AB 1825 Sexual Harassment TrainingSexual Harassment Training
Training Conducted by:Camille French,MBA,SPHR
HR Consulting Partner
Created by Camille French ASHR 2013
Agenda
The Law and the Regulatory Agencies
Harassment
Discrimination Discrimination
The Policy
The Manager’s Role
The Investigation Process
Created by Camille French ASHR 2013
WELCOME
• This class will be 2 hours in length
• A requirement of CA AB1825 is for the class to be interactive, so we will ask for your input and ideas, and we’ll ask review questions to participants and we’ll ask review questions to participants periodically throughout the presentation
• Feel free to ask your own questions throughout the training
Created by Camille French ASHR 2013
WELCOME
• Be aware of noise levels in the room, particularly if you have a group listening via speaker phone. Feel free to mute your phones.
• Please do not put your phone on hold during the • Please do not put your phone on hold during the presentation(unless it is muted) or the rest of the group may hear music/advertising that willdisrupt the training.
• Be prepared to un-mute your phones at times to answer questions or share your insights.
Created by Camille French ASHR 2013
WELCOME
This is a safe environment for questions
• All questions are welcome – there are no “dumb questions”
• To ensure confidentiality, either share information • To ensure confidentiality, either share information without naming names or discuss a hypothetical situation
• In our examples we refer to hypothetical scenarios or actual case law
• You may not agree with everything that is discussed, but the objective of this training (and your responsibility) is compliance with the law
Created by Camille French ASHR 2013
INTRODUCTIONS
Please share…
• Your name
• Your role within your organization
• Years of supervisory experience
• Something you would like to learn throughout the discussion
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Why are you here?
Assembly Bill 1825 became effective in January 2005
Added a provision to California’s Fair Employment Housing Act requiring employers to regularly provide anti-harassment training for supervisors consisting of “at least two hours of classroom or other effective “at least two hours of classroom or other effective interactive training.”
Created by Camille French ASHR 2013
Training purpose
To comply with the law.
To help employers change workplace behaviors that create or contribute to harassment
To develop and encourage a set of values in supervisors To develop and encourage a set of values in supervisors that will assist them in preventing and effectively responding to incidents of harassment.
Created by Camille French ASHR 2013
In the End You Will…….
Understand what comprises harassment
Understand who can be a victim of harassment
Be able to identify and address inappropriate behaviorsbehaviors
Know how to avoid illegal conduct
Know how to manage a harassment-free workplace
Know how to appropriately respond to a harassment complaint
Created by Camille French ASHR 2013
LEGAL DISCLAIMER
This training is intended to be informative and efforts have been made to provide accurate and timely information. However, the information provided is not intended to serve as legal advice, instead we will discuss good HR guidance.will discuss good HR guidance.
Created by Camille French ASHR 2013
BackgroundInformationInformation
Created by Camille French ASHR 2013
HISTORY
Federal agency enforcing federal laws that prohibit harassment, discrimination, and retaliation.
Equal Pay Act of 1963
Title VII of the Civil Rights Act of 1964 Pregnancy Discrimination Act (amended)
Lily Ledbetter Fair Pay Act of 2009 Lily Ledbetter Fair Pay Act of 2009
Age Discrimination in Employment Act of 1967
Americans with Disability Act of 1990
The Genetic Information Nondiscrimination Act of 2008
Created by Camille French ASHR 2013
Sexual Harassment Laws
AB 76 makes employers liable for any sexual harassment encountered by their employees in the workplace, including treatment by customers and vendors
AB 1825 requires California employers with 50 or more AB 1825 requires California employers with 50 or more employees to provide supervisors at least two hours of sexual harassment training every two years
Created by Camille French ASHR 2013
Who is a Supervisor?
According to the Equal Employment Opportunity Commission (EEOC), “an individual qualifies as an employee's supervisor if the individual has authority to undertake or recommend tangible employment decisions affecting the employee, or has authority to decisions affecting the employee, or has authority to direct the employee's daily work activities.”
Created by Camille French ASHR 2013
What does tangible mean?
Any event that results in “a significant change in employment status.”
Must have undesirable consequences for the employee.
Doesn’t mean everything that makes an employee Doesn’t mean everything that makes an employee unhappy.
