Transcript There’s No Place for Harassment in the Workplace

EMPLOYEE
TRAINING
TUSCULUM COLLEGE
August 16, 2012
Kate E. Tucker
Kramer Rayson LLP
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Tusculum College Handbooks
Employee Handbook (rev’d 05-19-2012)
 Faculty Handbook (rev’d 05-19-2012)
 Student Handbook (rev’d August 2010)
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You are responsible for knowing the
content and adhering to the rules.
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Policies for Today
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Harassment (Policy 10.02)
Hazing (Policy 10.02 & Student Handbook IV(I)
Disabilities / Accommodation (Policy 10.03)
Disciplinary Procedure (Policy # 12.01)
Importance of Documentation
Other policies (HR Director)
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HARASSMENT
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Harassment
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All employees have the right to work in an
environment that is free from unlawful
discrimination and harassment.
It is the law, but maintaining a civil working
environment is equally important because of the
disruption to the Company’s business and the
damage that would be caused to its reputation.
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Harassment – A Hidden Danger
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Most dangerous cases an employer faces.
Anticipate claims over promotions, demotions,
and terminations.
Harassment claims often catch management
completely by surprise.
Why? Harassers are covert; and victims are often
reluctant to come forward.
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Federal Law Prohibits
Harassment Because of:
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Race, Color
Sex / Gender (including pregnancy)
Religion
Age (over 40)
Disability or handicap
National Origin
Genetic Information
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Policy is Broader than the Law
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Prohibits harassment based on military or
veteran service and sexual orientation.
Prohibits behavior that, standing alone, may not
meet the legal definition of “harassment”.
Based on:
Guidelines from EEOC, Title VII of the Civil Rights
Act and the TN Human Rights Act.
 Goal of a pleasant & productive work environment
for all.
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What is “Harassment”?
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Originally arose in the context of sexual
discrimination (i.e. the manager who demanded
sexual favors in return for keeping your job).
Definition has expanded:
 Hostile working environment; and
 Other protected categories.
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Sexual Harassment
Unwelcome sexual advances, requests for sexual
favors, and other verbal, non-verbal or physical
conduct of a sexual nature, where:
 Submission is made a term or condition of
employment;
 Submission or rejection is used as the basis for
an employment decision; or
 The conduct has the purpose or effect of
unreasonably interfering with work performance
or creating an intimidating, hostile or offensive
work environment.
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Hostile Work Environment
(Sex Based)
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Need not be sexual in nature - - but must be
because of victim’s sex
Must be unwelcome
Severe or pervasive enough to create
objectively hostile environment
Victim must subjectively perceive it as
abusive
Isolated statements/actions not enough
Can be same sex harassment
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Types of Conduct/Behavior
Verbal:
Sexual innuendoes, suggestive comments, sexual
jokes, sexual propositions
Non-Verbal: Staring at a person’s body, looking a person up and
down, blocking a person’s path, giving personal gifts,
sexually suggestive objects, offensive e-mail, internet
pornography, cartoons
Physical:
Unwanted physical contact, e.g., touching, shoulder/
neck rubbing, brushing up against the body, touching
yourself sexually, pinching, breast/buttock grabbing,
outright assaults
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Same Sex Harassment
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Harassment can be by the same sex.
Sexual in nature (i.e. homosexual alleged harasser)
 Not sexual in nature (hostile work environment)
 Key: was victim targeted because of sex (gender)?
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Case Study (female to female)
“Are those your real boobs?”
 “Who did you sleep with to get here?”
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Court: sex harassment exists (distinguish being
“loose” from having breasts).
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Other Workplace Harassment
Verbal or physical conduct that denigrates or
shows hostility or aversion toward an
individual based on race, color, religion,
national origin, age, genetic information or
disability, that:
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Creates a hostile or offensive work environment;
Unreasonably interferes with one’s work
performance; or
Otherwise adversely affects one’s employment
opportunities.
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Types of Conduct/Behavior
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Epithets, slurs, negative stereotyping, threats,
intimidating or hostile acts.
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Written or graphic material that denigrates,
shows aversion or hostility toward an individual
or group that is placed on walls, bulletin boards,
in computers or elsewhere on firm premises,
worksites, or is circulated at work.
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Hazing (primarily involves students)
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Social Media and Texting
 Can
provide the basis for harassment
claim
 Nothing is private!
 No more “he said/she said”
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What is Unwelcome?
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A previous consensual relationship is NOT a defense
to actions after relationship ends.
Alleged victim may engage in rough joking or
language, but may still bring suit.
