Sexual Harassment Defenses in Hawaii How has #MeToo Impacted Hawaii and What You Can Do to Stay Out of the News. Kendra K. Kawai

Transcription

1 Sexual Harassment Defenses in Hawaii How has #MeToo Impacted Hawaii and What You Can Do to Stay Out of the News Kendra K. Kawai

2 The Origin of the #MeToo Campaign The Me Too campaign was originally started by Tarana Burke in 2007, well before hashtags existed Grass-roots movement was to reach sexual assault survivors in underprivileged communities Catchphrase was used from survivor to survivor to let others know that they were not alone Campaign turned into a hashtag after actress Alyssa Milano wrote a call-out on Twitter asking followers to share their stories of sexual harassment and assault using the phrase Me too

3 How has the recent #MeToo Movement impacted the workplace? Put a spotlight on the issue of sexual harassment Gave individuals the opportunity to speak out about their personal experiences Caused employers to take a fresh look at their anti-harassment training and policies and practices

4 Statistics on Sexual Harassment An estimated 1 in 4 American women report having experienced sexual harassment in the workplace, according to a 2016 report by an EEOC task force Number of sexual harassment complaints made to the EEOC and HCRC in Hawaiʻi has declined over the past 10 years, but sexual harassment is still an issue. EEOC (Honolulu office) The EEOC had 38 complaints in 2008, and 29 complaints in HCRC The Commission had 99 complaints in 2008, and 43 complaints in The national EEOC report found that most victims do not want to report workplace harassment. Instead, they might avoid the harasser; deny or downplay the gravity of the situation; or try to ignore, forget or endure the inappropriate behavior.

5 Recent Notable Story in the Media Joseph Souki Two-time State Speaker of the House (March 2018) First accused of inappropriate conduct by former Director of Human Services Rachael Wong Wong complained to the State Ethics Commission claiming abuse of power Alleged that he made inappropriate comments about her physical appearance and an inappropriate request for physical contact beyond the traditional greetings exchanged in Hawaiʻi Wong did not want any compensation or personal gain Under settlement agreement with the Ethics Commission, Souki agreed to resign, pay a fine and publicly apologize for his behavior.

6 Another Notable Recent Story Judge Alex Kozinski Former Chief Judge of the U.S. Court of Appeals for the 9 th Circuit and member of the Court for 32 years Allegedly called a law clerk into his office several times, pulled up pornography on his computer and asked her if she thought it was photoshopped or if it aroused her sexually Also told law clerk he had a chart with his friends listing the women whom they have had sexual relations Reportedly at least 15 women made allegations of unwanted sexual comments or physical contact Reason why law clerks/interns did not complain? New lawyers often count on recommendations from the judges to propel their careers One law clerk did not complain after discovering that the complaint would go to Kozinski himself then be referred elsewhere

7 Prevention is the Key Have clearly written anti-harassment policies Specify expected behaviors Examples of what constitutes sexual harassment or harassment based on a protected category Information on the complaint process Provide regular training for both employees and management

8 Recommendations on Training Training should be conducted by qualified, live, and interactive trainers Trainer should provide examples of unacceptable behavior in the workplace, or have individuals portray scenarios of such conduct, and then be able to answer such questions For management, training needs to teach them how to respond to a report or observance of harassment

9 Workplace Civility Training This type of training promotes respect and civility in the workplace generally Promoting civility and respect in a workplace may be a means of preventing conduct from rising to the level of unlawful harassment Focuses on the positive what employees and managers should do, rather than on what they should not do

10 Why Do We Have Policies Against Workplace Harassment? Workplace harassment law has expanded dramatically, expanding the scope of conduct covered and the recoveries that courts can award. Employers must prevent and correct workplace harassment, and an antiharassment policy is key to those efforts.

11 What is Workplace Harassment? Workplace harassment rises to an unlawful level whenever unwelcome conduct on the basis of gender or other legally protected status affects a person s job. Management has a responsibility to prevent and stop workplace harassment.