Examples – disciplinary action, demotion or termination
Created by Camille French ASHR 2013
Federal Categories California CategoriesAge (40 and over) Age (40 and over)
National Origin National Origin (Including language restrictions)
Religious Creed Religion
Disability Mental Disability
Physical Disability (includes pregnancy, AIDS, HIV)
Pregnancy
Medical Condition (includes Medical Condition (includes genetic characteristics)
Race Race
Ancestry
Color
Sex Sex
Sexual Orientation
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What does SexualHarassment meanHarassment mean
to you?
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Sexual Harassment
Unwelcome sexual advances
Requests for sexual favors
And other verbal, visual or physical conduct of a sexual nature when: Submission to such conduct by an individual is made,
explicitly, or implicitly, a term or condition of employmentexplicitly, or implicitly, a term or condition of employment
Submission to or rejection of such conduct by an individual is used as the basis for an employment decision
Such conduct has the purpose or effect to interfere with an individual’s work performance or creates a hostile or intimidating environment
Created by Camille French ASHR 2013
Two Types of Protection
Federal Level – Title VII of the Civil Rights Act of 1964 –prohibits discrimination based on:
race
color
religion
national origin
gender/sex (including childbirth, and related conditions)
enforced by EEOC
Created by Camille French ASHR 2013
Laws Prohibiting Harassment
State Level – California Fair Employment and Housing Commission –prohibits: Harassment based on sex or of a sexual
nature Gender harassment Gender harassment
Harassment based on pregnancy, childbirth, or related medical condition
Includes many forms of offensive behavior, including harassment of a person of the same gender as the harasser
Created by Camille French ASHR 2013
Harassment is not just about sex! Race
Color
Religion Religion
National Origin
Gender
Disability
Age
Sexual OrientationCreated by Camille French ASHR 2013
New Rules in CA for 2012
AB 887 has redefined “Gender” to include a person’s:
Gender Identity – how an individual sees their gender
Gender Expression – person’s gender related appearance and behavior. Assigned sex at birth has no bearing.
Requires employers to allow employees to dress consistently with the employee’s gender identity and gender expression.
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What does SexDiscriminationDiscriminationmean to you?
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Sex Discrimination
Discrimination based on an individual’s gender.
Also includes:
Pregnancy, childbirth, or related medical condition
Woman’s desire to become pregnant Woman’s desire to become pregnant
Whether a woman has had an abortion
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Sex Discrimination
Equal Opportunity Laws prohibit discrimination based on sex.
Every employee has the right to be free from harassment discrimination that’s based on sex.harassment discrimination that’s based on sex.
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Types ofHarassmentHarassment
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Quid Pro Quo Harassment
Most blatant form of harassment Latin phrase meaning “this for that” Involves expressed or implied demands for
sexual favors in exchange for some benefit Promotion, pay increase, etc.
Or to avoid some detriment in the workplace Termination, demotion, etc.
By definition, it can be perpetrated only by someone in a position of power or authority over another manager or supervisor over a subordinate
Created by Camille French ASHR 2013
Hostile Environment
Hostile Environment is sexual or other discriminatory conduct that is so severe or pervasive that it interferes with an individual’s ability to perform their job;ability to perform their job;
Creates an intimidating, offensive, threatening or humiliating work environment;
Or causes a situation where a person’s psychological well-being is adversely affected.
It can be verbal, physical and even visual.
Created by Camille French ASHR 2013
Hostile Environment
Can be perpetrated by anyone in the work environment including a peer, supervisor, subordinate, vendor, customer or contractor.
Conduct must be:Unwelcome1. Unwelcome
2. Directed at protected category
3. Offensive to a reasonable person
4. Severe or pervasive
Created by Camille French ASHR 2013
What is Severe and Pervasive?
Severe
Sexual assault, rape
Grabbing, fondling, forcibly kissing
Acts of violence or severe intimidation based on ethnicity Acts of violence or severe intimidation based on ethnicity
Pervasive
Pattern of repeated conduct
Created by Camille French ASHR 2013
How do you know if it’s a Hostile Environment?
Reasonable Person Standard –Would a reasonable person find the conduct offensive?conduct offensive?
It doesn’t matter if: The person intended it to be funny
Others thought it was funny
The person complaining seemed to go along at the time
Created by Camille French ASHR 2013
Name that Harassment
A supervisor tells an employee in his department that she can have a raise if she sleeps with him.
