EMPLOYMENT LAW UPDATE: HARASSMENT CLAIMS

1. EMPLOYMENT LAW UPDATE: HARASSMENT CLAIMS Nathan Paulich Shareholder GrayRobinson, P.A. nathan.paulich@gray-robinson.com 813-273-5039 Jake Proudfoot Associate GrayRobinson, P.A. jake.proudfoot@gray-robinson.com 813-273-5151

2. AGENDA I. II. III. IV. Provide an Overview of #MeToo! #Timesup! Review of the Basics Discuss the Impact of #MeToo and #Timesup Try to Answer Some of the Difficult Questions

4. #METOO #TIMESUP

5. #METOO #TIMESUP Recent Focus of Media Attention

6. #METOO #TIMESUP Recent Focus of Media Attention

8. REVIEW OF THE BASICS Federal and State Law: Don’t forget about other forms of harassment:

9. REVIEW OF THE BASICS Prohibits discrimination against employees because of a protected characteristic:

10. REVIEW OF THE BASICS Title VII • Disparate treatment discrimination • Adverse action • Comparators • Disparate impact discrimination; patterns and practices • Retaliation • Materially adverse action • But-for causation • Accommodation (sex and religion)

11. REVIEW OF THE BASICS Americans with Disabilities Act “ADA” • Disability • Physical or mental impairment that substantially limits a major life activity • Record of an impairment • Regarded as having such impairment • Qualified individual with a disability • Can perform the essential functions of her job with or without accommodation • Reasonable accommodation

12. REVIEW OF THE BASICS The Age Discrimination in Employment Act “ADEA” • Over 40 • Substantially younger • But-for • Defenses • Reasonable factor other than age • Bona-fide occupational qualification • Bona-fide seniority system

13. REVIEW OF THE BASICS Florida Civil Rights Act “FCRA” • FCRA • Largely adopts the federal standards • Administrative exhaustion required • EEOC • FCHR

14. REVIEW OF THE BASICS • Discrimination can include harassment • Effective safeguards can reduce the likelihood of harassment • Understanding acceptable conduct • Developing best practices to ensure a safe work environment • Using common sense

15. REVIEW OF THE BASICS • What Is Harassment? • Unwelcome conduct • Because of or based on a protected characteristic • That is severe or pervasive for a reasonable person to consider the environment intimidating, hostile, abusive, or offensive • Basis for employer liability Williams v. Saxbe, 413 F. Supp. 654, (D.D.C. 1976), was the first case to recognize sexual harassment as a form of sex discrimination.

16. REVIEW OF THE BASICS • Unwelcome Conduct • Conduct is unwelcome if the individual perceives it to be offensive • No requirement of intent or direction • Need to be mindful of actions Voluntary participation does not automatically make the conduct “welcome.” • Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)

17. REVIEW OF THE BASICS • Unwelcome Conduct • You can engage in unwelcome conduct even without talking to the individual • Context can make a difference • Relationship break-up

18. REVIEW OF THE BASICS • Examples of Conduct • Offensive, derogatory, or belittling jokes • Vulgar comments • Stereotypes about physical, social, or cultural differences • Bragging about sexual prowess • Leering or whistling • Repeated requests for dates or sexual favors • Discussion of physical attributes of employees or others • Insensitive nicknames • Offensive graffiti, cartoons, pictures, videos, snapchats, emojis, texts, e-mails, or memes

19. REVIEW OF THE BASICS • Examples of Conduct • The Fourth Circuit recently held that false rumors that a female employee slept with her male boss to obtain promotion can give rise to employer liability under Title VII for discrimination “because of sex.” • The employer was charged with participating in the circulation of the rumor and acting on it by sanctioning the employee. • The Fourth Circuit overturned the District Court, which had ruled that spreading of that kind of rumor is based on conduct, not gender. Parker v. Reema Consulting Services, Inc., 915 F.3d 297 (4th Cir. 2019)

20. REVIEW OF THE BASICS • Based on Protected Characteristic • Because of the protected characteristic • A pure “personality conflict” is not sexual harassment. • Does not have to be sexual in nature • Includes hostility and attraction • Harassment can be subtle or overt • It can involve individuals of the same gender, race, etc.

