1. Job Discrimination and Sexual Harassment Training

2. Learning Objectives Recognize types of harassment & discrimination Recognize types of harassment & discrimination Understand your rights and responsibilities Understand your rights and responsibilities Understand the complaint procedure Understand the complaint procedure Understand the investigative process Understand the investigative process Identify liability and legal foundations for harassment prevention Identify liability and legal foundations for harassment prevention Recognize terms and concepts Recognize terms and concepts

3. Public Officials Liability Public Officials Liability is a form of professional liability that covers a public entity and the persons who act on its behalf from liability arising from wrongful acts. Public Officials Liability is a form of professional liability that covers a public entity and the persons who act on its behalf from liability arising from wrongful acts. Wrongful acts are usually defined as any actual or alleged error, misstatement, act, omission, neglect, or breach of duty. Wrongful acts are usually defined as any actual or alleged error, misstatement, act, omission, neglect, or breach of duty.

4. Typical POL Claims Breach of Contract Breach of Contract Repeal of Ordinance Repeal of Ordinance Zoning Zoning Libel & Slander Libel & Slander Tax Assessment Tax Assessment Revoke Business license Revoke Business license Eminent Domain Eminent Domain Election Contests Election Contests Tax Assessment Tax Assessment Section 1983 Violations Section 1983 Violations Failure to Perform Duty Failure to Perform Duty Employment Practices Employment Practices

5. Employment Practices Related Claims Civil Rights Violations Civil Rights Violations Constitutional Rights Violations Constitutional Rights Violations Discrimination Discrimination Employee Termination Employee Termination Employment Employment Harassment Harassment Sexual Misconduct Sexual Misconduct Allegations may involve civil rights violations that jeopardize a municipality's ability to use tort cap limits and governmental immunity as a defense.

6. Employment Related Claims Years 2000 thru 2005 Years 2000 thru 2005 51 % 51 % Incurred Public Officials Claim Dollars Incurred Public Officials Claim Dollars 45 % Total Number of Public Officials Claims 45 % Total Number of Public Officials Claims Range $ per Yr 38% - 65% Range # per Yr 35% - 50%

7. Six Federal Employment Laws Title VII of the Civil Rights Act of 1964 (Title VII) Title VII of the Civil Rights Act of 1964 (Title VII) Equal Pay Act of 1963 (EPA) Equal Pay Act of 1963 (EPA) Age Discrimination in Employment Act of 1967 (ADEA) Age Discrimination in Employment Act of 1967 (ADEA) Title I and Title V of the Americans with Disablitilies Act of 1990 (ADA) Title I and Title V of the Americans with Disablitilies Act of 1990 (ADA) Sections 501 and 505 of the Rehabilitation Act of 1973 Sections 501 and 505 of the Rehabilitation Act of 1973 Civil Rights Act of 1991 Civil Rights Act of 1991

8. Title VII, 1964 Civil Rights Act Race Race Color Color Religion Religion Sex Sex National Origin National Origin Covers private employers, state & local governments & educational institutions with 15 or more employees Covers private employers, state & local governments & educational institutions with 15 or more employees This law prohibits employment discrimination based on:

9. Civil Rights Act – 1972 Amendment Form of sex discrimination Form of sex discrimination Violation of federal law Violation of federal law Sexual harassment is a:

10. Pregnancy Discrimination Act of 1978 Amendment to Civil Rights Act Amendment to Civil Rights Act Unlawful to discriminate on the basis of pregnancy, childbirth or related medical conditions Unlawful to discriminate on the basis of pregnancy, childbirth or related medical conditions

11. Equal Pay Act of 1963 (EPA) Equal pay for equal work without discrimination Equal pay for equal work without discrimination Protects men and women who perform substantially the same job in the same workplace from sex- based wage discrimination Protects men and women who perform substantially the same job in the same workplace from sex- based wage discrimination Covers all employers covered by Federal Wage & Hour Law (Fair Labor Standards Act) – Virtually all employers Covers all employers covered by Federal Wage & Hour Law (Fair Labor Standards Act) – Virtually all employers

12. Age Discrimination in Employment Act of 1967 (ADEA) Protects individuals who are 40 or older Protects individuals who are 40 or older Covers private employers with 20 or more employees, state & local governments including school districts Covers private employers with 20 or more employees, state & local governments including school districts

