1. 11/5/2014

2. A Snapshot of GKH Established in 1977 General Practice Law Firm
16 Attorneys
21 Support Staff
Multiple Office Locations

3. Presented by GKH Attorney
11/5/2014
Diversity & Inclusion
Legal Considerations
Presented by GKH Attorney
Jeffrey J. Worley
October 3, 2017
Gibbel Kraybill & Hess LLP (“GKH”) prepared these materials for informational purposes only. As each situation is unique, these materials are not intended to be relied upon for specific legal decisions, and the dissemination of this information has not established an attorney-client relationship between GKH and any recipient. Please contact an attorney at GKH to discuss specific situations.
© Gibbel Kraybill & Hess LLP 2017

4. OPENING QUESTION
Talk about a successful team you’ve been part of. What made your team so successful?
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5. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.
© Gibbel Kraybill & Hess LLP 2017

6. Harassment Defined
Harassment is unwelcome conduct that is based on Protected Classification
Harassment becomes unlawful when
1) enduring the offensive conduct becomes a condition of continued employment, or
2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive
© Gibbel Kraybill & Hess LLP 2017

7. Consequences of Discrimination and Harassment
Low employee morale
Lost productivity, lost profits
Job turnover
Damage to the entity’s reputation and good will
Litigation and potential legal liability
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8. Employer’s Legal Obligation
Have a practice and a policy of no harassment
Have a policy and a structure to bring complaints
Promptly and thoroughly investigate any complaint of harassment
Take appropriate disciplinary action against anyone guilty of harassment
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9. Liability for a Non-Supervisor
The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.
© Gibbel Kraybill & Hess LLP 2017

10. Liability for a Supervisor
The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. 
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11. Faragher/Ellerth Defense
Employer can avoid liability for a hostile work environment created by a supervisor if it can demonstrate: (1) it took reasonable steps to prevent and promptly correct harassment in the workplace, and (2) the aggrieved employee unreasonably failed to take advantage of the employer's preventive or corrective measures. 
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12. Moving Beyond a Defense
In June 2016 the EEOC Select task Force on Harassment issued a report
In January 2017 the EEOC released proposed guidance regarding workplace harassment
The proposed guidance is not regulation
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13. Moving Beyond a Defense
The EEOC articulated the belief that most employer-conducted training focused too much on legal liability and not enough on creating "a holistic culture of non-harassment."
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14. EEOC Guidance to Prevent Harassment
Five Core Principles
Committed and engaged leadership
Consistent and demonstrated accountability
Strong and comprehensive harassment policies
Trusted and accessible complaint procedures
Regular, interactive training tailored to the audience and organization
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15. Committed and Engaged Leadership
Corporate leadership that make the elimination of workplace harassment a priority
Not only addressing elimination of outright actionable harassment, but also elimination of low level offenses, i.e. subtle innuendos
Creating a corporate culture of inclusion
© Gibbel Kraybill & Hess LLP 2017

16. Committed and Engaged Leadership
Conducting anonymous employee surveys on a regular basis to assess whether harassment is occurring, or is perceived to be tolerated; and
Partnering with researchers to evaluate the organization’s harassment prevention strategies.
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17. Consistent and Demonstrated Accountability
Effective training
Impose discipline that is prompt, consistent, and proportionate to the severity of the harassment, when harassment is determined to have occurred
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18. Consistent and Demonstrated Accountability
Zero tolerance policy is disfavored
Each occurrence must be evaluated on the level of severity and the circumstance
Zero tolerance often results in a failure to report low level violations
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19. Strong and Comprehensive Harassment Policies
An unequivocal statement that harassment based on any legally protected characteristic is prohibited and will not be tolerated
An easy-to-understand description of prohibited conduct, including examples
Communication of reporting system and encouragement to report harassment
© Gibbel Kraybill & Hess LLP 2017

20. Strong and Comprehensive Harassment Policies
Ensure that the policies are communicated to employees in an easily understood style and format
Review and update handbook and policies as needed
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21. Trusted and Accessible Complaint Procedures
An effective harassment complaint system:
welcomes questions, concerns, and complaints;
encourages employees to report potentially problematic conduct early;
treats alleged victims, complainants, witnesses, alleged harassers, and others with respect;
operates promptly, thoroughly, and impartially;
imposes appropriate consequences for harassment or related misconduct
© Gibbel Kraybill & Hess LLP 2017

22. Trusted and Accessible Complaint Procedures
The creation of effective and well-understood complaint mechanisms
A process for investigating and resolving harassment complaints
Provides multiple avenues of complaint
Provides to the greatest extent possible confidentiality as to reporter and witnesses
© Gibbel Kraybill & Hess LLP 2017

23. Trusted and Accessible Complaint Procedures
Ensure that alleged harassers are not prematurely presumed guilty or prematurely disciplined for alleged harassment
Includes process to convey resolution of the complaint to the complainant and alleged harasser
© Gibbel Kraybill & Hess LLP 2017

24. Trusted and Accessible Complaint Procedures
Employees responsible for receiving complaints
Should be trained with respect to receiving, investigating and resolving complaints
Should have authority to investigate and take appropriate action
Must take all complaints seriously
© Gibbel Kraybill & Hess LLP 2017

25. Regular, Interactive Training
Regular anti-harassment training to all employees
Education on rules, policies, procedures and consequences
Harassment training is most effective when it is tailored to the organization and audience.
When developing training, the daily experiences and unique characteristics of the work, workforce, and workplace are important considerations
© Gibbel Kraybill & Hess LLP 2017

26. Regular, Interactive Training
Descriptions of unlawful harassment and conduct that, if left unchecked, might rise to the level of unlawful harassment;
Examples that are tailored to the specific workplace and workforce;
Information about employees’ rights and responsibilities if they experience, observe, or otherwise become aware of conduct that they believe may be prohibited;
Explanations of the complaint process; and
Explanations of the range of possible consequences for engaging in prohibited conduct.
© Gibbel Kraybill & Hess LLP 2017

27. Regular, Interactive Training
Specific training for supervisors and managers
Bystander intervention training
© Gibbel Kraybill & Hess LLP 2017

28. EEOC Select Task Force on the Study of Harassment in the Workplace:
Resources
EEOC Select Task Force on the Study of Harassment in the Workplace:
assment/
EEOC checklists and chart of risk factors for employers:
assment/checklists.cfm
© Gibbel Kraybill & Hess LLP 2017

29. © Gibbel Kraybill & Hess LLP 2017
11/5/2014
QUESTIONS & ANSWERS
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