Continuous sexual propositions to an employee even without directly tying the employee’s response to a without directly tying the employee’s response to a condition of employment.
Created by Camille French ASHR 2013
Name that Harassment
If an employee refuses a supervisor’s sexual advances which causes the supervisor to negatively alter the employee’s working hours.hours.
Constant use of sexually provocative or obscene language.
Physical touching? It Depends…….
Most physical touching claims are the kind that are obviously offensive in places that are obviously off limits.
Created by Camille French ASHR 2013
What do you see?
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What do you see?
Created by Camille French ASHR 2013
More Examples of Physical Harassment
Touching
Pinching
Patting
Grabbing Grabbing
Brushing against or poking an employee’s body
Hazing or initiation that involves a sexual component
Requiring an employee wear sexually suggestive clothing
Created by Camille French ASHR 2013
What do you see?
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Example of Verbal Harassment
Created by Camille French ASHR 2013
More Examples of Verbal Harassment Name-calling Belittling Sexually explicit or degrading words to describe an
individual Sexually explicit jokes Sexually explicit jokes Comments about an employee’s anatomy and/or
dress Sexually oriented noises or remarks Questions or comments about a person’s sexual
practices Use of patronizing terms or remarks Verbal abuse Graphic verbal commentaries about the body Cell phone ring tones
Created by Camille French ASHR 2013
What do you see?
Created by Camille French ASHR 2013
What do you see?
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More Examples of Visual Harassment Sexual pictures, writing, or objects Obscene letters or invitations Staring at an employee’s anatomy Leering Leering Doodling Sexually oriented gestures Mooning Unwanted love letters or notes Inappropriate emails and internet
usage
Created by Camille French ASHR 2013
Bullying in the Workplace
Harmful to employees experiencing it
Has a significant impact on the workplace
Affects morale, motivation, work performance and productivityproductivity
Can lead to higher absenteeism, health care costs and turnover
Most common bully – Supervisors, followed by co-workers.
Created by Camille French ASHR 2013
Bullying or Conflict:What’s the difference?
Conflict:
A disagreement that happens when people want different things
The people involved have equal power to solve the problem The people involved have equal power to solve the problem
They both want control or win the situation, but hurting each other is usually not the main goal
Bullying:
One has more perceived power
The intent is to hurt, control, embarrass or exclude the other
Often a repeated situation
Created by Camille French ASHR 2013
Forms of Bullying
Verbal
Spreading Rumors
Insults, embarrassment
Teasing
Physical
Cultural
Ethnicity, language
Cyber-Bullying
Text
Social Media Physical
Hitting, kicking, pushing
Taking/damaging belongings
Social
Exclusion
Gossip
Social Media
Created by Camille French ASHR 2013
When Bullying & Conflict Happens
At the incident
Step between and stop
Assess the situation
Conflict: Problem solve, mediate Conflict: Problem solve, mediate
Bullying: Report to HR department
Follow Up
With targeted, bullier, and bystanders
If you know about it, you are a part of it!
Created by Camille French ASHR 2013
How do you know ifthe behavior isthe behavior is
unwelcome?
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Unwelcome?
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How do you know it is unwelcome?
Employee complains
Verbal response (or lack thereof)
Expression changes
Body language Body language
Person appears to feel uncomfortable
Avoidance
Created by Camille French ASHR 2013
More examples of illegal sexual harassment
Unwanted intercourse
Kissing
Self-exposure
Questions/comments regarding an individual’s Questions/comments regarding an individual’s sexual fantasies, relationships, anatomy, fertility or appearance
Love letters
Displaying pornographic pictures, sexual devices, or explicit objects
Sexual comments, jokes, gestures and demeanor that are sexually derogatory, insulting, suggestive or obscene.
Created by Camille French ASHR 2013
Who are potential harassers? Supervisors
Peers
Subordinate
Vendor Vendor
Customer
Contractor
Clients
Neighbors
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Co-Worker Harassment
Co-workers can be just as guilty as supervisors
Employer can be just as liable if it knows or should have known about the harassment and failed to stop it
Created by Camille French ASHR 2013
Does it have to happen at work?
NO!
At work or away from the workplace
During work hours or off-duty
Employers are responsible for preventing sexual harassment of employees, no matter who is causing the problem or where it is occurring.
