May 21, 2015 Copyright © 2010 WeComply, Inc. All rights reserved. Note to Trainer Preventing Discrimination and Harassment

April 18, 2023

Copyright © 2010 WeComply, Inc. All rights reserved.

Note to Trainer

Preventing Discrimination and Harassment

April 18, 2023



Introduction


April 18, 2023 Copyright © 2010 WeComply, Inc. All rights reserved. 3

Three reasons for concern about workplace discrimination and harassment:

• To help maintain a respectful work environment

• To comply with the law

• To comply with our organization's policy

Employees who engage in prohibited behaviors will be disciplined, which could include being fired.

Reasons for Concern



You have an important role in helping our organization avoid these additional concerns:

• Employee claims filed with the EEOC or stateemployment agencies.

• Private lawsuits by employees.

• "Intangible" damages from bad publicity and negativeimpacts on morale, productivity, turnover and recruitment.

Discrimination, harassment or retaliation problems can occur in any aspect of the employment process.

• Problems can arise from the way supervisors treat their subordinates and the way co-workers interact with each other.

Reasons for Concern (cont’d)



In the news…



Five important federal laws prohibit workplace discrimination and harassment:

• Title VII of the Civil Rights Act

• Pregnancy Discrimination Act

• Age Discrimination in Employment Act

• Americans with Disabilities Act

• The Genetic Information Nondiscrimination Act

Many states and cities have laws prohibiting other forms of discrimination and harassment.

Anti-Discrimination Laws



Anti-Discrimination Laws (cont’d)

Five important federal laws prohibit workplace discrimination and harassment:

• Title VII of the Civil Rights Act

• Pregnancy Discrimination Act

• Age Discrimination in Employment Act

• Americans with Disabilities Act

• The Genetic Information Nondiscrimination Act

Many states and cities have laws prohibiting other forms of discrimination and harassment.



The actions of supervisory employees are considered actions of our organization.

We will be "strictly liable" when a supervisor's misconduct culminates in a tangible employment action.

Absent a tangible employment action, we may establishas affirmative defense that —

• We exercised reasonable care to prevent/correct harassing behavior; and

• The employee unreasonably failed to take advantage of any preventive/corrective opportunities.

Liability for Supervisor Misconduct



Our organization can be held liable for harassment by a co-worker, non-supervisory employee or third party if —

• We provided no reasonable avenue for complaint; or

• We knew (or should have known) of the harassmentbut unreasonably failed to stop it.

The conduct complained of must amount to unlawfulharassment.

Liability for Others' Misconduct



In the news…



Legal guidelines:

• Unwelcome sexual advances,

• Requests for sexual favors, or

• Other verbal or physical conduct of a sexualnature.

Our policy is even more strict:

• Employees may be disciplined for conduct that is not actually unlawful in order to make our organization a more comfortable place to work.

• Policy applies to applicants, outside vendors, consultants and customers.

• Policy applies during business trips, meetings and social events.

Sexual Harassment Defined



Two types of sexual harassment:

• Quid pro quo

o Employee's submission to unwelcome sexualadvances is used as basis for makingemployment decision.

• Hostile work environment

o Sexual comments or jokes that interfere with another employee's work performance or create a work environment that's hostile, offensive or threatening.

The law and our policy prohibit both types of harassment.

Types of Sexual Harassment



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Whether particular behavior has created a hostile environment may depend on these factors:

• Was it based on gender?

• Was it offensive?

• How serious and frequent was it?

Walking the Fine Line



To be unlawful, conduct must be unwelcome

• Does not include consensual sexual relationship

• Social invitations are generally acceptable

• "Voluntariness" does not always equal "consent"

Consensual Relationships



Pop Quiz!Ramona and Frank are co-workers who are supervised by Alicia. This morning as Ramona was parking in the employee lot, she saw Frank and Alicia kissing in Frank's car. What should Ramona do?

A. Nothing.

B. Make a complaint for sexual harassment, because Alicia is clearly favoring Frank over her.

C. Make a complaint for sexual harassment, because Alicia is clearly favoring Frank over her.



Whether conduct created a hostile environment depends on the circumstances, including —

• The frequency and severity of the conduct;

• Whether it was physically threatening orhumiliating;

• Whether it was directed at the alleged victim;

• Whether it was engaged in by a supervisor or aco-worker; and

• Whether it interfered with an individual's work performance.

Considering All of the Circumstances



Employees should not engage in any of the following conduct:

• Telling sexually explicit jokes;

• Making requests for a date with someone who is notinterested;

• Making suggestive, insulting or obscene comments;

• Massaging someone;

• Discussing sexual thoughts, fantasies or activities;

• Unwelcome touching; or

• Leering or making cat-calls or sexual gestures at someone.

Conduct To Be Avoided



Employees also should not engage in any of the following conduct:

• Displaying sexually explicit magazines or cartoons;

• Making inappropriate comments about appearance or dress;

• Apologizing to the "ladies in the room";

• Assuming that a woman is subordinate to a man;

• Addressing a woman less formally than her malecounterparts;

• Using stereotyped language or conversation topics; or

• Insisting on ordering food or carrying a briefcase for a woman.

