Workplace Harassment Training For Supervisors - Fisher Phillips

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Workplace Harassment Training for Supervisors April 24, 2018 Presented by: Timothy H. Scott, Esq. Phone: (504) 529-3834 Email:

In the News

Why the Time for Smart Employment Practices is NOW 94% of the world’s lawsuits are in the United States Almost 13 lawsuits are filed every minute of every working day Public Relations – Social Media 504-529-3834

Why Should You Care? Liability ‒ You (supervisors) may be personally liable ‒ Employer may be liable Unhappy employees are unproductive employees Legal claims will impact business 504-529-3834

Nonemployees Liability may even extend to acts either by or against nonemployees ‒ Like who? o Customers/clients o Vendors o Independent Contractors 504-529-3834

Remedies Remedies are what the winner may receive in a lawsuit for harassment: 1. 2. 3. 4. 5. 6. Lost wages (past and future) Reinstatement Emotional distress Punitive damages Attorneys’ fees Court orders (e.g., transfers, training, etc.) 504-529-3834

Disturbing Trends In the last 10 years Title VII filings have increased by 700% The average jury verdict in a sexual harassment case is nearly 400,000 Employer’s lose in front of juries 70% of the time Supervisors are personally sued in discrimination cases 90% of the time The average punitive damages awarded in employment cases 2.7 Million 504-529-3834

What is Unlawful Harassment?

Prohibited Harassment Defined What makes harassment unlawful? PROTECTED Conduct based on a category 504-529-3834

Protected Categories Race/Color National Origin Ancestry Sex/Gender Sexual Orientation Pregnancy Citizenship Status Marital Status Age Religion Disability Medical Condition Whistleblower Military Service 504-529-3834

Hostile Working Environment Most harassment cases involve claims of hostile working environment, which is: Unwelcome behavior; Offensive to the reasonable man or woman; Severe or pervasive; and Alters working conditions to create an abusive working environment 504-529-3834

Hostile Working Environment Due to the challenges associated with disproving harassment claims, most employers have a zero tolerance policy 504-529-3834

Hostile Working Environment A or B? Having a zero tolerance policy means the employer has a policy that: A. Tolerates no unlawful harassment or B. Tolerates no conduct that might be construed as unlawful harassment 504-529-3834

Four Categories of Harassing Behavior The law puts harassing behavior into four categories: Verbal harassment Physical harassment Visual harassment Sexual favors 504-529-3834

Verbal Harassment Examples of verbal sexual harassment? 1. Intimate nicknames, “son,” “sweetie” 2. Dirty or off-color jokes 3. Discussing sexual topics 4. Flirting / sexual advances 5. Boasting of sexual conquests 6. Intimate questions regarding sex life 7. Excessive compliments 8. Sexual innuendo 9. Whistling, cat-calls, etc. 10. Sexual profanity 11. Harassing voicemails 12. Repeated advances 504-529-3834

Verbal Harassment Examples of verbal harassment based on other protected categories? 1. 2. 3. 4. Slurs and insults Ethnic jokes Name calling Mocking cultural behavior 5. Criticizing political beliefs 6. Threatening comments 7. Derogatory references 504-529-3834

Visual Harassment Examples of physical sexual harassment? 1. Hugging and kissing 2. Touching hair, body, or clothing 3. Massaging 4. Leaning over, cornering, slapping, pinching, or punching someone 5. Exposing oneself 504-529-3834

Visual Harassment Examples of visual sexual harassment? 1. Posters, pin-ups, calendars, etc. 2. Magazines 3. Emails 4. Websites 5. Screensavers 6. Obscene gestures 7. Elevator eyes 504-529-3834

Sexual Favors Also known as quid pro quo sexual harassment What does quid pro quo mean? This That for 504-529-3834

Fraternization – Is it okay? Supervisors – cannot date subordinate employees ‒ If something develops, let the Human Resources Manager know. Coworkers – relationships are generally okay provided that they do not disrupt work environment. Key – Consent ‒ Awareness ‒ “Love” Contracts 504-529-3834

Responding to Complaints and Correcting Harassment

Responding to Complaints Even when an employee requests no action, the employer must respond Even when there is no “formal complaint,” the employer must investigate Even when an employee makes “offthe-record” reports, the employer must respond Just witnessing the conduct is enough to require a response by the employer 504-529-3834

Responding to Complaints Investigations of complaints vary, but they tend to include the following: Document the Complaint Consider possible leave(s) of absence Document accounts of witnesses Get the alleged harasser’s story Take action to prevent future conduct Communicate action taken 504-529-3834

Responding to Complaints Do Not Do Any of the Following: Conduct an investigation without guidance Instruct complainant to “work it out” with the harasser Promise complete confidentiality Dismiss a complaint without looking into it Tell the complainant to consult a lawyer or the government Dissuade a complainant from coming forward Suggest any form of retaliation 504-529-3834

Supervisor Training: Responding to Harassment If you become aware of the questionable behavior and even if there is no complaint you: Must take immediate and corrective action Inform the Human Resources Manager or the Director of Operations at (985) 220-1410 Document action taken Communicate action taken to the affected employee, explain what he or she should do if the problem should occur Advise employees of their rights to use the EEO complaint process 504-529-3834

Cost to the Organization The need for employees to be “off the job” Investigation of the sexual harassment complaint Depositions Trial Low productivity due to diversion of focus Negative impact on other managers, employees, and witnesses Adverse publicity about the organization 504-529-3834


Retaliation Retaliation is forbidden by law ‒ An employee who reports harassment or discrimination may not be retaliated against in any fashion ‒ An employee may not be questioned or criticized for bypassing the “chain of command” when reporting harassment 504-529-3834

Examples of Retaliation Termination Selective discipline Assignment of less favorable work Failing to award a deserved promotion Layoff out of order Ostracism or shunning 504-529-3834

Watch Your Conduct Review and understand Employee Handbook Always use good judgment. Ask yourself: Would I do or say this if: o My spouse, child or parents were present or would find out about it? o I were being recorded? o A minority employee were present? If the answer is NO, then don’t say or do it! 504-529-3834

Final Questions Presented by: Timothy H. Scott, Esq. Phone: (504) 529-3834 Email: 504-529-3834

Verbal Harassment Examples of verbal sexual harassment? 1. Intimate nicknames, "son," "sweetie" 2. Dirty or off-color jokes 3. Discussing sexual topics 4. Flirting / sexual advances 5. Boasting of sexual conquests 6. Intimate questions regarding sex life 7. Excessive compliments 8. Sexual innuendo 9. Whistling, cat-calls, etc. 10 .

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