Abusive Workplace Behavior: Bad for SEIU 1000, Worse for You

1. Abusive Workplace Behavior:Bad for SEIU 1000, Worse for You Presented By: Joseph L. Beachboard joe.beachboard@ogletreedeakins.com

2. Dignity & Respect • Expectation of SEIU 1000 • Expectation of Employees • Expectation of Courts • Expectation of Juries

3. Workplace Harassment • Prohibited by federal and state law/SEIU policy • It’s not just about sex – all protected classes are entitled to protection from harassing behavior

4. Sex Race Citizenship Religion National Origin Marital Status Protected Classes • Sexual Orientation • Color • Disability • Age • Medical Condition • Military Status

5. Workplace Harassment – Employer Impact • High employee turnover • Absenteeism • Lowered concentration at work • Lowered morale/teamwork/cooperation • Time spent talking about/dealing with sexual harassment instead of performing work

6. Workplace Harassment – Employer Impact (Cont’d) • Time-consuming investigations • Distrust among employees • Adverse publicity • Costs to the employees involved; money out of their pocket

7. Case Study • Issa v. FedEx Ground (Oakland, CA) • $61 million / $1 million individually • $12 million / $250,000 individually

8. Hostile Environment Harassment • Three key elements • Unwelcome conduct • Based on a protected category • Unreasonably interferes with employee’s work performance or creates an intimidating, hostile or offensive work environment

9. Hostile Environment Harassment • Intent is irrelevant • Need not complain

10. Examples Of Unacceptable Workplace Behavior That May Lead To Harassment Litigation

11. Discrimination/Harassment Sexual Harassment Racial epithets or slurs Discussing sexual activities Mocking, ridiculing or mimicking another culture’s accent, appearance or customs Remarks about body Offensive jokes about sex, race, age, etc. Turning work discussions to sexual topics Leaving offensive or disturbing voicemails Repeatedly asking a person out who is not interested Examples Of Unacceptable Verbal Behavior

12. Discrimination/Harassment Sexual Harassment Circulating offensive e-mails Posting offensive materials on walls or bulletin boards Examples Of Unacceptable Non-Verbal Behavior

15. Non-Verbal Communication • When communicating verbally, not just what you say but how you say it and to whom. Remember – when you talk in person, 80% of what you say is in tone and body language. • Harassment is harassment, regardless of how it’s communicated – face-to-face, email, texting, Facebook, Twitter, LinkedIn, MySpace, YouTube – it makes no difference. • Be careful with social media –you don’t always know who your audience is, hard for recipient to assess tone, can’t see body language – easy for comments to be misconstrued.

16. Social Media • Facebook – more than 500 million active users; average user has 130 friends (Sept 2010) • Blogs – more than 400 million active blogs (Sept 2010) • Twitter – more than 105,000,000 registered users tweeting an average of 55 million tweets per day; new users signing up at therate of 300,000 per day (Sept 2010)

17. It’s Not Just What You Speak RULE – If you would not say or show something to someone face-to-face, don’t communicate it in any other way.

18. Textual Harassment • Sending offensive or inappropriate text messages to co-worker (i.e., boss sending flirty text to subordinate, asking for dates) • 46 states (including CA and NY) have laws that refer to electronic forms of communication in stalking or harassment laws. A single text message in CA is enough to meet the definition of textual harassment if the message threatens physical harm or is obscene.

19. Discrimination/Harassment Sexual Harassment Circulating offensive e-mails “Elevator eyes” Posting offensive materials on walls or bulletin boards Stalking Giving unwelcome personal gifts Ostracizing someone or playing pranks because of someone’s protected class Sexual gestures, body movements, touching oneself sexually Examples Of Unacceptable Non-Verbal Behavior

20. Discrimination/Harassment Sexual Harassment Offensive gestures Massaging, hugging or kissing Offensive pranks Touching clothing, hair or body Continually brushing up against another Examples Of Unacceptable Physical Behavior

21. Where Does The Harassment Occur? • Conduct outside the “workplace” • Liability for harassment does not stop at the workplace door. • In fact, liability for harassment may attach to unlawful conduct that occurs in any location found to be an extension of the workplace.

