Jeffrey J. Fraser - Miller Johnson

© 2018 Miller Johnson. All rights reserved. 1

Jeffrey J. Fraser

The materials and information have been prepared for informational purposes only. This is not legal advice, nor intended to create or constitute a lawyer-client relationship. Before acting on the basis of any information or material, readers who have specific questions or problems should consult their lawyer.

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Respect & Responsibility

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What it used to feel like


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What it better feel like now

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Kevin Spacey Actor, Director,

Producer

John Conyers Politician


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190 were fired or left their jobs

122 have been put on leave, suspended or are facing investigations since Dec. 2016

69 people, there were no repercussions

8 in consensual relationship

407 were men

Recent months, the rate of accusations has been slowing but the percentage of people being fired has increased

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Study source: Temin & Co., New York-based crisis consulting firm


So there is no misunderstanding, as a Supervisor / Manager / Executive: Everything you say and do at work and before or

after work with employees present is the Company’s problem

No touching [Intentional or not]

Makes no sense to have a personal relationship with a subordinate or even a peer for that matter

Keep your “out of the box” personal opinions to yourself

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Race

Color

Genetic characteristics

Religion

National origin / ancestry

Age

Veteran status

Sex (LGBTQIA)]

Disability

Pregnancy

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Michigan Law (these characteristics are protected in Michigan):Height

Weight

Marital Status

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1. Illegal bucket

2. Unprofessional bucket

3. Stupid bucket

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(Don’t let anyone & I mean anyone, act in any of these buckets)


Inappropriate conduct

In the Unprofessional and Stupid buckets

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Defined (Workplace Bullying Institute) Repeated

Harmful

Abusive

Conduct

Which is:

Threatening

Intimidating

Humiliating

Work sabotage

Verbal abuse

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Unwelcome conduct

Based on sex

That substantially interferes with work performance [severe & pervasive]

CreatesOffensive

Intimidating

Work environment

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Three buckets – “Inappropriate”Not appropriate; not suitable for the situation, time

or place

“Severe” Very bad or intense

Strict or harsh

Synonyms include brutal, extreme, serious

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Severe and pervasive out the window?

Victim centric?

Burden of proof – the accused must prove why the victim would lie?

Consent is not relevant?

Failure to timely complain is not relevant?

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What hasn’t changed? Sexual harassment legal standards

What has changed? Society’s view of what constitutes sexual

harassment and sexual misconduct

The “moral weight” of abuse of power based on sex

The ease with which sexual harassment complaints can be publicly aired

The willingness with which some victims will bring complaints to light

Complaints about old conduct

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For supervisors; managers & executives

At work

Before / after work

Customer site

Social events

Through social media Texts

Twitter

Instagram

Facebook

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What has / should change? Top down commitment that no current and/or prior

harassment from executive team?

Your company’s standards for conduct and behavior

Your company’s means of reporting and responding to sexual harassment and misconduct allegations

The penalty for engaging in sexual harassment or misconduct

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Nick’s female co-worker (who he has a friendly relationship with) tells him: “Man, your girlfriend is lucky.”

“You look hot today!”

Difference if this comes from Nick’s boss / supervisor?

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If you do stuff that fit in any of these “buckets” Illegal

Unprofessional

Stupid

The Company will investigate and you may be:Discharged

Suspended

Demoted

(See Company Policies)

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Illegal Harassment And Inappropriate Conduct May Cost You Your JOB


How people / employees respond to bad behavior: Ignore it

Laugh about it

Participate in it

Complain about it

Report it

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Common excuses: “Nobody else minded!”

“But I was only joking!”

It DOESN’T matter that: You intended to be funny

Others thought it was funny

The person complaining seemed to go along with it at the time

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Don’t panic

No, seriously, don’t panic

Be both proactive and appropriately reactive

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Evaluate your organization’s policy (or policies) that would relate to a sexual harassment complaintUnlawful sexual harassment prohibition?

“Employee Dignity?”

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Consider available methods for reporting harassmentMost dignity / harassment policies have language

about reporting obligations

Who should be responsible for receiving reports

Company President? Human Resources? Supervisor?

Method of reporting?

Formal written complaint? Ethics Hotline? Sexual Harassment “App”?

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Report, report, report! Easy enough right? But according to a 2008 study cited by the EEOC,

only 30% of employees who experienced unlawful harassment at work reported it to a supervisor

Only 6-13% of those individuals filed a formal written complaint

Reasons cited for not filing complaints?

Disbelief about allegations

Fear that nothing will happen to accused party

Social retaliation

Damage to career/reputation

Professional retaliation

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Online conduct

Guiding principle for your social media life:

Assume that everything you post, email, tweet, snap, or blast about an employee will one day be read both by them and: His or her lawyer A government agency A judge A jury Your mother, spouse and child

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Self-assessmentDon’t get anywhere near the line yourself—set the

tone

With respect to others, don’t try to decide whether harassing behavior is “illegal” or “unwelcome” before taking action

“If my spouse and mother saw the way I treated people at work, would they be comfortable with that?”

The biggest nightmare may involve accusations against C-level employeesMore visibility means a bigger target…

…but studies show that unequal power dynamics can actually increase sexual interest in subordinates, and can decrease the power-possessor’s ability to “read” the subordinate’s response

Might not create monsters, but does disinhibit them

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There’s a more fundamental problem, too

Solutions? Set up “walls”

Paid suspensions

Use outside counsel

Remember Section 7 protections!