Created by Camille French ASHR 2013
Who is the “Victim?”
The victim can be the person who is the target of the behavior.
Or it can be a third party who is not the intended recipient of the behavior. This is a intended recipient of the behavior. This is a person who merely witnesses or overhears the behavior, and finds it offensive.
Third party complaints are actually fairly common, especially where two or three people frequently joke around with each other and are unaware, or just don’t care, how their behavior affects others.
Created by Camille French ASHR 2013
What do you see?
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What do you see?
Created by Camille French ASHR 2013
What do you see?
Created by Camille French ASHR 2013
What do you see?
Created by Camille French ASHR 2013
Which type of harassment?
Samuel is Melanie’s manager. They are working together on a project and Samuel has asked Melanie to dinner to discuss their work. After dinner, he says, “Perhaps if we collaborate well on this project, I can make things easier for you at your next evaluation” His tone of voice insinuates what he means by make things easier for you at your next evaluation” His tone of voice insinuates what he means by “collaborate.”
Created by Camille French ASHR 2013
Which type of harassment?
Julia heads to the mail room at a large insurance company. She is in charge of many new hires who are anxious to move ahead in the company. She is overheard by an employee saying to another, “Andre, why don’t we meet for drinks tonight to celebrate your new promotion.” Andre is overheard responding, why don’t we meet for drinks tonight to celebrate your new promotion.” Andre is overheard responding, “Dating the boss does have its advantages.”
Created by Camille French ASHR 2013
Which type of harassment?
Jamal works in a graphic arts department. He is the only man among many women. Every day the women in the office await the arrival of a very attractive delivery man. After he leaves, the women spend several minutes making suggestive attractive delivery man. After he leaves, the women spend several minutes making suggestive remarks and jokes about the man’s attractiveness. Jamal just rolls his eyes, but this daily ritual clearly makes him uncomfortable.
Created by Camille French ASHR 2013
Which type of harassment?
During a meeting with Carmelita, her boss says, “Why don’t you wear shorter skirts like those women lawyers on TV. You’re an attractive gal. I think if you showed your legs off a little, the customers would be happier and I’d be happier. A little dedication on your part and I’d be happier. A little dedication on your part could go a long way here.”
Created by Camille French ASHR 2013
What are theconsequences?consequences?
Created by Camille French ASHR 2013
Consequences of harassment.
Lose a lawsuit
Lose your job
Lose your spouse
Your employer can be held liable for your misconduct Your employer can be held liable for your misconduct
You can be held personally liable
Attorney’s fees
Created by Camille French ASHR 2013
Long lasting effects for employees . . .
Physical and emotional health
Poor performance
Lost work time
Possible medical expenses, workers compensation claims, Possible medical expenses, workers compensation claims, and lawsuits
Created by Camille French ASHR 2013
EEOC New ChargesFY 2009 FY 2010 FY 2011 FY 2012
Total Charges*
6654 7161 7166 7399
% of US Total 7.1% 7.2% 7.2% 7.4%
Race 2251 2239 2372 2299
% of US Total 6.7% 6.2% 6.7% 6.9%
% of CA Total 33.8% 31.3% 33.1% 31.1%% of CA Total 33.8% 31.3% 33.1% 31.1%
Sex 1893 1846 1926 2036
% of US Total 6.8% 6.4% 6.7% 6.7%
% of CA Total 28.4% 25.8% 26.9% 27.5%
Retaliation 2707 2939 3195 3406
% of US Total 8.1% 8.1% 8.6% 9.0%
% of CA Total 40.7% 41.0% 44.6% 46.0%* Number for total charges reflects the number of individual charge filings. Because individuals often file charges claiming the multiple types of discrimination, the number of total charges will be less than the total of the ten types listed on EEOC website.Created by Camille French ASHR 2013
EEOC Harassment Charges
FY 2010 FY 2011 FY 2012
Receipts 21,454 21,470 21,088
*Monetary Benefits (Millions) $86.5 $87.9 $82.1
* Does not include monetary benefits obtained through litigation.
Created by Camille French ASHR 2013
EEOC Sexual Harassment Charges
FY 2010 FY 2011 FY 2012
Receipts 7944 7809 7571
% of Males 16.2% 16.1% 17.8%
$41.2 $45.1 $43.0 *Monetary Benefits (Millions) $41.2 $45.1 $43.0
* Does not include monetary benefits obtained through litigation.
