuate that the Individual Lied

Employer Legal Responsibilities • Take Prompt Action (Continued) • Result—Harassment Has Occurred • Disciplinary Action Against the Accused • End the Harassment • Prevent Future Harassment • Discipline the Harasser • Oral Warning to Termination • Severity of the Conduct • Consistency with Previous Cases • Consistency with Other Company Policies • Harasser’s work and disciplinary history

Employer Legal Responsibilities • Take Prompt Action (Continued) • Severity of Discipline • Written Discipline • Suspension, Demotion, Discharge • Transfer or Reassignment • Do Not Provide Perception of Promotion • Loss of Pay • Instruct Not to Discuss with Others • Risk of Defamation

Employer Legal Responsibilities • Take Prompt Action (Continued) • Change the Culture—Eliminate Hostile Work Environment • Retrain All Employees • Accountability for Everyone • Meaningful Training Designed to Influence Behavior—Not Check In a Box • New Hires • Existing Employee—Periodic (i.e., Annual) • Managers /Supervisors—Extensive Training

Managing Social Media • The “Weinstein Effect” • Not a Legal Definition or Legal Standard • Broader than Sexual Harassment • Not Tied to an Employment Relationship • No Limits • Public and Social Media Criticism

Managing Social Media • Treat Everyone Fairly And With Respect • Give Employees Other Channels Where They Believe They Are Being Heard • Identify One and Only One Spokesperson for the Agency • Stick to the Facts and Avoid Emotional Responses • Enforce Social Media Policy

Avoiding Issues with Passengers • New Environment • Awareness • Hypersensitivity • Cameras On Vehicles

Avoiding Issues with Passengers • Passenger Interaction • Always Professional • Avoid Becoming Socially Involved With Passenger • Vulnerable Passengers • Limited Social Skills Or Ability to Discern/Interpret Actions • Do Not Offer Advice or Guidance to a Passenger on Social or Personal Topics • Focus On Transportation Needs

Avoiding Issues with Passengers • Passenger Assistance • Explain to Passenger What You Will Be Doing • Ask Permission to Touch Passenger • Use Back of Hand Against Passengers Body • Avoid Body Language Or Actions That Can Be Misinterpreted

Avoiding Issues with Passengers • Passenger Communication • Call Passenger By Name • Avoid Pet Names or Terms of Endearment • Do Not Make Any Comments of a Sexual Nature No Matter How Innocent or Complimentary You Think the Comment Is • Avoid Jokes of Sexual or Implied Sexual Content

Avoiding Issues with Passengers • Passenger Behavior • Follow Passenger Individualized Plan, If Appropriate • Ignore Passenger Inappropriate Behavior or Sexual Overtures • Divert Attention to Appropriate Topics • Report Behavior of a Serious, Questionable, or Inappropriate Nature

Avoiding Issues With Passengers • Your Intent Is Irrelevant • Actions and Words Are What Matters • Subject to Misinterpretation

Actions Following Complaint • Follow Procedures Defined Above • Policy—Create Safe Space for Passengers • Guidance--Accountability • Training • Establish Reporting Process—Alternative Outlet • Investigate Claims—Described Previously • Take Prompt Action • Risk Management • Legal • Social Media

Conclusion • Best Outcome for Everyone--Stop It Before It Happens!!!

Resources • RAINN—https://www.rain.org/ • National Sexual Assault Hotline • Laws In Your State • Safety, Prevention, and Response Resources • Consulting Services • 2018 SART Toolkit • https://ovc.ncjrs.gov/sartkit • National Sexual Violence Resource Center • https://www.nsvrc.org

Robbie Sarles RLS & Associates, Inc. 937-299-5007 rsarles@rlsandassoc.com

Navigating the “Me Too” Movement in Public Transit