Harassment, It’s Not Just about Sex Anymore Human Resource Association of Central Ohio (HRACO) 11th Annual Legal Update October 13, 2015 Presented by: Worley Law, LLC Julie M. Young, Esq.

Worley Law, LLC Julie M. Young, Esq. jmy@worleylawllc Worley Law, LLC Julie M. Young, Esq. jmy@worleylawllc.com 614-824-6200 Questions Welcomed!

Sexual Harassment Quid Pro Quo (“this for that”) Harassment Occurs when an employee with authority, usually a supervisor or someone else who can control employment decisions, offers job benefits (like pay raises or promotions) or threatens job losses (like pay decrease or firing) in exchange for sexual or dating favors Hostile Environment Harassment Occurs when any employee creates a work environment which a reasonable person would find intimidating, hostile or offensive – based on a protected classification

Other Harassment It’s not just about sexual harassment – a hostile environment can be created when the harassment is tied to any protected classification

Charges Alleging Sexual Harassment FY 2010 – 2014 U.S. Equal Employment Opportunity Commission FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 Receipts 7,944 7,809 7,571 7,256 6,862 % of Charges Filed by Males 16.2% 16.1% 17.8% 17.6% 17.5% Monetary Benefits (Millions) Does not include monetary benefits obtained through litigation. $41.2 $45.1 $43.0 $44.6 $35.0

U.S. Equal Employment Opportunity Commission Charges Alleging Harassment Other Than Sexual Harassment FY 2010 – 2014 U.S. Equal Employment Opportunity Commission FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 Receipts 21,454 21,470 21,088 21,371 21,930 Monetary Benefits (Millions) Does not include monetary benefits obtained through litigation. $86.5 $87.9 $82.1 $97.3 $68.2

Consider the victim's perspective. Reasonable Person Standard Consider the victim's perspective. There is a wide range of sensitivity toward harassing behavior. It is the “eye of the beholder” that is important, not what management or co-workers might find personally offensive.

Acts/Words that Might Create a Sexually Hostile Environment Examples Acts/Words that Might Create a Sexually Hostile Environment

Other Types Of Harassment Examples Other Types Of Harassment

Employer’s Responsibilities to Prevent Harassment and to Correct Harassment

When & How Things Fall Apart

Prevention Know, understand and follow your Company’s policy against harassment Monitor environment Intervene before an insult or offense becomes illegal harassment Create an environment of respect (lead by example) Training

Correction Take action when you see something that could be a violation, even without a complaint Exercise reasonable care in addressing all complaints Don’t play favorites or take some complaints more seriously than others Don’t dismiss a complaint because you don’t think it’s legitimate Don’t retaliate or allow others to retaliate

Investigation Do’s and Don’ts Take all complaints seriously Start investigation right away Consider whether immediate action is necessary pending the investigation Ask the victim to identify witnesses and interview those witnesses Keep the victim informed Document, document, document Don’t Ask the harasser what happened and call it a day Fail to take any complaint seriously Fail to investigate Wait too long to start the investigation Take too long to conduct the investigation Fail to document the investigation, interview relevant witnesses or take corrective action Respond to some complaints more earnestly than others Offend the victim Focus on the victim (what she did or didn’t do) Say “that’s just the way it is around here.”

Other Important Considerations Never require the victim to go to the harasser to try to work it Do not prohibit the employee from asking co-workers to serve as witnesses Be clear that employee has the right to and should bring subsequent complaints or concerns Assure employee that no adverse action will be taken against him/her based on the complaint or his/her own efforts to investigate the complaint

West v. Tyson Foods, Inc. (2010) Case Study West v. Tyson Foods, Inc. (2010) Facts: Plaintiff Amanda West was allegedly subjected to severe and pervasive sexual harassment throughout her five weeks on the job. Her first week, co-workers allegedly asked her out while telling her she had a “nice ass” and “big boobs.” She alleged that they would frequently whistle and stare at her, and that one employee in particular was constantly saying sexual things to her. During her third week of employment, a co-worker allegedly tried to kiss her, stared at her, and asked her if she would have sex with him. When she refused and told him she was married, he grabbed his crotch and said, “suck my dick.” Other male co-workers allegedly observed the scene and laughed. The supervisor in charge of the line noticed that West was crying and asked her what was wrong. West then reported the harassment to the supervisor. Under the employer’s harassment policy, the employer was to investigate within two weeks all harassment complaints made to management. However, when West informed the supervisor of the harassment, he first told West not to take offense because “that’s just how they treat their women over there.” He then told West, “well, you know, you are hot.” Upon realizing that West was serious, he promised he would see to it that the situation was resolved. West believed that the supervisor would go to Human Resources and that the employer would investigate the harassment. But the supervisor reported the harassment to no one and did not conduct an investigation. The harassment allegedly continued. One employee allegedly pulled West to him, touched her breast, told her she was “hot and sexy,” and twice groped her buttocks, and other employees grabbed her buttocks while observers laughed. During her fifth week of work, West decided not to return. The employer conducted an exit interview with her when she returned for her last paycheck. She told the HR Manager of the harassment, but, again, the employer did nothing. Not until West filed an EEOC charge did the employer investigate the harassment and discipline employees for participating in or failing to report the harassment.

Emerging Trends LGBT Community Sexual Orientation Gender Identify Gender Re-Assignment Same Sex, Same Race, Same Religion Harassment

Closing Thoughts & Questions

Julie M. Young, Esq. jmy@worleylawllc.com 614-824-6200 Additional resources: http://www.eeoc.gov/eeoc/task_force/harassment/ http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm Julie M. Young, Esq. jmy@worleylawllc.com 614-824-6200 This publication and any presentation is intended to present general information only. It should not be used as a substitute for individual legal advice. Consult a legal professional prior to acting on any information presented.