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HR - Cameron & Mittleman - MANAGERS Anti-Harassment

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Transcript of HR - Cameron & Mittleman - MANAGERS Anti-Harassment

PREVENTING WORKPLACE HARASSMENT
Photo
Did Mary Manager do the right thing?
Always comply with your Anti-Harassment Policy.
10.
IN YOUR WORKPLACE FOR MANAGERS
Melissa Fleischer, Esq.
HR Learning Center LLC
www.hrlearningcenter.com
info@hrlearningcenter.com
914-417-1715
PREVENTING HARASSMENT
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
WHAT YOU NEED TO KNOW
LEGAL COMPLIANCE
POLICIES
TRAINING
1.
Comply with your heightened responsibilities as a Manager/Partner.
2.
Your actions can make you personally responsible under your state’s law.
3.
Don’t abuse your power as a Manager/Partner to seek sexual favors.
4.
5.
Don’t have romantic relationships in the workplace.
6.
Same-Sex Harassment is Still Sexual Harassment.
Recognize that Workplace Harassment is Not Just “Sexual” Harassment.
7.
Be Aware of Harassment in the 21st Century: Virtual Harassment.
8.
9.
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
Keep harassment complaints confidential and Don’t retaliate against an employee for harassment complaints.
TOP 10 TIPS
For Preventing Harassment in your Workplace
Don’t meet with a subordinate alone with the door closed and don’t discipline a subordinate alone-have HR present.
RESPONSIBILITIES AS A MANAGER/PARTNER
Implement and enforce Anti-Harassment policy
Act as a role model and not engage in any activity in violation of Anti-Harassment Policy
Report any activity in violation of Policy
Keep complaints confidential
Not retaliate in any way
Required to:
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I am just a Manager/Partner here, what does this have to do with me?
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The Workplace is
Not Your Home or a Bar

WORKPLACE BEHAVIOR
Be respectful

Do not make jokes about race, religion, national origin, disability, sexual orientation, sex, pregnancy, etc.

Do not make others feel uncomfortable

Do not have conversations about sex

Do not make mistake of thinking we are friends so it is “OK”

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REPORTING HARASSMENT
Investigate
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Respond
Report
Report any activity in violation of Policy
Employees will report Harassment Experience of Witness to Management Committee or Firm Administrator
REPORT
Report to:
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CASE SCENARIO
HR calls you up and tells you to come see them at 3pm today
You show up and they tell you they are conducting an investigation into a claim that Susie made where she was uncomfortable about certain jokes employees like Rick and Jim had been making around her regarding her religion.
HR asks you whether you heard any of these jokes?
Can you say:
"Rick and Jim are my friends and I am not going to answer?"
No,
As a manager you have obligation to participate in any workplace investigation
Every employee has a right to work in a
harassment-free environment

Managers/Partners have
heightened responsibilities
Be a role model for their employees and not engage in any harassment themselves

Report any harassment they witness or become aware of
MANAGER/PARTNERS MUST:
TIP #1
Prevent Harassment in your Workplace
Managers/Partners
can be held personally liable
for harassment or discrimination under state law

You may have to
pay out of your own pocket
any damage award

Fed Ex Case

Manager who harassed Lebanese drivers by making racial comments held personally liable
for One Million Dollars
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
PREVENTION:
To prevent incidents from occurring.
Why Do We Need To Do
ANTI-HARASSMENT TRAINING?
Once Managers/Partners know what is prohibited:
They will not engage in such behavior
Managers/Partners are held to a higher standard and are expected to be a role model for their employees

They will be more sensitive to issues that could lead to claims of harassment

© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
$34 Million
Mitsubishi Settlement

$61 Million
Fed Ex Case

$11.6 Million
Anucha Brown Saunders vs. Isiah Thomas and Madison Square Garden

$95 Million
against Aarons, Inc. in Illinois sexual harassment case

$7.1 Million
against Baker & McKenzie sexual harassment by partner against administrative assistant

