Workplace Harassment Jack Lipovac HROne Source and Matthew

Workplace Harassment Jack Lipovac, HR-One. Source and Matthew Brick, Brick Gentry P. C. Handouts and presentation are available online at www. iowaleague. org

1. Litigation & Liability

Jurors think. . . ¡ 75 % of jurors feel employers must: ¡ Give the employee fair warning prior to termination; ¡ Ensure that the employee understands what went wrong; and ¡ Work with the employee to correct the problem.

Jurors think … ¡ 60% believe the best evidence of work performance is the employee’s performance evaluation. ¡ 60% believe companies need to be “sent a message. ” ¡ 90% believe that a company is negligent if it does not properly document performance problems.

Average Judgment Amounts ¡ The average jury award in an employment lawsuit exceeds $250, 000, with 15% of all verdicts exceeding $1 million. ¡ 56% of all cases tried result in verdicts for the plaintiff (employee).

Average Defense Costs in State and Federal Court ¡ The average civil lawsuit lasts 2 years from inception to trial, and longer on appeal. ¡ One-half of all companies defending employment lawsuits spent over $50, 000, and one-third spend over $100, 000, in litigation costs alone – this does not include any jury or settlement award!

Recent Examples: ¡ In 2007, Indianapolis settled with Fire Captain for $350, 000 after she alleged discrimination based on her gender by denying her promotions and retaliated against her when she complained. ¡ The Texas Dept. of Criminal Justice paid former state employee $1. 5 million for retaliation. She was fired after seeking reasonable accommodation – removal of aerosol room deodorant which aggravated her chronic asthma.

Recent Examples: ¡ New York City judge upheld verdict awarding Sergeant Sorrenti of the N. Y. P. D. $1. 5 million after being denied an opportunity in the Youth Services Section because a supervisor thought that Sorrenti was a homosexual and therefore should not be dealing with minors. ¡ Sorrenti is not a homosexual ¡ Judge found supervisor guilty of discrimination based on perceived sexual orientation. ¡ Sorrenti v. City of New York, 2007 WL 2772308

2. Definition of Harassment

Harassment is: ¡ A type of discrimination, based on a protected class, such as race, sex, religion, disability or age, made illegal by state and federal statutes, including: ¡ ¡ ¡ ¡ Title VII of the Civil Rights Act of 1964 (“Title VII”); The Pregnancy Discrimination Act of 1978 (“PDA”); The Americans with Disabilities Act (“ADA”); The Americans with Disabilities Act Amendments Act (“ADAAA”); The Equal Pay Act (“EPA”); The Age Discrimination in Employment Act (“ADEA”); and The Iowa Civil Rights Act (“ICRA”).

Harassment is: ¡ Employee belongs to a protected group; ¡ Employee was subject to unwelcome conduct; ¡ Harassment was based on the employee's protected status; and ¡ Harassment affected a term, condition or privilege of employment.

Unwelcome Conduct ¡ Unwelcome in the sense that the employee did not solicit or incite conduct, and he/she regarded it as undesirable or offensive. ¡ Your intent does not count. The Court does not care if you were ‘only joking. ’

Protected Classes ¡ Sex & Gender ¡ Race & Color ¡ Religion & Creed ¡ National Origin ¡ Disability ¡ Age ¡ Sexual Orientation & Gender Identity ¡ Other Protected Classes (i. e. , veteran status)

Protected Class – Sex & Gender ¡ Conduct based on sex includes sexual advances, requests for sexual favors, sexually motivated physical contact and other verbal, physical or visual conduct or communication of a sexual nature. ¡ Conduct based on gender includes non-sexual conduct because of a person’s gender (such as pregnancy discrimination).

Protected Class – Race & Color ¡ Conduct based on race includes actions based on a person’s heredity. ¡ Color-based conduct is, obviously, based on a person’s color. ¡ Racial animus can exist even where the harasser and the plaintiff are of the same group (i. e. , same race or gender).

Protected Class Religion & Creed ¡ Creed-based conduct is based on a person’s system or codification of belief or opinion.

Protected Class National Origin ¡ Ethnic jokes and derogatory remarks are most often the basis for national origin harassment claims, even when they originate from others of the same national origin.

Protected Class – Disability ¡ Conduct based on: ¡ ¡ ¡ Current disability, Record of a disability, or Perception of a disability. ¡ Hostile work environment claims of disabilitybased harassment are recognized under the ADA and Iowa Code Chapter 216.

Protected Class – Age ¡ Conduct based on the fact that an employee is 18 years old (Iowa law) or 40 years old (federal law), or older.

Protected Class – Sexual Orientation & Gender Identity ¡ As of July 1, 2007, sexual orientation and gender identity are protected classes under Iowa Code Chapter 216. ¡ "Gender identity" means a gender-related identity of a person, regardless of the person's assigned sex at birth. ¡ "Sexual orientation" means actual or perceived heterosexuality, homosexuality or bisexuality. ¡ There are several cities in Iowa that prohibit this type of discrimination, including Des Moines and Iowa City.