Conduct To Be Avoided (cont’d)



In the news…



E-harassment modes include —

• E-mail

• Web-surfing

• Instant-messaging (IM)

• Blogging

Statistics:

• 10% use IM at work for sexual, romantic and pornographic chat

• 27% of organizations have faced sexual e-harassment claims

• 26% of employers have terminated employees for e-harassment

• 70% of porn web traffic is during business hours

Internet and E-Mail Harassment



Pop Quiz!Sally and Bill are collaborating on a company project. One afternoon, Bill walks into Sally's office without knocking and notices sexually explicit images on her computer monitor. What should Bill do?

A. Nothing, since Sally was minding her own business in her own office.

B. Ask Sally if her activities had anything to do with their project or other company-related business.

C. Report the incident to his supervisor immediately.



Federally protected categories: • Race

• Color

• Religion

• Sex

• National origin

• Citizenship

• Age

• Disability

Some state or local laws provide additional categories:

• Sexual orientation, marital status, military status, creed, genetic predisposition or carrier status, familial status, physical appearance, educational status, ancestry, handicap or family responsibilities

Other Protected Characteristics



In the news…



Employees should avoid these types of conduct:

• Referring to older employee as "over the hill," "old fogey,“etc.;

• Using slang for employees of different races, religionsor national origins;

• Assuming that older employees have physicallimitations;

• Mimicking the accent of an employee of a particular raceor national origin;

• Discussing an employee's physical or mental limitations; or

• Revealing an employee's medical condition to others, unless necessary.

More Conduct To Be Avoided



Retaliation violates our policy and the law.

• We may not discipline, demote or terminate an employee for reporting discrimination or harassment.

• We may not take adverse action against an employeefor participating in proceedings concerning anotheremployee's claim.

• Complaining employee must have good-faith,reasonable belief that the conduct is unlawful.

• Supervisory employees who engage in unlawful retaliation will be disciplined.

Retaliation



Pop Quiz!

Esther had been making some careless mistakes in her work and was worried that she might lose her job. She came up with the idea of making a false claim to HR that her supervisor had grabbed her and tried to kiss her. Esther figured that the organization would not be able to fire her because that would be considered retaliation. How likely is it that Esther's strategy will work?

A. It's a sure thing. Once Esther makes her report, the organization will have a duty to protect her from retaliation.

B. It's 50-50. The organization is allowed to retaliate if Esther's mistakes were serious enough to justify firing her.

C. It's not likely to work — in fact, it will only make it more likely that Esther will be disciplined.



Your responsibilities include –

• Setting the right tone;

• Treating others with respect and dignity;

• Knowing our policies;

• Responding properly to complaints;

• Assisting with investigations of misconduct; and

• Not retaliating.

Supervisor Responsibilities



Setting the right tone involves —

• Avoiding conduct that may lead to liability for our organization;

• Serving as a role model for other employees;

• Being sensitive to the potential effects of powerdisparity;

• Keeping in mind that your actions matter more than yourintentions; and

• Abiding by appropriate workplace behavior — even at off-site functions.

Set the Right Tone



Set the Right Tone (cont’d)

Setting the right tone involves —

• Avoiding conduct that may lead to liability for our organization;

• Serving as a role model for other employees;

• Being sensitive to the potential effects of powerdisparity;

• Keeping in mind that your actions matter more than yourintentions; and

• Abiding by appropriate workplace behavior — even at off-site functions.



In the news…



Employment actions you take today could be called into question years from now.

In January 2009 President Obama signed the Lilly LedbetterFair Pay Act, extending the deadline for filing claimsalleging pay discrimination.

Claims can be based on allegations of discriminationdating back decades.

Document All Employee Actions



Protect yourself by documenting your actions as follows:

• Be accurate and truthful

• Don't delay

• Be thorough

• Review your documentation

• Have someone else review it

Documentation Tips



Remember these rules when responding to complaints:

1. Listen carefully and take all complaints seriously;

2. Be familiar with our policies;

3. Don't promise to keep the complaint confidential;

4. Assure the employee that there will be no retaliation; and

5. Report all complaints to Human Resources.

Make clear your willingness to receive complaints and take appropriate action.

Respond Properly to Complaints



Every complaint of harassment or discrimination must be investigated. • Act discreetly

• Explain limits of confidentiality

Range of corrective action

• Review of relevant policies;

• Warning notice;

• Anti-harassment or other training; and

• Suspension or termination.

Assist with the Investigation



Help prevent retaliation by —

• Treating an employee who complained about discrimination or harassment the same as every other employee;

• Taking disciplinary action against any employee whoretaliates;

• Not taking disciplinary action unless you can be sureit's fair;

• Ensuring that your conduct is not only fair in fact, but also fair in appearance; and

• Never discouraging employees from asserting their legal rights.

Prevent Retaliation



How you respond to inappropriate conduct will be considered our response.

• Address inappropriate behavior immediately and/or reportit to HR.

• Your responsibilities are the same regardless of whoacts inappropriately.

Not taking action can –

• Leave the impression that we condone such behavior;

• Foster the view that making a complaint would be futile; and

• Subject us to litigation and liability.

In Conclusion…



Final Quiz

http://test.wecomply.com/files/acc/games/pdhm.htm

April 18, 2023


Questions?

April 18, 2023


Thank you for participating!

This course and the related materials were developed by WeComply, Inc. and the Association of Corporate Counsel.

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May 21, 2015 Copyright © 2010 WeComply, Inc. All rights reserved. Note to Trainer Preventing Discrimination and Harassment