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Handling Harassment Complaints and Managing the New Retaliation Standards: Tips on Avoiding Employment LawsuitsJuly 12, 2007Presented by ACC’s Nonprofit Organizations Committee Sponsored by Pillsbury Winthrop Shaw Pittman LLPAssociation of Corporate Counselwww.acc.com

Panel: Julia Judish, Esq., is a member of Pillsbury Winthrop Shaw Pittman LLP’s Employment practice group. Julia concentrates her practice on preventing employment problems and defending employment disputes. She counsels employers on all aspects of the employment relationship, regularly speaks and conducts trainings on employment law issues, and represents employers in state and federal court and before the EEOC and other agencies. Steve Garrett, Esq., will moderate the discussion. Steve is the Associate Vice President & General Counsel of Texas A&M Research Foundation.

Overview Our agenda today includes: • Understanding the contours of harassment law; • The new broader standard for retaliation claims; • How-to steps for responding to harassment complaints and reducing the risk of retaliation suits; • Special issues for non-profits: • liability issues relating to volunteers; • how to meet legal standards with small organizationresources; • responding to claims against top officers.

Harassment Law Harassment is a form of illegal discrimination. • Harassment claims are premised on mistreatment due to the protected status of the complainant – e.g., race, religion, sex, age, disability, national origin, or any other status protected by law against discrimination. • State and local laws often protect characteristics not covered by federal law – e.g., sexual orientation, marital status. • The same legal framework applies to any harassment complaint, with some additional issues arising in sexual harassment claims.

Different Tests The test for harassment depends on the factual circumstances: • The relationship of the alleged harasser and the complainant (e.g., supervisor or co-worker); • Whether the harassment involves a tangible employment action (quid pro quo); • Whether the harassment creates a hostile working environment. Employees can bring harassment claims based on conduct of volunteers, members, or other third parties, if it affects their working environment.

Quid Pro Quo Harassment Quid pro quo harassment consists of: • tangible employment actions • implicitly or explicitly based on • an employee’s acceptance or rejection of • unwelcome sexual behavior. There is no defense to vicarious liability for employers against quid pro quo claims.

Hostile Work Environment An illegal hostile work environment consists of: • unwelcome • verbal or physical conduct • of a sexual nature or based on a protected status • that is sufficiently severe or pervasive that it • creates a hostile or offensive working environment (alters the terms and conditions of employment) • for a reasonable person of the same characteristics of the complainant.

The Perspective of the Victim The hostile work environment test includes both a subjective and an objective element – a ceiling and a floor for liability: • The conduct must be subjectively unwelcome to the complainant; • The conduct must be considered unwelcome by a reasonable person in the victim’s shoes; • Persons overhearing or observing interactions can claim harassment – be aware of your unintended audience. • The intent of the harasser is not determinative.

Affirmative Defense If a hostile work environment created by a supervisor is not paired with a tangible employment action, an employer can assert an affirmative defense to vicarious liability, if: • the employer took measures designed to prevent and correct harassment (e.g., a readily accessible and effective policy for reporting and resolving harassment complaints); and • the employee unreasonably failed to avail herself of those measures or to avoid harm otherwise.

Sexual Harassment • Both men and women are legally protected from sexual harassment; • Same-sex harassment is illegal if it is motivated by the victim’s gender; • Sexual harassment can be sexual in content (e.g., sexual advances, touching, sexual comments) or can be free of sexual content but motivated by gender (e.g., male supervisor who bullies women harshly but not men).

Retaliation • Employment laws protect employees from reprisal for raising or communicating an intent to raise an internal or external complaintof unlawful treatment. • Internal complaints are protected if made in good faith, even if mistaken. • Filing or assisting another in filing a charge with the government is fully protected. • Participating in an investigation or other opposition to unlawful conduct is also protected, if done in a reasonable fashion.

Retaliation is the New Frontier of Claims • A retaliation claim is now a component of a third of all EEOC charges – over 22,000 retaliation charges were filed in FY 2006; • More retaliations claims are successful than the underlying claims of discrimination; • In June 2006, the U.S. Supreme Court broadened the standard for retaliation claims, in Burlington Northern Railroad v. White.

