Metoo Timesup Whats New Sacha Dyson Gray Robinson

#Metoo #Timesup What’s New? Sacha Dyson Gray. Robinson, P. A. sacha. dyson@gray-robinson. com (813) 273 -5088

Agenda ◦ Provide an Overview of #Me. Too! #Timesup! ◦ Review of the Basics ◦ Discuss the Impact of #Me. Too and #Timesup ◦ Try to Answer Some of the Difficult Questions

Recent Focus of Media Attention

Recent Focus of Media Attention

What Should We Do? ◦ Ask Michael Scott!

Perhaps not. .

Review of the Basics

Review of the Basics ◦ Federal and State Law ◦ Title VII ◦ Florida Civil Rights Act ◦ Local ordinances ◦ Prohibits discrimination against employees because of a protected characteristic ◦ Discrimination can include harassment ◦ Administrative exhaustion required ◦ Don’t forget about other forms of harassment ◦ 42 U. S. C. § 1981, ADA, ADEA

Don’t Forget ◦ Rule 4 -8. 4(d) ◦ Prohibits a lawyer from engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic

Review of the Basics ◦ Effective safeguards can reduce the likelihood of harassment ◦ Understanding acceptable conduct ◦ Developing best practices to ensure a safe work environment ◦ Use common sense

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

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

Unwelcome Conduct ◦ You can engage in unwelcome conduct even without talking to the individual ◦ Context can make a difference ◦ Relationship break-up

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

Example of Conduct ◦ Parker v. Reema Consulting Services, Inc. , 915 F. 3 d 297 (4 th Cir. 2019) ◦ Plaintiff started as a low-level clerk and was promoted 6 times ◦ She ultimately held the position of Assistant Operations Manager ◦ After her latest promotion, she learned that a male employee was spreading a false rumor that she was promoted because she had sex with a higher ranking manager ◦ The highest ranking manager asked the other manager about the rumor and the rumor was discussed at a management meeting ◦ He also said that he would no longer recommend her because of the rumor, but the male manager did not experience similar action ◦ Plaintiff complained about the rumor; other employees complained about Plaintiff ◦ Plaintiff was then fired ◦ Court held that these allegations were sufficient to state a claim of harassment because of sex and used a sexual

Based on Protected Characteristic ◦ Because of the protected characteristic ◦ 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. ◦ Personality conflicts are not sexual harassment

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

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

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

Severe or Pervasive Harassment ◦ Employee alleged that she overheard racist remarks from her coworkers every day of her employment ◦ She did not report these remarks until her last of work ◦ On her last of employment, her co-worker used a racial epithet, which she allegedly reported

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

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

Basis for Employer Liability ◦ When the harasser is a coworker or any other individual than the employee’s supervisor, employer must have knowledge of the harassment and fail to take prompt remedial action

Knowledge ◦ Actual ◦ Direct observation ◦ Receipt of complaint ◦ Constructive ◦ “Right under your nose” -- so blatant or pervasive that reasonable employer would have discovered it

Knowledge ◦ Smelter v. S. Home Care Services Inc. , 904 F. 3 d 1276 (11 th Cir. 2018) ◦ The 11 th 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 summary judgment on the harassment claim.

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

Supervisor Liability ◦ When a supervisor takes an adverse action because of an employee’s refusal to submit to harassment, the employer is strictly liability

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

Supervisor Liability ◦ An Affirmative Defense ◦ 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

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, 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. ___ (2013).

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

What Is Not Harassment?

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

Duty to Report

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

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

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.

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 other women who interacted with the respondent ◦ Reach a conclusion whether the complaint is substantiated

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

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

Perfection Isn’t Required! ◦ Even if harassment reoccurs, that doesn’t establish liability. ◦ Patsalides v. City of Fort Pierce, 724 F. App’x 749 (11 th 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. ”

#Me. Too Movement ◦ From January 2017 to January 2018 ◦ 7. 7 million tweets #Me. Too ◦ 816, 000 tweets #Times. Up ◦ From October 2017 to October 2018 ◦ 19 million tweets #Me. Too ◦ 29% in languages other than English ◦ 37% of the tweets were made by men ◦ It has impacted every industry and many elected officials and other public servants ◦ It has gone beyond sexual harassment

