Now More Than Ever: Harassment Prevention in the #MeToo Workplace

Transcription

1 Now More Than Ever: Harassment Prevention in the #MeToo Workplace presented by Michael S. Cohen, Esq. ***Not THAT Michael Cohen Duane Morris LLP (215) ; *Statements made in this seminar or in the written materials/powerpoint should not be construed as legal advice pertaining to specific factual situations Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris Firm Offices New York London Singapore Philadelphia Chicago Washington, D.C. San Francisco Silicon Valley San Diego Los Angeles Taiwan Boston Houston Austin Hanoi Ho Chi Minh City Shanghai Atlanta Baltimore Wilmington Miami Boca Raton Pittsburgh Newark Las Vegas Cherry Hill Lake Tahoe Myanmar Oman Duane Morris Affiliate Offices Mexico City Sri Lanka Duane Morris LLP A Delaware limited liability partnership DM2\

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3 Forcing her to have sex Sexual misconduct Rape Jokes about the appearance of women Violently threw woman against window and attempted to kiss her Sexual harassment Boasting of sexual conquests Generally abusive behavior Innocent meetings or interviews turned sexual in nature Asking humiliating personal questions Sexual assault Summoned her to his office, locked the door and sexually assaulted her Groping female acquaintances and walking around naked in their presence Inappropriate behavior Unwanted physical contact Masturbation in front of employees 2

4 The Current Climate 1. EEOC Select Task Force 2. Impact of social media a. Creates claims b. Publication of claims 3. Media focus and investigative reporting 4. High profile a. Industries b. But, not just high profile 3

5 The Current Climate 5. Proposed congressional overhaul of sexual harassment guidelines and investigation procedures 6. These issues are not new to but a. The power dynamic that exists in many organizations make us susceptible 4

6 Organizational Response 1. EEO Policy a. Revise to Reflect 2018 Realities *** Will discuss further 2. Training a. No longer sufficient to train only managers and supervisors 3. Commitment of Senior Leadership a. Prevention b. Prompt inquiry and response c. Non-Retaliation 5

7 Legal Background 1. Why important to act a. Legal i. Cost ii. Individual liability b. Fairness c. Productivity d. Public/customer/client/employee relations e. #metoo ***Power dynamic inherent to many organizations 6

8 Legal Background 2. Two types of unlawful harassment a. Quid pro quo i. Always based on sex ii. But why does it really happen? b. Hostile work environment i. Based on any protected group ii. What is not HWE? iii. Yelling as management tactic 7

9 Legal Background 3. Examples of protected groups under federal, state and/or local law Age Citizenship Disability/handicap (physical or emotional) Gender Identity or Expression Genetic Information Marital/Family Status National Origin/Ancestry Pregnancy Protected Complaints Protected Leave Race/Color Religion/Creed Sex Sexual Orientation Veteran s Status/Military Status 8

10 10 Mistakes We re Making in Acknowledging non-defenses as real a. Focus on intent b. Not directed at anyone c. Just a joke d. Just how he/she is e. Equal opportunity offender f. Very important person g. Unacceptable conduct not unlawful i. Not focus on harassment/discrimination ii. Focus during investigations 9

11 10 Mistakes We re Making in Assumption of knowledge of what others are thinking a. Worked together long time b. Friends c. External factors impacting perceptions/sensitivities d. Situations change instantly e. Touching f. In-work vs. Out-of-Work i. Strike zone ii. Times never touch 10

12 10 Mistakes We re Making in No one complained so I didn t do anything a. Obligation to respond, proactively b. Silence equals tacit support c. Condoning or complicity d. HR MUST be consulted 11

13 10 Mistakes We re Making in Inaction when a complaint includes request for inaction a. All complaints of harassment, discrimination, retaliation, or other inappropriate conduct based on protected class to HR i. Duty to investigate ii. Why managers don t investigate b. Talking as a friend c. Don t want you to do anything d. Keep off the record 12

14 10 Mistakes We re Making in Supervisors/Managers not taking corrective action a. I don t like conflict b. If I ignore it, it will go away c. I m not sure what to do d. I don t have time e. I m not sure when to intervene 13

15 10 Mistakes We re Making in Not paying sufficient attention to non-verbal communications a. Electronic i. ii. Text iii. Social media b. Physical i. Elevator eyes ii. Staring intently iii. Following someone 14

16 10 Mistakes We re Making in Ignoring non-sex protected classes a. HWE any protected class b. Examples of inappropriate conduct i. Disability ii. Language iii. References to pop culture 15