13. Title I and Title V of the Americans with Disablitilies Act of 1990 (ADA) Prohibits employment discrimination against qualified individuals with disabilities Prohibits employment discrimination against qualified individuals with disabilities Applies to private employers and state and local governments with 15 or more employees Applies to private employers and state and local governments with 15 or more employees

14. Sections 501 and 505 of the Rehabilitation Act of 1973 Incorporates the requirements of the ADA for federal employees Incorporates the requirements of the ADA for federal employees Prohibits discrimination against qualified individuals with disabilities who work in federal government Prohibits discrimination against qualified individuals with disabilities who work in federal government

15. Civil Rights Act of 1991 Provides monetary damages in cases of intentional employment discrimination Provides monetary damages in cases of intentional employment discrimination

16. EEOC U.S. Equal Employment Opportunity Commission enforces all Federal laws prohibiting job discrimination U.S. Equal Employment Opportunity Commission enforces all Federal laws prohibiting job discrimination Oversight and coordination of all federal EEO regulations, practices, and policies Oversight and coordination of all federal EEO regulations, practices, and policies

17. Types of Harassment / Discrimination as Defined by EEOC Age Age Disability Disability National Origin National Origin Pregnancy Pregnancy Race/Color Race/Color Religious Religious Retaliation Retaliation Sex Based Sex Based Sexual Harassment Sexual Harassment

18. June 1999 New EEOC Guidance Burlington Industries, Inc. v. Ellerth Burlington Industries, Inc. v. Ellerth Faragher v. City of Boca Raton Faragher v. City of Boca Raton Result of 2 Supreme Court decisions: Both addressed sexual harassment, but also drew upon standards set forth in cases involving harassment on other protected bases Held employers vicariously liable for sexual harassment actions, thus providing the need for a policy and for training based on that policy.

19. Discriminatory Practices by Employers Hiring and firing Hiring and firing Compensation, assignment, or classification of employees Compensation, assignment, or classification of employees Transfer, promotion, layoff, or recall Transfer, promotion, layoff, or recall Job advertisements Job advertisements Recruitment Recruitment Testing Testing Use of Company facilities Use of Company facilities Training and apprenticeship programs Training and apprenticeship programs Fringe Benefits Fringe Benefits Pay, retirement plans, and disability leave Pay, retirement plans, and disability leave Other terms and conditions of employment Other terms and conditions of employment

20. Other Discriminatory Practices Harassment on basis of race, color, religion, sex, national origin, disability, or age Harassment on basis of race, color, religion, sex, national origin, disability, or age Retaliation against employee for filing discrimination charge Retaliation against employee for filing discrimination charge Employment decisions based on stereotypes or assumptions Employment decisions based on stereotypes or assumptions Denying employment opportunities to a person because of marriage/association Denying employment opportunities to a person because of marriage/association

21. Organizational & Individual Costs Organizational & Individual Costs  Increased absenteeism and turnover  Court awards, settlements and fees  Damage to local government image  Deterioration of staff morale  Negative culture  Damaged interpersonal relationships  Psychological distress, compromised wellness  Compromised spiritual & moral integrity  Employee productivity losses

22. What is Sexual Harassment? Unwelcome sexual conduct Unwelcome sexual conduct Conduct not solicited Conduct not solicited Conduct not incited Conduct not incited Conduct regarded as undesirable Conduct regarded as undesirable Conduct regarded as offensive Conduct regarded as offensive

23. Types of Sexual Harassment Conduct Unwelcome sexual advances Unwelcome sexual advances Requests for sexual favors Requests for sexual favors Verbal or physical sexual contact Verbal or physical sexual contact

24. EEOC Guidelines Sexual Harassment is defined as: “ unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.”

25. EEOC Criteria Criteria 1: Quid Pro Quo Criteria 1: Quid Pro Quo Submission to such conduct is made (either explicitly or implicitly) a term or condition of an individual’s employment, or rejection of such conduct is used as the basis for employment or job related decisions affecting the individual.