#Me. Too Movement

#Me. Too Movement and Public Employers ◦ Detective from Denver PD reported sexually suggestive text messages from mayor while on his security detail ◦ A 30 -year veteran of the Philadelphia PD alleged that she was sexually assaulted by an inspector and that no action was taken ◦ The officers had a history of clashes over the years in the department, including a previous lawsuit ◦ Some departments have reported increase in reports of sexual assault

#Me. Too Movement and EEOC ◦ EEOC Statistics from 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. ◦ Visits to the EEOC Sexual Harassment webpage more than doubled

#Me. Too Impact on the Legislature ◦ USAToday study ◦ 261 bills since #Me. Too movement ◦ 238 bills in the prior year ◦ Impact in Florida has been limited ◦ Senate issued a new employment policy addressing sexual harassment and requiring annual training ◦ House amended its formal rules to address sexual harassment ◦ Public records exemption for accusers

#Me. Too Impact on the Legislature ◦ Proposed Legislation in Florida ◦ Eliminating the statute of limitations for sexual offenses ◦ Requires certain police training techniques for interviewing victims ◦ Requires FCHR to publish a model sexual harassment policy and employers to adopt it ◦ Creates a task force on the prevention of sexual harassment

#Me. Too Impact on the Legislature ◦ Prohibits nondisclosure agreement or release to prevent an employee from discussing workplace harassment ◦ Prohibits discharge for reporting workplace harassment ◦ Requires completion of sexual assault awareness course to renew certain professional licenses ◦ All bills died in committee

#Me. Too Impact on the Legislature ◦ Florida Legislature passed a resolution designating April as sexual assault awareness month ◦ This resolution includes sexual harassment ◦ Resolution includes statistics on sexual harassment ◦ 75% of sexual harassment victims experience retaliation ◦ 75% of sexual assaults are unreported

#Me. Too Impact on the Legislature ◦ Other state legislatures have enacted legislation ◦ Legislative policies on sexual harassment ◦ Alabama, California, Delaware, Georgia, Iowa, Illinois, Indiana, Louisiana, Massachusetts, Maryland, Maine, Virginia, Vermont

#Me. Too Impact on the Legislature ◦ California has the most extensive legislation ◦ Imposes civil and criminal liability on any legislative employee or legislator who retaliates against someone making a complaint ◦ Requires semiannual training on sexual harassment ◦ Requires legislature to keep records of each harassment complaint

#Me. Too Impact on the Legislature ◦ Illinois bans the use of public funds to pay any sexual harassment claim involving the legislature ◦ This include the pay provided to the legislators ◦ Illinois enacted additional legislation ◦ Requires members of the legislature to work to change the culture that breeds sexual harassment ◦ Creates a task force on sexual harassment to make recommendations for further legislation ◦ Creates a hotline ◦ Requires lobbyists to complete training

#Me. Too Impact on the Legislature ◦ Maryland requires state employees to complete training ◦ NY bans arbitration agreements for sexual harassment claims ◦ Currently subject of court challenge ◦ Pennsylvania created a task force to study workplace harassment ◦ Vermont prohibits employment and settlement agreements from waiving the right to bring sexual

#Me. Too Impact on the Legislature ◦ Most of the current legislative proposals relate to ◦ placing limits on nondisclosure agreements ◦ could impact resignations in lieu of discipline ◦ extending the statute of limitations

#Me. Too Impact on the Legislature ◦ eliminating arbitration agreements ◦ mandatory reporting of sexual harassment ◦ mandatory training ◦ including gender identity and sexual orientation ◦ mandatory reporting of sexual harassment settlements

Now for the difficult questions. .

What Can You Prohibit on Social Media? ◦ Speaking as an employee or private citizen? ◦ Is it protected concerted activity? ◦ On-duty v. Off-duty: Does it matter? ◦ Does it violate the department’s social media policy? ◦ Prohibit posting during work hours?

Protected Concerted Activity ◦ PERA v. NLRA ◦ Not protected ◦ Personal complaints or “mere griping” ◦ Cases involving speech or an activities that are libelous, coercive, physically threatening, or “create[d] a real threat of immediate disruption in the workplace” are generally not protected even if the employee acts in concert with others. See, e. g. , Palm Beach Junior College, 11 FPER ¶ 16101; Palm Beach Gardens, 17 FPER ¶ 22052 (1991).