Large Damage Awards
PROTECTION
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© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
LEGAL COMPLIANCE
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Age
Alienage
Color
Citizenship
Disability
Sex
Race
Religion
Sexual Orientation
Military Status
Marital Status
National Origin
Genetic Information
Victim of Domestic Violence
Nursing Mother
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PROHIBIT HARASSMENT?
Title VII-Prohibits Discrimination based upon:
FEDERAL LAW
Sex
Race
Color
National Origin
Religion
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Prohibits Discrimination Based upon:
RHODE ISLAND FAIR EMPLOYMENT PRACTICES ACT
Race
Color
Religion
Sex
Pregnancy
Disability
Age
Ancestry
Sexual Orientation
Gender Identity
Harassment also Violates your Policy
Even if harassment does not rise to the level needed to prove a claim of harassment in a law suit, it may still violate your Anti-Harassment Policy.
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
What Federal Laws
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DISCLAIMER
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific questions or issues that may impose additional obligations on you and your company under any applicable local, state or federal laws. The Seminar Handout is a sample only and is not to be used for any actual training. It is designed to be used by the County to evaluate HR Learning Center’s Training Materials. It is designed to provide accurate and authoritative information in regard to the subject matter covered. However, because of unanticipated changes in governing statutes and case law relating to the application of any information contained in this handout, the author, publisher, and any and all persons or entities involved in any way with the preparation, publication or distribution of this handout disclaim all responsibility for the legal effects or consequences of any document prepared or action taken in reliance upon information contained in this book. If legal advice or other expert assistance is required, please consult an attorney in your jurisdiction.
The material contained in this seminar handout is copyrighted proprietary material and it only for personal use on the day of training and reference only, and is not to be copied, distributed, shared with others or used for any other reason without the express written consent of HR Learning Center LLC.
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
TWO KINDS OF
Workplace Harassment
EXISTS WHEN THERE ARE :
Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment

or

Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual
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Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature and:
Sexual Harassment
QUID PRO QUO
Such conduct has the:
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PURPOSE
EFFECT
OR
Of
unreasonably interfering
with an individual’s:
TIP #2
Legal Liability of Managers/Partners
PROTECTION:
What is a Protected Class?
WHAT IS HARASSMENT?
Not treating others with respect. Making them feel uncomfortable based on their “protected class”
PROHIBIT HARASSMENT?
What State Laws
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CASE SCENARIO
Jane and Jim are both co-workers who work for your firm.
Neither is a manager or supervisor.
If Jane asks Jim out for a drink and over to her apartment afterwards and implies that if he does not go, he may as
well look for a new job.
Is this harassment?
Should Jim be worried that he will be out of a job?
No
, Jim should not be worried he will lose job.
Jane is not his manager
and therefore, she does not have the power to fire him.
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Quid pro quo must involve a manager:
Only a manager can carry out the threat and actually fire or demote the individual
Might be hostile work environment
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Quid Pro Quo
This-For-That:
Sleep with me or you will be fired
Exchange of job, etc., for sexual favors
Can be a one-time event
TIP #3
Report Harassment you Experience or Witness Immediately
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Best Protection is to avoid circumstances in which an employee can claim you said
“sleep with me or you will be fired."
TIP #4
Don’t Meet With a Subordinate Alone in your Office and Don’t Discipline Without HR Present
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Important to have HR present both as a witness and to prevent an employee from claiming harassment
TIP #5
Don't Have Romantic Relationships in the Office
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CASE SCENARIO
Sarah is from India and wears a Bindi on her forehead, a religious marking that Hindu’s wear.
Sam and Bob are constantly making fun of her for wearing this and making her feel uncomfortable with jokes, comments and text messages.
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CASE SCENARIO
Jane and Joe work together at your firm.
Jane thinks Joe is cute and asks him on a date to go to Joe’s favorite restaurant. Joe says yes because he loves a free dinner and thinks Jane is pretty cute too.
Is this harassment?
If so, what kind?
Not harassment
because not unwelcome
Essential element of either type of harassment is unwelcomeness
If consensual and voluntary, then not unwelcome
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
CASE SCENARIO
Jim, a senior partner at your firm likes to hit on young inexperienced employees.
A new employee, Sally, starts working as an administrative assistant at your firm. Jim comes on to Sally and tells Sally that if she does not sleep with him she will lose her job. Sally is afraid of losing her job so she sleeps with him. They have sex many times often at work.
Is this harassment?
If so, what kind?
It is quid pro quo harassment
Was Unwelcome
Consent was coerced
Actual case
Meritor Savings Bank vs. Vinson
EXISTS WHEN THERE ARE :
Hostile Work Environment Harassment can be based on any protected class under federal, state or local law such as:
Sex
Race
Color
Marital Status
Disability
Age
National Origin
National Origin
Sexual Orientation
Religious Creed
© 2017 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
CASE SCENARIO
Few employees are sitting around talking after staff meeting. They make age-related jokes about upper management “Prehistoric, like dinosaurs” “We need to get some new young blood in here”
HR talks to you and your defense is:
“It was only a joke and we did not intend to offend anyone”
Is that a valid defense?
Intent is Irrelevant;
It is effect that matters
Courts use a reasonable person standard
If reasonable person who overheard jokes or saw e-mail or text would have been offended, that is enough to create hostile work environment harassment

