Anna Elento-Sneed November 28, 2018 Webinar Wednesdays Handling #Me Too & Sexual Harassment Complaints in the Workplace: Leadership, Culture , Accountability Anna Elento-Sneed November 28, 2018

Please consult an attorney if you have specific legal issues. Disclaimer This presentation is provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult an attorney if you have specific legal issues. Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

THE HARD TRUTHS … You cannot stop sexual harassment complaints Harassment is based on the victim’s perception of what is offensive and intimidating Perception is affected by each individual’s background, values, environment The decision to file a lawsuit is made by the employee The law is made case-by-case We do not have a national “civility code” … yet Public opinion changes over time Regulations provide examples, not answers You cannot predict what will happen in court Judges and juries have their own perceptions All you can do is demonstrate you made every effort to follow the applicable law at the time – Faragher/Ellerth affirmative defense Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

DISCUSSION TOPICS Defining Sexual Harassment #MeToo Situations to Watch For Employer’s Legal Obligations Written policies Education (i.e. “Training”) Investigations Remedial actions Non-retaliation EEOC’s Push Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

DEFINING SEXUAL HARASSMENT Form of sex discrimination Consists of two elements: Behavior which may be considered sexually harassing Context in which the behavior occurs Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

DEFINING SEXUAL HARASSMENT Sexually Harassing Physical Behavior Physical assault Coerced sexual acts Nonconsensual touching Grabbing Pinching Patting Touching Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

DEFINING SEXUAL HARASSMENT Sexually Harassing Verbal Conduct Demands for sexual favors Lewd comments Sexual remarks Notes of a personal or sexual nature Highly personal questions Requests for dates Telephone calls Sex-oriented joking, teasing, verbal abuse Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

DEFINING SEXUAL HARASSMENT Sexually Harassing Non-Verbal Conduct Sexual pictures in the workplace Sexual gestures Lingering glances Wolf whistles and cat calls Winking Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

DEFINING SEXUAL HARASSMENT Sexual Harassment Situations Submission to conduct is made explicitly or implicitly a condition of employment Submission to or rejection of conduct is basis for employment decisions Conduct has the purpose or effect of unreasonably interfering with work performance or creates intimidating, hostile or offensive work environment Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

DEFINING SEXUAL HARASSMENT Law applies to harassment of employees by customers Claimant does not have to suffer severe psychological damage No “bright line” test Harassment determined case-by-case Look at the “totality of the circumstances” Depends upon severity & frequency Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

DEFINING SEXUAL HARASSMENT Federal Definition of Harassment Title VII doesn’t prohibit all verbal or physical harassment in the workplace Law doesn’t target routine interactions between sexes Workplace is permeated with discriminatory intimidation, ridicule and insult that is severe or pervasive Severity of harassment is judged objectively from the perspective of a reasonable person Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

DEFINING SEXUAL HARASSMENT State Definition of “Harassment” Severity requires separate inquiry on: Whether conduct is severe Whether conduct had purpose or effect of affecting victim’s employment Conduct subjectively offensive to the plaintiff Conduct objectively offensive to reasonable person of plaintiff’s gender and in same position as plaintiff In determining severity, look to see if it violates criminal law If so, assume “severe” and go to next prong If not, review federal case law on “severe & pervasive” Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

#MeToo The Movement Know what you are dealing with Cases that fall squarely under the current federal & state employment laws Cases that fall within the law, but are beyond the applicable statutes of limitations Cases that involve internal “corporate ethics” standards Cases that are unrelated to employment (e.g. those that impact “the brand”) Know what you are dealing with Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

SITUATIONS TO WATCH FOR Harassment is a matter of perception … and people perceive differently. Cultural differences Sex differences Generational differences Indirect and/or non-verbal cues Appropriate work behavior Ignorance of the law Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

EMPLOYER’S LEGAL OBLIGATIONS Adopt a Policy Which Specifically Prohibits Discrimination or Harassment Written policy should include: Definitions and examples Designation of trained investigators (two or more) Specific investigation procedures Provision on discipline Provision on non-retaliation Acknowledgment forms Distribute written policy to all employees Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

EMPLOYER’S LEGAL OBLIGATIONS Conduct Regular In-Person Training Who should be trained: Human Resources Managers and Supervisors Non-supervisory Employees What should they be trained on: Definition and examples of sexual harassment Company policy Their obligations Complaint procedure Consequences for violation of policy Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

EMPLOYER’S LEGAL OBLIGATIONS Take Immediate Action to Confidentially Investigate Complaints “Immediate” means immediate Try to preserve confidentiality Overview of EEO Investigation Process Notify designated investigators Separate accused & alleged victim Immediately initiate investigation Collect & evaluate evidence Take effective remedial action Document process Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

EMPLOYER’S LEGAL OBLIGATIONS Other Considerations in Harassment Investigations Special training for investigators Use of outside investigators in sensitive or complex cases Employment Practices Liability Insurance Harassment by managers or supervisors Strict liability for quid pro quo harassment Joint representation of managers and supervisors in hostile work environment cases Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

EMPLOYER’S LEGAL OBLIGATIONS Violation Found Discipline offender Make victim “whole” Notify those involved Monitor situation No Violation Found Notify individuals involved Try to resolve miscommunication or dispute Monitor situation Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

EMPLOYER’S LEGAL OBLIGATIONS Discipline (Federal) Punishment required Geared to guarantee offender does not repeat Discipline (State) Punishment required Punishment geared to severity of conduct & whether offender shows remorse Must guarantee no recurrence Immediate termination if: No remorse shown Recurrence Retaliation probable Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

EMPLOYER’S LEGAL OBLIGATIONS Making the Victim “Whole” Reinstatement to original position Restore any wages, benefits or other tangible employment privileges lost Provide time off or counseling for any emotional distress suffered If necessary, transfer offender; never transfer the victim Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

EMPLOYER’S LEGAL OBLIGATIONS Prevent Retaliation Against Complainant and Witnesses Monitor work environment Instruct complainant and witnesses to report incidents they feel are retaliatory Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

EEOC’S PUSH FOR MORE … Preventing harassment is a national priority EEOC filing lawsuits (including class actions) EEOC also pushing employers to adopt more effective prevention strategies In addition to compliance, EEOC is looking for Leadership and Accountability Commitment (resources & time) from executives & management More extensive & frequent training Accountability for supervisors and managers Effective compliance training Live training, customized to each workplace Workplace civility training Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

FINAL THOUGHTS … RISK MANAGEMENT IS THE KEY Adopt comprehensive written policy & procedures Make sure everyone has a copy Get buy-in from upper management, managers & supervisors Empower and train HR to administer the policy Educate everyone about their obligation to comply with the policy & procedures Encourage them to reach out to HR with questions & assistance – discourage “self help” Promptly investigate & remediate of problems Requires commitment from owners and management Document, document, document Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018

QUESTIONS? Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 28, 2018