Alleged victim is not required to inform the harasser
the conduct is unwelcome.
A victim may smile or even laugh at a crude remark
but still claim he/she was offended.
It is impossible to “get inside someone else’s head”
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Can Be Unintentional
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“That’s not what I meant.”
“You should be flattered.”
“I didn’t mean to bother you.”
“Lighten up – it was just a joke.”
THESE ARE NOT DEFENSES/EXCUSES!
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The Sliding Scale
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“Severe or pervasive” harassment is illegal.
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If all verbal, it must occur frequently, over a long
period of time, and be extremely offensive.
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Physical intimidation or touching is more “severe”
and requires less frequency and duration to be
illegal.
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One incident (e.g., sexual assault) without more may
suffice.
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Who? What? When? Where?
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By other employees, students, contractors, outside
vendors or customers.
Speaking (in person, on the phone), writing (notes,
e-mails), touching, posting photos or jokes, playing
pranks.
During working hours or outside (work related).
In the workplace, at company events, and in all
employment relationships and dealings.
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Harassment by Supervisors
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Employer is liable (even with a policy) if a
supervisor harasses an employee who then suffers
a “tangible job detriment”
If no tangible job detriment, employer may avoid
liability if:
Reasonable care to prevent and correct harassment, &
 Employee acted unreasonably in failing to take
advantage of the preventive/corrective opportunities
or otherwise failed to avoid harm.
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Harassment by Co-Workers
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Harassment unreasonably interfered with the
employee’s work performance or created a severe
and pervasive hostile work environment; and
The employer knew or should have known of
the harassment AND failed to take prompt and
appropriate corrective action.
Employers with knowledge cannot respond with
indifference or utter ineptitude.
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Tusculum College
Responsibilities
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Have a clear policy prohibiting harassment
Educate employees about the policy
Promptly and thoroughly investigate complaints
and reports of potentially harassing behavior
Take prompt, appropriate action to stop any
harassment that occurs
Do not retaliate against complainants or others
who participate in an investigation
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Supervisor Responsibilities
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Don’t engage in harassment
Report to HR if observed by or reported to you.
Even where Complainant says, “Don’t tell
anyone!” YOU MUST REPORT
Duty to create harassment-free environment for
everyone - - not just complainant
Cooperate in investigations
Don’t retaliate against complainants
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West v. Tyson Foods
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Employee harassed by co-workers
Employee complained to supervisor (said he’d
take care of it but never passed complaint along)
Employee transferred (didn’t stop harassment)
Employee terminated (for legitimate attendance
issues)
HR promised investigation (never happened)
Lawsuit = $1.8 Million verdict
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Employee Responsibilities
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Know and adhere to the policy.
Know and follow the complaint procedures.
Immediately report behavior that might violate
the policy if:
The behavior is directed toward you;
 You observe the behavior; or
 The behavior is reported to you by another.
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Immediately report any retaliation you
experience after making a report/complaint.
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Making a Complaint or Report
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You do NOT have to confront the alleged harasser
 But you can (often resolves the issue)
 Not a substitute for complaint procedure
Report to either :
 Your supervisor
 VP of your department
 Director of HR
You do not have to make a written complaint
No “do nothing / tell no one” complaints
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I Don’t Like to Cause Trouble
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Cannot permit harassment to continue.
By reporting small problems before they grow
into serious issues, you can end up saving
someone from making a career-ending error.
Your job isn’t to distinguish between a predator
and someone who is simply immature or
insensitive; its to provide management with the
information it needs to take effective action.
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Investigation
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Tusculum has a duty to investigate.
Not every investigation is going to be the same – no
“one size fits all”.
Cooperate fully and honestly if you are interviewed
(either as the accuser, a witness or the accused).
Will be asked for a written statement.
Do NOT discuss the investigation with other
employees.
Do NOT retaliate.
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Discipline for Harassment
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Must be designed to stop the harassment.
Tailored to the conduct.
E.g.: written warnings, suspension, demotion,
denial of promotion, or termination.
Managers/supervisors held to a higher
standard — subject to more severe discipline.
Can still be disciplined even if not “unlawful.”
Can be disciplined for false accusations.
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Manager/Supervisor Liability
No liability under Title VII (federal)
 Potential liability as an “aider and abettor”
under THRA (state)
 Harris v. Dalton – doctor in a physicians
group individually liable where he denied
the conduct and urged employer to fire the
complaining employee.
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Rules To Live (And Work) By
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If you don’t want to hear about it in the
newspaper or on the news, don’t do/say it.
