BERMAN FINK VAN HORN P.C.

Creating a Positive Work Environment in the Wake of

#MeToo

February 9, 2017

Presented by:Kenneth N. Winkler, Esq.

www.bfvlaw.com

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#MeToo vs. Oh No – Not You, Too?!

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Outline for Discussion

•Why is this Important?

•Overview of Federal Law

•Harassment• Definitions

• Examples

• Liability Issues

•Retaliation

•Best Practices

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Protect Your Reputation

“It takes many good deeds to build a good reputation, and only one bad one to lose it.”

--Benjamin Franklin

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Protect Your Reputation

“It takes 20 years to build a reputation and 5 minutes to ruin it.”

--Peyton Manning

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Understanding the Law

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•Applies to employers with 15 or more employees.

•Prohibits discrimination based on:•Race•Color • Sex•Religion •National Origin

Title VII of the Civil Rights Act

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Defining “Sexual Harassment”Definition Used by the EEOC and the Courts

• Unwelcome sexual advances, requests for sexual favors, and otherverbal or physical conduct directed at a person because of his orher gender where:

- Submission to such conduct is made, either explicitly orimplicitly, a term of condition of employment;

- Submission to or rejection of such conduct is used as thebasis for employment decisions; or

- The conduct unreasonably interferes with an employee’swork performance or creates an intimidating, hostile, oroffensive work environment.

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Types of Sexual Harassment

Supervisor (Quid Pro Quo)

• Sexual favors are sought in return for job benefits

• Employment decisions are based on willingness to grant or deny sexual favors

Hostile Environment

• Sexual comments or sexual conduct that unreasonably interferes with work performance

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Harassment By Supervisor

• An employer is responsible for harassment by a supervisor that culminated in a tangible employment action.

• Tangible Employment Actions: • Hiring• Firing• No Promotion• Reassignment • Change in benefits • Compliance with a supervisor’s demands

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• Severe OR pervasive enough to adversely affect that person’s workenvironment

• Can be physical, verbal, or non-verbal (visual)

• Can occur either inside or outside the workplace

Hostile Environment Sexual Harassment

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• The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, an agent of the employer, or a non-employee (vendor)

• The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct

• Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people

• Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects (offensive Valentine’s Day gifts) or pictures, and interference with work performance

Hostile Environment Sexual Harassment

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Appropriate StandardKey Considerations

• What is objectionable is based on the perception of the victim

• Uninvited or unwelcome

• Offensive to a reasonable male or female depending on the genderof the victim

• A finding of harassment is based on totality of the circumstances (including the nature of the conduct, and the context in which the alleged incidents occurred) and on a case-by-case basis

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Virtual Harassment 1

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Employer Defenses

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Affirmative Defense

• If the harassment did not lead to a tangible employment action, the employer is still liable for supervisor harassment unless it proves that:

1) it exercised reasonable care to prevent and promptly correct any harassment and

2) the employee unreasonably failed to complain to management or to avoid harm otherwise

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1st Prong: Reasonable Care Factors

• Is there a harassment policy?

• Do the employees know of the policy?

• Does the policy have an adequate complaint procedure?

• Were there prior problems with harasser that were condoned?

• How did employer respond to complaint?

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2nd Prong: Employee Failure to Act

• Did employee know of policy?

• Did the employee report the harassment timely?

• If the employee waited to complain, why?

• Can the employee claim futility?

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Retaliation

Unlawful retaliation occurs when an employer takes an adverse employment action against employees because they engaged in activity protected by law. Elements:

1. Employee engaged in protected activity;

2. Suffered an adverse employment action; and

3. Causal nexus between protected activity and adverse employment action.

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Human Nature

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Pro-Active Steps

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•Protected Categories

•Prohibited Conduct

•Reporting Obligations

•Alternative Avenues

•Response/Investigation

•Corrective Action

•No Retaliation

Anti-Harassment Policy Contents

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•Pay attention

• Educate and Train, Train, Train

•Document, Document, Document

• Set a good example

• Follow policies and commitments

•Be professional and cautious

Management Obligations

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• Respond promptly to Complaints

• Take complaints seriously

• Document complaint

• No “off-the record” conversations

• Investigate/Hire outside counsel

• Document process and action taken

• Follow-up with employee

• Communicate by email with caution

Responding to Complaints

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4 Keys To Effective Management

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EEOC Initiatives

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