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1
2
3
4
Demonstrating to all employees we take harassment complaints seriously and that we have zero-tolerance for harassment
Making it clear that there is no retaliation against any employee for filing complaint
Conducting a prompt, thorough and impartial investigation
Taking prompt, corrective action that can include discipline, up to and including, termination.
TRAINING
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No,
As a manager you have obligation to participate in any workplace investigation
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MANAGER'S/PARTNER'S DUTIES
Work performance

Or creating an intimidating, hostile or offensive working environment

UNLAWFUL HARASSMENT
Requirements for Actions to
CONSTITUTE HARASSMENT
CONDUCT MUST EITHER:
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Be unwelcome

Interfere with work performance

Create an intimidating, hostile or offensive environment
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CONDUCT MUST:
Requirements for Actions to
CONSTITUTE HARASSMENT
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How Can a Hostile Work Environment
BE CREATED?
Visually
Physically
Verbally
VERBAL:
PHYSICAL:
VISUAL:
Looking in a sexually suggestive way
E-Mail
Displaying off-color pictures or cartoons
Text messages
Computer graphics
Grabbing
Suggestive gestures
Touching of hands, hair
Continually asking for date
Off-color jokes
Sexual jokes
Innuendos
Voice mail
Don’t fail to recognize and respond if employees complain of same-sex harassment
TIP #6
Don’t Fail to Recognize that Same-Sex Harassment is Still Sexual Harassment
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EEOC v. Cheesecake Factory, Inc
EEOC charged that six male employees subjected to a hostile work environment by other male employees

The men suffered sexually abusive behavior

The EEOC claimed that Managers witnessed harassment and did nothing

Employees’ complaints to all levels of management were ignored

Cheesecake Factory agreed to pay
$345,000 to settle case
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Yahoo Same-Sex Harassment Case
Former female software engineer at Yahoo, Nan Shi
July 2014
Sued alleging sexual harassment
Former supervisor, Maria Zhang
Senior director of engineering at Yahoo
Shi alleged that her supervisor "coerced" her to have sex many times against her will
Manager promised Shi a "bright future" at Yahoo,
Manager also allegedly threatened that she could "take everything away from her“
Shi rejected the manager’s sexual advances
Alleged given poor performance reviews and worse work assignments

Federal Law
TIP #7
Recognize that Workplace Harassment is Not Just “Sexual” Harassment
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Race
Religion
Gender Identity
Sexual Orientation
National Origin
Genetic Information
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TYPES OF HWE HARASSMENT
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Fed Ex Case
Drivers were harassed by a Manager
Manager called them “terrorists”, “camel jockeys” and other racial epithets

Court held these comments created a hostile work environment based on race and national origin
Jury Awarded $61 Million to two FedEx drivers of Lebanese Descent
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Honda Dealership Case
Held: Hostile Work Environment based upon national origin and religion
Managers implied Indian and Muslim employee had participated in 9/11. Managers called him “Taliban” whenever they saw him

“Why don’t you go back where you came from since you believe what you believe”

Managers mocked his dietary needs and his need to pray during the workday.

Referred to him as an Arab even though he told them he was from India
Manager himself was personally liable and ordered to pay $1 Million Dollars to the drivers
Asking about personal life
Excluding from meetings or refusing to train
Spreading rumors
Use of derogatory or insulting terms
Treating women in an inferior manner
Stealing, vandalizing property
Ostracizing or segregating
Making disparaging comments
Intimidating
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That can Create a Hostile Work Environment
OTHER CONDUCT
Treating Any Employee In An Inferior Manner Based Upon the Employee’s Protected Class
Brett Favre
Louis C.K.
MATT LAUER
DUSTIN HOFFMAN
KEVIN SPACEY
DAVID LETTERMAN
Clarence Thomas
Al Gore
HARVEY WEINSTEIN
Conduct Must be:
"Severe & Pervasive"
Creating a
HOSTILE WORK ENVIRONMENT
Degree of Offensiveness
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Context
Frequency of Encounters
TIP #8
Be Aware of Harassment in the 21st Century:
Virtual Harassment
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CASE SCENARIO
Your employee Fran was at home one night and reported that her manager sent her numerous text messages requesting sex with her. He also sent her other text messages that were pretty much X-rated. She is upset and comes to you to complain.
What do you do?
Tell her you will report to HR and she should do the same.

It is Irrelevant that it happened after hours.

It is Irrelevant that it happened while manager and Fran were not at work.
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What do you do?
Is this conduct that violates your policy since it happened after work hours at night?