Created by Camille French ASHR 2013
Lawsuits
An average of 450 employment lawsuits are filed daily in the United States
California leads the nation in employment law claims
When sued, a company will lose the case more than 50% When sued, a company will lose the case more than 50% of the time
Created by Camille French ASHR 2013
Lawsuits
In 2010 the EEOC filed 250 new lawsuits, resolved 285 pending lawsuits.
In 2011 the EEOC filed 261 new lawsuits, resolved 276 pending lawsuits.pending lawsuits.
In 2012 the EEOC filed 122 new lawsuits, resolved 254 pending lawsuits.
Note: Suits filed and resolved in federal district courts. Many suits are brought on behalf of several individuals.
Created by Camille French ASHR 2013
What are the other costs?
Damaged reputation
Negative publicity (TV, radio, newspaper)
Difficulty recruiting employees
Low employee morale Low employee morale
Absenteeism
Turnover
Financial Burden
Created by Camille French ASHR 2013
Intent
Intent is not relevant in determining whether or not the behavior is sexual harassment
All that matters is the impact of the behavior on the work environment
The common excuses - Nobody else minded, I was only The common excuses - Nobody else minded, I was only joking, I talk that way to everyone, that’s just how I am – are not valid defenses of harassing behavior
Created by Camille French ASHR 2013
Who can be liable for Sexual Harassment?
EmployersAnd/orAnd/or
Supervisors
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Employer’s Liability
Employers are subject to vicarious liability and are automatically liable when an employee suffers a tangible employment action because of a supervisor’s conduct
Can be quid pro quo or hostile environment
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Supervisor liability
Any supervisor involved in harassment can be individually liable for monetary damages if: They engage in inappropriate conduct They fail to monitor inappropriate conduct They fail to respond to complaints
Only applies to California Fair Employment and Housing Act (FEHA)
Considered an agent of the organization and are held to a higher standard of behavior under the law
Created by Camille French ASHR 2013
Employer’s liability
Relationship of Relationship of Harasser to VictimHarasser to Victim
Type of HarassmentType of Harassment Employer’s LiabilityEmployer’s Liability
Supervisor to EmployeeSupervisor to Employee Tangible employment Tangible employment action (Quid Pro Quo)action (Quid Pro Quo)
Vicarious liabilityVicarious liability
Supervisor to EmployeeSupervisor to Employee Hostile environmentHostile environment Vicarious liability subject Vicarious liability subject to affirmative defenseto affirmative defense
Employee to EmployeeEmployee to Employee Hostile environmentHostile environment Liable if knew or should Liable if knew or should have known and failed have known and failed to actto act
Customer/Vendor to Customer/Vendor to EmployeeEmployee
Hostile environmentHostile environment Liable if knew or should Liable if knew or should have known and failed have known and failed to actto act
Created by Camille French ASHR 2013
Are there any defenses?
To raise a defense or avoid punitive damages in sexual harassment lawsuits, employers must show they have provided periodic sexual harassment training to supervisors.
Created by Camille French ASHR 2013
Are there any defenses?
If employee did not suffer a tangible employment action the employer can assert an affirmative defense
Must prove:
Exercised reasonable care to prevent and promptly correct Exercised reasonable care to prevent and promptly correct the harassment; and
Employee unreasonably failed to report the harassment or otherwise avoid harm
Created by Camille French ASHR 2013
Why don’t peoplecome forward?come forward?
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Why don’t people come forward?
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Why don’t people come forward?
Fear of retaliation
Fear of not being taken seriously
Hope that the conduct will stop
Fear of embarrassment or hurting the alleged harasser Fear of embarrassment or hurting the alleged harasser
Fear of being alienated by colleagues or supervisors
Created by Camille French ASHR 2013
When is it time toInvestigate?Investigate?
Created by Camille French ASHR 2013
When is it time to Investigate?
Whenever an internal complaint of harassment, discrimination, or retaliation is made (oral or written)
When the employer knows or “should know” of possible violations of the company’s policy against harassment violations of the company’s policy against harassment and discrimination
Created by Camille French ASHR 2013
When is it time to Investigate?