17 10 Mistakes We re Making in Not investigating when it s required a. Investigate if: i. Employee brings complaint directly to HR ii. Manager/supervisor reports (as required) a complaint made to him or her by employee iii. Employee reports complaint by co-worker iv. Anonymous complaint capable of investigation v. Constructive discharge allegations vi. Complaint upon involuntary termination vii. Complaint filed with administrative agency 16

18 10 Mistakes We re Making in Ignoring Potential Backlash of #MeToo Movement a. Avoid employees of opposite (or same) sex to avoid sexual harassment claims? b. Avoidance may be unlawful discrimination, and it is always bad business (antithetical to inclusion) c. Examples: i. Office doors ii. Dinners iii. Travel iv. Mentoring 17

19 10 Mistakes We re Making in Failure to Train a. Managers i. Practical ii. Required by law in increasing number of jurisdictions b. Non-managers i. Fairness ii. Co-worker to co-worker iii. By-stander responsibility 18

20 Equal Employment Opportunity (EEO) Policy 1. Policy against discrimination alone is insufficient 2. Need a policy (or policies) specific to harassment a. Sexual harassment b. Other kinds of unlawful harassment (race, ethnicity, age, disability, sexual orientation, religion, etc.) 3. Include practical, customized examples a. Focus on inappropriateness (not illegality) b. Include both obvious and less obvious types of conduct c. Reference other kinds of harassment too! 19

21 EEO Policy 4. Make clear EEO Policy applies to: a. Electronic communications (e.g., , texts, social media) b. Offsite conduct (e.g., work-related meetings, travel, social events) c. Non-employees with whom employees work as part of their jobs (e.g., clients, vendors, board members) 20

22 EEO Policy 5. No Retaliation Pledge a. Who is covered/protected activity i. Complainants ii. Witnesses iii. Other participants in the investigation iv. Association (e.g., fiancé, spouse or family member) 21

23 EEO Policy 5. No Retaliation Pledge (continued) b. What is prohibited conduct that dissuades a worker from complaining i. Adverse tangible employment action ii. Material changes to terms and conditions of employment iii. Other forms of reprisal, such as ostracizing, badmouthing outside workplace, etc. c. Lack of legal merit of complaint is not a defense; generally speaking, if individual acts in good faith, protected from retaliation 22

24 EEO Policy 6. Complaint Procedure a. Informal i. If employee feels comfortable doing so, employee may, but is not required, talk directly with the individual b. Formal complaint procedure always available to if: i. Employee does not feel comfortable confronting directly ii. If employee believes informal approach was ineffective 23

25 Thank You! Please follow me on 2018 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris Firm Offices New York London Singapore Philadelphia Chicago Washington, D.C. San Francisco Silicon Valley San Diego Los Angeles Taiwan Boston Houston Austin Hanoi Ho Chi Minh City Shanghai Atlanta Baltimore Wilmington Miami Boca Raton Pittsburgh Newark Las Vegas Cherry Hill Lake Tahoe Myanmar Oman Duane Morris Affiliate Offices Mexico City Sri Lanka Duane Morris LLP A Delaware limited liability partnership 24