Terms & Conditions of Employment ¡ Hostile Work Environment ¡ Quid Pro Quo - Tangible Employment Action ¡ Retaliation

Hostile Work Environment ¡ When an environment is objectively and subjectively offensive so that a reasonable person would find it hostile and the victim actually perceived it to be so. ¡ Factors considered include the frequency of the conduct; its severity; whether it is physically threatening; and whether it unreasonably interferes with an employee's work performance.

Tangible Employment Action ¡ Recruiting and selecting applicants ¡ Hiring and firing ¡ Training ¡ Promoting and demoting ¡ Assigning and classifying employees and/or jobs ¡ Discipline ¡ Compensation and benefits ¡ Any other term or condition of employment

Problems Unique to Cities ¡ What do you do when the mayor or a council person asks you out? ¡ What happens when a Police Chief grabs his crotch whenever a female employee talks to him? ¡ What do you do with volunteers when: ¡ ¡ They are accused of having affairs with elected officials; or Fire-fighters make inappropriate comments to each other.

Examples of Potential “Harassment” ¡ Obscene gestures ¡ Inappropriate pictures, cartoons, posters, graffiti, e-mail ¡ Off-color jokes, comments, slurs, epithets ¡ Threats or Insults ¡ Exposing oneself ¡ Propositions ¡ Inappropriate touching ¡ Stalking, staring, leering ¡ Inappropriate gifts

Examples which are not “Harassment” ¡ Just being a jerk. ¡ Constantly complaining to other employees about your job and/or your personal life. ¡ Threatening to fire an employee for poor performance. ¡ Criticizing other employees for their behavior problems or work mistakes. ¡ Calling someone a “bitch. ”

3. Procedures

Why Supervisors Fail to Document ¡ It’s not my responsibility-they know if they are doing a good job. ¡ I am uncomfortable criticizing people. ¡ I am too busy. ¡ I have a good relationship with my employees & they wouldn’t sue me.

They Wouldn’t Sue Me. ¡ Both federal and state courts in Iowa allow plaintiffs to sue companies AND individual managers. ¡ Insurance companies may refuse to defend individual managers if he/she fails to take appropriate action.

Management Responsibilities ¡ Refraining from inappropriate behavior. ¡ Includes not only sexual, but also racial, ethnic and all other forms of unlawful harassment ¡ Key is inappropriateness, not illegality

Management Responsibilities ¡ Reporting all complaints to Human Resources, even if employee: ¡ ¡ Requests that nothing be done Asks for absolute confidentiality

Management Responsibilities ¡ Responding proactively to inappropriate behavior, even in the absence of a complaint. ¡ ¡ ¡ Silence equal tacit support Respond to complaint immediately Consult with Human Resources

Management Responsibilities ¡ Remedying inappropriate behavior by way of counseling and/or discipline and/or termination. ¡ ¡ Focus on inappropriateness, not illegality Consult with Human Resources

Management Responsibilities ¡ Refraining from unlawful retaliation. ¡ ¡ Applies not only to complainants but also to witnesses Covers not only tangible employment actions but also working environment

Supervisory Liability ¡ Failure to prevent ¡ Supervisor knew or should have known ¡ Failure to investigate properly

Employers Best Defense – Ellerth/Faragher

Typical Harassment Policy ¡ Harassment policies typically provide equal employment opportunities to employees and applicants in compliance with all applicable laws. They also prohibit discrimination, harassment and retaliation. ¡ These policies should prohibit all forms of harassment. ¡ These policies must include all protected classes. ¡ Policy should apply to all terms, conditions and privileges of employment. ¡ While management has the overall responsibility, the policy needs the assistance of employees. ¡ Any employee who witnesses or experiences conduct violating the policy needs to be told to promptly contact one of the individuals listed in the policy.

Investigating Employee Complaints ¡ It should be made clear that the employer will investigate complaints of alleged policy violations, which: ¡ ¡ ¡ Will be coordinated by HR and/or legal counsel; Will be prompt, both in terms of initiation and completion; Will be conducted by appropriate personnel; Will be thorough and complete; Will include analysis of relevant documentation if appropriate; Will include analysis of relevant physical evidence if appropriate; ¡ Will include interviews with relevant witnesses if appropriate; & ¡ Will be as discreet as possible.

Remedial Action ¡ If policy violations or inappropriate conduct occurred, appropriate discipline will be issued. ¡ The severity of the discipline depends on the circumstances. ¡ The goal of the discipline is to punish the accused and prevent future reoccurrences.

Retaliation ¡ No adverse employment action may be taken for engaging in protected activity, including participating in an investigation or reporting unlawful conduct

Avoiding Harassment ¡ Know the Harassment Policy ¡ Follow the Harassment Policy ¡ Enforce the Harassment Policy

4. Conclusion