26. Quid Pro Quo Harasser has position of power or authority over the person being harassed Harasser has position of power or authority over the person being harassed “ Something for something” “ Something for something” Refusal to submit will tangibly affect the individual’s term or conditions of employment Refusal to submit will tangibly affect the individual’s term or conditions of employment

27. Quid Pro Quo Made explicitly or implicitly Made explicitly or implicitly Made a term or condition of employment Made a term or condition of employment Used as a basis for decision making Used as a basis for decision making May occur after only one event May occur after only one event

28. EEOC Criteria Criteria II – Hostile Work Environment Criteria II – Hostile Work Environment Such conduct unreasonably interferes with an individual’s work or creates an intimidating, hostile, or offensive working environment.

29. Hostile Work Environment Unreasonably interferes with work performance Unreasonably interferes with work performance Creates intimidating, hostile, or offensive work environment Creates intimidating, hostile, or offensive work environment Created usually after repetition of offensive behavior Created usually after repetition of offensive behavior Perception vs intent Perception vs intent

30. What Factors Determine Hostile Work Environment Verbal or physical Verbal or physical Frequency Frequency How offensive How offensive Co-worker vs supervisor Co-worker vs supervisor Participation by others Participation by others Directed at one or more parties Directed at one or more parties

31. Possible Offensive Behaviors Remarks Remarks Jokes Jokes Touching Touching Posters Posters Advances Advances Insults Insults Suggestions Suggestions Stereotyping Stereotyping Slurs Slurs Questioning Questioning

32. Who Can Be a Victim? Woman Woman Man Man Co-workers Co-workers Supervisor Supervisor

33. Who Can Harass? Men Men Women Women Co-worker Co-worker Supervisor Supervisor Customer Customer Contractor Contractor Anybody! Anybody!

34. Examples of Sexual Harassment Direct or indirect threats or bribes for unwanted sexual activity Direct or indirect threats or bribes for unwanted sexual activity Sexual innuendoes and comments Sexual innuendoes and comments Sexually suggestive sounds or gestures such as sucking noises, winks or pelvic thrusts Sexually suggestive sounds or gestures such as sucking noises, winks or pelvic thrusts Repeatedly asking a person out for dates Repeatedly asking a person out for dates A neck / shoulder massage A neck / shoulder massage Ogling or leering, staring at a woman’s breasts or a man’s derriere Ogling or leering, staring at a woman’s breasts or a man’s derriere Rating a person’s looks or sexuality Rating a person’s looks or sexuality

35. Examples of Sexual Harassment (cont.) Name-calling, such as “babe” Name-calling, such as “babe” Sexual ridicule Sexual ridicule Frequent jokes about sex or males/females Frequent jokes about sex or males/females Letters, notes, telephone calls or material of a sexual nature Letters, notes, telephone calls or material of a sexual nature Pervasive displays of pictures, calendars, cartoons, or other materials with sexually explicit or graphic content Pervasive displays of pictures, calendars, cartoons, or other materials with sexually explicit or graphic content

36. Intent vs. Impact Is my intent the same as the impact? Is my intent the same as the impact? Is my behavior welcome? Is my behavior welcome?

37. Possible Dangerous Responses  It’s just teasing – no big deal  The people in our department would never do …  I know he/she didn’t mean anything like that  It’s your fault for dressing so provocatively  You need to learn to handle these things  Just ignore it  He puts his arms around everyone  You must have wanted it, otherwise you would have told him no  Why can’t you learn to accept a compliment?  It’s just a prank that got out of hand  We’ve never had a complaint, so we don’t have a problem

38. Do’s Be assertive Be assertive Provide a clear and emphatic objection every time the unwelcome conduct happens Provide a clear and emphatic objection every time the unwelcome conduct happens Keep documentation Keep documentation If you choose, confront the harasser If you choose, confront the harasser Continue to report to work Continue to report to work Make an official complain if the behavior does not stop !!! Make an official complain if the behavior does not stop !!!

39. Don’ts Don’t attempt to retaliate Don’t attempt to retaliate Don’t make yourself guilty of insubordination Don’t make yourself guilty of insubordination Don’t socially or emotionally isolate yourself Don’t socially or emotionally isolate yourself

40. Employer Obligations TO: Prevent discrimination in the workplace Prevent discrimination in the workplace Provide a safe & healthy environment Provide a safe & healthy environment Investigate and resolve complaints Investigate and resolve complaints Restore injured employees Restore injured employees Provide awareness & training Provide awareness & training

41. Employer Issues Did the employer know of the incidents? Did the employer know of the incidents? Should the employer have known? Should the employer have known? What did the employer do to prevent them? What did the employer do to prevent them? What did the employer do to stop the incident? What did the employer do to stop the incident?

