Harassment, Discrimination, and Retaliation Claim How-To's
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This document provides guidance on harassment, discrimination, retaliation and sexual harassment policies and procedures. It discusses maintaining anti-harassment policies, handling complaints promptly according to the policy, preventing retaliation, and factors like unwelcome conduct based on a protected class. It also summarizes EEOC guidance on topics like determining welcomeness and types of sexual harassment. The overall message is for employers to have strong policies and procedures to address these issues and train employees accordingly.
Harassment, Discrimination, and Retaliation Claim How-To's
- 1. Harassment, Discrimination and Retaliation 贬辞飞-罢辞’蝉
- 2. Harassment Today ? Has anyone watched the news lately? ? John Besh ? Harvey Weinstein ? Matt Lauer ? Kevin Spacey ? The list goes on
- 3. Do you know your policy? ? Every employer should maintain an anti harassment and anti discrimination policy ? Create ? Update ? Train ? Respond ? Enforce ? Document
- 4. Handling Complaints and Allegations ? What do you do when an employee lodges a complaint? ? What does your policy say? ? Document ? Investigate PROMPTLY ? Obtain conclusions ? Determine whether discipline is necessary
- 5. Handling Complaints and Allegations ? Considerations for Investigation ? Internal or External Investigator? ? Interviews or statements? ? Document the investigation ? Obtain the report – summary and conclusions ? Determine remedial action, if any
- 6. Follow Your Policies and Procedures ? Having a policy is not enough. You must actually utilize the policy ? Ellerth/Farragher Defense: ? Employer exercised reasonable care to prevent and promptly correct harassing behavior, ? Plaintiff failed to take advantage of the corrective opportunities ? John Besh Example
- 7. Retaliation Claim ? It is unlawful to retaliate against complainants ? Ways to Prevent ? Additional training for violator or general employer ? Remedial measures ? Follow up meetings ? Separation of parties
- 8. Harassment in the Workplace ? Factors: ? Harassment was unwelcome ? Based on protected basis (age, race, gender) ? Severe or pervasive enough to impact conditions of employment ? However, courts are not super personnel departments
- 9. EEOC Sexual Harassment Guidance ? The harasser -- as well as the victim -- may be a woman or a man. ? The harasser and victim may be the same sex. ? The harasser may be the victim’s supervisor, a manager, a supervisor in another area, a co-worker, a customer or a person visiting the worksite. ? A person doesn’t have to be the target of harassment to be considered a victim; a victim may be anyone affected by the offensive conduct. ? Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
- 10. Determining Welcomeness ? A worker regularly used vulgar language, initiated sexually oriented conversations with her colleagues, discussed her own sex life and asked male employees about their marital sex lives and whether they engaged in extramarital affairs.2 ? A worker visited her alleged harasser at the hospital and at his brother’s home, and allowed him to come into her home alone at night after the alleged harassment occurred. ? A worker behaved in a provocative manner around her alleged harasser, asked him to have dinner at her home on several occasions despite his repeated refusals, and continued to conduct herself in a similar manner after the alleged harassment.
