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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
BERMAN FINK VAN HORN P.C.
#MeToo vs. Oh No – Not You, Too?!
BERMAN FINK VAN HORN P.C.
Outline for Discussion
•Why is this Important?
•Overview of Federal Law
•Harassment• Definitions
• Examples
• Liability Issues
•Retaliation
•Best Practices
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BERMAN FINK VAN HORN P.C.
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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BERMAN FINK VAN HORN P.C.
Protect Your Reputation
“It takes 20 years to build a reputation and 5 minutes to ruin it.”
--Peyton Manning
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BERMAN FINK VAN HORN P.C.
Understanding the Law
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BERMAN FINK VAN HORN P.C.
•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
BERMAN FINK VAN HORN P.C. 8
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.
BERMAN FINK VAN HORN P.C. 9
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
BERMAN FINK VAN HORN P.C. 10
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
BERMAN FINK VAN HORN P.C.
• 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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BERMAN FINK VAN HORN P.C.
• 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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BERMAN FINK VAN HORN P.C.
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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BERMAN FINK VAN HORN P.C.
Virtual Harassment 1
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BERMAN FINK VAN HORN P.C.
Employer Defenses
BERMAN FINK VAN HORN P.C.
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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BERMAN FINK VAN HORN P.C.
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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BERMAN FINK VAN HORN P.C.
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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BERMAN FINK VAN HORN P.C.
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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BERMAN FINK VAN HORN P.C.
Human Nature
BERMAN FINK VAN HORN P.C.
Pro-Active Steps
BERMAN FINK VAN HORN P.C.
•Protected Categories
•Prohibited Conduct
•Reporting Obligations
•Alternative Avenues
•Response/Investigation
•Corrective Action
•No Retaliation
Anti-Harassment Policy Contents
BERMAN FINK VAN HORN P.C.
•Pay attention
• Educate and Train, Train, Train
•Document, Document, Document
• Set a good example
• Follow policies and commitments
•Be professional and cautious
Management Obligations
BERMAN FINK VAN HORN P.C.
• 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
BERMAN FINK VAN HORN P.C.
4 Keys To Effective Management
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BERMAN FINK VAN HORN P.C.
EEOC Initiatives
BERMAN FINK VAN HORN P.C. 27© BFV 2015
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