42. Complaint Procedure Let your employees know you take this issue seriously Let your employees know you take this issue seriously Take a proactive stance in preventing unlawful harassment Take a proactive stance in preventing unlawful harassment Take appropriate action in a timely manner Take appropriate action in a timely manner Remember, you are liable if you knew or should have known Remember, you are liable if you knew or should have known

43. Complaint Procedure You may file an oral or written complaint with any of the following personnel/offices: Immediate Supervisor Immediate Supervisor Second Level Supervisor Second Level Supervisor Human Resource Office Human Resource Office Equal Employment Opportunity Commission (Federal) Equal Employment Opportunity Commission (Federal)

44. Employee Responsibilities Right to be free from harassing behavior Right to be free from harassing behavior Responsibility to complain about harassing behavior Responsibility to complain about harassing behavior

45. Retaliation You are protected against retaliation for exercising your right to complain or for testifying or assisting in an investigation or hearing.

46. Supervisor Responsibilities Let your employees know you take this issue seriously & the institution will respond promptly Let your employees know you take this issue seriously & the institution will respond promptly Take a proactive stance in preventing unlawful harassment Take a proactive stance in preventing unlawful harassment Take appropriate action in a timely manner, don’t delay Take appropriate action in a timely manner, don’t delay Document. Write a detailed summary of the complaint Document. Write a detailed summary of the complaint Follow up on the complaint. Check with the complainant the next day to ensure he or she is getting needed assistance Follow up on the complaint. Check with the complainant the next day to ensure he or she is getting needed assistance

47. Limiting Exposure Sexual harassment policy Sexual harassment policy Investigation and remedial actions Investigation and remedial actions Education and awareness Education and awareness Documentation Documentation

48. Key Policy Provisions In writing In writing Define harassment Define harassment Establish the need to complain Establish the need to complain Have two complaint routes Have two complaint routes Forms of discipline explained Forms of discipline explained Prohibit retaliation Prohibit retaliation

49. Management Education Policy provisions Policy provisions Prohibited behaviors Prohibited behaviors Investigation procedures Investigation procedures Held accountable for enforcement Held accountable for enforcement

50. Employee Awareness Policy to all employees Policy to all employees Include in personnel manuals Include in personnel manuals Posted on bulletin boards Posted on bulletin boards Openly enforce policy Openly enforce policy Prohibited behaviors discontinued Prohibited behaviors discontinued Employees feel free to raise issues Employees feel free to raise issues Periodic reminders Periodic reminders

51. Investigation Procedures Should be included in policy Should be included in policy Investigate all allegations Investigate all allegations Document every charge and resolution Document every charge and resolution Maintain as confidential as possible Maintain as confidential as possible Ask who, what, where, when Ask who, what, where, when Be as thorough as possible Be as thorough as possible Maintain regular contact with victim Maintain regular contact with victim

52. Investigative Process Informal Review Informal Review Formal Review Formal Review Results of Investigation Results of Investigation

53. Remedial Actions Prohibit known behaviors Prohibit known behaviors Take prompt action to stop behavior Take prompt action to stop behavior Restore victim to “whole” Restore victim to “whole” Protect victim from retaliation Protect victim from retaliation Apply discipline up to discharge Apply discipline up to discharge Make follow-up inquiries Make follow-up inquiries

54. DocumentDocument Training and education Training and education All discussions & notices All discussions & notices All known incidents All known incidents Remedial steps taken Remedial steps taken Do not include in victim’s personnel file. Do not include in victim’s personnel file. Place record of disciplinary actions in harasser’s file. Place record of disciplinary actions in harasser’s file.

55. Areas to Avoid Don’t make promises to complete investigation in certain number of days Guarantee of complete confidentiality Requiring complaints be written Promises of investigation by one individual Promise of specific outcome to victim

56. Confidentiality All complaints will be kept confidential All complaints will be kept confidential Records established as a result of an investigation are not to be retained in employee personnel file Records established as a result of an investigation are not to be retained in employee personnel file

57. Summary Sexual harassment policy Investigation and remedial actions Education and awareness Documentation

58. Questions?