When an employee or supervisor talks to an individual in charge about a problem but continually stresses that they are not complaining
When major changes are observed in the workplace, When major changes are observed in the workplace, including new behavioral patterns, a sudden decrease in morale, productivity, or attendance
Created by Camille French ASHR 2013
When is it time to Investigate?
When an employer suspects there is any kind of misconduct
When an administrative agency begins to inquire into the conditions of the workplacethe conditions of the workplace
When notice of a lawsuit is received
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What should you doif an employeeif an employee
complains?
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Complaints
Respond immediately Take the complaint seriously Assess the complaint fairly and impartially Don’t promise confidentiality
Be supportive – try to put the employee at Be supportive – try to put the employee at ease
Show empathy and respect Get as much information as possible about
the time and place, actions, people, witnesses
Document, document, document!!! Report complaints to HR immediately
Created by Camille French ASHR 2013
Be prepared to discuss the issue
“Thank you for coming forward with this. I know it wasn’t easy for you.
I want you to know the company takes any and all harassment complaints very seriously, and we will start an investigation immediately. harassment complaints very seriously, and we will start an investigation immediately.
I’m going to elevate this to the HR Department. They will be contacting you to begin the investigation.
We will keep everything about this complaint as confidential as possible, and it would be best for you to keep this confidential throughout the investigation as well.”
Created by Camille French ASHR 2013
What should you say?
Employee “I have something I want to tell you but
you have to promise me you won’t tell anyone or do anything?”anyone or do anything?”
Supervisor “Before you start I need to tell you that I
want to help you. But, I’m required by law to investigate certain issues.”
Most of the time the employee will still tell you
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Tell the employee what happens next
The complaint will be taken seriously
A prompt investigation will be conducted
There will be no retaliation
Prompt disciplinary action will be taken if harassment is Prompt disciplinary action will be taken if harassment is found
Information about the results of the investigation will be conveyed at the conclusion
Created by Camille French ASHR 2013
Tell the employee what happens next
You’re not obligated to discuss the details of discipline with an employee who’s been victimized.
However, you should:
Make sure the victim understands repeat offenses will be Make sure the victim understands repeat offenses will be met with even more harsh discipline, including termination
Get the offender to acknowledge that he or she has acted inappropriately and will stop the offensive behavior immediately
Follow up on any commitments you make to toughen the punishment for repeat offenses
Created by Camille French ASHR 2013
Formal vs. Informal Investigation
While you should take all complaints of sexual harassment very seriously, not all complaints require a full-scale internal investigation.
Sometimes, problems can be resolved without a formal Sometimes, problems can be resolved without a formal investigation
Created by Camille French ASHR 2013
Formal vs. Informal Investigation
To determine if the complaint requires investigation, consider whether: The complaint is a question that has a fairly
simple answer, or whether it is a more complex problemproblem
It involves just this employee, or others as well
It stems from a single incident or a pattern of conduct
You need more facts than the employee is able to provide in order to reach a resolution
If you need more information, it is likely that the complaint requires a formal investigation
Created by Camille French ASHR 2013
Retaliation
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Retaliation
Retaliation is defined as an adverse action taken against an employee because he/she complained of harassment or discrimination
Adverse action includes demotion, discipline, termination, salary reduction, negative performance review, change in salary reduction, negative performance review, change in job duties or shift assignment
Created by Camille French ASHR 2013
Retaliation
Anti-discrimination laws prohibit employers from taking adverse action against employees for asserting their rights
When an employee complains of sexual harassment to you or others, you must not take any action that the you or others, you must not take any action that the employee may view as punishment or retaliation for filing the complaint
Created by Camille French ASHR 2013
Retaliation
Retaliation is forbidden!!!
By you
By the alleged harasser
By any other supervisor or coworker By any other supervisor or coworker
Against any person complaining of harassment or participating in an investigation
Against an innocent employee to punish another worker for complaining – provided the two employees have a close relationship
Created by Camille French ASHR 2013
Retaliation
To succeed in a retaliation claim, the employee must prove the following:
That he/she engaged in a protected activity, such as complaining of sexual harassment
That he/she suffered an adverse employment action, such as termination
That the protected activity and adverse action are linked
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Retaliation
For the first time ever complaints of retaliation surpassed race-based complaints as the most frequently filed charge with the EEOC.