The New Standard • Retaliation includes any action that is materially adverse to a reasonable employee or job applicant. • Not all actions are material: “cannot immunize employees from those petty slights or minor annoyances … that all employees experience.” • Unlike harassment, retaliation need not be “related to employment or occur in the workplace.” • The test: Would the action be likely to “dissuade a reasonable worker from making or supporting a charge of discrimination”?

No Bright-Line Rule • “Context matters.” • The same action (e.g., a one-hour shift in schedule) can be retaliatory for one employee but not for another. As in analyzing harassment claims, the court must place itself in the position of the affected employee. Causation remains key: is the action because of the protected conduct?

Controlling a Natural Response • Retaliation is not necessarily nefarious in intent; it is a natural reaction to a perceived troublemaker. • Many complaints of unlawful treatment are either mistaken or “the best defense is a good offense” approach to criticism by a supervisor. • Fear of future false accusations leads to isolating or taking adverse action against the complainant – acts that may dissuade future complaints. • Those accused must be made to understand that reprisal will not be tolerated, even if they were innocent of the original complaint.

Basic Prevention Steps • Adopt and publicize policies against harassment and retaliation. • Adopt and use a complaint procedure, with multiple reporting options. • Mandate that supervisors inform Human Resources of reported or witnessed incidents of harassment or discrimination. • Trainall employees about harassment and discrimination law and about your policies and complaint procedures.

When a Complaint is Made • Promptly investigate all complaints, even if the alleged victim has left the organization. • Decide who should conduct the investigation: Human Resources, the General Counsel, outside counsel? • Document all interviews and have interviewed employees review and attest to the accuracy of summary. Consider having a witness take notes. • Keep allegations confidential to the extent practicable – but never promise absolute confidentiality.

When a Complaint is Made, cont’d • Preserve and review all relevant records (e.g., appraisals, e-mails), as federal law requires preservation of evidence relevant to a potential claim of which you have notice. • Take appropriate corrective action, if wrongdoing is found. • Document findings. • Ensure independent review of all subsequent personnel actions involving complainant to ward against retaliation.

Special Issues: Volunteers Employers have a duty to protect their employees from a hostile work environment, even if that environment is caused by non-employees whom they encounter on the job (e.g., vendors, members, volunteer officers). • Liability issue is a negligence standard: did the organization take reasonable measures to prevent and correct harassment? • Organization must be willing to confront offender, even if it impacts organization’s bottom line – customer preference no defense for tolerating harassment or discrimination.

Special Issues: Volunteers, cont’d • Be aware of high risk situations for employees: conferences often involve alcohol, overnight stays, relaxed business attitudes. • Institute and enforce conduct guidelines for attendees and volunteers. • Empower your employees to move away from or say no to uncomfortable situations. • Train Board members and officers on harassment policy: because they have authority in the organization, their conduct is viewed differently than lower status individuals.

Special Issues: Small Organizations • The same legal standards apply to small organizations as to large, but definition of reasonableness is context-dependent. • Challenges common to small organizations include limited resources; fewer options for realigning problematic relationships; more relaxed conduct standards; identifying neutral recipient of complaints. • Workplace norms are not a defense to a hostile work environment claim, except in rare instances.

Special Issues: Small Organizations, cont’d • Ensure that complaint procedure includes person outside the organization (e.g., outside counsel, member of the Board). • Don’t let small problems mushroom – because there a fewer alternatives to termination, it does no favors to let problems go unaddressed. • Consider allowing anonymous complaints – but only if enough detail is provided to conduct an investigation.

Special Issues: Responding to Claims Against Leadership • Adopt a whistleblower policy with outside reporting mechanism (Board committee, external hotline, outside counsel). • Outside investigation is critical so results won’t appear tainted. • Ensure executive employment contracts have termination for cause provisions that include violations of organization policy.

Questions?

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