Iowa Civil Rights Commission Disclaimer

1. Iowa Civil Rights CommissionDisclaimer Preventing Sexual Harassment For Supervisors The information contained in this presentation is a brief overview and should not be construed as legal advice or exhaustive coverage of the topic.

2. Iowa Civil Rights Commission A state administrative agency which enforces your rights under the Iowa Civil Rights Act of 1965 (Chapter 216 of the Iowa Code) .

3. Iowa Civil Rights Commission • VISION: A State free of discrimination. • MISSION: Enforcing civil rights laws through compliance, mediation, advocacy, and education.

4. Race Color Creed Religion National Origin Age Sex/Pregnancy Sexual Orientation Gender Identity Physical Disability Mental Disability Retaliation Protected Personal CharacteristicsIn Employment

5. Overview • Definition of sexual harassment • Definition of general harassment • Examples of prohibited behaviors • You and your organization’s responsibilities • Liability

6. For Supervisors- What is Sexual Harassment? For many people, "sexual harassment" is an emotionally charged topic, loaded with confusion and uncertainty. This is unfortunate, because sexual harassment can be readily understood. But what really is and what is not sexual harassment? This course will help you answer these questions.

7. What is harassment ? • Behavior which has the effect of humiliating, intimidating, or coercing someone through personal attack. • Behavior that can cause the recipient to be embarrassed, uncomfortable and cause emotional distress.

8. What is Sexual Harassment? Harassment of any kind is bothersome, demeaning, irritating, and annoying behavior. Sexual harassment is specifically harassment of a sexual nature. Most sexual harassment is simply disrespectful behavior towards others. The involved parties can be men or women; supervisors, subordinates or peers. We all suffer when our workplace tolerates abusive and demeaning behavior. To eliminate sexual harassment, we need to understand it.

9. What is Sexual Harassment? This course is designed for adults in the workplace. It is not intended to make everyone a lawyer. The course is intended to make you think about what behaviors in your work setting might be considered sexual harassment so you can avoid and take action against any such behaviors.

10. Objectives of this Course At the end of this course, you will be able to: ·identify behavior that might be considered sexual harassment, ·explain the legal and other consequences of sexual harassment ·describe your role and responsibility in creating a workplace free of sexual harassment, ·state what actions to take against sexual harassment, and describe appropriate policies and procedures on sexual harassment.

11. Sexual Harassment is a Behavior We each have the responsibility to treat others with respect. If you stay aware of your responsibility and assert your rights to a respectful work environment, you will have taken an important step toward eliminating sexual harassment. Sexual harassment is a behavior, and adults are responsible for their own behavior and its consequences.

12. Will This Course Change Behavior? The balance of risks and rewards is heavily stacked against offenders. Many people have lost their jobs and ruined their careers by engaging in sexual harassment. In this program, you will learn about making choices to avoid the high risks of sexual harassment. You will learn to recognize and avoid behaviors that are not acceptable in today's workplace. You will also learn what to do if you encounter unwelcome conduct of a sexual nature at work. You need more than knowledge to change behavior. You need to recognize the likely consequences of your behavior and base your actions accordingly.

13. How Common is Sexual Harassment? Sexual harassment is common throughout the workplace, in all occupations and professions, educational backgrounds, age, racial and ethnic groups, and income levels. While the majority of reported cases of sexual harassment involve a male harassing a female, it can also involve a female harassing a male or either men or women harassing members of their own sex. In 2006, the EEOC received 12,025 complaints at the Federal level about sexual harassment, 15.4% of which were filed by males.

14. Sexual Harassment in the Workplace Sexual harassment is illegal and can lead to harsh consequences for offenders. The focus of this course is preventing sexual harassment in the workplace. The workplace differs from the broader community, because at work some people have authority over others, and this authority relationship can lead to coercion. People at work are not as free to come and go as they are elsewhere, and since they have to work where they are assigned, they are entitled to an environment free of sexual harassment.

15. A Matter of Respect Sexually harassing behavior shows great disrespect. Nobody is likely to harass someone he or she respects, either accidentally or deliberately. Despite some claims of over-sensitivity, most adults understand the meaning of harassment, just as they know the meaning of teasing. An attitude of consideration and respect towards all those with whom we come in contact will go a long way towards creating an atmosphere that excludes sexual harassment.

16. Sex or Power Most workplace sexual harassment is based on power and not on romance, although failed romances can lead to sexual harassment. At work some people have authority over others. In these formal power relationships, subordinate employees do not always feel free to speak up to persons of higher authority who have control over their working conditions.

