HARASSMENT IN THE WORKPLACE

1. HARASSMENT IN THE WORKPLACE Virginia Employment Commission 2018 Employer Conference Wytheville, Virginia August 23, 2018 John M. Bredehoft jmbredehoft@kaufcan.com Kaufman & Canoles, P.C.

2. Quick Initial Thoughts: • No big changes at the EEOC – yet • Three Commissioners, all holdovers • Acting Chair • New General Counsel (plaintiff’s lawyer) • LGBT initiatives continuing unabated • Standards for determining sexual harassment fundamentally unchanged • What is the effect of the national discussion?

3. The National Discussion

4. Hidden Harassment • Common workplace-based responses by those who experience sex-based harassment are to avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior. The least common response to harassment is to take some formal action – either to report the harassment internally or file a formal legal complaint. Roughly three out of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct. • Approximately 90% of individuals who say they have experienced harassment never take formal action against the harassment, such as filing a charge or a complaint. • “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace.” (2016)

5. Still hidden harassment: July 10, 2018 Harvard Business Review: • While 41% of women say they know someone who has shared a story of harassment since the movement began, more than this – 48% -- say they themselves have a story of harassment that they have not yet shared. 

6. Still hidden harassment (HBR) • While a majority of employees (56%) say the movement has made some improvement in their workplace, 2/3 say the improvement has been “small.” • Only 19% of women and 23% of men report that their workplace has provided additional training. • Only 16% of women and 14% of men say, “My workplace has introduced new policies, procedures, or systems that make it easier for people to speak up when they have concerns.”

7. HBR: backlash? • Sixty-five percent of men say it is now “less safe” to mentor or coach the opposite sex. Many comments were received along the lines of, “Men and women are not talking to each other” and “Managers are not holding females as accountable to policies as they should – giving them a pass for fear of being accused of gender bias.”

8. Results, cont’d • A 2018 survey by the consulting firm of Challenger Gray & Christmas, Inc., found that more than half of all companies surveyed (52%) reviewed their sexual harassment policies as a result of the #MeToo movement. Of the companies who reviewed their policies, 58% updated the policies. The changes included adding and clarifying reporting avenues; instituting ‘zero tolerance” provisions, and adding anti-bullying policies. •  Seventeen percent of employers saw an increase in complaints. •  Only seven percent reported that men were more cautious in their relations with female coworkers. •  Nearly 55% saw no demonstrable change in workplace behavior, although 14% reported a more “respectful” atmosphere. • More companies are implementing “office romance” policies.

9. The National Discussion

10. Basic Legal Concepts Discrimination Most basic: “No Irish Need Apply” More subtle: Glass Ceiling Harassment The word never appears in any law “Hostile Environment” and quid pro quo Retaliation The most dangerous Includes less egregious conduct

11. Who knows what it is? “Abusive" (or "hostile," which in this context I take to mean the same thing) does not seem to me a very clear standard—and I do not think clarity is at all increased by adding the adverb "objectively" or by appealing to a "reasonable person['s]" notion of what the vague word means. . . . As a practical matter, today's holding lets virtually unguided juries decide whether sex-related conduct engaged in (or permitted by) an employer is egregious enough to warrant an award of damages. . . . Be that as it may, I know of no alternative to the course the Court today has taken. ” Justice Scalia, concurring in Harris v. Forklift Systems

12. A Quick Review: • What is harassment and what makes it unlawful? • Meritor Savings Bank // Forklift Systems, Inc. Deter the Evil, educate the Ignorant, and scare the Idiots

13. Basic Concepts Conduct is only unlawful if it is done based on one or more “protected” categories Conduct can violate company policies, and warrant discipline up to discharge, even if it is not illegal under federal, state, local law Enforce the policies, worry much less about the intricacies of employment law

14. “Protected Categories” • Title VII of the Civil Rights Act: race, color, religion, national origin, sex • Age Discrimination in Employment Act • Pregnancy Amendments Act • Americans with Disabilities Act (and ADAAA) • Genetic Information Nondiscrimination Act

15. LGBT Issues SEXUAL STEREOTYPING • Macy v. Holder (EEOC 2012) • Baldwin v. Fox (EEOC 2015) • Zarda v. Altitude Express (2d Cir. 2/28/18) What will the US Supreme Court think?