If you’d be ashamed for your spouse/children to
find out - - don’t do/say it.
Would I want someone else to act this way
towards a person I am in a relationship with?
If its wrong to speak it, its wrong to email it.
It’s not just sexual harassment that’s illegal, race,
religion, national origin, etc. are also protected.
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HAZING
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Hazing
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Conduct that subjects an individual to mental or
physical discomfort, embarrassment, harassment
or ridicule.
Prohibited under harassment policy.
Separate policy in Student Handbook
Generally be / toward students.
Employees must be aware and report hazing to
HR (HR will coordinate with student affairs).
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Types of Conduct/Behavior
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Destructive initiation activities (paddling, lineups, other activities w/ potential for injury)
Public ridicule
Bullying
Interference with Tusculum College policies or
state/federal rules and regulations
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TN Law Prohibits Hazing
Intentional or reckless act in TN;
 On or off school property;
 Acting alone or with others;
 Directed against other students;
 Endangers mental or physical health or safety.
Does not include:
 Customary athletic events or competitions.
 Actions not connected to initiation.
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DISABILITIES &
REASONABLE
ACCOMMODATIONS
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Disabilities
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Tusculum College prohibits discrimination
against qualifying employees;
 with respect to the terms, privileges, or conditions of
employment;
 because of a disability.
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Disability = permanent or chronic physical or
mental condition that imposes a substantial
limitation on a major life activity.
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Reasonable Accommodation
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Tusculum College will provide reasonable
accommodations
To qualified applicants/employees
 With a disability;
 Who require accommodations to safely perform the
essential functions of their position;
 Unless it constitutes an undue hardship to TC.
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Separate policy for students.
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Requesting Accommodation
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Inform TC of the need for accommodation.
Identify the type of accommodation needed.
Verbal or written request.
To Director of Human Resources.
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Supervisor must forward any requests to HR.
HR will work with applicant/employee.
TC may request documentation.
Report any retaliation to HR.
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DISCIPLINARY
PROCEDURE
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Disciplinary Procedure
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TC has an established, written procedure for
disciplinary action.
Purpose: fair and consistent treatment of all
employees.
Will investigate to the extent necessary.
Investigation must be unbiased and kept
confidential to the extent possible.
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Progressive Discipline
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Verbal Reprimand
Written Reprimand
Termination
Exceptions:
Offense requires immediate termination (e.g. gross
violation involving assault or stealing).
 Faculty – different termination procedures but same
standard of progressive discipline.
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Who May Discipline?
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Supervisors (Director, VP, Chair)
Verbal counseling sessions for minor issues.
 Verbal Reprimands (in consultation with VP).
 Written Reprimands (in consultation with VP).
 PIP (in consultation with HR)
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Must immediately report (with documentation)
to HR (and VPAA if faculty involved).
May consult HR at any point for assistance.
Termination – President (via HR or VPAA).
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DOCUMENTATION
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Supervisors Must Document!
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Document all issues (e.g. policy violations,
performance, attendance, insubordination,
mistakes, counseling sessions).
Be consistent – treat all employees the same and
be ready to justify exceptions.
Don’t over document (e.g. single occurrence of
spelling mistakes on a letter).
Counsel employees in private.
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FAILURE TO
PROPERLY
DOCUMENT MAY
RESULT IN
DISCIPLINARY
ACTION
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How to Document
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Act quickly while you still recall details.
Be specific - vague descriptions (e.g. “bad
attitude” or “poor attendance”) are inadequate.
Be detailed – dates, statements, effect on other
employees.
Report issues to HR immediately (she has the
expertise to help or even handle it if necessary).
Provide copies of documentation to HR.
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Performance Evaluations
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Conduct regular evaluations.
Be objective.
Give specific examples (positive or negative).
Discuss with the employee.
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“I Want Them To Like Me”
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Responsibility to TC and to co-workers to help
maintain a productive and pleasant work
environment.
Responsibility to the employee to help improve
his/her performance.
Don’t omit negative comments “to be nice”.
Don’t let issues “slip through the cracks”.
It could blow up in your face down the road.
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Why Document Issues?
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Benefits the supervisor by providing support for
his/her employment recommendation.
Benefits the employee by providing detailed
information (they know where they stand).
Benefits co-workers who suffer when an
employee is causing problems.
Benefits TC by providing accurate and sufficient
information on which to base an employment
decision.
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QUESTIONS?
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Kate E. Tucker
Kramer Rayson, LLP
[email protected]
865-525-5134
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