Lessons Learned: Prevention Strategies for Workplace Violence, Bullying and Harassment

1. Lessons Learned: Prevention Strategies for Workplace Violence, Bullying and Harassment Wayne Yoshigai John Mackey

2. Navy Yard – September 2013 Aaron Alexis had just started a contracting job on base Granted security clearance Shot and killed 12 people No apparent motive

3. Navy Yard – September 2013 Aaron Alexis had just started a contracting job on base Granted security clearance Shot and killed 12 people No apparent motive

4. Navy Yard – September 2013 Warning Signs Arrests: 2010 for discharging a weapon within city limits, 2008 for disorderly conduct, and 2004 for malicious mischief when he shot tires of another man’s vehicle. None of the arrests led to prosecution. Went to ER twice in a month before shooting for insomnia In weeks before shooting, called police to his room and complained about hearing voices and being followed by people sending vibrations into his body. Police informed naval station. On August 2nd, he filed a police report, he complained to human resources about “hearing voices” but they thought he was referring to actual voices and moved him to a new hotel twice.

5. Tips and takeaways: • Respectful workplace/zero tolerance • Physically secure workplace • Education re policy and conflict resolution • Seeing the signs • Use available employee support services • Intervene early • Take appropriate action

6. Workplace Bullying Jonathan Martin: 6’ 5” 312 lbs : victim of workplace bullying

7. He can’t be a victim, they were friends! • Victim making friends with an abuser is a common coping mechanism, according to a the psychologist consulted for the report.

8. But he never complained! The Judas Code

9. Player “A” Martin was not the only victim.

10. “The contrast between the Dolphins’ formal anti-harassment policies and the reality of the Dolphins’ locker room is striking.” Report to the NFL Concerning Issues of Workplace Conduct at the Miami Dolphins, p. 47.

11. Tips and takeaways: • Bullying can be harassment • What kind of harassment policy do you have? Only protected category or any? • Anybody can be a victim – or abuser • Don’t tolerate unacceptable behavior just because a possible victim does • Don’t permit a ‘code of silence’ to thwart your policy • Just because there is no law that prohibits “bullying” per se, do not think you do not need to be concerned about it

12. EEOC v. Pitre Inc. dbaPitre Buick/Pontiac (U.S.D.C. New Mexico) • Car dealership in New Mexico was accused of same-sex sexual harassment, mostly performed by the lot manager James Gallegos • Conduct included: • Bit one of the charging parties and other male employees on the penis • Frequently grabbed, slapped and/or touched male employees on the penis, buttocks and other parts of their bodies • Frequently exposed his penis and bare buttocks, including slapping his penis against the front storeroom window • Frequently made comments about the penis size and/or buttocks of male employees

13. EEOC v. Pitre Inc. dbaPitre Buick/Pontiac (U.S.D.C. New Mexico) • Conduct included: • Frequently solicited male employees to engage in sexual relations for money • Frequently would kneel in front of a male employee, try to pull the employee’s pants down, and attempt or pretend to perform oral sex • Frequently attempted and/or pulled down the pants of male employees • Frequently made sexual comments, jokes and solicitations to male employees • Wrestled down male employees to touch their private parts or to force their face into Gallegos’ crotch area • Sexual conduct/comments occurred at least several times each week or sometimes several times in a day

14. EEOC v. Pitre Inc. dbaPitre Buick/Pontiac (U.S.D.C. New Mexico) What Gives?

15. EEOC v. Pitre Inc. dbaPitre Buick/Pontiac (U.S.D.C. New Mexico) • Settlement for $2.1 million on March 27, 2014 • Charging parties frequently complained to management • Management knew of Gallegos’ conduct and frequently encouraged and/or requested him to engage in it • Human resources knew or should have known of Gallegos’ conduct • Retaliatory action, including termination, of the charging parties led to injunctive relief

16. Tips and takeaways: • Although there is a conflict between appellate courts, the EEOC continues to litigate same-sex harassment cases • Horseplay or hazing is not a defense • Management knowledge and encouragement will lead to punitive damage awards • Most bullies are men, and men often bully other men. But there are exceptions…

17. Motorboating in the workplace…

18. Meet Pam Matranga, Texas constable

19. Paul Gist v. Galveston County (Texas District Court) • Matrangas was an elected constable • Gist, a 55 years old deputy constable, claimed that he was subjected to sexual harassment conduct: • 5/16/11: Asked Gist’s fiancée if she could give him a blowjob • 6/14/11: Joked with Gist that he should attend “chunky chick night” at a local strip club where she could perform. She lifted one leg over Gist’s chair armrest and began making gyrating motions with her hips • 6/23/11: Farted in Gist’s presence then rubbed the clothing area covering her vagina and stated “Why can’t I get a man?” • 7/12/11: Walked behind Gist and pulled her shirt over his head and held his head in her cleavage in a headlock for several seconds. Also with other male employees • 7/13/11: Walked into Gist’s office and said “I spilled some coke on my canooki.” Ask Gist and another male employee if they “wanted to have some of it.”