21. REVIEW OF THE BASICS • Severe or Pervasive Harassment • Based on a reasonable person standard • Would a reasonable person be bothered by the conduct? • Did it bother the employee? • It does not have to be repeated conduct • It depends on the severity and circumstances

22. REVIEW OF THE BASICS • Severe or Pervasive Harassment • Think of a sliding scale – the more severe it is, the fewer times it has to happen • Conduct does not have to be both severe and pervasive to be liable • It could be severe, pervasive, or it could be both

23. REVIEW OF THE BASICS • Severe or Pervasive Harassment • 11th Circuit recently addressed this standard • Smelter v. S. Home Care Services Inc., 904 F.3d 1276 (11th Cir. 2018) • Affirmed SJ for employer based on discrimination and retaliation claims • Reversed because there was a disputed issue of facts on the harassment claim

24. REVIEW OF THE BASICS • Severe or Pervasive Harassment • Employee alleged that she overheard racist remarks from her co-workers every day of her employment • She did not report these remarks until her last day of work • On her last day of employment, her co-worker used a racial epithet, which she allegedly reported

25. REVIEW OF THE BASICS • Severe or Pervasive Harassment • Court found that there was a disputed issue of fact as to whether the harassment was severe or pervasive • It found that the one-time use of a racial epithet, directed at the employee, in an insulting manner was sufficient to create an issue of fact, particularly given the other alleged racist remarks

26. REVIEW OF THE BASICS • Don’t Forget • Harassment can be overt • Conduct that becomes a condition of employment • Employment action is tied to the conduct • Explicitly or implicitly • Basis for the decision • Adverse action based on rejection • Not limited to co-workers or supervisors • Can include harassment by the public or of the public

27. REVIEW OF THE BASICS • What Is Not Harassment? • A tough, demanding environment • Setting high performance expectations • Holding employees accountable for their performance • Personal disagreements between coworkers • A hostile environment is not always an unlawful environment

28. REVIEW OF THE BASICS • What Is Not Harassment?

29. REVIEW OF THE BASICS • Time Out for Common Sense • Employers want to be able to defend the conduct of employees by showing that it was reasonable, appropriate for the workplace, and not offensive. • Employers do not want to defend inappropriate or unprofessional conduct by arguing that: • It was welcomed by the employee • It wasn’t based on sex • It wasn’t severe or pervasive • At least not to a jury

30. REVIEW OF THE BASICS • Basis for Employer Liability • When the harasser is a co-worker or any other individual than the employee’s supervisor, employer must have knowledge of the harassment and fail to take prompt remedial action

31. REVIEW OF THE BASICS • Knowledge • Actual • Direct observation • Receipt of complaint • Constructive • “Right under your nose” -- so blatant or pervasive that reasonable employer would have discovered it

32. REVIEW OF THE BASICS • Knowledge • Smelter v. S. Home Care Services Inc.,904 F.3d 1276 (11th Cir. 2018) • The 11th Circuit concluded that there was a disputed issue of fact as to whether the supervisor, like the plaintiff, overheard some of the racist remarks. • This was based on the plaintiff’s testimony that the supervisor found some of the remarks to be humorous. • It reversed SJ on the harassment claim.

33. REVIEW OF THE BASICS • Effect of Knowledge • Duty to take action • Action must be prompt • Must be reasonably calculated to end the harassment • Duty to act even if the complaining employee does not want action • Purpose is to create a safe workplace • Other employees may be having the same problem

34. REVIEW OF THE BASICS • Supervisor Liability • When a supervisor takes an adverse action because of an employee’s refusal to submit to harassment, the employer is strictly liability Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)

35. REVIEW OF THE BASICS • Supervisor Liability • When there is no adverse action, the employer can avoid liability if: • It took reasonable care to prevent and promptly remedy harassing behavior; and • The employee failed to take advantage of corrective opportunities

36. REVIEW OF THE BASICS • Supervisor Liability • An Affirmative Defense (Faragher/Ellerth) • First Element: Reasonable Care to Prevent and Prompt Remedial Action • Proper design of policy • Proper dissemination of policy • Proper enforcement of policy • Second Element: Corrective Opportunities • Employee fails to take advantage of the corrective opportunities • Fails to make a complaint • Fails to take advantage of remedial measures offered

37. REVIEW OF THE BASICS • Who Is a Supervisor? • An individual who is empowered to take tangible employment action against an employee. • The individual must have the power to make a significant change in employment status, such as hire, fire, fail to promote, reassign to a task with significantly different duties, or cause a significant change in benefits of the employee. • Vance v. Ball State Univ., 570 U.S. 421 (2013).

