Epidemic or Wake-up Call? Where Do We Go From Here?

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1 Epidemic or Wake-up Call? Where Do We Go From Here? Mary E. Funk Copyright

2 Why do people harass others? Means of expressing dominance or power Keep people in their place Impress others or to gain approval and fit in Bullying tactic HARASSMENT IS A MISUSE OF POWER 2

3 Statutes Prohibiting Discrimination Title VII of the Civil Rights Act of 1964 Age Discrimination in Employment Act of 1967 Americans with Disabilities Act of 1990 Genetic Information Nondiscrimination Act of 2008 Equal Pay Act Iowa Civil Rights Act Civil rights laws generally declare it an unlawful employment practice : To fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment; or to limit, segregate, or classify employees or applicants for employment in any way which would deprive or attempt to deprive any individual of employment opportunities or otherwise adversely affect an individual s status as an employee because of such individual's age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability 3

4 Harassment is Not Just About Sex Separate word on gender identity under the ICRC: July 1, 2007 Iowa Code defines gender identity as gender-related identity of a person regardless of the person s assigned sex at birth All Iowa workplaces and areas of public accommodations must allow pre-operative genetic males or females to use the restroom, locker room or other typically gender specific facilities, of their choice based on their gender identity and regardless of their external genitalia. 4

5 EEOC Proposed Enforcement Guidance on Harassment WHY the emphasis? Preventing systemic harassment has been one of EEOC's national enforcement priorities since Between , charges that include harassment increased from 25% to 30%. In 2015, the EEOC received 27,893 private sector harassment charges 5

6 WHAT are the Core Principles to prevent and address harassment: Committed and engaged leadership Consistent and demonstrated accountability Strong and comprehensive harassment policies Trusted and accessible complaint procedures Regular, interactive training tailored to the audience and organization Effective Harassment Training Guidance requires regular, interactive, comprehensive training for all employees. This should include: Descriptions of unlawful harassment Information about rights/responsibilities Explanation of complaint process Explanation of range of possible consequences for engaging in prohibited conduct Managers / Supervisors should receive additional training on how to prevent, identify, stop, report, and correct harassment and avoid retaliation 6

7 Why is training and understanding important? EEOC expects it (and society is demanding it). Impact on the work group in terms of distraction, reduced morale and lower performance/profitability. Impact on stock price and/or reputation if there is publicity around the claim. Impact on attracting and retaining the best employees given potential negative publicity of a claim. Financial cost to defend claim and pay for insurance. Individual (and Company) Costs Lost days More medical issues Poor self-esteem Prevents employees from thriving and doing their best Fosters negativity Higher turn-over 7

8 EEOC s Current Position Title VII protects against harassment based on sex stereotyping, sexual orientation, gender identity, genetic information, and pregnancy. May entertain non-traditional claims: Based on perceived membership in a protected class (even if the perception is incorrect); Associational harassment, based on individual s association with individuals who do not share their protected characteristics; Where the alleged harassment was not directed at the complainant; In instances where the alleged harassment occurred outside of the workplace. NO statutory or regulatory authority; up to enforcement by the courts. Has anything changed? 8

9 Discrimination vs. Harassment Discrimination: unfair or different treatment of an individual or class of individuals based solely on a characteristic with which they were born Unequal pay or benefits Harsher discipline or performance appraisals Least desirable shifts, hours or assignments Fewer chances Harassment: verbal or physical conduct by an employee which is unwelcome and harasses, disrupts, or interferes with another's work performance or creates an intimidating, offensive or hostile environment Harassment = a course of conduct, directed at someone, that causes emotional harm and serves no legitimate purpose 9

10 2 Kinds of Harassment: Quid Pro Quo Go along to get along or Put out or get out Hostile Work Environment Harassment must be: UNWELCOME SEVERE AND PERVASIVE 10

11 Harassment by third parties Examples with non-employees. A customer flirts constantly with a salesperson out in the field, making suggestive comments and asking inappropriate personal questions. A significant customer expects/demands certain behavior from staff when he comes in that may otherwise be inappropriate or demeaning, because he spends a lot of money with the business. The vendor who stocks your coffee and snack machines repeatedly makes offensive or graphic jokes in the company break room or at the front desk. 11

12 Duty to protect may include Terminating your business relationship with the harasser Confronting the harasser s boss or supervisor about the behavior Preventing the harasser from having contact with the employee Any measure taken must effectively shield your employee from further harm. How Do Employees Protect Themselves? Keep your hands to yourself. Don t talk about sex on the job. Never mix social life with job related discussions. Keep any compliments casual and fairly impersonal. Ask yourself whether you would make the comment in front of your spouse or grandmother. 12

13 Avoid jokes, words, phrases and gestures with sexual meaning. Respect a person s personal space. Do not respond to seductive or flirty behavior. Do not send or forward s you wouldn t want attributed to you in a newspaper. Respectful behavior facilitates more productive work environment. An effective anti-harassment policy 13

14 Components to a Comprehensive and Effective Policy: 1. State the company s commitment to a discrimination and harassment-free workplace 2. Explain what harassment is and provide specific examples 3. Describe harassment complaint system 4. Encourage reporting, even if unclear whether the harassment was unlawful 5. Statement that employer will provide prompt, impartial, and thorough investigation 6. Confidentiality regarding reports of harassment, to extent possible 7. Encourage participation in investigations 8. Confidentiality regarding investigation process, to extent possible 9. Assurance that harassment will be addressed 10. Prohibition against retaliation 14

