Discrimination, Harassment & Hostile Work Environment Jerry Mason – ICRMP Legal Counsel Jim McNall – ICRMP Risk Management Specialist

Unlawful Discrimination Any adverse employment action or treatment based on protected class. Minimum legal standard – should not be your goal – strive to be better What might not be unlawful – but still not OK?

An Important Test Are you acting or tolerating behavior (as a supervisor) that can be hurtful or injurious? Imagine yourself on the receiving end People have a legal right not to be treated adversely based on legally protected considerations. You have a duty not to violate those rights

What is Discriminatory Harassment? Discriminatory harassment is a form of discrimination based on legally protected classes: age national origin/skin color race religion gender disability In the workplace, when we hear the word “harassment” many of us think only of sexual harassment. However, illegal harassment also occurs based on an employee’s race or color, religion, national origin or disability. Disability is physical or mental. Age applies to over 40.

What You Can Do? Understand the law Articulate a clear policy and reporting procedures Commit to promptly investigating EVERY claim Take appropriate action Train all employees and supervisors, preferably annually Avoid gender stereotypes Hold everyone accountable for adhering to policy and demonstrating respect and fairness JEN Train supervisors. Do they know how to hire/interview properly to avoid claims? Do they know language to use in reviews/performance management to avoid gender claims? Establish a complaint procedure that employees can use without fear of repercussions. Make it open and easy to report a concern – avoid requiring chain of command. Review it! Does it indicate employee can be fired if claim is bogus? Note that false claims are rare. Most legitimate claims are never made at all in fact. There is fear of retaliation and character assassination, so people tend to wait until they are near desperation. Encourage an environment where people find it easy and safe to speak up. Conduct pay audits to uncover and address unexplained pay disparities. Establish good communications to explain employment decisions that could cause worker disgruntlement. Make a concerted effort to hire a diversified workforce. Act promptly to correct any disparate treatment once a charge is made. Avoid retaliation

Policy Define harassment and discrimination Clearly state what is unacceptable Provide multiple options to report Outline what will happen Define responsibilities of managers Provide regular documented training on the policy and expectations!

Hostile Work Environment A hostile work environment is the behavior of a person in a workplace that makes work difficult or uncomfortable for another person.

Hostile Work Environment - Prohibited by Policy Not engage in abusive conduct to fellow employees or the public, or use abusive language in the presence of fellow employees or the public. Abusive language will include profanity and loud, threatening or harassing speech.

Defining “Sexual Harrassment” Sexual harassment is unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature WHEN: It is made a term or condition of employment or is used as a basis for employment decisions. (“quid pro quo”) It creates an offensive working environment.

Elements that Create Sexual Harassment Three elements often come together to create harassment in the workplace: Something of a sexual nature. Conduct in or related to the workplace that affects an employee’s ability to work. Actions that are unwelcome. This element can prove most difficult…what is unwelcome to one person may not be offensive to others.

Harassment Behavior targeting employees in protected classes. Steps to protect from liability: Have a policy and follow it Provide training for all employees Additional training for supervisors In person or interactive training All allegations must be taken seriously

Harassment – Supervisor duty If unlawful harassment is reported or alleged, it must be followed up. Complaining party not allowed to retract If supervisor learns of unlawful harassment or retaliation Must follow the Complaint Procedure as set out in policy.

Documenting What is needed! Don’t document what the employee did as much as… Document what YOU did to correct the employee’s performance or behavior.

Documenting If it isn’t written it didn’t happen Needs to be timely (retaliatory?) Needs to show fairness/balance Always known to the employee Don’t “paper the file”

INVESTIGATIONS Absolutely needed in allegations of: Illegal harassment Discrimination Criminal activity Recommended in cases of: Citizen complaint “Anonymous” tips

INVESTIGATIONS Prompt Thorough Impartial Should be within a few days Interview all with information Impartial Not anyone in command chain!!! May need outside investigator

Retaliation Vacation, sick leave, or FMLA leave Any action taken against an employee for using available benefits or process such as: Vacation, sick leave, or FMLA leave Using Work Comp benefits Filing complaints of harassment Filing a lawsuit Political activity Timing is critical!!

Policy Resources ICRMP web site for sample policies Your Agency Attorney Human resources (borrowed??) Involve your management staff Recognize that public employment is different (be careful of “off the shelf”)

Don’t Forget About Retaliation Most discrimination complaints include a charge of retaliation Retaliation claims account for 50% of EEOC claims 166 retaliation claims filed in Idaho this year, accounting for 34% of IHRC claims EEOC provides guidance on avoiding retaliation claims JEN If you receive a report of possible harassment, it is imperative that you counsel the accused party regarding the gravity of a retaliation claim. This includes helping the person understand that even withdrawing or avoiding the accuser can be construed as retaliation. Understanding that when a person is accused of any sort of misconduct, it is human nature to become defensive, even angry. As with most workplace conflicts, HR professionals should coach toward stepping out of the emotion and remaining professional.

Common Claims Idaho Public Employee Protection Act (Whistleblower Statute) Retaliation Wrongful termination in violation of Public policy

Whistleblower Claims Idaho Code Idaho Protection of Public Employees Act (IPPEA) Purpose – provide legal cause of action for public employees who experience adverse action from their employers as a result of reporting waste and violations of law, rule, or regulation (I.C. § 6-2101)

Termination The action most likely to lead to claims and litigation. Always ask for assistance before terminating an employee. Usually the reason is good – maybe not the process. Always state a reason – even at-will. Timing is critical, especially for retaliation claims. Consider options – resignation, reassignment, severance. ICRMP offer of assistance – defense panel attorneys.

$ Related Discipline Notice of proposed action (dismissal, demotion, unpaid leave) (consider paid leave until decided) Detailed reasons for proposed action Opportunity for hearing Conduct hearing Notice of decision CYA and let us help!