Is this conduct that violates your policy since the manager was not at work and Fran was not at work when it occurred?
?
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LA Fitness Case
3 managers drinking at bar sent her 11 text messages starting at 12:40am

Managers asked her for sex and told her they would like to perform various X-rated acts. Texts included highly sexual terms and slang
She reported it to management and HR and was ignored and ultimately fired

She sued in court in Oregon
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Hooters Texting Case
Fort Lauderdale, FL
Hooters waitress was sent by her manager numerous explicit text messages and photos

She sued Hooters for Sexual Harassment
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Famous Dave's Texting Case
Four Famous Dave’s waitresses received text messages from their supervisor asking for sexual favors

Sued Famous Dave’s for sexual harassment
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WWE Texting Case
West Virginia
Connecticut Case
Former World Wrestling Entertainment employee alleged she was sexually harassed by a married senior director

Alleged that director sent her late night text messages and phone calls
CASE SCENARIO
A group of your employees who are friends go out drinking to a bar after work.

Two male employees have a few too many and inappropriately touch a female employee. They also make sexually offensive and inappropriate comments to her.
Does your policy still apply?
Yes, your policies still apply:
Even if with friends, you are co-workers first and friends second
Still must comply with Anti-Harassment Policy
Actual case involving investment bankers at JP Morgan Chase
The two male investment bankers lost their jobs
She does not complain but someone else drinking with them complains.

Is this harassment since it did not happen at work, or at a company sponsored event?

It was just a group of friends having some beers after work. Do your policies still apply?
Where does Anti-Harassment
POLICY APPLY?
Applies everywhere you are doing your job or interacting with employees in workplace including co-workers, managers, partners, attorneys etc.

Applies even if interaction with others is virtual via text, e-mail or posted on social media

Holiday Parties

Business Trips

White Water Rafting Trip

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CASE SCENARIO
You go on-site to a client’s office for a business meeting.
While you are there, the client repeatedly makes sexual comments that make you feel uncomfortable.

He/She uses inappropriate language and attempts to kiss you. You are upset and leave.

What should you do?
Could this be harassment?
This person does not work for your organization so does HR have anything to do with this? What do you think?
CASE SCENARIO
Assume it was a great year for you this year, you had a huge holiday party with no spouses and lots of liquor.

Joe, one of your managers has a few too many and approached Sally an employee and inappropriately touched her rear end. He then made comments about how great she looked. He then went further and took her nametag off of her and purposely dropped it down her cleavage
Holiday Party Cases
Would this violate your Anti-Harassment Policy?

It happened at a party not at work?

Does your policy still apply?
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Harassment during Holiday Party
Manager approached an employee and inappropriately touched her rear end while commenting on how good she looked

He then went further and took her nametag off of her and purposely dropped it down her cleavage

The manager did not stop there but in fact constantly continued to pursue the employee throughout the entire party grabbing her and making inappropriate and offensive sexual comments towards her.
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EEOC v. Rose Casual Dining, L.P.,
Harassment during Holiday Party
Stathatos v. Gala Resources, LLC
Harassment during Holiday Party
Carver v. Waste Connections of TN, Inc.
Harassment during Holiday Party
Russ v. Van Scoyoc Associates, Inc.
During an office holiday party, one of the organization’s clients became aggressive toward a female employee

He touched and grabbed her repeatedly and then continued to go after her all night.

When the employee asked for help, she was teased and no one helped her.

The court held in response to her complaint for sexual harassment that these facts were sufficient to overcome defendant’s motion for summary judgment.
Employee alleged she was sexually harassed by her manager after a holiday party

They were back at that manager’s house and a group of employees were doing a gift exchange

She alleged that many of the gifts were of a sexual nature, including edible underwear and a blow-up doll
Several employees got very drunk during a holiday office party

After the party, some employees went to another bar to continue socializing

Supervisor made some sexually explicit and offensive remarks to a female employee telling her that he admired her breasts, that he wanted to have sex with her, that he wanted to perform oral sex upon her, and that she could make more money working at Hooters than at the company.”

She sued for sexual harassment and won
Who Can Create a
HOSTILE WORK ENVIRONMENT?
Supervisors
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Co-Workers
Vendors or Firm
Customers
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CASE SCENARIO
A group of your employees who are friends go out drinking to a bar after work.

Two male employees have a few too many and inappropriately touch a female employee. They also make sexually offensive and inappropriate comments to her.
Does your policy still apply?
Yes, your policies still apply:
Even if with friends, you are co-workers first and friends second
Still must comply with Anti-Harassment Policy
Actual case involving investment bankers at JP Morgan Chase
The two male investment bankers lost their jobs
She does not complain but someone else drinking with them complains.

Is this harassment since it did not happen at work, or at a company sponsored event?

It was just a group of friends having some beers after work. Do your policies still apply?
CASE SCENARIO
Peggy feels she has been harassed by her co-workers. She tells her new manager, Mary Manageroftheyear, all of the things that have been happening.

She begs Mary not to tell HR and she tells Mary that she is only telling her this to get it off her chest but emphasizes that she does not want to file a formal complaint or do anything about it.