12 Management Needs to Understand their Role and Responsibilities under the Anti-Harassment Policy Maintaining a workplace free of discrimination and harassment Identifying and stopping behaviors that violate the policy Be professional at all times Understand the Complaint Procedure under the Policy Take Prompt and Appropriate Disciplinary Action to End the Harassment and Prevent Future Harassment Ensure no retaliation

13 Identifying and Stopping Behaviors that Violate the Anti-Harassment Policy

14 What Is Workplace Harassment? Legally Two Kinds: (1) Quid Pro Quo ( This for that ) Conditioning employment benefits on sexual favors This kind of sexual harassment can be committed only by someone who can take employment actions (such as firing, demotion, and denial of promotion).

15 (2) Hostile Work Environment A hostile environment can result from the gender-based or protected status unwelcome conduct of supervisors, co-workers, customers, vendors, or anyone else with whom the victim interacts with on the job.

16 Is It Really Harassment? Because the boundaries are so poorly marked, the best course of action is to avoid all conduct in the workplace that is potentially offensive on the basis of a person s protected status.

17 Hawaii Cases on Touching Arquero v. Hilton Hawaiian Village, LLC, 104 Hawaiʻi 423 (2004) One instance of grabbing of a co-worker s buttocks was severe Conduct appears to constitute sexual assault in the fourth degree Mariano v. Liberty Dialysis-Hawaii, LLC, 2013 U.S. Dist. LEXIS (D. Haw. 2/11/13) Plaintiff alleged that she was touched by a patient on her shoulder and back many times. District court said that these acts did not rise to the severe or pervasive level required to maintain a claim under state law.

18 Be Professional At All Times Applies to everyone, but it starts at the top Remind management that they are a role model Management is held to a higher standard as an authority figure Your employees look up to management and may use their behavior as a guide of what is permissible

19 Complaint Procedure Provide employees with multiple avenues to report unlawful discrimination and/or harassment Why? Because the alleged harasser could be the employee s supervisor or a member of management

20 Take all complaints seriously. Don t fail to act simply because the person telling you about the conduct asks you not to do anything. Don t fail to act simply because the person telling you about the conduct won t sign a written statement. Don t fail to act simply because you don t think the conduct sounds bad.

21 Take Prompt, Appropriate Remedial Disciplinary Action: 1) Temporary remediation separate harasser from victim; 2) Permanent fix reasonable calculated to end future harassment ; 3) Warn further violation could lead to termination; and 4) Ensure consistent application of discipline.

22 Gauging the Appropriate Discipline Discipline, if imposed, needs to end the harassment Warn employee that any further harassment could result in further discipline, including termination Need to be consistent Should consult with Human Resources before imposing discipline

23 No Retaliation The Company s policy prohibits retaliation against any employee who: Uses the complaint procedure under the Company s policy; Reports unlawful discrimination and/or harassment; or Files, testifies, assists or participates in any manner in any investigation, proceeding or hearing conducted by the Company or governmental enforcement agency.

24 Liability Issues Employer Liability (1) Harassment by a Supervisor Federal Law Strict liability where tangible employment action has been taken State law Strict Liability with no affirmative defense (2) Co-Employee Harassment Employer liable if it knew or should have known about the harassment and failed to take steps reasonably calculated to end the harassment. HAR (d). Individual Liability Aiding and Abetting under HRS 378-2(a)(3) Sirois v. East West Partners, Inc., 2018 U.S. Dist. LEXIS 2575 (D. Haw. Jan. 5, 2018) failure to investigate or impose remedial action could be seen as benefiting not only the alleged harasser but the company generally, and thus, support an aiding and abetting claim.

25 What damages can an employee potentially recover at trial? Federal law Compensatory and punitive damages up to $300,000 Attorney s fees and costs State law Back pay, compensatory damages and unlimited punitive damages Attorney s fees and costs

26 Mahalo! Kendra K. Kawai