22. Case Study • Myers v. Trendwest Resorts, Inc.(CA Court of Appeal) • Alleged harassment occurred off-site and arose during a relationship that had evidence of becoming consensual. • Court held employer can be liable for sexual harassment even when the alleged misconduct occurs away from the workplace.

23. Who Can Harass? Anyone in any type of business relationship with anyone else.

24. Workplace Bullying

25. TEST???

26. Who Is A Bully? • “Workplace bullying is repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms: • Verbal abuse; • Threatening, humiliating or offensive behavior/actions; and • Work interference – sabotage – which prevents work from getting done.”

27. Who Is A Bully? (Cont’d) • Workplace Bullying • Is driven by perpetrators’ need to control the targeted individual(s); • Is initiated by bullies who choose targets, timing, place and methods; • Escalates to involve others who side with the bully, either voluntarily or through coercion; and • Undermines legitimate business interests when bullies’ personal agendas take precedence over work itself.

28. Bullying Statistics • 44% of American workers have worked for a supervisor or employer who they consider abusive. • More than 50% of American workers have been a victim of or heard about supervisors/employers behaving abusively by making sarcastic jokes/teasing remarks, rudely interrupting, publicly criticizing, giving dirty looks to, yelling at subordinates, or ignoring them as if they were invisible. • 64% of American workers believe that an abused worker should have the right to sue to recover damages.

29. U.S.A. (Now) • No workplace anti-bullying law • Harassment based on protected category • Intentional infliction of emotional distress

30. Case Study • EEOC v. NEA of Alaska (9th Circuit) • Male supervisor subjected female employees to frequent episodes of loud, hostile, profane, and often public shouting, with little or no provocation. • Court held conduct need not be “facially sex-specific.” • Employer ultimately agreed to pay $750,000 to settle lawsuit. (May 2006)

31. Case Study • Raess v. Doescher (Indiana) • First “bullying” case involving Indiana cardiac surgeon • Facts • I’ll “smack the shit” out of you • Charging employee with clinched fists • Backing employee against the wall • You’re over. You’re history. You’re finished.

32. Case Study • Raess v. Doescher (Indiana) • Alleged intentional infliction of emotional distress and assault • First admission of expert testimony from “bullying expert” • $325,000 plaintiff’s verdict on assault claim

33. Healthy Workplace Bills • 13 states in the past years have attempted to pass, “Healthy Workplace Bills,” which makes it illegal to subject an employee to an abusive work environment. • The proposed California Assembly Bill, AB 1582, would have provided legal recourse to employees who suffered workplace bullying or were otherwise subjected to an abusive work environment.

34. Retaliation

35. 100,000 90,000 Total 80,000 Race 70,000 Sex 60,000 Nat’l Origin 50,000 Religion 40,000 30,000 Retaliation 20,000 Age 10,000 Disability 0 EPA FY FY FY FY 2006 2007 2008 2009 Retaliation Claims On The Rise

36. Retaliation Claims On The Rise • In 2009, retaliation moved up to tie with race discrimination as the most common type of charge filed with the EEOC • 36 percent of the 93,277 federal workplace discrimination charges filed alleged retaliation

37. Key Elements • “Protected activity” • “Adverse action” • Causal link between the two

38. Escalated Risk Juries are predisposed to find retaliation.

39. Case Study • Stevens v. Vons (CA Court of Appeal) • $18.3 million verdict • Worker claimed that he was fired in violation of state law after reporting he had been sexually harassed by his female supervisor • Jury found the company guilty of illegal retaliation

40. Case Study • Blue v. IBEW Local 159 (Wisconsin) • $206,000 verdict • Worker claimed that she was subjected to harassment and retaliation after she spoke in defense of an African American electrician in a discrimination action

41. Case Study • Dixon v. Int’l Brotherhood of Police Officers (1st Circuit) • $2.2 million verdict • Worker’s claims stemmed “from an ugly incident of verbal abuse of a female police officer by her fellow male officers on a union-sponsored bus trip” • A campaign of retaliation followed

42. Personal Liability

43. Personal Liability – Are You At Risk? • You can be sued for workplace harassment • Outside “course and scope of employment” protection • No insurance protection available

44. The Golden Rule Treat people fairly and equally – just as you would want to be treated.

45. Abusive Workplace Behavior:Bad for SEIU 1000, Worse for You Presented By: Joseph L. Beachboard joe.beachboard@ogletreedeakins.com