26 Michael S. Cohen Partner Duane Morris LLP 30 South 17th Street Philadelphia, PA USA Phone: Fax: Michael S. Cohen concentrates his practice in the areas of employment law training and counseling. Mr. Cohen has trained and counseled employers throughout the country on subjects including harassment prevention; workplace diversity; discipline and discharge; hiring and recruiting practices; performance evaluations; FMLA, ADA and FLSA compliance; leave of absence policies; performance management; workplace privacy; sexual orientation and gender identity in the workplace; substance abuse testing; workplace violence; records retention; conducting background checks; teens in the workplace and managing attendance problems. He has conducted trainings for executives, directors, managers, supervisors and employees in many industries, including financial services, healthcare, pharmaceutical, manufacturing, retail, real estate development, law firms and human services. Mr. Cohen also has conducted trainings for executives, deans and faculty in several institutions of higher education and secondary education. He has conducted more than 150 trainings in the last year. Mr. Cohen has conducted investigations into claims of harassment and discrimination and has drafted employee handbooks, employment agreements, non compete agreements and post termination agreements. He has represented clients throughout the country in EEO and other administrative proceedings. Mr. Cohen has been cited as a national authority on employment issues by The New York Times, The Associated Press, USA Today, MSNBC.com, The New York Daily News, New York Newsday, The San Francisco Chronicle, Law National, Law.com, HR Magazine, HR Executive Magazine, HR Executive Online, SHRM On Line, Employment Law 360, Inside Counsel Magazine, What's Working in Human Resources, Workforce Management Magazine, Human Rights Campaign On Line, Yahoo! Sports, The Sporting News, The Newark Star Ledger, The Houston Chronicle, The New Orleans Times Picayune, The Pittsburgh Tribune Review, The Syracuse Post Standard, The Ann Arbor News, The Harrisburg Patriot News, The Mobile Press Register, The Flint Journal, The Desert Sun, The Courier Post, The Honolulu Advertiser, The Stamford Advocate, The Huntsville Times, AM New York, The Workplace Substance Abuse Advisor, Legal Issues in Collegiate Athletics, Talent Management, BusinessInsurance.com, AZcentral.com, Fort Worth Star Telegram, Honolulu Star Bulletin, The Columbus Dispatch, The Myrtle Beach Sun News, Richmond Times Dispatch, Detroit News and Business & Legal Reports, Inc. Mr. Cohen is a 1997 magna cum laude graduate of Temple University Beasley School of Law and a cum laude graduate of the University of Pennsylvania. 2. Admissions Pennsylvania; New Jersey 3. Education a. Temple University Beasley School of Law, J.D., magna cum laude, 1997 b. University of Pennsylvania, B.A., cum laude, Selected Speaking Engagements a. "Dear Helga Returns (Again) With New and More Complicated HR Problems: 5 th Anniversary Edition Top 5 Lists!" SHRM Annual Conference, New Orleans, LA, June 19, 2017 b. "Time to Go Back to School Handbook Updates for 2017," "Dear Helga Returns With More and Complicated HR Problems," Association of Legal Administrators Regional Legal Management Conferences, Las Vegas, NV, Nashville, TN, September 8, 2017, October 13, 2017 c. "Managing Diversity and Inclusion: Religion and LGBTQIssuesinthe Workplace," "Five Ways to EnhanceYour Hiring Process," Association of Legal Administrators Human Resources d. "A Practical Look at Updating Your Handbook: Change with the Laws," "Dear Helga Returns (AGAIN) with New and More Complicated HR Problems," SHRM Annual Conference, Washington, DC, June 19 20,2016 e. "The Minefields of All Minefields Wage and Hour Issues in Law Firms," "Embracing Diversity by Preventing Harassment," Association of Legal Administrators Business of Law Conferences, New Orleans, LA; Atlanta, GA, Las Vegas, NV, September October, 2015 f. Speaker, "Devaluing Diversity" and "Creating an LGBTQ Friendly Work Environment," SHRM Diversity Conference, Boston, Massachusetts, October 26 27, 2015 g. Speaker, "Dear Helga Returns (Again) With New And More Complicated HR Problems," SHRM Annual Conference, Las Vegas, Nevada, June 29, 2015 h. Speaker, "Human Resources 101," Association of Legal Administrators Annual Conference, Toronto, Ontario Canada, April 20, 2014 i. Speaker, "Motivating Employees in the New Economy," Association of Legal Administrators Annual Conference, Toronto, Ontario Canada, April 20, 2014 j. Speaker, "Background Checks Criminal, Credit and Social Media," SHRM National Legislative and Employment Law Conference, Washington, DC, March 17, 2014 k. Speaker, "Helga s Back And You re Never Going To Believe What Her Employees Did This Time," and "Creating on LGBT Friendly Workplace," SHRM Annual Conference, Orlando, Florida, June 24 25, 2014 l. Speaker, "HR 101: Basic Training," "HR 201: Inspire, Motivate and Achieve Results," and "HR 301: Mission Possible Conducting Internal Investigations," Association of Legal Administrators Annual Conference, Toronto, Ontario, May 20 21,2014 m. Speaker, "Background Checks Criminal, Credit and Social Media," SHRM Employment Law and Legislative Conference, Washington, D.C., March 17, 2014 n. Speaker, "Dear Helga: You re Never Going To Believe What My Employee Did" and "Time To Go Back To School Updating Your Employee Handbook," SHRM Annual Conference, June 16 17, 2013, Chicago, Illinois o. Speaker, "What s Your Site Social Media in Hiring" and "Documenting Performance Yes It Does Matter," SHRM Talent Management Conference, May 16 17, 2012, Las Vegas, Nevada p. Speaker, "Out of the Closet and Into Your Workplace Sexual Orientation and Gender Identity" and "Background Checks The Law Has Changed," Lehigh Valley SHRM Annual Conference, October 5 6,2012,Bethlehem, Pennsylvania q. Speaker, "Time to Go Back to School Updating Your Employee Handbook" and "The ABCs of the FMLA and ADA." Association of Legal Administrators National Conference, May 24 25, 2011, Orlando, Florida (#1 Rated Speaker at Conference) r. Speaker, "Get Ready to Hire Again" and "Diversity and the Law," Association of Legal Administrators National Conference, May 4 5, 2012, Boston, Massachusetts (#1 Rated Speaker at Conference)