Protected Concerted Activity ◦ Social Media policy can be overbroad ◦ Orange County Professional Fire Fighters, IAFF v. Orange County Board of County Commissioners, 38 FPER ¶ 131 (2011) ◦ “Employees of the Department shall not criticize or ridicule or debase the reputation of the Department, its policies, its officers or other employees. ” ◦ Prohibiting employees from posting communications on social media websites that “tend[ed] to interfere with the maintenance of proper discipline; and/or damages or impairs the reputation and/or efficiency of the Department or its employees. ”

Protected Concerted Activity ◦ International Union of Police Associations, AFL-CIO and John Szabo v. Volusia County Board of County Commissioners, 44 FPER ¶ 273 (2018) ◦ Body cameras were the subject of impact bargaining ◦ An off-duty employee posted a profane message on social media to a private group for union members concerning the body camera policy. ◦ The employer learned of the message and terminated the employee.

Protected Concerted Activity ◦ General counsel summarily dismissed the charge because the employee did not allege the content of the message or provide any facts establishing a reasonable effort to achieve some redress regarding his terms and conditions of employment. ◦ He noted the long-standing precedent: “To be protected, concerted activity must be, among other things, a reasonable effort to achieve some redress regarding wages, hours, or other terms and conditions of employment. ” ◦ The act does not protect “mere griping. ”

Protected Concerted Activity ◦ Dickey v. David Gee, Sheriff of Hillsborough County, 35 FPER ¶ 191 (2009), per cur. aff’d, 32 So. 3 d 631 (Fla. 2 d DCA 2010): ◦ PERC concluded that a police union president engaged in protected concerted activity when his two articles were posted on the union’s public website discussing contract issues, even though the articles also contained disparaging, belittling, and insubordinate statements about the sheriff’s chief deputy.

On-duty v. Off-duty ◦ Snipes v. Volusia County, 704 F. App’x 848 (2017) ◦ The plaintiff, a police officer, posted a comment about Trayvon Martin on his personal Facebook page ◦ “Another thug gone! Pull up your pants and act respectful. Bye thug rip!” ◦ He was not on-duty when he posted this comment. ◦ He then engaged in a group text message with 9 other individuals when he sent racial and vulgar text messages while he was on-duty.

On-duty v. Off-duty ◦ At the time that he made these comments, the reputation of the beach patrol already had been tarnished by a previous scandal and there were protests in Volusia County regarding the Zimmerman verdict. ◦ Volusia County terminated Snipes’ employment ◦ Snipes filed suit in federal court claiming Volusia County violated his First Amendment right to free speech ◦ The district court granted summary judgment in favor of Volusia County and Snipes appealed

On-duty v. Off-duty ◦ The Eleventh Circuit held that the state’s interest in promoting efficiency in public services outweighed the plaintiff’s first amendment interest. ◦ There was a reasonable possibility of disruption in the community due to this speech. ◦ The court noted: “[W]e have held that maintaining the public's confidence in local fire and rescue services is a compelling and legitimate government interest. ” ◦ It also found that the time, place, and manner of the speech weighs against the First Amendment protection because the text messages were sent on duty and the Facebook message was not private. ◦ The context of the speech during a time of high tension when the reputation of the department already had been severely damaged. ◦ It found that these comments were likely to inflame tensions, further damage

On-duty v. Off-duty ◦ Bryant v. Florida School for the Deaf and Blind, 26 FCSR 206 (2011) per. cur. aff’d. , 85 So. 3 d 488 (Fla. 1 st DCA 2012): ◦ Upholding termination for misconduct where employee sent messages privately but via a Facebook account which included, as part of its public profile, a clear identification of the sender as a police officer with the Florida School for the Deaf and Blind. ◦

On-duty v. Off-duty ◦ Mc. Cullars v. Maloy, 617 CV 1587 ORL 40 GJK, 2018 WL 1583639, at *1 (M. D. Fla. Apr. 2, 2018) ◦ The plaintiff worked for the clerk of the court. ◦ He posted the following on social media at 10: 00 p. m. : ◦ “maybe she [Ayala] should get the death penalty, ” and “she should be tarred and feathered if not hung from a tree. ” ◦ It was deleted by 7: 00 a. m. the next morning, but someone had taken a screenshot and shared it with others. ◦ The plaintiff was terminated and challenged his termination under the First Amendment. ◦ The court denied the clerk’s motion to dismiss based on qualified immunity.

