Discrimination Harassment and Retaliation Basics Donna Phillips Currault

Discrimination, Harassment and Retaliation Basics Donna Phillips Currault Gordon Arata Montgomery Barnett

Discrimination/Harassment Federal law prohibits discrimination and harassment based on: Race/color Sex National origin Religion Disability Genetic info Military status Although law does not prohibit harassment based on other reasons, employers often (and should) do so.

Theories of Discrimination Disparate Treatment Treat someone differently because of protected basis Must show intentional discrimination via direct or indirect evidence (Mc. Donnell Douglas) Disparate Impact Neutral policy has adverse statistical impact on protected class when applied (e. g. , lift certain weight) Must show business necessity Reasonable Accommodation (religion and disability) Unless undue hardship (easier for employer to show undue hardship for religion (anything more than de minimus cost) than for disability (significant difficulty or expense)

What Is Sexual Harassment? Title VII makes it unlawful for an employer to, among other things, discriminate against an individual with respect to “terms, conditions, or privileges” of employment “because of” sex. not a general code of civility does not prohibit all verbal or physical harassment in the workplace.

Types of Sexual Harassment Quid Pro Quo – base employment decision on sexual demand Unwanted sexual advance + employment action based on submission Hostile Environment must be “severe or pervasive” such that it alters the conditions of employment and creates an abusive working environment violates Title VII Unwelcome conduct that unreasonably interferes with employee’s performance OR creates intimidating, hostile or offensive work environment

What constitutes a “severe or pervasive” hostile environment “Totality of the circumstances” frequency of the discriminatory conduct severity whether it is physically threatening or humiliating, or a mere offensive utterance whether it unreasonably interferes with an employee's work performance. effect on the employee's psychological well-being

Employer Liability Issues Quid Pro Quo claim –acceptance/rejection of supervisor's alleged sexual harassment resulted in a tangible employment action. Hostile Environment claim - depends on whether harasser is a mere co-worker or a “Title VII Supervisor” Not all supervisors qualify as “Title VII Supervisors” Title VII supervisor must be empowered to take “tangible employment action” against the employee Tangible employment action is a significant change in employment status, such as hiring, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

Co-Worker v. Supervisor Harassment Employer Liability for Co-Worker Harassment - Plaintiff must show Employer knew or should have known of the harassment and Employer failed to take prompt remedial action. Employer Liability for Supervisor Harassment - Employer is presumed to have knowledge of supervisor conduct, but may have affirmative defense to liability. If tangible employment action has occurred, Employer is vicariously liable for the misconduct and has no affirmative defense. If no tangible employment action has occurred, the Employer may show that it exercised reasonable care to prevent and correct harassing behavior (adopts and implements effective policy, conducts training, etc. ) and the employee unreasonably failed to take advantage of preventive or corrective opportunities

What is prompt remedial action? Action that is reasonably calculated to prevent further harassment Should be swiftly taken Should be proportionate to the harm Should not adversely affect the complainant Examples: Reprimand, Training, Wage Reduction, Suspension, Transfer, Demotion, Discharge Need not be the actions preferred by complainant Correct any effects of harassment on victim Ensure No Retaliation

Strategies to Prevent Harassment Claims Adopt and Implement an Effective Policy Include Meaningful Anti-Retaliation Provisions Train Management and Staff require employment decisions based on objective, legitimate business reasons foster consistent treatment of employees with other similarly situated employees Policy may be more generous than Title VII Highest level buy-in to policy of equal employment opportunity without discrimination or harassment.

Tips for an Effective Policy Don’t focus on legal definition of sexual harassment Outline expectations for conduct in the Employer’s workplace. Respect, Dignity, Professionalism Appropriate Business Conduct Accountability is Key Must take disciplinary action against wrongdoer. Reporting is a Must Encourage Bystanders to Report Discipline Managers for Failure to Report Document!

Conduct an Effective Investigation Who Should Investigate? Lawyer, Compliance, HR professional, Investigator, Manager Purpose of Investigation Satisfy legal obligations to take prompt remedial action to deter inappropriate conduct in the workplace (such as discrimination and harassment) and to remedy such conduct. Satisfy Employer’s policy/compliance program. Obtain a full, objective understanding of the facts. Develop a defense to claims by third-parties

Document the Investigation Summarize the allegations: Be specific include a chronology Summarize the evidence or information gathered witness interviews relevant documents relevant policies and procedures Factual Findings/Conclusions: Was the allegation substantiated? Did the conduct violate policy (not give legal opinion on the law)? Remedy/Actions Taken RETAIN INVESTIGATION FILE, including investigator’s log, witness statements or notes, documents and report.

Anti-Retaliation Restrictions Most federal statutes include anti-retaliation provisions Title VII ADA ADEA FLSA FMLA USERRA False Claims Act Sarbanes-Oxley OSHA

Basics of Retaliation Employee engaged in “protected activity” Participation filed a charge interviewed during investigation testified in a proceeding Opposition complained of violation of law formal action not required Must have reasonable belief and manner of opposition must be reasonable Adverse Employment Action Causal Connection

Confidential Settlements: Tax Cuts & Jobs Act’s “Weinstein Provision” 26 U. S. C. 162(q) provides: “No deduction shall be allowed under this chapter for— (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment. Doesn’t prohibit confidential settlements, but alters calculation. Open issues: Appears to apply to Plaintiffs too What about general releases? Suggestions: Don’t use NDA or used more limited NDAs Allocate sexual harassment payment and NDA