17. Sex or Power But sexual harassment is illegal, and neither workplace authority nor any power position ever conveys the right to break the law. In addition to formal power relationships, informal types of power, such as domination through physical size, loud voice, overbearing personality, superior or controlling attitude, or the harasser's position amongst peers can be intimidating and threatening to some employees, discouraging them from speaking up about unwelcome behavior.

18. 1998/99 Supreme Court Decisions Sexual harassment has been the subject of many lengthy and expensive lawsuits,suggesting it may be complicated to define and understand. On June 26, 1998, the United States Supreme Court handed down two landmark decisions that clarified the liability standards for sexual harassment. Together these two decisions established a new standard for making employers liable for a supervisor's sexual harassment of a subordinate under his or her authority

19. Supreme Court Decisions on Employer's Liability • As a result of those decisions, under federal law, an employer is legally responsible to a victimized employee for sexual harassment by a supervisor with authority over that employee in two instances. • When the harassment leads to a tangible employment action, such as demotion, decreased compensation, significantly different work assignments, or termination, the employer's liability is absolute. • 2.When there has been no tangible employment action, the employer is liable unless it can prove that • it has taken reasonable care to prevent and correct promptly any sexually harassing behavior (such as widely disseminating an effective policy and complaint procedure) and • the employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

20. Employer Liability The first case (Faragher v. City of Boca Raton) involved female lifeguards who had been repeatedly harassed over several years with offensive touching and foul comments by their supervisors. The Supreme Court found their employer, the City of Boca Raton, liable for the misconduct of its supervisory employees, in part because it had failed to disseminate its policy against sexual harassment to beach employees. The Court found that Ms. Faragher had no complaint procedure to follow, and that she and others had been discouraged by a male lifeguard training captain from reporting further up the city's chain of command.

21. Employer Liability The second case (Burlington Industries, Inc. v. Ellerth) involved a woman who felt compelled to quit her job after enduring 15 months of boorish and offensive remarks, physical advances, and propositions by a middle-management executive. The Court agreed that the supervisor's conduct constituted actionable sexual harassment, and sent the case back to the lower court to decide whether the company could prove that it had a well-publicized sexual harassment policy against such conduct and that the employee unreasonably failed to take advantage of the policy

22. Employer Liability Taken together these U.S. Supreme Court decisions hold employers responsible for their supervisors' sexually harassing behaviors in the workplace. They also hold employees responsible for reporting offensive behavior in accordance with the employer's policy and complaint procedure if the policy and procedures have been well publicized and fairly and consistently enforced by the employer.

23. 2004 Supreme Court Decision Pennsylvania State Police v Suders In this case, Nancy Drew Suders, a police communications officer, suffered severe hostile environment sexual harassment from her supervisors. The harassment reached a point where her working conditions became so difficult that she resigned her position. The Third Circuit Court of Appeals found that this constructive discharge was a tangible employment action, therefore making the employer absolutely liable for the supervisors' behavior under the standards previously established in the 1998 Faragher and Ellerth cases.

24. 2004 Supreme Court Decision Pennsylvania State Police v Suders However, in 2004 the U.S. Supreme Court found that the 3rd Circuit erred in not allowing the employer to assert the Faragher/Ellerth affirmative defense because the constructive discharge was not the result of an "official act" on the part of the supervisors. The Court sent the case back to the lower courts for further proceedings.

25. 2004 Supreme Court Decision In June 2004, the U.S. Supreme Court held that an employer has no legal recourse when its supervisor's unlawful harassment includes an "official act" that causes an employee to quit (constructive discharge). Examples of such an official act may include "a humiliating demotion, extreme cut in pay, or transfer to a position in which the employee would face unbearable working conditions." However, if the hostile work environment did not include an "official act" on the part of the supervisor, the employer can assert the defense that it is not liable for the supervisor's conduct because it exercised reasonable care to prevent and promptly correct any wrongful behavior and that the employee unreasonably failed to take advantage of complaint procedures or other preventive opportunities provided by the employer.

26. 2006 Supreme Court Decision Burlington Northern Santa Fe Corp v. Sheila White In June 2006 the U.S. Supreme Court issued an important decision dealing with retaliation against an employee who has reported or complained about sexual harassment. Sheila White, a female employee working in a railroad yard, complained about sex discrimination. Shortly afterward, she was reassigned to a less desirable position. The reassignment did not involve loss of wages but did include harder and dirtier work. The plaintiff filed a charge with the EEOC regarding the reassignment and another retaliation charge claiming the employer placed her under surveillance following her previous complaint. Soon afterwards she was suspended without pay for 37 days.