On-duty v. Off-duty ◦ It found that the complaint was devoid of any facts that the post impacted the clerk’s need to maintain loyalty, discipline, or good working relationships. ◦ While noting the obvious racial implications of this statement, it denied the motion to dismiss as the complaint did not allege Ms. Ayala’s race. ◦ It concluded, based on the allegations in the complaint, that there were no governmental interests affected by the post. ◦

On-duty v. Off-duty ◦ Duke v. Hamil, 997 F. Supp. 2 d 1291, 1293 (N. D. Ga. 2014) ◦ The deputy chief of the university police department posted a picture of a confederate flag along with the statement: “It's time for the second revolution. ” ◦ He made this post shortly after the conclusion of the 2012 presidential election. ◦ It was made on his personal Facebook page and he was not on-duty. ◦ Neither the post nor his page referenced his employment. ◦ He took down the post within an hour, but someone had captured the post and provided it to the local news station. ◦ The plaintiff was demoted and given a less desirable shift.

On-duty v. Off-duty ◦ He sued alleging a violation of the First Amendment. ◦ The court found that he spoke as a citizen on a matter of public concern, but that his First Amendment rights were outweighed by the government’s interest. ◦ It specifically recognized the unique needs of police departments when it observed: ◦ “Order and morale are critical to successful police work: a police department is a ‘paramilitary organization, with a need to secure discipline, mutual respect, trust and particular efficiency among the ranks due to its status as a quasi-military entity different from other public employers. ’” ◦ “[P]olice departments have a particular interest in maintaining ‘a favorable reputation with the public. ’”

On-duty v. Off-duty ◦ The court concluded that the speech could disrupt the department and undermine the loyalty, discipline, and good working relationships in the department. ◦ It also found that the speech could undermine the public’s confidence and trust in the department. ◦ In concluding that the time, place, and manner of the speech weighed in favor of the employer, the court noted: ◦ “This illustrates the very gamble individuals take in posting content on the Internet and the frequent lack of control one has over its further dissemination. ” ◦ As a result, the court held that the department’s interests outweighed the plaintiff’s interest in speaking.

How Do You Handle Allegations of Past Misconduct? ◦ Some allegations can go back 20, 30, 40, or 50 years. ◦ Is there sufficient information to conduct an investigation? ◦ Other allegations against the same individual? ◦ Is there a current impact? ◦ Disciplinary history ◦ Why now?

Who conducts the investigation? ◦ IA ◦ Outside investigator ◦ Human resources

How Do You Handle Complaints During Disciplinary Conversations? ◦ Don’t overreact ◦ Keep the two issues separate ◦ Don’t ignore the complaint ◦ Can conduct an investigation even if the complaining party has been terminated

Do you suspending investigation? ◦ It depends. ◦ The specificity and nature of the allegations ◦ Frequency of interaction between accuser and accused ◦ Can other measures be put in place ◦ Investigation by law enforcement ◦ Prior complaints ◦ Due process considerations

What is a credible allegation of sexual harassment? ◦ Terms used frequently associated with #Me. Too movement ◦ How does this impact the conclusion of the investigation?

How to handle conditions placed on interviews? ◦ Presence of attorneys ◦ Active criminal investigation ◦ Refusal to answer questions ◦ Refusal to provide documents

Can you take action against the accuser based on an unsubstantiated complaint? ◦ There must be no good faith basis for the complaint

Can overcorrecting be a basis for liability? ◦ Concept is that male employees will refuse to work with female employees to avoid any allegations of harassment ◦ Does the avoidance led to an adverse employment action? ◦ The failure to be included caused the individual to be passed over for a promotion? ◦ How can employees feel at ease? ◦ Focus on the work

Can a rush to judgment be a basis for liability? ◦ Impact on the accused even when the claim is not substantiated ◦ Improper motives for bringing a complaint of harassment or discrimination ◦ Don’t forget about due process

How Do You Handle a Systemic Complaint? ◦ What can or should you do differently? ◦ How do you establish credibility for the investigation? ◦ How do you move forward after the investigation?

What Do You Do With an Anonymous Complaint? ◦ Is the complaint specific? ◦ Can it be investigated? ◦ Has the accused been disciplined before?

QUESTIONS?

Disclaimer The information contained in these materials is intended as an informational report on legal developments of general interest. It is not intended to provide a complete analysis or discussion of each subject covered. Applicability to a particular situation depends upon an investigation of the specific facts and more exhaustive study of applicable law than can be provided in this format.

Speaker Information Sacha Dyson Gray. Robinson, P. A. sacha. dyson@gray-robinson. com (813) 273 -5088