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Retaliation
How can you avoid claims of retaliation? Document, document, document the reason
for any adverse employment action against an employee. Make sure the documentation shows no discriminatory reason for the adverse shows no discriminatory reason for the adverse action. Performance problems
Warnings
Complaints
Disciplinary actions
Demotions / Promotions
Transfers
Created by Camille French ASHR 2013
Retaliation
Remember – There’s no requirement to give special treatment to an employee who has filed a complaint.
Make sure any discipline taken matches the offense and is in line with how others have been handled for the is in line with how others have been handled for the same or similar offense
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Minimizing YourLegal ExposureLegal Exposure
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How do you minimize legal exposure?
“If you treat people with respect and dignity, always;
You’ll stay out of court, most likely.”You’ll stay out of court, most likely.”
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How do you minimize legal exposure?
Treat employees consistently Address complaints immediately Take prompt and appropriate action Maintain confidentiality when able to Maintain confidentiality when able to Conduct thorough investigation Use respectful terminology Treat others as you would want to be treated Remember, the accused is innocent unless
proven guilty (there are two sides to every story)
Created by Camille French ASHR 2013
How do you minimize legal exposure?
Have a written, published harassment policy
Include a clear procedure for filing a complaint
Make sure complainants understand that retaliation will not be toleratednot be tolerated
Train every new employee
Train all employees on a regular basis
Created by Camille French ASHR 2013
Common Mistakes
Treating the complaint more like a comment
Not documenting complaints or incidents
Not communicating how serious the issue is
Not taking action Not taking action
Not responding with a sense of urgency
Not correcting the problem
Created by Camille French ASHR 2013
Know your company policies
Review your company policies
Department of Fair Employment and Housing Act Brochure
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The role of HR
Once you elevate the complaint the HR Department will: Interview the complainant
Interview the alleged harasser
Interview co-workers / witnesses
Collect evidenceCollect evidence
Talk to people the alleged victim may have confided in about the harassment (friends, family, co-workers)
Evaluate
Take appropriate action
Report Findings
Created by Camille French ASHR 2013
You decide what to do
You’ve hired a new cashier, Melissa. She’s attractive and single. Your other day shift cashier, Mark, also single, has asked her out on a date. Should you intervene?
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You decide what to do
Melissa said no but Mark asked her out again. Still, no one is complaining. Is this harassment?
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You decide what to do
What if Mark is Melissa’s immediate supervisor? What changes?
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You decide what to do
Tom has been with you for four years. He’s a great cook and an asset to the organization with his outgoing personality. He affectionately calls the women in the restaurant his “girl” and will occasionally give one of them a hug. This seems the women in the restaurant his “girl” and will occasionally give one of them a hug. This seems to be a stress relief for everyone in the cramped workspace. The atmosphere actually improves when Tom is at work and everyone smiles. This isn’t a problem, is it?
Created by Camille French ASHR 2013
You decide what to do
Today, a young man came through the drive-through; Lisa, your new team member, rang up his order, he said something outrageous and threatened Lisa in a way that left her trembling after he was gone. He was only here a few minutes and you have never seen him before. Are a few minutes and you have never seen him before. Are you responsible for what happened?
Created by Camille French ASHR 2013
You decide what to do
Jack owns an 1960's airline themed restaurant,
and he requires the waiters to wear uniforms. He
requires men to dress like pilots, and women to
dress like female flight attendants. dress like female flight attendants.
One day, a waiter named Ethan announces that he
prefers to dress like a woman, and he demands to
wear a female flight attendant uniform.
How should Jack respond to Ethan's demand?
Created by Camille French ASHR 2013
Post TrainingAssessmentAssessment
Created by Camille French ASHR 2013
Using WhatYou’ve LearnedYou’ve Learned
Created by Camille French ASHR 2013
Using what you’ve learned
Your reaction is critical!!!1. Be alert! Monitor the workplace for offensive
behavior, signs, conversations, comments, and so on.
2. Investigate suspicious behavior and hostile interactions; don’t ignore problems.Investigate suspicious behavior and hostile interactions; don’t ignore problems.