Mary understands how she feels. Mary agrees not to tell anyone.
No, Mary did not do the right thing.
Mary has legal obligation to report it to HR:
She cannot keep it to herself and not report it
Once Peggy states she has a complaint, even if Peggy does not want to file complaint, Mary must report it
Not Peggy’s decision anymore
Once employer knows, must investigate and stop harassment
Employer is Not liable for Harassment Between Co-Workers Unless it Knew or Should Have Known About the Conduct and Failed to Stop it.
Harassment Between Co-Workers
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Standards of Liability in
HARASSMENT CASES
Employer is Vicariously Liable for Sexual Harassment by Supervisor with Immediate (or Successively Higher) Authority over Employee.

Employer May Raise Affirmative Defense and Possibly Avoid Liability and Damages if Supervisor Does Not Take Any Tangible Employment Action Against Employee.

Employer is Always Liable When Supervisor Takes A Tangible Employment Action Against Employee, Such As Demotion or Firing.

Harassment By Supervisor
HOSTILE WORK ENVIRONMENT
Unwelcome sexual advances

Requests for sexual favors

Other verbal or physical conduct of a sexual nature
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
Hostile Work Environment sexual harassment exists when there are:
Employee's Unreasonable Failure to Take Advantage of
PREVENTATIVE MEASURES
Proof that employee unreasonably failed to use complaint procedure

Employer must clearly demonstrate no retaliation so employee does not avoid complaining due to reasonable fear of retaliation

If complaint procedure only allows employee to complain to immediate supervisor, employee may be able to show did not complain because of this.

Burden of proof is on employer to show that employee’s failure was unreasonable
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Policy must be distributed to all employees.

All employees must sign acknowledgment form that they received Policy.
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Having a Policy Alone is
NOT ENOUGH
Ensure that Managers/Partners Enforce Policy by:
Cannot Promise Complete Confidentiality

“Need to Know” Basis

Only People Involved in the Investigation Should Know Identity of Those Involved
TIP #9
Keep Harassment Complaints Confidential and Don’t Retaliate
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Retaliation is prohibited against anyone who:
DON'T RETALIATE
Files a complaint of unlawful harassment

Participates in an investigation

Any manager/partner who retaliates against an employee for complaining about harassment/discrimination and/or participating in an investigation will be disciplined
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Must be blind to the fact that they filed a complaint against you

Any action you take after they complained could be alleged to be retaliatory
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Your Obligations as a Manager/Partner:
Employee Files Complaint
AGAINST YOU
Documenting performance issues when you did not do so before the complaint

Threatening an employee because they complained or cooperated in an investigation

Transferring an employee because they complained or cooperated in an investigation

Giving an employee a poor performance review because they complained or cooperated in an investigation

Failing to give a raise or bonus because an employee complained or cooperated in an investigation

Not speaking to an employee because they complained or cooperated in an investigation

Giving an Associate a worse job assignment

Taking an Associate off an important case
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Examples of
RETALIATION
Complaint and Investigation Process
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TYPICAL PROCESS:
Conducts a prompt, thorough and impartial investigation

Keeps complaint confidential to extent possible

Interviews
What Does the Firm Administrator Do Once it Receives a
HARASSMENT COMPLAINT?
Complainant
Accused
Witnesses at work
Supervisors of Complainant and Accused
Any other witnesses
REASONABLE CARE
Employer's Duty to Exercise
Establish, publicize and enforce anti-harassment policies and complaint procedure

Provide sexual harassment training to supervisors so they understand their responsibilities under the employer’s anti-harassment policy

Advise all supervisors that they must report any complaints of harassment to proper people

Provide sexual harassment training to employees so they understand how to make a complaint

If employer becomes aware of harassment i.e. graffiti, it should eliminate it even if no complaint

Keep records of all harassment complaints
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Affirmative Defense to Claim of
SEXUAL HARASSMENT
Prove that employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior.


Prove that employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.
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May Need to Review:
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DOCUMENTARY
EVIDENCE
Communicate it to complainant and accused
Will Issue a Decision
Personnel files

Manager’s desk files

Internal memo, e-mails, voice mails

Expense reports or other relevant documents

Computer hard-drive
Take Prompt Corrective Action
Depends on the circumstances

May be discipline, up to and including termination

May involve disciplinary warning or additional training
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What is
PROMPT CORRECTIVE ACTION?
TIP #10
Comply with your
Anti-Harassment Policy
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Inclusion of:
Policy Includes
EVERYTHING
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Definition of Quid pro Quo and HWE

Examples of conduct that violates policy

To whom policy applies

Where it applies

To whom to complain

Confidentiality

No Retaliation

Apply Policies Consistently
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
Prevent discrimination, harassment and/or retaliation in the workplace

