Sexual Harassment in the Workplace December 14, 2017 Baird Holm, Omaha, NE
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Workplace Harassment Kelli P. Lieurance Sara A. McCue Background Workplace harassment remains persistent problem Too often goes unreported Compelling business case for stopping and preventing harassment EEOC Statistics FY 2016 28,216 harassment complaints 7.9% settled for $125.5 million (this does not count cases which bypassed the EEOC and went to court) 64.8% were found to have no merit 16.6% of sex harassment claims filed by men 2017 Baird Holm LLP 1
Charges Alleging Sexual Harassment FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 Receipts 7,944 7,809 7,571 7,256 6,862 6,822 6,758 Goals Consider the laws that prohibit harassment in the workplace Recognize specific forms of harassment Know who can be accused of harassment and who can experience it Understand what employers can and should do Understand when harassment can occur Discuss recent caselaw regarding harassment RELEVANT LAWS 2017 Baird Holm LLP 2
What Is Harassment? Title VII Title VII prohibits discrimination in employment based on race, color, religion, sex, or national origin The courts have interpreted discrimination to include harassment Age Discrimination in Employment Act protects individuals who are 40 years of age or older What Is Harassment? Americans with Disabilities Act, prohibits discrimination against qualified individuals with disabilities Genetic Information Nondiscrimination Act, prohibits discrimination based on genetic information, including family medical history What Is Harassment? Conduct with purpose or effect of interfering with work on bases of race, sex, disability, religion, age, national origin or color In the sexual harassment context Unwelcome sexual advances or requests for sexual favors, or verbal or physical conduct of a sexual nature constitutes sexual harassment 2017 Baird Holm LLP 3
Retaliation Prohibited May not discriminate against employee because he/she Opposed discrimination; or Participated in charge, investigation or hearing Any action that might have dissuaded a reasonable worker from making or supporting a charge of discrimination WHAT IS HARASSMENT? What Constitutes Workplace Harassment? Sexual harassment includes the direct quid pro quo variety, where one employee (typically a manager) offers some job-related benefit in exchange for sexual-related favors 2017 Baird Holm LLP 4
What Constitutes Workplace Harassment? All categories of harassment--sexual, racial, age, etc.--include the hostile environment variety What Constitutes Workplace Harassment? Hostile environment harassment includes: Any conduct which has the purpose or effect of unreasonably interfering with an individual s work performance or creating an intimidating, hostile, or offensive working environment Harassing conduct is viewed from the perspective of a reasonable person in the position of the victim What Constitutes Workplace Harassment? Harassment can take many forms: Physical touching, grabbing, caressing Staring, leering, taunting Pictures, cartoons, pornography Unrelenting requests for dates, letters, calls/stalking 2017 Baird Holm LLP 5
What Constitutes Workplace Harassment? Potentially, any jokes based on sex, race, color, national origin, disability, religion, or age, regardless of who s going along, if the purpose or effect may be to intimidate, embarrass, or denigrate on one of these bases What Constitutes Workplace Harassment? Hostile Work Environment Severe and pervasive conduct Unreasonable interference with job performance Offensive, intimidating, hostile work environment Unwelcome Can be created by anyone in the workplace WHO CAN COMMIT HARASSMENT? 2017 Baird Holm LLP 6
Who Can Commit Harassment? Supervisors Subordinates Co-workers Clients/Customers/Vendors/Visitors Students Who Can Experience Harassment? Direct targets of harassment Bystanders/Witnesses to harassment Employees Men/Women Managers What Are Negative Consequences of Harassment? Impact on the victim Creates uncomfortable work environment Harms physical health Harms psychological health Adversely effects job performance Lowers job satisfaction 2017 Baird Holm LLP 7