20. Paul Gist v. Galveston County (Texas District Court) • Gist, a 55 years old deputy constable, claimed that he was subjected to sexual harassment conduct: • 7/28/11: When Gist reached for a pen he dropped on the floor, Matranga said, “While you’re down there, why don’t you help yourself to some duck taco.” • 8/17/11: When discussing a paid leave with Gist, Matranga said she should get something in return and parted her legs, made a puckered lips facial expression with raised eyebrows and used her hands to begin rubbing her inner thighs near her vagina.8/23/11: While passing by Gist, Matranga forcefully pushed her breasts against his back and said, “I couldn’t help it—they’re so big!” • 10/19/11: Matranga approached Gist in the office and said “Here, hold these” as she cupped her breasts in her hands. • 10/26/11: Second “under the shirt” incident with Gist

21. Paul Gist v. Galveston County (Texas District Court) • On 10/31/11, Gist was suspended without explanation. He resigned on 11/2/11. • A jury awarded Gist $567,000 in damages. • Matrangas lost re-election in 2012. She claimed Gist retaliated against her with the sexual harassment allegations when she refused to promote him. • While she denied the motorboating incident with Gist, Matrangas admitted at her deposition doing it with other deputies: “If anybody was in a bad mood, like Phil was in a bad mood, I would say, “Phil, or to anyone, ‘Do you need to go under the shirt?’”

22. Tips and takeaways: • Never underestimate what men and women will do in the workplace • If it’s you or them, they’ll always hang you • Don’t be surprised if your “friend” uses your conduct to shield him/her from negative employment actions • No motorboating at work!

24. EEOC Guidance - Religious Garb and Grooming in the Workplace: Rights and Responsibilities

25. Q: When is a knife not a knife?A: When it is a religious artifact.

26. 10. True or False: A Hospital must allow a Sikh employee to wear a ceremonial knife (Kirpan) at his waist for religious reasons in spite of its policy against bringing any weapon to the work place.

27. 9. True or False: A company that provides guards to staff correctional facilities can prohibit its employees from wearing religious head covering based on its policy to prohibit any hat or head covering due to security concerns relating to smuggling contraband because there is a presumption it would be an “undue hardship” to accommodate a religious belief in direct conflict with a policy legitimately addressing a security concern.

28. 8. True or False: A company that manufactures sterile instruments can require a Sikh employee to either (1) shave his beard or (2) wear two facemasks in order to avoid contamination.

29. 7. True or False: A retail fashion store can refuse to hire an applicant because she wears a Muslim headscarf for religious reasons, which conflicts with the company appearance policy that prohibits any head covering if it can prove that its customers will not buy clothes from a sales associate wearing a Muslim headscarf.

30. 6. True or False: A burger chain can require a server to cover the religious tattoos that encircle his wrists even though he believes it is a sin to conceal them.

31. 5. True or False: An airline can refuse to hire a Muslim who wears a headscarf to work at the ticket counter because passengers will think she is a terrorist sympathizer – it is a reasonable accommodation to place her in the call center instead.

32. 4. True or False: A company may enforce its policy that men be clean shaven even though the employee never states that he maintains his beard for religious reasons.

33. 3. True or False: A female front desk employee of a sports club who wears modest dress for religious reasons may be required to wear the full company uniform of tennis shorts and polo shirt with company logo, instead of a longer white skirt with the company shirt.

34. 2. True or False: A Muslim bank teller who only wears her head scarf during the month of Ramadan does not need to be accommodated because she does not have a “sincerely held” religious belief.

35. 1. True or False: A burger chain employee who suddenly starts growing his hair long in spite of company policy does not need to be accommodated until he has been a practicing Nazirite for at least a full year.

36. Tips and takeaways: • Carefully consider whether any employee’s claimed religious practice can be accommodated • Request explanation if you have a legitimate reason to question the sincerity of the belief • Keep an open mind

37. THANK YOU!