15 What IS retaliation Conduct of an adverse or negative nature something that would dissuade someone from making a complaint Directed at a person because the person made a complaint or cooperated in some fashion in the investigation or the processing of a discrimination or harassment complaint, charge or lawsuit Serves no legitimate purpose with an intent to punish, intimidate, demean, deride Employees Who Complain About Harassment Cannot: Be transferred involuntarily or have action taken against them for refusing a transfer Have their title, job duties, hours, opportunities for advancement, salary or benefits reduced BUT they must still follow all company expectations regarding work performance and attendance this is NOT a get out of jail free card. Not everything that makes an employee unhappy is retaliation! 15

16 Cardinal rules to avoid retaliation complaints Notwithstanding the suit or charge, the employer must remain in control of the work environment Make decisions supported by objective information and based on data from objective sources Treat similarly-situated people the same and evenhandedly Make sure you have a legitimate business reason for enforcing a work rule or disciplining an employee DOCUMENT, DOCUMENT, DOCUMENT Involve other management personnel LISTEN The Harassment Complaint Company Must Take Prompt Remedial Action the options available to the employer, such as training, reassignment, written warnings and reprimands, or termination; with the focus on whether the actions end the harassment Confidential? Anonymous? Communication of Result 16

17 Indicators that an investigation was inadequate: Failure to interview the individuals accused of harassment; Failure to interview witnesses identified by the complainant; Failure to follow all the steps outlined in the employer s antiharassment policy and complaint procedure; Failure to make credibility determinations; Failure to conduct an investigation proportionate to the seriousness of the complaint. Increasingly High Standards and Exposure for Employers: Employers are being held to increasingly high standards regarding: The quality of policies and harassment prevention efforts The quality of investigations The promptness and adequacy of the response Making valid credibility determinations 17

18 Increasingly High Standards and Exposure for Employers: Failure to meet higher standards increases exposure exponentially if coupled with evidence of: Lost/destroyed or hidden evidence Insensitivity or arrogance by corporate witnesses Lack of experience by HR staff When to call in the experts? Sympathetic plaintiffs (financial issues, family problems or status, health issues) Failure to follow internal processes in a timely manner WHAT ABOUT BULLYING? Bullying is aggressive behavior that is intentional and that involves an imbalance of power. Most often, it is repeated over time. 18

19 The Numbers: 35% of Workers Feel Bullied at Work 16% Suffered Health Problems as a Result 17% Quit Their Jobs to Escape the Bullying Much of the complained of bullying is samesex bullying Women = 58% of the Perpetrator Pool Half of all reported bullying is woman-onwoman Bullying is psychological violence often misclassified as personality clashes 3x more prevalent than sexual harassment Source: CareerBuilder.com survey PPT Bullying Behavior Examples of obvious and aggressive behavior: abusive, insulting or offensive language behavior or language that frightens, humiliates, belittles or degrades, including criticism that is delivered with yelling and screaming regularly making someone the brunt of practical jokes displaying material that is degrading or offending spreading gossip, rumors and innuendo of a malicious nature mobbing A group of co-workers targeting another employee 19

20 Workplace bullying can also be subtle and may include behavior such as: Deliberately excluding, isolating, or marginalizing a person from normal workplace activities Intruding on a person s space by pestering, spying, or tampering with their personal effects or work equipment Intimidating a person through inappropriate personal comments, belittling opinions, or unjustified criticism Covert behavior that undermines or treats others less favorably could also be considered bullying: overloading a person with work setting timelines that are very difficult to achieve, or constantly changing deadlines setting tasks that are unreasonably beyond a person s ability ignoring or isolating a person deliberately denying access to information, consultation or resources unfair treatment in relation to accessing workplace entitlements, such as leave or training 20

21 Individual Responsibilities Personal Liability Supervisors or managers can be INDIVIDUALLY liable for harassment, assault and battery, failing to correct the problem, and creating a hostile work environment 21

22 Employer Liability EEOC Guidance: Employer liability depends on the basis of the total facts and circumstances of each case, including employer knowledge, corrective action, control, and other legal responsibility. An employer who condones or tolerates the creation of a hostile work environment should be held liable regardless of WHO created the hostile work environment, because the employer ultimately controls the conditions of the work environment. 43 Obligations of a Supervisor Ensure employees understand company s policy and what is prohibited conduct Lead by example do not condone inappropriate conduct Answer employees questions Refer them or report it to Human Resources Know the complaint procedure Maintain open lines of communication Keep accurate documentation Listen seriously to employees 22

23 Obligations of a Supervisor Cont d: Have eyes and ears open Keep it confidential, to the extent possible Make sure employees understand harassment is illegal even if exhibited by a client, family member or vendor Act immediately upon a report or a suspicion Enforce discipline, if necessary Cooperate in necessary investigations Publicly emphasize your commitment to provide a harassment-free workplace NEVER retaliate against a complainant or a witness Obligations of HR Be well-trained, objective and neutral Have authority, independence and resources required to receive, investigate and resolve complaints Take all questions, concerns and complaints seriously and respond promptly and appropriately Create an open door environment Follow stated policies Appropriately document every aspect and retain in correct locations Know when to call the experts 23

24 Questions? 24

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