16. And how does religion figure in the LGBT debate? • EEOC v. Harris Funeral Home • District Court decision • 6th Circuit decision, March 7, 2018 • Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, No. 16-111 (U.S. Supreme Court argument December 5, 2017)

17. State and Local Protections • Family status -- VA • Use of lawful products outside of work – NC • Status as trainer/handler of guide dogs – PA • Personal appearance – DC • Matriculation – DC

18. Non-harassment law: • Assault • Battery • Intentional infliction of emotional distress

19. Role of Policy v. Harassment Prevent and deter inappropriate conduct, by word and example Educate employees that conduct will not be tolerated Detect and identify inappropriate conduct, at the earliest possible stage Encourage employees to come forward Ensurecomplaining employees can do so without fear of retaliation

20. The National Discussion • Many if not most accusations are time-barred • Some are not pervasive • Some are not severe (GHWBush) • Leads to casual misuse of “sexual harassment” for any imperfect interaction between the sexes • “Sexual harassment” in the media does not mean “sexual harassment” in violation of federal civil rights law

21. Prevalence of sexual harassment • Anywhere from 25% to 85% of women report having experienced sexual harassment in the workplace • “probability sample”: experienced “sexual harassment” without that term being defined? 25% of female employees have experienced. • “convenience samples”: sexual harassment not being defined, the rate rose to 50%.

22. Prevalence, cont’d • When employees were asked, in surveys using probability samples, whether they have experienced one or more specific sexually-based behaviors, such as unwanted sexual attention or sexual coercion, the rate of reported harassment rose to approximately 40%. • Using convenience samples, the incidence rate rose to 75%.

23. Prevalence, cont’d • August 7, 2018, American Bar Association: RESOLVED: That the American Bar Association urges legal employers not to require mandatory arbitration in claims of sexual harassment. 2017-18 Presidential Initiative: • 49% -- just about half – of female lawyers in the nation’s 350 largest law firms “received unwanted sexual contact” at work; • 28% of female lawyers in the nation’s 350 largest law firms “avoided reporting sexual harassment.”

24. “Hands Off/Pants On” • 49% of female hospitality workers said they had been flashed by a male guest, seen a male guest naked, or have a male guest expose himself to them. Fifty-eight percent said they had been sexually harassed by a guest. • Chicago, Seattle, Las Vegas Unions, California statute?

25. Have sexual harassment claims skyrocketed? • Acting EEOC Chair Victoria Lipnik: No measurable increase in sexual harassment filings with the Commission or with state-level Fair Employment Practice Agencies since the #metoo movement gained prominence • Why is that? Guesses: • Time-barred claims? • Claims that are not based on unlawful conduct? • Failure to complain in specified industries?

26. EEOC Filing Data:

27. EEOC Filing Data - Virginia:

28. Who knows what it is? Since 2015, the U.S. Court of Appeals for the Fourth Circuit has become much more plaintiff-friendly in harassment and discrimination cases.

29. Harassment of Men

30. Harassment of Men • Harassment of men by men continues to be a minor part of the sexual harassment caseload, and to date has not featured prominently in the #MeToo debate. See, e.g., Dooley v. Capstone Logistics, 2018 WL 3040029 (W.D. Va. June 16, 2018), appeal filed July 25, 2018 (summary judgment to defendant in male-on-male harassment claim because comments and actions, although crude and explicitly tinged with sexual innuendo, were not made “because of” sex; no evidence that supervisor was homosexual or harassed males more than females in virtually all-male workplace; retaliation claim survives).

31. Prompt and effective remedial action: Policy has a “zero-tolerance” policy for sexual harassment – why, and what does that mean? Mandatory reporting No “secret complaints” Multiple avenues to report (Boca Raton case) (An example of what NOT to do . . . UAL)

32. Prompt and effective. . . • For some recent Virginia cases where the Faragher/Ellerth affirmative defense – or its converse, the inability to find a basis to impute liability to the company made a difference, see Saunders v. Metro Property Management, 2018 WL 3715762 (W.D. Va. Aug. 8, 2018) (Dillon, J.) (failure of claimant to report harassment promptly led to summary judgment for defendant, even in the face of fairly egregious comments and actions); Pini v. Staybright Electric of Colorado, 2018 WL 3536417 (E.D. Va. July 20, 2018) (Ellis, J.) (prompt and effective remedial action, in the form of immediate warnings against repeated use of profanity, results in summary judgment for the defendant).

33. What is not sexual harassment? • Holding a door or a chair • Saying “Good morning” • Smiling • Idiot backlash: JMU Alumni case

34. Take-Aways for Managers Bottom line is: EVERYONE is in a protected category, everyone has some special status Bottom line is: NO ONE should be acted against for any reason except pure business performance Bottom line is: NO ONE should be harassed Bottom line is: your policy can be more expansive than the legal definition of “harassment”

35. Concluding thoughts: • There is a wide variety of inappropriate conduct that may not violate federal or state law, that policy simply will not permit • Employees do not have to wait until they believe they have a federal case in order to raise a concern with management • Prompt and effective remedial action is key

36. HARASSMENT IN THE WORKPLACE Virginia Employment Commission 2018 Employer Conference Wytheville, Virginia August 23, 2018 John M. Bredehoft jmbredehoft@kaufcan.com Kaufman & Canoles, P.C.