Do not discriminate, harass or retaliate against others

Report any discrimination, harassment or retaliation you observe in the workplace to HR

Participate, facilitate and cooperate with all investigations

Failure to comply with these duties, may result in disciplinary action, up to and including discharge
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
CONCLUSION
When in doubt contact HR

Both the law and your Policy prohibit Sexual and Unlawful Harassment

No retaliation for reporting harassment or participating in an investigation
Managers/Partners have an even higher responsibility to prevent unlawful harassment than regular employees
Bill Clinton
Herman CANE
PAULA DEAN
Hostile Work Environment
Employees?
Managers?
Both Employees & Managers?
Who Do You Think Can Engage in Quid Pro Quo Harassment?
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© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
What Do These People Have in Common?
To protect workplace so remains harassment free

Protection from large damage awards
Quid Pro Quo
Answer
Yes, this would violate your Anti-Harassment Policy:
Even though it happened at a party not at work your policy would still apply
Sally should report to HR
HR should conduct investigation and take prompt corrective action
Answer
Anti-Harassment Policy
applies to non-employees as well as to employees, co-workers, managers and supervisors.
Anti-Harassment Policy
applies to clients, customers, vendors and others who come into your workplace.
Melissa Fleischer, Esq.
HR Learning Center LLC
914-417-1715
HRLearningCenter.com

Presented By:
QUESTIONS OR
COMMENTS?

Age Discrimination in Employment Act (“ADEA”)
Prohibits discrimination based upon
Age
Americans with Disabilities Act (“ADA/ADAAA”)
Prohibits discrimination based upon:
Disability
USERRA
Military Status
GINA

Prohibits discrimination based upon:
Genetic Information
Title VII-Prohibits Discrimination based upon:
FOR EMPLOYEES AND APPLICANTS WITH FEDERAL LAW
Sex
Race
Color
National Origin
Religion
Age Discrimination in Employment Act (“ADEA”)
Prohibits discrimination based upon:
Age
Americans with Disabilities Act (“ADA/ADAAA”)
Prohibits discrimination based upon::
Disability
USERRA
- Prohibits discrimination based upon
Military Status
GINA
Genetic Information
Any member of the Management
Committee

Firm Administrator
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
Do not abuse your power as a manager/partner by requesting sexual favors or a romantic relationship.
This could be quid pro quo harassment
Harassment happens more frequently virtually than face to face

Virtual harassment also violates the firm’s anti-harassment policy
Employment Laws that Affect
Employees
Quid Pro Quo
Hostile Work Environment
Prompt Corrective Action
Retaliation
Your Policy
Conclusion
AGENDA
Only a Manager
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Prohibits discrimination based upon:
Ultimately fired after complaining
Prohibits discrimination based upon:
Prohibits discrimination based upon
Did Mary Manager do the right thing?
Answer
CONFIDENTIAL AND PRIVILEGED INFORMATION
PROTECTED BY COPYRIGHT

© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
Part of your job duties
Cooperate in any discrimination, harassment or retaliation investigation
Cooperate in any Harassment Investigation
RESPOND
Same-sex harassment still constitutes sexual harassment.

It is still prohibited by the law and your policy.
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C & M Anti-Harassment Policy
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
Anti-Harassment Policy and Complaint Procedure
C&M does not tolerate discrimination or harassment of any of our employees, clients, vendors, or suppliers based on an individual's:
Creating a work environment in which people are free from discrimination, harassment and retaliation
The firm takes all allegations of discrimination and harassment seriously, and responds promptly to complaints.
race
color
religion
gender
sexual orientation
gender identity
or expression
housing status
national origin
ancestry
The firm will not tolerate retaliation against an individual
who, in good faith, has complained about discrimination or harassment or against an individual who cooperates with an investigation into a complaint.

As appropriate, the rules and procedures in this policy referring to sexual harassment will
also apply to other forms of harassment and discrimination on the basis of any legally protected category.

All employees are expected to comply with this policy.
While the policy sets forth the firm’s goals of promoting a workplace that is free of discrimination and harassment, the policy is not designed or intended to limit its authority to discipline or take remedial action for workplace conduct that the firm deems unacceptable, regardless of whether that conduct satisfies the definition of unlawful discrimination or harassment.
Sexual Harassment
Definition of Sexual Harassment
Protection Against
Retaliation
If the firm determines that inappropriate conduct has occurred, we will act promptly to eliminate the conduct and impose such corrective action as is necessary, including disciplinary action and termination where appropriate.
Greater Hudson Bank, in compliance with all applicable federal, state and local laws and regulations, enforces this policy in accordance with the following definitions and guidelines:
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
Sexual harassment of employees occurring in the workplace or in other settings in which employees may find themselves in connection with their employment is unlawful and will not be tolerated by this organization.
Sexual Harassment
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© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
Retaliation against any employee acting in good faith in using this complaint procedure, reporting discrimination or harassment, filing a complaint, or for testifying, assisting or participating in any manner in any investigation, proceeding or hearing conducted by a governmental enforcement agency is prohibited.

