SOUTH CAROLINA HUMAN AFFAIRS COMMISSION Presenting the...

Declaration of Independence “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness…”

1964 Civil Rights Act 1972 S.C. Human Affairs Law Significant Anniversaries

Laws Enforced by the Human Affairs Commission South Carolina Human Affairs Law South Carolina Fair Housing Law South Carolina Equal Enjoyment and Privileges to Public Accommodations Federal Laws Prohibiting Discrimination

EEOC LAWS ENFORCED Title VII of the 1964 Civil Rights Act Bans discrimination in employment because of race, color, religion, sex, or national origin. Age Discrimination in Employment Act (ADEA) Makes unlawful employment discrimination because of age against anyone 40 years of age and older. Pregnancy Discrimination Act Amends Title VII and states that employment discrimination is prohibited when based on pregnancy, childbirth, and related medical conditions. The Americans with Disabilities Act (ADA) Prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments.

Preventing Harassment

Employers must be prepared to prevent harassment based on: race color national origin religion sex age disability

Harassment Basis Sex Same Sex Gender

The “but for” theory

SEXUAL ATTRACTION vs Positive Admiring Does not diminish Expression of Sexuality Ceases when Unwanted or Unwelcome Negative Degrading Absent Respect for Integrity of Another Escalates Abuse of Power not Abuse of Passion SEXUAL HARASSMENT

Sexual Harassment jokes…innuendos…banter INTENT friendly, amiable, humorous vs EFFECT insulted, embarrassed, demeaned

“ Perspective of reasonable woman, rather than reasonable person, is adopted primarily because of belief that sex-blind reasonable person standard tends to be male- biased and tends systematically to ignore experiences of women.” - Ellison v. Brady - US Court of Appeals

UNWELCOMED

Elements of Harassment Submission to conduct is made explicitly or implicitly a condition of an individual’s employment Submission or rejection of the conduct is used as the basis for making employment decisions that affect the individual. Such conduct has the purpose or the effect of unreasonably interfering with an individual’s work performance, or creating an intimidating, hostile, or offensive working environment.

Defense / Liability Courts have ruled that employers are “vicariously liable” for harassment by supervisors. However if the harassment did not result in a tangible job action, the employer can raise an affirmative defense that it exercised “reasonable care” to prevent and correct the harassment, and that the employee failed to use its complaint procedure.

Instead of marking out two areas -- a hostile environment or a non- hostile environment -- the courts mark out three areas:

Hostile Environment Environments that any reasonable fact-finder would conclude are hostile Environments that no reasonable fact-finder would conclude are hostile Environments on which reasonable fact-finders would disagree If your case falls in the third area, a broad area indeed, all you can know is that the result depends on the judge or jury you draw.

STEPS FOR ANALYZING HARASSMENT COMPLAINTS BASED ON SEX ? UNWELCOMED ? UNREASONABLE ? SEVERE OR PERVASIVE ?

Was It Or Wasn’t It Harassment ?

What does it mean ? Severe Pervasive Offensive Unreasonable Abusive

Prevention Train Provide for internal complaints Publicize efforts to prevent harassment Do not retaliate Publicize policy Be fair

ASK YOURSELF…. Would I make these comments to this person if my spouse could overhear me? Would I tell this joke or story to an employee if my Mother or Father could overhear me ? Would I be comfortable if my behavior were published in the agency’s newsletter? Is there equal participation?

Where is the line between flirtation and sexual harassment? The Unemployment Line!

Do your part to prevent and eliminate Sexual Harassment. Thank you! Presented by: Dan Koon Division Director SC Human Affairs Commission