- 11. Types of Sexual Harassment ? Quid pro quo ? Romantic relationships ? Hostile work environment ? Exposure ? Touching
- 12. EEOC Harassment Guidance ? The EEOC has shifted its focus to how employees should act instead of focusing on what should not occur ? Recently implemented civility training ? Two Types of Training ? Supervisors ? General Employment Population
Editor's Notes
- The American
- PRIVILEGE ISSUES The more severe, the better to go outside the company
- KOLSTAD – RECKLESS DISREGARD OR INDIFFERENCE
- Under the Ellerth/Faragher framework, an employer is subject under Title VII to vicarious liability for actionable sexual harassment perpetrated by a supervisor with immediate, or successively higher, authority over the victimized employee in two situations: (1) when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment, the employer is strictly liable and no affirmative defense is available; or (2) in the absence of a tangible employment action, the employer is liable unless it can prove an affirmative defense by a preponderance of the evidence. Civil Rights Act of 1964, §§ 701 et seq., 42 U.S.C.A. §§ 2000e et seq. Helm v. Kansas, 656 F.3d 1277, 113 Fair Empl. Prac. Cas. (BNA) 225, 94 Empl. Prac. Dec. (CCH) ? 44264 (10th Cir. 2011). Two types of sexual harassment are prohibited by Title VII: quid pro quo harassment and hostile work environment harassment. See Fleming v. Boeing Co., 120 F.3d 242, 244, 74 Fair Empl. Prac. Cas. (BNA) 1307, 71 Empl. Prac. Dec. (CCH) ? 44939 (11th Cir. 1997); Mendoza v. Borden, Inc., 195 F.3d 1238, 1258 (11th Cir. 1999). ? A prima facie case in an employee’s action for sexual harassment by a supervisor under Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. §§ 2000e et seq.) requires proof of the following: 1. An unlawful harassment has occurred (§ 11). 2. The harasser has supervisory status (§ 115). 3. The discrimination was based on sex (§§ 14, 12). ? A sexual harassment claim states a violation of Title VII if the alleged conduct alters, either expressly or constructively, the terms or conditions of an individual’s employment. Curry v. District of Columbia, 195 F.3d 654, 81 Fair Empl. Prac. Cas. (BNA) 307 (D.C. Cir. 1999). Courts describe an express alteration as “quid pro quo” harassment and a constructive alteration as “hostile work environment” harassment. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633, 77 Fair Empl. Prac. Cas. (BNA) 1, 73 Empl. Prac. Dec. (CCH) ? 45340, 170 A.L.R. Fed. 677 (1998); Curry v. District of Columbia, 195 F.3d 654, 659, 81 Fair Empl. Prac. Cas. (BNA) 307 (D.C. Cir. 1999), as cited by Johnson v. Shinseki, 811 F. Supp. 2d 336, 344-45 (D.D.C. 2011). Two theories are available on which to establish a prima facie case: ? Tangible Employment Action: if a tangible employment action was taken because the plaintiff rejected or submitted to the harassment (§§ 24 to 29) and a causal link between the supervisor’s harassment and the tangible employment action can be found (§ 28), then the employer is vicariously liable (§ 29) ? Hostile Work Environment: if no tangible employment action was taken, but the harassing conduct was severe or pervasive (§ 20), the employer failed to take reasonable care to prevent and correct the harassing behavior (§§ 32 to 36), and the employee reasonably tried to inform the employer to correct the harassment (§§ 37 to 41), then the employer is vicariously liable (§ 43) The question of liability arises only after there is a determination that unlawful harassment occurred. Harassment does not violate federal law unless it involves discriminatory treatment on the basis of race, color, sex, religion, national origin, age of 40 or older, disability, or protected activity under the anti-discrimination statutes. Furthermore, the anti-discrimination statutes are not a “general civility code.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S. Ct. 998, 1002, 140 L. Ed. 2d 201, 76 Fair Empl. Prac. Cas. (BNA) 221, 72 Empl. Prac. Dec. (CCH) ? 45175 (1998); Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 111 Fair Empl. Prac. Cas. (BNA) 51, 94 Empl. Prac. Dec. (CCH) ? 44063 (4th Cir. 2010). Thus federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not “extremely serious.” Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662, 77 Fair Empl. Prac. Cas. (BNA) 14, 73 Empl. Prac. Dec. (CCH) ? 45341, 157 A.L.R. Fed. 663 (1998). Rather, the conduct must be “so objectively offensive as to alter the ‘conditions’ of the victim’s employment.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S. Ct. 998, 1002, 140 L. Ed. 2d 201, 76 Fair Empl. Prac. Cas. (BNA) 221, 72 Empl. Prac. Dec. (CCH) ? 45175 (1998); Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 111 Fair Empl. Prac. Cas. (BNA) 51, 94 Empl. Prac. Dec. (CCH) ? 44063 (4th Cir. 2010).