1. Anna Elento-Sneed November 28, 2018
Webinar Wednesdays
Handling #Me Too & Sexual Harassment Complaints in the Workplace: Leadership, Culture , Accountability
Anna Elento-Sneed
November 28, 2018

2. Please consult an attorney if you have specific legal issues.
Disclaimer
This presentation is provided for informational purposes only and is not intended and should not be construed to constitute legal advice.
Please consult an attorney if you have specific legal issues.
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

3. THE HARD TRUTHS … You cannot stop sexual harassment complaints
Harassment is based on the victim’s perception of what is offensive and intimidating
Perception is affected by each individual’s background, values, environment
The decision to file a lawsuit is made by the employee
The law is made case-by-case
We do not have a national “civility code” … yet
Public opinion changes over time
Regulations provide examples, not answers
You cannot predict what will happen in court
Judges and juries have their own perceptions
All you can do is demonstrate you made every effort to follow the applicable law at the time – Faragher/Ellerth affirmative defense
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

4. DISCUSSION TOPICS Defining Sexual Harassment #MeToo
Situations to Watch For
Employer’s Legal Obligations
Written policies
Education (i.e. “Training”)
Investigations
Remedial actions
Non-retaliation
EEOC’s Push
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

5. DEFINING SEXUAL HARASSMENT
Form of sex discrimination
Consists of two elements:
Behavior which may be considered sexually harassing
Context in which the behavior occurs
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

6. DEFINING SEXUAL HARASSMENT
Sexually Harassing Physical Behavior
Physical assault
Coerced sexual acts
Nonconsensual touching
Grabbing
Pinching
Patting
Touching
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

7. DEFINING SEXUAL HARASSMENT
Sexually Harassing Verbal Conduct
Demands for sexual favors
Lewd comments
Sexual remarks
Notes of a personal or sexual nature
Highly personal questions
Requests for dates
Telephone calls
Sex-oriented joking, teasing, verbal abuse
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

8. DEFINING SEXUAL HARASSMENT
Sexually Harassing Non-Verbal Conduct
Sexual pictures in the workplace
Sexual gestures
Lingering glances
Wolf whistles and cat calls
Winking
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

9. DEFINING SEXUAL HARASSMENT
Sexual Harassment Situations
Submission to conduct is made explicitly or implicitly a condition of employment
Submission to or rejection of conduct is basis for employment decisions
Conduct has the purpose or effect of unreasonably interfering with work performance or creates intimidating, hostile or offensive work environment
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

10. DEFINING SEXUAL HARASSMENT
Law applies to harassment of employees by customers
Claimant does not have to suffer severe psychological damage
No “bright line” test
Harassment determined case-by-case
Look at the “totality of the circumstances”
Depends upon severity & frequency
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

11. DEFINING SEXUAL HARASSMENT
Federal Definition of Harassment
Title VII doesn’t prohibit all verbal or physical harassment in the workplace
Law doesn’t target routine interactions between sexes
Workplace is permeated with discriminatory intimidation, ridicule and insult that is severe or pervasive
Severity of harassment is judged objectively from the perspective of a reasonable person
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

12. DEFINING SEXUAL HARASSMENT
State Definition of “Harassment”
Severity requires separate inquiry on:
Whether conduct is severe
Whether conduct had purpose or effect of affecting victim’s employment
Conduct subjectively offensive to the plaintiff
Conduct objectively offensive to reasonable person of plaintiff’s gender and in same position as plaintiff
In determining severity, look to see if it violates criminal law
If so, assume “severe” and go to next prong
If not, review federal case law on “severe & pervasive”
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

13. #MeToo The Movement Know what you are dealing with
Cases that fall squarely under the current federal & state employment laws
Cases that fall within the law, but are beyond the applicable statutes of limitations
Cases that involve internal “corporate ethics” standards
Cases that are unrelated to employment (e.g. those that impact “the brand”)
Know what you are dealing with
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

14. SITUATIONS TO WATCH FOR
Harassment is a matter of perception … and people perceive differently.
Cultural differences
Sex differences
Generational differences
Indirect and/or non-verbal cues
Appropriate work behavior
Ignorance of the law
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

15. EMPLOYER’S LEGAL OBLIGATIONS
Adopt a Policy Which Specifically Prohibits Discrimination or Harassment
Written policy should include:
Definitions and examples
Designation of trained investigators (two or more)
Specific investigation procedures
Provision on discipline
Provision on non-retaliation
Acknowledgment forms
Distribute written policy to all employees
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

16. EMPLOYER’S LEGAL OBLIGATIONS
Conduct Regular In-Person Training
Who should be trained:
Human Resources
Managers and Supervisors
Non-supervisory Employees
What should they be trained on:
Definition and examples of sexual harassment
Company policy
Their obligations
Complaint procedure
Consequences for violation of policy
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

17. EMPLOYER’S LEGAL OBLIGATIONS
Take Immediate Action to Confidentially Investigate Complaints
“Immediate” means immediate
Try to preserve confidentiality
Overview of EEO Investigation Process
Notify designated investigators
Separate accused & alleged victim
Immediately initiate investigation
Collect & evaluate evidence
Take effective remedial action
Document process
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

18. EMPLOYER’S LEGAL OBLIGATIONS
Other Considerations in Harassment Investigations
Special training for investigators
Use of outside investigators in sensitive or complex cases
Employment Practices Liability Insurance
Harassment by managers or supervisors
Strict liability for quid pro quo harassment
Joint representation of managers and supervisors in hostile work environment cases
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

19. EMPLOYER’S LEGAL OBLIGATIONS
Violation Found
Discipline offender
Make victim “whole”
Notify those involved
Monitor situation
No Violation Found
Notify individuals involved
Try to resolve miscommunication or dispute
Monitor situation
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

20. EMPLOYER’S LEGAL OBLIGATIONS
Discipline (Federal)
Punishment required
Geared to guarantee offender does not repeat
Discipline (State)
Punishment required
Punishment geared to severity of conduct & whether offender shows remorse
Must guarantee no recurrence
Immediate termination if:
No remorse shown
Recurrence
Retaliation probable
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

21. EMPLOYER’S LEGAL OBLIGATIONS
Making the Victim “Whole”
Reinstatement to original position
Restore any wages, benefits or other tangible employment privileges lost
Provide time off or counseling for any emotional distress suffered
If necessary, transfer offender; never transfer the victim
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

22. EMPLOYER’S LEGAL OBLIGATIONS
Prevent Retaliation Against Complainant and Witnesses
Monitor work environment
Instruct complainant and witnesses to report incidents they feel are retaliatory
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

23. EEOC’S PUSH FOR MORE … Preventing harassment is a national priority
EEOC filing lawsuits (including class actions)
EEOC also pushing employers to adopt more effective prevention strategies
In addition to compliance, EEOC is looking for
Leadership and Accountability
Commitment (resources & time) from executives & management
More extensive & frequent training
Accountability for supervisors and managers
Effective compliance training
Live training, customized to each workplace
Workplace civility training
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

24. FINAL THOUGHTS … RISK MANAGEMENT IS THE KEY
Adopt comprehensive written policy & procedures
Make sure everyone has a copy
Get buy-in from upper management, managers & supervisors
Empower and train HR to administer the policy
Educate everyone about their obligation to comply with the policy & procedures
Encourage them to reach out to HR with questions & assistance – discourage “self help”
Promptly investigate & remediate of problems
Requires commitment from owners and management
Document, document, document
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018

25. QUESTIONS?
Copyright 2018 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 28, 2018