38. REVIEW OF THE BASICS • Duty to Report

39. REVIEW OF THE BASICS • Duty to Report • Some rules of professional conduct impose a duty to report • Rule 6A-10.081(c)(14) requires that an educator “shall report to appropriate authorities any known allegation of a violation of the Florida School Code or State Board of Education Rules as defined in section 1012.795(1), F.S.” • Having clear and readily available policies and procedures helps foreclose liability as well.

40. REVIEW OF THE BASICS • Duty to Report • Establish a clear reporting procedure • More options than immediate supervisor • Ensure all employees know of their duty to report • Establish a culture of open communication • Take every complaint seriously • Not every investigation will be the same • Train supervisors • No confidential conversations with managers • Complaints are not always formal • Train non-management employees on the policy

41. REVIEW OF THE BASICS • Duty to Report • Duty to cooperate in investigation • Enforce the policy • Consistent follow-up • Supervisors should address objectionable conduct immediately and report it • Don’t ignore it • Employees should be empowered to tell another employee that the conduct is not welcome

42. REVIEW OF THE BASICS • Duty to Report • Conduct a prompt and thorough investigation • Best practices • Maintain confidentiality during the investigation • Identification of documents and first-hand witnesses • Ask the accuser, accused, and witnesses • Any other documents that can be reviewed? • Videotape, personnel files, time cards, etc.

43. REVIEW OF THE BASICS • Duty to Report • Interview the complainant and the respondent • Reinforce no-retaliation policy during interviews • Allow both accuser and accused to provide their side of the events • Document the investigation • Prepare a written report • Consider whether to interview others who interacted with the respondent • Reach a conclusion whether the complaint is substantiated

44. REVIEW OF THE BASICS • Duty to Report • Take prompt remedial action based on all of the circumstances • Stop the harassment • Remedy an adverse action • Discipline the bad actor • Remedial action does not always mean termination • Ensure consistency in response • Even in unsubstantiated complaints, conduct training

45. REVIEW OF THE BASICS • Duty to Report • Reinforce no-retaliation policy • Still have to manage an employee who makes a complaint • Encourage reporting of repeat conduct • One person or department receives copies of complaints

46. REVIEW OF THE BASICS • Case Example • Patsalides v. City of Fort Pierce, 724 F. App’x 749 (11th Cir. 2018) • Female patrol officer made a complaint about a male officer after experiencing two weeks of alleged inappropriate conduct. • The police department opened an investigation within a day of the complaint. The male officer was placed on administrative leave and later terminated. • Between 1997 and 2013 the male officer was found to have engaged in some form of sexual misconduct on four occasions, and on each occasion the City took a responsive action. • The Court found no employer liability. “[T]he City’s actions following the complaint were a model of proper employer responsiveness under Title VII.”

48. IMPACT OF #METOO AND #TIMESUP • #MeToo Movement • From October 2017 to October 2018 • 19 million #MeToo tweets (more than 50,000 per day) • It’s global—29% of the tweets were in languages other than English • It has impacted every industry and many elected officials and other public servants • It has gone beyond sexual harassment

49. IMPACT OF #METOO AND #TIMESUP • Sexual Harassment Spans Industries

50. IMPACT OF #METOO AND #TIMESUP • Secondary Effects • EEOC Statistics for FY 2018: • Sexual harassment charges by employees rose 13.6% over FY 2017 (The first time this number has gone up in five years) • For charges alleging harassment, the EEOC’s findings for cause increased 23.6% in FY 2018. • The Visits to the EEOC Sexual Harassment webpage more than doubled