27. 2006 Supreme Court Decision Burlington Northern Santa Fe Corp v. Sheila White The U.S. Supreme Court unanimously held that Burlington violated the anti-retaliation provisions of Title VII of the Civil Rights Act, stating that the reassignment of duties and the unpaid suspension would deter a reasonable person from filing a discrimination claim in the future.

28. Co-worker Harassment Liability The Supreme Court has not addressed the standard of liability for peer sexual harassment or harassment by supervisors not directly in the line of authority over a victim. In those circumstances, lower courts have consistently held employers liable only if they knew or reasonably should have known of the sexually harassing behavior and failed to take immediate and appropriate corrective action, including ending the harassment, preventing future misconduct, and taking appropriate disciplinary action against the offending employee.

29. Employee Responsibilities Employees who deal directly with customers, the public or with personnel from other organizations, must always ensure that their own behavior is acceptable. They are also strongly encouraged to report incidents of unwelcome behavior by others. You do not have to tolerate unwelcome behavior by the public, but like everyone else, you must act responsibly when dealing with unwelcome conduct.

30. Office Romance While office romances are not illegal, they can create three serious problems. The first problem is that romantic behavior may raise concerns about undue favoritism, may be distracting to other employees, and may imperil the integrity of the work environment. Because productivity may suffer under these circumstances, some employers have policies prohibiting such relationships. The second problem is that if those involved in a romantic relationship engage in behaviors in the workplace that create a hostile work environment for other employees, those behaviors can expose the employer to liability for sexual harassment. The third problem is that if the romance goes sour, especially between supervisor and subordinate, the risk of liability for sexual harassment is greatly enhanced.

31. Types of Harassment • Sexual harassment does not occur just between a male boss and a female subordinate. Sexual harassment may occur in a variety of circumstances: • to you, personally • peer to peer harassment, • subordinate harassment of a supervisor, • men can be sexually harassed by women, • same sex harassment - men can harass men; women can harass women, • third party harassment, and • offenders can be supervisors, co-workers, or non-employees, such as customers, vendors, and suppliers.

32. Peer to Peer Harassment Workplace sexual harassment usually involves persons of unequal authority, but it can occur between employees of equal rank, or peers. Peer to peer harassment is normally not difficult to stop. The offended party should directly and clearly ask the offender to stop the behavior, if she or he feels comfortable doing so. If the request to the offender does not stop the behavior, the next step is to ask a supervisor to intervene. Once asked, the supervisor is obligated as the agent of the employer to take appropriate action.

33. Subordinate Harassment of a Supervisor It is possible for a subordinate to harass a supervisor, although this is not very common. It may occur when the offender is particularly intimidating or if the victim is unable to exert the authority of his or her position. This type of harassment must be taken just as seriously as any other. If the behavior continues after requesting the offender to stop, the target of the harassment must seek help from a higher level of management.

34. Same Sex Harassment Unwelcome behavior does not have to involve persons of the opposite sex to qualify as sexual harassment. In a unanimous ruling in March 1998, the U.S. Supreme Court ruled that same sex sexual harassment is illegal, and sent the case before it (Oncale v. Sundowner Offshore Services, No. 96-568) back to the lower courts. Just as with sexual harassment between persons of the opposite sex, under federal law harassing behavior towards someone of the same sex can be sexual harassment if the behavior is unwelcome, sexual in nature and based on the person's gender.

35. Third Party Harassment Persons offended by a hostile work environment need not be direct participants or targets of the hostile behavior. They can be third parties. The most critical factor in determining if behavior is sexual harassment is whether it is unwelcome. The workplace is not an entirely free and voluntary environment, and people have to work at designated locations in proximity to each other. In these circumstances, behavior that is comfortable between direct participants may be unwelcome to others close by (third parties) who cannot avoid observing it.

36. Third Party Harassment Another type of harassment that may be referred to as "third party harassment" is harassment of an employee by a third party (non-employee of your employer). This may include harassment toward an employee by a: ·visitor, ·vendor, ·delivery or repair person, ·customer or client, ·employee of another business or agency on site, or at an off site location, interacting with our employees for any number of job-related reasons, The employer has the responsibility to prevent the harassment of employees by any of these third parties and to react immediately, if harassment occurs, to assure that it stops and does not recur.

