Sexual Harassment for the HR Professional

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1 Sexual Harassment for the HR Professional We highly recommend that you download the slides prior to the webinar at (case sensitive) Don Phin, Esq. VP, Strategic Business Solutions

2 This session is being recorded. Download the slides at You will receive a link to the recording after the webinar. We will provide the HRCI code at the end of the webinar. Questions will be answered within 72 hours.

3 Sexual harassment law Creating a sexual harassment prevention program Investigations Questions and answers

4 Poll How confident are you in your ability to prevent sexual harassment claims at your company?

5 1 Sexual harassment law

6 Sexual harassment law 1964 Civil Rights Act Companies with 15+ employees or if engaged in interstate commerce EEOC Regulations Define sexual harassment and identify it as a form of sex discrimination Vinson v. Merit One Bank Supreme Court ruling that sexual harassment can be sex discrimination prohibited by Title VII of the Civil Rights Act of 1964

7 Sexual harassment violations Unwelcome sexual advances Offering employment benefits in exchange for sexual favors (quid pro quo, meaning this for that ) Making or threatening reprisals after a negative response to sexual advances Visual conduct: leering, sexual gestures, displaying of suggestive objects or pictures, cartoon or posters Verbal abuse: derogatory comments, epithets, slurs, and jokes Physical: touching, blocking, assault

8 It s about power Strength=Power Resources=Power Knowledge=Power

9 It s about the laws of attraction

10 It s about perception Men are from Mars, women are from Venus Funny to you, insulting to me Respect differences

11 It s about not getting it Some just don t get it or want to get it!

12 Provocation and consent Behavior Dress Speech

13 Defense that won t work Boys will be boys I didn t mean anything by it She asked for it

14 Employer liability direct harassment Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton (1998) the Supreme Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors. If the harasser is in some kind of superior position in the company compared to the victim of the harassment, and a tangible job action occurs that is unfavorable for the employee, there is no way for the company to escape liability, even if it did not know of the harassment and had no way of knowing about it.

15 Employer liability direct harassment If no tangible action is taken, the employer may avoid liability or limit damages if: the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

16 2 Creating a sexual harassment prevention program

17 Prevention strategies Comply with posting and handout requirements Educate and train on policies and law Find out if there is a problem Conduct a prompt and thorough investigation Take remedial action Seek professional advice

18 The company policy Inform employees of the law Inform employees of their rights to complain internally and externally to EEOC or state agency Alternate reporting channels, including third party hotlines Zero tolerance language Required to report

19 The culture of silence It s not my job. I don t know what to do. I am afraid.

20 The employee compliance survey

21 Poll Do you conduct sexual harassment training?

22 3 Investigations

23 Poll Have you ever had to conduct a sexual harassment investigation?

24 Investigations Prompt and thorough Limitations on victim behavior Facts, documents and witnesses Get it in writing Watch confidentiality Witnesses and the NLRA Safe environment

25 Employee complaint form

26 Investigation checklist

27 Taking action If harassment is proven, there must be prompt and effective remedial action. Inform the parties, stop the conduct and remedy any losses. Make the discipline fit the crime. Is it systemic? Is additional training needed?

28 Prevent retaliation Retaliation is the fastest growing claim Guard against negative filters Use an ombudsperson

29 EPLI policies

30 Working with lawyers

31 Conclusion Send a message from the top Train everyone Break past the culture of silence Investigate and take action Discipline appropriately

32 4 Questions and ThinkHR support

33 Accessing Your ThinkHR Resources Sign in Thinkhr.com or your broker s custom URL Contact the ThinkHR Live team or via the ThinkHR Workplace Don Phin

34 HRCI and Future Webinars HRCI Code Future Webinars Understanding the NLRB s New Agenda and How It Affects Non-Union Employers (1 HRCI credit) Steve Schuster of Constangy, Brooks, Smith & Prophete Wednesday, May 13 at 8:30 a.m. Pacific What Employers Need to Know about the Final ACA Reporting Forms (1 HRCI credit) Thursday, May 7 at 8:30 a.m. Pacific

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