3. Be available and accessible; let your employees know you welcome their comments.
4. Immediately take control of – and stop – offensive, harassing, or discriminatory misconduct.
5. Fix the problem, discipline wrongdoers, and protect victims from further harassment or retaliation.
Created by Camille French ASHR 2013
Using what you’ve learned
You’ll encourage a productive workplace if you:
Are fair and respectful
Act consistently
Make decisions based on merit Make decisions based on merit
Focus on workplace performance rather than personal characteristics
Follow established procedures
Created by Camille French ASHR 2013
Using what you’ve learned
Your behavior sets the tone for your workplace. Be a role model! Through your words and actions, make it clear:
You disapprove of harassment and discrimination
The organization is committed to a respectful workplace The organization is committed to a respectful workplace
Employees may object to misconduct without fear of retaliation
Created by Camille French ASHR 2013
Watch your P’s in the workplace
Professionalism
Politeness
Polish
Created by Camille French ASHR 2013
Professionalism
Conduct yourself as a professional at all times with clients and co-workers
Refrain from engaging in gossip or office politics
Address problems as they arise directly with the individuals involvedindividuals involved
Check your personal baggage at the door as you arrive to work each day
Dress appropriately for your position
Treat your co-workers with respect whether or not you personally like them
Walk away from negative talk about a co-worker, a boss, or the company
Created by Camille French ASHR 2013
Politeness
Respect the privacy of others – do not eavesdrop on conversations not meant for your ears
Show basic courtesy to co-workers through Show basic courtesy to co-workers through small gestures throughout the day
Use please and thank you regularly
Give every co-worker a simple hello each morning and goodbye each evening
Lend a helping hand to a co-worker when time allows even if it isn’t in your job description
Created by Camille French ASHR 2013
Polish
Refrain from using profanity
Refrain from sharing off-color jokes
Spend your spare moments at the office thinking about how to improve your own performance rather than how to improve your own performance rather than focusing on the performance of others
Find ways to expand your skills
Created by Camille French ASHR 2013
Tests for spotting harassment
Your child test
Would you act this way in front of your child?
Your parent test
Would you act this way in front of your parent? Would you act this way in front of your parent?
Newspaper test
Would you want to read about your behavior in the newspaper?
Created by Camille French ASHR 2013
Supervisor’s Action Plan
Have Zero Tolerance Supervisors have a responsibility to prevent sexual
harassment in the workplace. If you ignore behaviors and actions that could be considered sexual harassment, you are in effect condoning offensive conduct. When a supervisor is aware of the offensive conduct and fails to are in effect condoning offensive conduct. When a supervisor is aware of the offensive conduct and fails to act or investigate, the organization, as well as the manager, may be held liable in a court of law.
The bottom line – when you see or hear of any behavior that could be considered sexual harassment, you are responsible for getting rid of it. Zero tolerance.
Created by Camille French ASHR 2013
Supervisor’s Action Plan
Set a Good Example
As a business leader it is your responsibility to set the standard by not engaging in any sexually suggestive behavior. Employees look to leadership to let them know what is and is not acceptable in the workplace and have what is and is not acceptable in the workplace and have little tolerance for “do what I say, not what I do.”
Created by Camille French ASHR 2013
Supervisor’s Action Plan
Hear, Handle and Investigate all Complaints Failing to respond appropriately to a sexual harassment
complaint could cost you and the organization dearly. It complaint could cost you and the organization dearly. It has been shown that those organizations most successful at reducing or eliminating sexual harassment in the workplace frequently communicate guidelines for submitting a complaint to all employees. These organizations also respond in a timely manner to each complaint, investigate, and create solutions for resolving or eliminating offensive conduct.
Created by Camille French ASHR 2013
Supervisor’s Action Plan
Keep Harassment Claims Confidential
During a sexual harassment investigation, discuss the situation only with people who have an absolute need to know.
Created by Camille French ASHR 2013
Supervisor’s Action Plan
Educate Your Employees Using case studies, videos, and role plays can
help promote discussions and understanding. You can use these tools to help you communicate and can use these tools to help you communicate and clarify expectations of appropriate and inappropriate behavior, policies and guidelines. These tools can also help encourage employees to step forward when sexual harassment occurs and allow the organization to eliminate unlawful behavior in the workplace.
Created by Camille French ASHR 2013
Supervisor’s Action Plan
Educating Employees Again
Educating an employee once is not enough. Regardless of who the employee is within an organization, restating the organizational expectations, policies, and guidelines is recommended at least once a year.recommended at least once a year.
Created by Camille French ASHR 2013