Any employee who believes that he/she are subject to retaliation should follow the Complaint procedures in this policy. Any report of retaliatory conduct will be investigated in a thorough and objective manner.

If a report of retaliation is substantiated, appropriate disciplinary action, up to and including discharge, will be taken against the employee who has engaged in retaliatory conduct.

Protection Against Retaliation
© 2018 HR LEARNING CENTER LLC ALL RIGHTS RESERVED
Rhode Island Commission for Human Rights,
180 Westminster Street, Providence, RI 02903
(401) 222-2661

United States Equal Employment Opportunity Commission (“EEOC”),
JFK Federal Building
475 Government Center, Boston, MA 02203
(617) 565-3200
External Complaints
The legal definition of sexual harassment is broad, and in addition to the above examples, other sexually oriented conduct, whether it is intended or not, that is unwelcome and has the effect of creating a workplace environment that is hostile, offensive, intimidating, or humiliating to male or female workers may also constitute sexual harassment.
Prohibited harassment includes behavior similar to sexual harassment such as:
Other Types of Harassment
The firm will promptly investigate any complaint of discrimination or harassment in a fair and expeditious manner. The investigation will be conducted in such a way as to maintain confidentiality to the extent practicable under the circumstances.

Our investigation will include a private interview with the person filing the complaint and with witnesses. We will also interview the person alleged to have committed wrongdoing. When we have completed our investigation, we will, to the extent appropriate, inform the person filing the complaint and the person alleged to have committed the conduct of the results of that investigation.
Investigations of Complaints
Employees may also file a formal complaint with the government agencies set forth below. Using our complaint process does not prohibit you from filing a complaint with these agencies.

Each of these agencies has a short time period for filing a claim (300 days). Listed below are the identities of the state and federal employment discrimination enforcement agencies and directions as to how to contact them:
All reports will be promptly and thoroughly investigated
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Any employee who believes that he or she has been harassed or discriminated against by a coworker, supervisor, vendor, or client, or who is aware of the harassment or discrimination of others, should immediately provide a written or verbal report to any member of the Management Committee or the Firm Administrator.

If the report is verbal, you may be requested to put it in writing. Notification is essential as we cannot resolve an issue without knowledge of same.
Internal Complaints
Preventing Harassment for your Managers/Partners
Partners
Attorneys
age
disability
genetic information
marital status
status as a covered veteran
or any other protected
status in accordance
with applicable federal,
state and local laws
Further, any retaliation against an individual who has complained in good faith about sexual harassment, or retaliation against individuals for cooperating with an investigation of a sexual harassment complaint, is similarly unlawful and will not be tolerated.
Because C&M takes allegations of sexual harassment seriously, we will respond promptly to complaints of sexual harassment.

Where it is determined that such inappropriate conduct has occurred, we will act promptly to eliminate the conduct and impose such corrective action as is necessary, including disciplinary action where appropriate.
Unwelcome or unwanted sexual advances - whether they involve physical touching or not

Sexual epithets or jokes, written or oral references to sexual conduct, gossip regarding one’s sex life, comments on an individual’s body, comments about an individual’s sexual activity, deficiencies, or prowess

Displaying sexually suggestive objects, pictures, cartoons

Unwelcome leering, whistling, brushing against the body, sexual gestures, suggestive or insulting comments

Inquiries into one’s sexual experiences; and
Discussion of one’s sexual activities.

Verbal conduct including threats, epithets, derogatory comments or slurs.

Visual conduct including derogatory posters, photography, cartoons, drawings or gestures.

Physical conduct including assault, unwanted touching or blocking normal movement.

The above list of harassing conduct is non-exhaustive.
submission to or rejection of such advances, requests, or conduct is made either explicitly or implicitly a term or condition of employment or is a basis for employment decisions; or

such advances, requests, or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating, or sexually offensive work environment.
“Sexual harassment” means sexual advances, requests for sexual favors, or verbal or physical conduct of a sexual nature when:
Under these definitions, direct or implied requests by a supervisor for sexual favors in exchange for actual or promised job benefits such as favorable reviews, salary increases, promotions, increased benefits, or continued employment constitute sexual harassment.
Definition of Sexual Harassment
While it is not possible to list all those additional circumstances that may constitute sexual harassment, the following are some examples of conduct, which, if unwelcome, may constitute sexual harassment depending upon the totality of the circumstances including the severity of the conduct and its pervasiveness:
If it is determined that inappropriate conduct has been committed by one of our employees, we will take such action as is appropriate under the circumstances. Such action may range from counseling to termination of employment, and may include such other forms of disciplinary action, as we deem appropriate under the circumstances.
Disciplinary Action
PREVENTING WORKPLACE HARASSMENT
CASE SCENARIO
Sally is working as an associate at your firm. Steve, a client who she has lunch with starts hitting on her and telling her she is very “hot”. He asks her if she would go on a date with him. He then starts telling her intimate things he would like to happen sexually on that date.
Answer
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Should you report it to HR?