37. False Accusations Both men and women sometimes attempt to file false claims of discrimination or harassment. Their reasons are many: psychological problems, the desire to get back at a manager or co-worker or gain status among peers, the attempt to earn money in a lawsuit, or perhaps an attempt to protect their jobs if they are performing poorly. False claims -- those not made in good faith -- can lead to serious discipline and financial liability for the accuser. Once sexual harassment has been reported, the employer is obligated to investigate all claims, including accusations that later turn out to be false.

38. What should you do? Say "Please stop“ If you feel comfortable confronting your harasser, make it known clearly that you find the behavior offensive. By confronting the offender, you assert control over the situation. Speak up and assert your rights to a respectful work environment. For example:"Thank you for your help, but I don't like your hand rubbing against my arm. Please remove it." OR "Please stop making remarks about my body. I don't find them complimentary, I find them offensive."

39. What should you do? If you do not feel that you can confront the offender face to face, you may think about putting your request in writing. In that case, keep a copy of what you write and document when and how the material was delivered. If you do not feel comfortable telling your harasser to stop, follow your employer's complaint reporting procedures.

40. What should you do? Document incidents Keep records of each incident, including location, date, time, place, what was said, what happened, and any witnesses who may have seen or heard it. Store your records at home, and save any offensive letters, faxes, photographs, cards, emails or other notes you receive. This will be some of the best information you can have to substantiate your complaint.

41. Unwelcomeness: What Does It Mean? • How can you know in advance if a behavior is unwelcome? • Here are some general guidelines to avoid committing unwelcome behavior: • respect the people around you, • think before acting, • imagine how other people might be feeling, • be sensitive to cultural differences • exercise common courtesy, and • think twice before making a joke (any joke).

42. Unwelcomeness: What Does It Mean? • Some questions to ask yourself are: • how would I feel if I were in the position of the recipient? • would my spouse, parent, child, sibling or friend like to be treated this way? • would I like my behavior published in the organization newsletter? • could my behavior offend or hurt other members of the work group? • could someone misinterpret my behavior as intentionally harmful or harassing? • If you are unsure if something might be welcome, don't do it. There is no risk in not doing something.

43. The Law The law describes two different forms of sexual harassment: quid pro quo and hostile work environment.

44. Quid Pro Quo Quid pro quo is Latin for "this for that" or "something for something" and refers to an exchange. In this case, the exchange is between employees, where one is asked to provide sexual favors in exchange for something else, such as favorable treatment in work assignments, pay or promotion.

45. Quid Pro Quo Examples of quid pro quo: "Have sex with me and you will get promoted," or "Have sex with me or you won't get promoted." Quid pro quo is usually more severe and occurs less frequently than hostile work environment sexual harassment.

46. Quid Pro Quo Quid Pro Quo occurs when employment decisions and conditions are based upon whether an employee is willing to grant sexual favors. Hiring, promotions, salary increases, shift or work assignments, and performance expectations are some of the working benefits that can be made conditional on sexual favors.

47. Quid Pro Quo Tom offers his assistant, Nancy, a ride home following an after-hours function. At her residence he attempts to kiss and sexually fondle her while urging her to invite him in. She resists his advances and tells him she is offended and angered by his behavior. Tom leaves and does not mention the incident again but during the following weeks he reorganizes the department and reassigns Nancy to a less responsible clerical position. This situation is a typical example of quid pro quo sexual harassment.

48. Quid Pro Quo • Jim, a restaurant manager, tells waitress Sara that she'd better "be nice" to him if she wants to get a day off. • In a job interview, the store manager Roxanne tells Jack, a summer intern, that he'll have a permanent job if he sleeps with her. • When David's secretary Rosa cuts off their office romance, David puts Rosa on probationary warning for poor performance, despite her excellent performance ratings. • After Cheryl refuses to date her foreman, he gives her many more undesirable job assignments.

49. Quid Pro Quo A person does not have to prove that they suffered an economic loss (e.g., been denied a promotion or a raise) to prove quid pro quo sexual harassment. It's enough to show a threat was made or reasonably implied. According to federal guidelines regarding sexual harassment, a single sexual advance may constitute harassment if it is linked to the granting or denial of employment benefits. The harassment does not have to occur more than once to prove quid pro quo sexual harassment.

50. Hostile Work Environment A hostile work environment is one in which unwelcome conduct of a sexual nature creates an uncomfortable work environment for some employees. Examples of this conduct may include sexually explicit talk or emails, sexually provocative images, comments on physical attributes or inappropriate touching.