What Are Negative Consequences of Harassment? Impact on the employer Reduces productivity and profitability Creates unprofessional work environment Wastes significant resources What Are Negative Consequences of Harassment? Impact on the harasser Harms professional reputation Harms personal reputation Jeopardizes employment status Leads to other negative personal consequences (including liability) SUPERVISORS AND NON- SUPERVISORS 2017 Baird Holm LLP 8
Supervisory vs. Non- Supervisory Harassment Harassment by non-supervisors (coworkers, customers, vendors) Employee has the burden of proof Standard: Employer knew or should have known of the harassment and failed to take prompt, effective remedial action Supervisory vs. Non-Supervisory Harassment Harassment by supervisors: Under Supreme Court standards, harassment by supervisors is more serious than ever If supervisor harassment involves any tangible job detriment (discharge, demotion, reassignment, etc.) there is NO DEFENSE the employer is liable Supervisory vs. Non- Supervisory Harassment In all other cases of harassment by supervisors, (where there is no tangible job detriment), the employer can defend itself by proving: It used reasonable care to prevent and promptly correct any harassing behavior, and The employee unreasonably failed to use the means available to correct/prevent harassment 2017 Baird Holm LLP 9
Supervisory vs. Non- Supervisory Harassment It is therefore CRITICAL that every supervisor accept and openly support the employer s anti-harassment policies WHAT SHOULD EMPLOYERS DO? What should employers do? Train your managers (and your employees too)! Crawford v. BNSF Ry. Co. (8 th Cir. 2012) 2017 Baird Holm LLP 10
What should employers do? Crawford v. BNSF Ry. Co. (8 th Cir. 2012): Takeaway: company s comprehensive anti-harassment policy and its prompt and effective response when notified about the supervisor s conduct = affirmative defense What should employers do? Make all management decisions without regard to race, color, religion, age, sex, national origin or disability embrace the principle of equal opportunity employment Be aware of workplace relationships and conduct and monitor for potential problems Be proactive and intervene early when potential problems develop What should employers do? Exhibit the type of behavior which is expected of all employees be a role model Be available to employees at all times to discuss and resolve problems and concerns Take all complaints and reports of harassment seriously, and promptly notify Human Resources of all complaints and reports 2017 Baird Holm LLP 11
LEGAL REMEDIES Legal Remedies Remedies File a complaint with the U.S. Equal Employment Opportunity Commission (EEOC)/State Agency (NEOC)/Local Agency Agency conducts an investigation of complaint Legal Remedies Administrative Outcomes Conciliation No Reasonable Cause Reasonable Cause Right to Sue Letter 2017 Baird Holm LLP 12
Legal Remedies Federal/State Administrative Proceeding If Federal/State Agency finds reasonable cause, employee may pursue his/her claim through an administrative law process Legal Remedies Federal/State Court After receipt of right to sue letter (no cause finding or cause finding), employee may file complaint in federal/state court Legal Remedies Damages available Injunctive Relief Compensatory Damages Punitive Damages Attorneys Fees and Costs 2017 Baird Holm LLP 13
CURRENT CASELAW Current Caselaw Prince v. Kids Ark Learning Center Where: D. Neb. Outcome: Plaintiff Verdict Total Verdict: $55,925 Current Caselaw Lynn v. TNT Logistics (Minnesota): Where: D. Minn. Outcome: Plaintiff Verdict Total Verdict: 3.75 million in punitive damages 2017 Baird Holm LLP 14
Current Caselaw Gilster v. Primebank (Iowa): Where: N.D. Iowa Outcome: Plaintiff Verdict Total Verdict: $900,301.22 (200K punitive) Current Caselaw Rennenger vs. Toyquest Ltd. et al (Iowa): Where: S.D. Iowa Outcome: Plaintiff Verdict Total Verdict: $11,882,727 (10K punitive) Current Caselaw Haskenhoff V. Homeland Energy Solutions L.L.C. (Iowa): Where: S.D. Iowa Outcome: Plaintiff Verdict Total Verdict: $1,400,000 2017 Baird Holm LLP 15
Questions? Kelli P. Lieurance (402)636-8298 klieurance@bairdholm.com Sara A. McCue (402)636-8276 smccue@bairdholm.com 2017 Baird Holm LLP 16