1. Discrimination, Harassment & Hostile Work Environment
Bill Thompson – Latah County Prosecuting Attorney
Jim McNall – ICRMP Risk Management Specialist
PRIMA Spring Training 2018

2. Unlawful Discrimination
Any adverse employment action or treatment based on protected class. Minimum legal standard – should not be your goal – strive to be better What might not be unlawful – but still not OK?

3. An Important Test
Are you acting or tolerating behavior (as a supervisor) that can be hurtful or injurious?
Imagine yourself on the receiving end
People have a legal right not to be treated adversely based on legally protected considerations.
You have a duty not to violate those rights

4. What is Discriminatory Harassment?
Discriminatory harassment is a form of discrimination based on legally protected classes:
age
national origin/skin color
race
religion
gender
disability
In the workplace, when we hear the word “harassment” many of us think only of sexual harassment. However, illegal harassment also occurs based on an employee’s race or color, religion, national origin or disability. Disability is physical or mental. Age applies to over 40.

5. What You Can Do? Understand the law
Articulate a clear policy and reporting procedures
Commit to promptly investigating EVERY claim
Take appropriate action
Train all employees and supervisors, preferably annually
Avoid gender stereotypes
Hold everyone accountable for adhering to policy and demonstrating respect and fairness
JEN
Train supervisors. Do they know how to hire/interview properly to avoid claims? Do they know language to use in reviews/performance management to avoid gender claims?
Establish a complaint procedure that employees can use without fear of repercussions. Make it open and easy to report a concern – avoid requiring chain of command.
Review it! Does it indicate employee can be fired if claim is bogus? Note that false claims are rare. Most legitimate claims are never made at all in fact. There is fear of retaliation and character assassination, so people tend to wait until they are near desperation. Encourage an environment where people find it easy and safe to speak up.
Conduct pay audits to uncover and address unexplained pay disparities.
Establish good communications to explain employment decisions that could cause worker disgruntlement.
Make a concerted effort to hire a diversified workforce.
Act promptly to correct any disparate treatment once a charge is made.
Avoid retaliation

6. Policy Define harassment and discrimination
Clearly state what is unacceptable
Provide multiple options to report
Outline what will happen
Define responsibilities of managers
Provide regular documented training on the policy and expectations!

7. Hostile Work Environment
A hostile work environment is the behavior of a person in a workplace that makes work difficult or uncomfortable for another person.

8. Hostile Work Environment - Prohibited by Policy
Not engage in abusive conduct to fellow employees or the public, or use abusive language in the presence of fellow employees or the public. Abusive language will include profanity and loud, threatening or harassing speech.

9. Defining “Sexual Harassment”
Sexual harassment is unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature WHEN:
It is made a term or condition of employment or is used as a basis for employment decisions. (“quid pro quo”)
It creates an offensive working environment.

10. Elements that Create Sexual Harassment
Three elements often come together to create harassment in the workplace:
Something of a sexual nature.
Conduct in or related to the workplace that affects an employee’s ability to work.
Actions that are unwelcome. This element can prove most difficult…what is unwelcome to one person may not be offensive to others.

11. Harassment Behavior targeting employees in protected classes.
Steps to protect from liability:
Have a policy and follow it
Provide training for all employees
Additional training for supervisors
In person or interactive training
All allegations must be taken seriously

12. Harassment – Supervisor duty
If unlawful harassment is reported or alleged, it must be followed up.
Complaining party not allowed to retract
If supervisor learns of unlawful harassment or retaliation
Must follow the Complaint Procedure as set out in policy.

13. Documenting What is needed!
Don’t document what the employee did as much as…
Document what YOU did to correct the employee’s performance or behavior.

14. Documenting If it isn’t written it didn’t happen
Needs to be timely (retaliatory?)
Needs to show fairness/balance
Always known to the employee
Don’t “paper the file”

15. INVESTIGATIONS Absolutely needed in allegations of:
Illegal harassment
Discrimination
Criminal activity
Recommended in cases of:
Citizen complaint
“Anonymous” tips

16. INVESTIGATIONS Prompt Thorough Impartial Should be within a few days
Interview all with information
Impartial
Not anyone in command chain!!!
May need outside investigator

17. Retaliation Vacation, sick leave, or FMLA leave
Any action taken against an employee for using available benefits or process such as:
Vacation, sick leave, or FMLA leave
Using Work Comp benefits
Filing complaints of harassment
Filing a lawsuit
Political activity
Timing is critical!!

18. Policy Resources ICRMP web site for sample policies
Your Agency Attorney
Human resources (borrowed??)
Involve your management staff
Recognize that public employment is different (be careful of “off the shelf”)

19. Don’t Forget About Retaliation
Most discrimination complaints include a charge of retaliation
Retaliation claims account for 50% of EEOC claims
166 retaliation claims filed in Idaho this year, accounting for 34% of IHRC claims
EEOC provides guidance on avoiding retaliation claims
JEN
If you receive a report of possible harassment, it is imperative that you counsel the accused party regarding the gravity of a retaliation claim. This includes helping the person understand that even withdrawing or avoiding the accuser can be construed as retaliation.
Understanding that when a person is accused of any sort of misconduct, it is human nature to become defensive, even angry. As with most workplace conflicts, HR professionals should coach toward stepping out of the emotion and remaining professional.

20. Common Claims
Idaho Public Employee Protection Act (Whistleblower Statute)
Retaliation
Wrongful termination in violation of Public policy

21. Whistleblower Claims Idaho Code
Idaho Protection of Public Employees Act (IPPEA)
Purpose – provide legal cause of action for public employees who experience adverse action from their employers as a result of reporting waste and violations of law, rule, or regulation (I.C. § )

22. Termination The action most likely to lead to claims and litigation.
Always ask for assistance before terminating an employee.
Usually the reason is good – maybe not the process. Always state a reason – even at-will.
Timing is critical, especially for retaliation claims.
Consider options – resignation, reassignment, severance.
ICRMP offer of assistance – defense panel attorneys.

23. $ Related Discipline
Notice of proposed action (dismissal, demotion, unpaid leave) (consider paid leave until decided)
Detailed reasons for proposed action
Opportunity for hearing
Conduct hearing
Notice of decision
CYA and let us help!