SOUTH CAROLINA HUMAN AFFAIRS COMMISSION Presenting the...

SOUTH CAROLINA HUMAN AFFAIRS COMMISSION

Presenting the...

Declaration of Independence

“We hold these truths to be self-evident, that all men are created equal, that they

are endowed by their Creator with certain unalienable Rights, that among these are

Life, Liberty and the Pursuit of Happiness…”

1964 Civil Rights Act 1972 S.C. Human Affairs Law

Significant Anniversaries

Laws Enforced by the Human Affairs Commission

South Carolina Human Affairs Law

South Carolina Fair Housing Law

South Carolina Equal Enjoyment and Privileges to Public Accommodations

Federal Laws Prohibiting Discrimination

EEOC LAWS ENFORCEDTitle VII of the 1964 Civil Rights Act

Bans discrimination in employment because of race, color, religion, sex, or national origin.

Age Discrimination in Employment Act (ADEA) Makes unlawful employment discrimination because of age against anyone 40 years of age and older.

Pregnancy Discrimination Act Amends Title VII and states that employment discrimination is prohibited when based on pregnancy, childbirth, and related medical conditions.

The Americans with Disabilities Act (ADA) Prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments.

Preventing Harassment

Employers must be prepared to prevent harassment based on:

racecolor

national originreligion

sexage

disability

Harassment Basis

Sex

Same Sex

Gender

The “but for” theory

SEXUAL

ATTRACTION vs Positive Admiring Does not diminish Expression of

Sexuality Ceases when

Unwanted or Unwelcome

Negative Degrading Absent Respect for

Integrity of Another Escalates Abuse of Power not

Abuse of Passion

SEXUAL HARASSMENT

Sexual Harassmentjokes…innuendos…banter

INTENT

friendly, amiable, humorous

vs

EFFECT

insulted, embarrassed, demeaned

“Perspective of reasonable woman,

rather than reasonable person, is adopted primarily because of belief that sex-blind reasonable person standard tends to be male-biased and tends systematically to ignore experiences of women.”

- Ellison v. Brady- US Court of Appeals

UNWELCOMED

Elements of Harassment

Submission to conduct is made explicitly or implicitly a condition of an individual’s employment

Submission or rejection of the conduct is used as the basis for making employment decisions that affect the individual.

Such conduct has the purpose or the effect of unreasonably interfering with an individual’s work performance, or creating an intimidating, hostile , or offensive working environment.

Defense / Liability Courts have ruled that employers

are “vicariously liable” for harassment by supervisors.

However if the harassment did not result in a tangible job action, the employer can raise an affirmative defense that it exercised “reasonable care” to prevent and correct the harassment, and that the employee failed to use its complaint procedure.

Instead of marking out two areas -- a hostile environment or a non-hostile environment -- the courts mark out three areas:

Hostile Environment Environments that any reasonable fact-finder would

conclude are hostile

Environments that no reasonable fact-finder would conclude are hostile

Environments on which reasonable fact-finders would disagree

If your case falls in the third area, a broad area indeed, all you can know is that the result depends on the judge or jury you draw.

STEPS FOR ANALYZING HARASSMENT COMPLAINTS

BASED ON SEX ?

UNWELCOMED ?

UNREASONABLE ?

SEVERE OR PERVASIVE ?

Was It Or Wasn’t It Harassment ?

What does it mean ?

Severe Pervasive Offensive Unreasonable Abusive

Prevention

Train Provide for internal complaints Publicize efforts to prevent harassment Do not retaliate Publicize policy Be fair

ASK YOURSELF…. Would I make these comments to this person if my

spouse could overhear me?

Would I tell this joke or story to an employee if my Mother or Father could overhear me ?

Would I be comfortable if my behavior were published in the agency’s newsletter?

Is there equal participation?

Where is the line between flirtation and sexual harassment?

The Unemployment Line!

Do your part to prevent and eliminate

Sexual Harassment.

Thank you!

Presented by: Dan Koon

Division Director

SC Human Affairs Commission