Greater Liability for Harassment and Discrimination Do What I Say AND What I Do

1. Greater Liability for Harassment and Discrimination Do What I Say AND What I Do Jennifer Jacobus, PHR-CA San Diego Employers Association February 28, 2014

2. What We Already Know Employers Must : • Provide a harassment and discrimination free work environment • Make employment-related decisions based on the job, i.e., essential functions, skills, abilities • Consider reasonable accommodations when it will not cause undue hardship • Train your employees—whether required or not

3. Good News for Employers Vance v. Ball State University • Supreme Court narrows definition of “supervisor” for Title VII vicarious liability purposes

4. What Does This Mean? • Prior to Vance, “supervisor” was defined as: anyone who has the authority to undertake or recommend important employment decisions such as hiring, firing, or transfer, or he or she has the authority to direct the daily activities of another • After Vance, only a person with the authority to hire, fire, demote, promote, transfer, or discipline workersqualifies as a supervisor

5. Why Is This Important? In California, an employer is automatically held liable for the harassing behavior of their supervisors, managers, or any other member of management, whether the employer knew or did not know of the behavior. Under the theory that managers act as agents of the employer, the employer will he held vicariously liable.

6. Really…Why Is This Important? • Has the potential to reduce liability for companies • Has the potential to reduce liability for supervisors and managers • Practical Tips: • Review job descriptions • Audit jobs • Train your managers

7. Retaliation…A B$G Deal McCoy v. Pacific Maritime Assn., • Courts affirmed summary judgment on sexual harassment and emotional distress • Harassment was not so severe and pervasive to alter conditions of plaintiff’s employment • Substantial evidence in plaintiff’s favor on the retaliation claim • $660,000 in economic damages, $540,000 in emotional distress damages

8. Retaliation Cont. Moran v. Salasha Enterprises • Plaintiff alleged that boss offered 10% raise if she performed sexual favors • Plaintiff declined, boss got angry, threatened to fire her; 30 days later she was terminated “at-will” • $1,000,000 in emotional distress • $250,000 in punitive damages • $800,000 in attorneys fees

9. Retaliation Cont. Westendorf v. West Coast Contractors • Crude and offensive remarks did not create a hostile work environment under Title VII when • Repeatedly inquired if plaintiff was intimidated by Double D breasts • Suggested weekly that plaintiff wear a “French Maid” outfit to work • Made sexual comments about other women in the office

10. What’s the Trend? Court interpretations: • Courts are becoming more literal in their interpretations of sexual harassment • Harassment must be “severe or pervasive” • Actions must result in adverse employment action • Must negatively affect employment • Does not have to be sexual in nature • Reduction of “sex” claims, rise in retaliation claims

11. Retaliation Retaliation cases are very dangerous • Juries believe in retaliation • “Big Bad” employer • Title VII prohibits retaliation against: • The complainant • Anyone interviewed • Witnesses Retaliation

12. Retaliation Claims on the Rise

13. Claim Snapshot

14. They Did What? Plaintiff (Miller) filed a claim against his employer (Sparx) for retaliation • Miller complained of offensive display in restaurant • Was fired three weeks after complaint • Jury awarded $15,000 in emotional distress damages, $41,000 in back pay and interest, plus 15% for tax liability

15. Retaliation—Not Limited to Sex • Plaintiff requested a leave of absence plus accommodations due to panic attacks—she was placed on a 30-day medical leave • Supervisor ignored all attempts at communication • She was terminated without reason • Unanimous jury awarded $16 million in punitive damages; $5 million in economic and emotional distress damages equaling $27,789,000

16. Scary Trend? Employers are successfully defending harassment and discrimination claims, but are unprepared and uneducated on retaliation

17. Practical Tips • Properly acknowledge all employee complaints • Let the employee explain • Restate the complaint • Make sure you and the employee share an understanding of the issues • Ask the employee what resolution he or she would like to see • Don’t agree or disagree until you have all the facts • Don’t get drawn into a power struggle

18. Practical Tips Cont. • Consider all options • Follow policies and procedures • Be fair and objective • Seek to bring closure to the issue • Get back to employee with decision • All complaints deserve an answer

19. Do What You Say • Not so much what the claim of harassment was (is) • Problems arise with lack of action on the side of the employer • Retaliation claims are very dangerous • Juries believe in retaliation • Train your managers

20. Handling Chronic Complainers • Give chronic complainers a fair hearing • Listen for a legitimate issue • Take a counseling approach • Involve the employee in positive, problem-solving tasks

21. Harassment That Wasn’t • Female subordinate complained of harassment after male boss smacked her on the buttocks • Boss “got off” because of “why” he smacked her butt • No previous instances • No one had seen manager act inappropriately to others • Complainant stated that she had never had problems with boss in the past • Woman stated she believed that the smack was not meant to hurt her and wasn’t “sexual”

22. Key Points to Remember • Occasional employee complaints are to be expected • Take all complaints seriously • Give employees a fair hearing • Work with employees to find solutions to their complaints • Always follow established policies and procedures when handling complaints

23. Questions… Jennifer Jacobus, PHR-CA Director of HR Services San Diego Employers Association jjacobus@sdea.com www.sdea.com 858-505-0024