Division of Risk Management State of Florida Loss Prevention Program

 Introduce and reinforce basic concepts of sexual harassment.  Prevent sexual harassment in the workplace by developing a clear understanding of what sexual harassment is and how it affects people.  Help supervisors, managers, and employees understand their roles in maintaining a harassment-free workplace.  Help reduce fees and costs associated with discrimination to reduce Risk Management exposure for all state agencies

 All cell phones on vibrate.  Respect each other at all times.  No case-specific legal advice will be given.  Keep an open mind.  Leave all titles at the door.  What happens here, stays here.  Enjoy.

“For the last time, Crawford, our firm is ‘warm and fuzzy’, not ‘touchy feely’.”

Unwelcome sexual advances; requests for sexual favors where:  Submission to the conduct is made implicitly or explicitly a term or condition of employment.  An employment decision is based on the acceptance or rejection of the conduct, or…  Conduct interferes with work performance or creates an intimidating, hostile or offensive environment.

 Harassment that results in tangible employment action—by managers and supervisors only.  Harassment that does not result in a tangible employment action—by co- workers or managers.

 An employee’s submission to or rejection of unwelcome sexual conduct is used as the basis for employment decisions affecting that employee.  Applies exclusively in sexual harassment.

 A state agency has a number of individuals “assigned” to it who are neither employees nor independent contractors. Female staff have been subjected to every nature and type of sexual harassment and degradation imaginable, with emphasis on “every.”  Female staff sued. The result?

The employer is ALWAYS liable for a supervisor’s conduct resulting in a tangible employment action.

HOSTILE WORK ENVIRONMENT

 Off color jokes or teasing.  Comments about body parts or sex life.  Suggestive pictures, posters, calendars, or cartoons.  Leering, staring, or gesturing.  Repeated requests for dates.  Excessive attention in the form of love letters, phone calls, or gifts.  Touching- brushes, pats, hugs, shoulder rubs, or pinches.  Assault or rape.

 Conduct based upon protected class.  Severe or pervasive.  Hostile work environment results.  Basis for employer liability exists.

 A female employee, a former merchant seaman, worked at a freight shipping company for four years. The workplace was permeated with every curse word known, and then some. A radio station was played in the office in the morning that can be only described as crude and sexually graphic. Pornographic images were on some computers as screen savers. She complained to management with no relief.  The employee quit and sued. Result?

 Employer liable for harassment by co-worker if it knew or should have known of the conduct and failed to take immediate and appropriate remedial action.  Employer liable for harassment by a third party if it knew or should have known of the conduct and failed to take immediate and appropriate remedial action.

 Employer sometimes liable for supervisor’s harassment that results in a hostile work environment.  May avoid or limit liability if can prove affirmative defense.

To avoid or limit liability, employer must prove:  Employer exercised reasonable care to prevent and promptly correct harassing behavior, AND  Employee unreasonably failed to take advantage of any preventative or corrective opportunities to avoid harm provided by employer.  This does not apply in situations resulting in tangible employment action.

Reasonable care means employer must:  Establish, publicize and enforce its anti- harassment policy and complaint procedure.  Investigate allegations of harassment and take reasonable steps to prevent and correct such conduct.

 Clear explanation of prohibited conduct.  Assurance of protection from retaliation.  Clearly describe complaint process with multiple avenues of access.  Assurance that confidentiality will be protected to the extent possible.  Provide for prompt, thorough and impartial investigation.  Assurance employer will take appropriate corrective action when it determines harassment occurred.

 Ensure that supervisors and managers understand their responsibilities under the employer’s anti- harassment policy and complaint procedure.  Instruct all supervisors and managers to report complaints, whether verbal or in writing.  Instruct all supervisors and managers to correct harassment and retaliation.  Keep records of all complaints of harassment.

 Development and implementation of a comprehensive, effective policy — aggressively and thoroughly disseminated, demonstrating a commitment to adhere to the policy, making reasonable efforts to find out “what is going on” by the employer — will then shift the responsibility to employees to use the policies and address grievances.

 Only UNWELCOMED conduct can be harassment.  “Unwelcome” is in the eye of the beholder.  Victims have a responsibility to inform the harasser that the conduct is unwelcome.  Where a clear and published policy exists of reporting harassment, it is sufficient if the employee reports the conduct to an appropriate person and follows the policy exactly as written.

RETALIATION

The elements of retaliation are:  Employee engaged in ‘protected activity’.  Employee was subjected to an adverse action.  A causal link exists between the activity and the adverse action.

Action must be “materially adverse,” which means:  The employer’s actions might well prevent a reasonable employee from making or supporting a charge of discrimination.  Must look at the employment environment as a whole, not just an isolated incident.  This does NOT need to be severe or pervasive.

Examples of opposition include:  Complaining about alleged discrimination against self or others verbally or in writing.  Threatening to file charge of discrimination.

Examples of participation include:  Filing a charge of employment discrimination.  Cooperating with an internal investigation of alleged discriminatory practices.  Serving as witness in an investigation or litigation.

 Direct evidence.  Circumstantial evidence.

 Intentional physical contact of a sexual nature.  Unwanted sexual advances.  Sexual displays or publications.  RETALIATION for opposing harassment or participating in investigation or proceeding.

May be made to:  Human resources manager.  Any supervisor.  Any manager.

 A Wall Street investment firm has been sued by a former employee who alleged that his boss forced him to take female hormones, then sexually assaulted him.  The boss said the hormones would make the employee a better trader.  A current employee was quoted as saying, “If taking female hormones actually helped you do your job, they would simply hire women here... but they don’t. They don’t think women are aggressive enough.”  EEOC is considering joining the suit.

 All complaints of sexual harassment will be investigated expeditiously.  Appropriate remedial measures will be taken.  Confidentiality will be maintained to the fullest extent possible.  Cooperation with investigation is mandatory.

 Supervisors will re-train staff on the policy every six months.  Training must be interactive – no “pop the video in.”  Managers and supervisors will participate in annual training on workplace harassment, the sexual harassment policy, and their responsibilities under the law and agency policy.

Text Messaging  What kind of messages are you sending?

Internet  netiquette.  Memos.  Punctuation.  Smiling faces.

Don’t do it! Don’t tolerate it! Don’t ignore it!

For more information on this subject, please contact: Division of Risk Management State of Florida Loss Prevention Program (850)