A lack of meaningful action (whether perceived or actual) can intensify negative publicity and destroy employee morale

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No flirting

No touching

No staring

No e-mail or text message jokes based on protected characteristics

Take charge of your own work environment

Tell someone when you think they have crossed the line

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Would I want to testify in court about any of this?

Would I want someone to do that to my mom/daughter?

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This is work

Rules and behavior matter

Teasing & bullying are not acceptable

Every relationship matters: Employee to employee

Employee to manager

Supervisor to employee

Leaders are held to a higher

standard

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Basic rule – “we’ll strive for confidentiality, but it can’t ever be assured” Possible solutions: Describe the importance of reporting within your

culture Direct the employee to your anti-retaliation policy Assure the employee his or her concern will be

handled promptly and effectively If reporting is mandatory, remind the employee of

that Investigate to the extent possible

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May raise multiple potential issues Memories fade or change Social mores evolve Documentation and evidence may be lost Witnesses may no longer work for employer

Best practices Attempt to investigate any complaint, no matter how old Examine the totality of what evidence exists

Other complaints? Exit interview comments? History of interdepartmental “personality conflicts?”

Even if no conclusions can be reached, document


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Suggested best practices: Don’t be afraid to make credibility

determinations Be fair to the accuser and the accused, and

make sure both feel like they’ve been heard Consider: Past practices Patterns of behavior History of truthful conduct for both parties Evaluation of the evidence

Tie goes to the accuser, absent evidence of motive to lie?

First, everything you’ve heard before is true Remember that you may risk discipline and potential

legal liability for engaging in harassment or failing to take appropriate action to stop it

Be receptive to complaints and credible reports by others

Take action even if an employee hasn’t followed the complaint procedure

Don’t hesitate just because the victim doesn’t want anything to happen

Don’t assume conduct was welcome because alleged harasser or bystanders said it was

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Who will play “Monday morning quarterback?”

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# 1: Bad investigator “The investigator was biased against me” Errors, unfounded statements, judgmental / biased

remarks, or key omissions in any investigation report

“The investigator wasn’t qualified to investigate this problem”

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# 2: Insufficient investigation “The investigation was not thorough enough to find

out what actually happened”

“The Company stalled or ignored my allegations until it was too late to do anything meaningful”

# 3: Insufficient evidence “The evidence obtained in the investigation is not

strong enough to fire me”

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# 4: Violating employee rights “The Company violated my rights in the way it

conducted this investigation”

# 5: Retaliation and Whistleblower claims “The Company retaliated against me for submitting

my complaint and / or for what I told the investigator”

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EEOC – Continues to accept gender identity / transgender and sexual orientation discrimination charges

EEOC has filed lawsuits against many private sector employers directly under Title VII

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May 4, 2016: Ellucian (technology services) settles transgender worker’s discrimination charge with EEOC for $140,000 (+ policy & training) After announcing transition from male to female,

barred from entering college campus work location

Was told to work from home remotely

Had to meet co-worker in a parking lot to exchange information

No lawsuit filed-only discrimination charge

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EEOC lawsuits against private sector employers for discharge or harassment of employees based on transgender status EEOC v. Lakeland Eye Clinic, PA, (MD Fla. Sept. 2014)

(settled April 2015 for $150,000)

EEOC v. Rent-A-Center E. Inc., (C.D. Ill., July 28, 2016) (district manager directed store manager to find a way to discharge male to female employee, or induce her to quit)

EEOC v. IXL Learning, Inc. (N.D. Cal. 5/24/17) (alleged retaliatory discharge of transgender employee after posting comments about discrimination by his employer on Glassdoor.com)

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Employees have a right to use bathroom of their gender identity, not a unisex or segregated single use bathroom

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Depending upon company culture, employers should consider adding sexual orientation, gender identity, gender expression or transgender status to EEO policy as protected categoriesHandbook

Policy Manual

Website careers/employment link

Reasons: Diversity & inclusion, enhanced recruitment, P.R., federal contractor status, customer expectations

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Incidents of harassment, threats or violence based on gender identity or expression must be given immediate and effective attention, including: Investigating the incident

Taking prompt and appropriate remedial action

Providing employees and staff with appropriate support

Bottom line: Treat consistent with any other harassment complaint

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Ideal world: Dress codes should be gender-neutral and bear reasonable relationship to the job

EEOC will expect dress codes to be applied to transitioning employees in the same way that they are applied to other employees of that gender. Dress codes should be reviewed to avoid gender stereotypes.

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Transitioning employee should not be required to provide proof of any medical procedure

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Co-workers should use the name and pronoun appropriate to the gender the employee is now presenting at work

If not sure, simply ask the employee which noun or pronoun he / she prefers (i.e., interactive process)

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Signs at Democratic National Convention, July 2016 in Philadelphia

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Managers/supervisors should be trained about any new gender identity EEO policy and about signs of co-worker incidents of harassment or discrimination

This can be built into regular harassment training for management and/or employees

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MDCR – Started taking LGBT complaints effective May 22, 2018 under ELCRA

Bill Schuette – Current Michigan AG and Republican Governor candidate: July 20, 2018 issued an AG Opinion stating that ELCRA does not cover LGBT discrimination

Stay Tuned – It ain’t over till it’s over

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Questions?

45 Ottawa Ave SWSuite 1100Grand Rapids, MI 49503

100 W Michigan AveSuite 200Kalamazoo, MI 49007

millerjohnson.com

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Jeff Fraser

616.831.1756

[email protected]

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Jeffrey J. Fraser - Miller Johnson