This is just a client of your firm. Should you report it to HR?

What do you think?
?
Non-employees as well as to
Employees
Co-workers
Managers/supervisors
Anti-Harassment Policy applies to:
Clients
Vendors
Others who come into your workplace
Plaintiff was a former first-year associate

Alleged a partner made multiple flirtatious and inappropriate sexual remarks to her

Also made sexual comments about her body and clothing.

Defendant claimed his flirtatious interaction with associate was consensual

Court held partner had created a sexually hostile work environment

Court emphasized conduct must be viewed in light of fact that defendant was a 39-year-old partner at the firm, and plaintiff was a 24-year-old first year associate
Sier v. Jacobs Persinger & Parker
Lawsuit alleging sexual harassment against Salisbury and Ryan

Also, against Patrick Salisbury, named partner

COO of firm alleged Salisbury fired her for refusing his sexual advances
Could this be harassment and if so, what kind?
Yes,
it could be hostile work environment harassment.

Sam and Bob’s comments and jokes are creating a hostile work environment for Sarah
Based on her national origin and religion
Sarah does not want to rock the boat and even though she attended our training and knows how to file a complaint with HR, she does not do so.
Could not reporting this affect her rights later on?
Yes,
it could. Here Sarah is being harassed by Sam and Bob creating a hostile work environment based upon her national origin and religion.
She must report it
Once she does firm must conduct prompt, thorough, impartial investigation
Take prompt corrective action
Could allow firm to prove affirmative defense
Cannot fail to report harassment
"Law firms tend not to take sexual harassment complaints seriously enough,"

"Firms should investigate an employee's complaint as meticulously as they would a client's.

- Laurel Bellows, Chair of the ABA Commission on Women in the Profession and Partner in Bellows & Bellows, Chicago, Illinois

"Law firms often think they're above the law. Yet there's even more sexual harassment in law firms than in Fortune 500 companies."
“We surveyed lawyers who experienced harassment, bias or discrimination while working for their firms in the past year. About 60 percent were too afraid to complain." Maybe the firm wouldn't believe them. Or maybe it would leak their embarrassing story, and then coworkers would label them "the victim." Or worse, the harasser might get them demoted. Partners could axe them from important projects. Maybe the harassers were also mentors. How many people would give up a valuable mentor, to dodge a few off-color remarks?”

-Dr. Freada Klein, President of Klein Associates, Boston, MA

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February 2018 Sexual Harassment Claims

By
associate against partner at Baker & McKenzie

Alleged that the partner had invited the female associate and some other female associates to his hotel to have some drinks

She alleged he sexually assaulted her

Then allegedly the firm had her sign an agreement for money so she would not disclose the incident

Incident happened at their London office

Reportedly, Baker McKenzie is now under preliminary investigation by the Solicitors Regulation Authority

Investigating whether the law firm’s actions constituted professional misconduct

The SRA’s code of conduct required that the alleged sexual assault should have been promptly reported to the organization SRA
Law Firm Harassment Cases
Rena Weeks, administrative assistant alleged partner Martin Greenstein forced himself on several female subordinates

Alleged Greenstein made offensive remarks and groped them

Weeks claimed Greenstein grabbed her breast while pouring M&M candies down her front blouse pocket

Also alleged he held her arms behind her back and asked which breast was larger

Also alleged Baker & McKenzie ignored the harassment

Jury awarded $7.1 Million Dollars

$6.9 Million was in punitive damages
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CASE SCENARIO
Did this violate the firm policy?
Jim and Kevin are discussing their weekend accomplishments
Kevin states “Wow did I score with the blonde I met at the bar this weekend”
“Let me tell you the nitty gritty about how great she was”
He continues to describe in detail their sexual acts
Nancy, an administrative assistant is working in cubicle behind theirs and hears everything.
Answer:
YES
. Discussions with others at work about sexual escapades would constitute creating a hostile work environment for Nancy and others who were to overhear conversation

These types of conversation are inappropriate in the workplace

Does not matter that it was not directed at anyone in general

Lawsuit against Baker & Mackenzie
Full transcript