Governor's Criteria

Governor's Criteria

HARASSMENT AND THE HOSTILE WORK ENVIRONMENT Presented by Janice Whitman Washington State Human Rights Commission Established in 1949 by the Washington State Legislature to administer the Washington Law Against Discrimination, RCW 49.60 The Mission of the Washington State Human Rights Commission is to prevent and eliminate discrimination through the fair application of the law, the efficient use of resources, and the

establishment of productive partnerships in the community. Neutral, Fact-Finding, Law Enforcement Agency Complaint Investigation, Alternative Dispute Resolution, Education and Outreach Washington State DISCRIMINATION LAWS Chapter 49.60 Revised Code of Washington (RCW) State Statute written by Legislature Title 162 Washington Administrative Code (WAC) Agency Rules written by Human Rights Commission Case Law developed by State and Federal Courts ENFORCEMENT JURISDICTION:

Employment, RCW 49.60 Employers with 8 or more employees Note: Wahl v. Dash Point Family Dental Clinic, Inc. 144 Wn.App.34(2008) (EEOC/Federal Law requires 15 employees) Statute of Limitations (SOL): Complaints must be filed within 6 months of date of harm (EEOC/Federal Law requires 300 days) Excludes religious/sectarian organizations State and Federal Law Dual Filing: EEOC and HUD Federal EMPLOYMENT

DISCRIMINATION LAWS Title VII of the Civil Rights Act of 1964 Title I of the Americans with Disabilities Act of 1990 (ADA) as amended 2008 Age Discrimination in Employment Act of 1967 (ADEA) Equal Pay Act of 1963 (EPA) GINA (Genetic Information Nondiscrimination Act) Lilly Ledbetter Fair Pay Act Case Law developed by Federal Courts, e.g. U.S. Supreme Court PROTECTED CLASSES in EMPLOYMENT under RCW 49.60 *Race/*Color; *National Origin; *Creed;

*Sex/Pregnancy; Sexual Orientation/Gender Identity Veteran/Military Status *Disability/Use of a Service Animal HIV or Hepatitis C; Marital Status; *Age (40+); State Employee Whistleblower Status

*Federally Protected Classes 6 Sexual Harassment Awareness: Power Sexual Harassment is about the exploitation of Power, regardless of how it is ultimately manifested Sex (or another protected class) is the basis of the harassment, but not necessarily the motivation. Harassment is about the exploitation of the less powerful by the more powerful literally (e.g. supervisor-subordinate relationship), or by perception

(e.g. through sexism, racism, etc.) 7 Sexual Harassment Historical Notes History/colonial-america/index.html Sexual Harassment did not originate with industrialization. Historical records show women in colonial times

protesting violence by male employers against women workers. There was no legal recourse to address abuse by employers. In the January 28, 1734 issue of the N.Y. Weekly Journal, a group of women servants published a notice saying, 8 "...we think it reasonable we should not be beat by our Sexual Harassment Historical Notes In 1908 Harper's Bazaar printed a series of letters in which working women wrote of their experiences of city life. A typical experience was reported by a New York stenographer:

"I purchased several papers, and plodded faithfully through their multitude of 'ads.' I took the addresses of some I intended to call upon...The first 'ad' I answeredwas that of a doctor who desired a stenographer at once, good wages paid. It sounded rather welland I felt that this time I would meet a gentleman. The doctor was very kind and seemed to like my appearance and references; as to salary, he offered me $15 a week, with a speedy prospect of more. As I was leaving his office, feeling that at last I was launched safely upon the road to a good living, he said casually, I have an auto; and as my wife doesn't care for that sort of thing, I shall expect you to accompany me frequently on pleasure9 Sexual Harassment

Historical Notes Historically, it was common for states to legislatively limit the kinds of work that women could do. The usual justification for such laws was the protection of women, yet the prohibited jobs typically paid considerably more. World War II forced the issue of women working outside the home as men were not availableWomen took over their jobs and demonstrated that their abilities were equal. Contribution of women in industry to the war effort made it more difficult to maintain protection arguments. 10 Sexual Harassment Origins in the Law:

A novel theory In 1976, a federal district court found that retaliation against an employee for refusing her supervisors sexual advances is sex discrimination under Title VII. After refusing her supervisors sexual advances, the supervisor harassed, humiliated and ultimately fired the employee. The supervisors conduct created an artificial barrier to employment for women, compared to similarly situated men. Williams v. Saxbe, 413 F.Supp. 654 (D.C.C. 1976). At this time, sexual harassment as a form of discrimination under Title VII was considered a novel 11

Sexual Harassment Origins in the Law In 1977, the U.S. Court of Appeals (D.C. Circuit) held that sexual harassment violated Title VII. Employees job was abolished when she resisted her supervisor's sexual advances. The court reasoned that the supervisor would not have made sexual advances but for her womanhood. Barnes v. Costle, 561 F.2d 983, D.C. Cir., (1977). 12

Sexual Harassment Definition In 1980, the EEOC issued guidelines declaring sexual harassment a violation of Title VII. Definition: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or

13 Sexual Harassment? Where is it written? In 1986, the United States Supreme Court held that when a supervisor sexually harasses a subordinate because of the subordinates sex, that supervisor discriminates on the basis of sex Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) 14 Forms of Harassment 1. Verbal

Derogatory comments, language or jokes against one gender or other protected class; sexual demands; threats; unwelcome flirting; requests for dates, or sexual favors 2. Visual Derogatory pictures or displays offensive or demeaning to one gender or protected class; cartoons, or other visual or written material in the work environment 3. Physical Unwelcome touching or other bodily contact; grabbing, slapping, shoving, pinching; interfering with freedom of movement 15 Legal Theories and Proof Standard 1. Hostile Work Environment

2. Quid Pro Quo (Latin, this for that) (a) Employee subjected to unwelcome sexually demanding conduct; (b) Employee suffered a tangible employment action as a result of the conduct. Burden of Proof: Preponderance of the Evidence Tangible Employment Action Examples

Termination Constructive Discharge Demotion Failure to Promote Reduced pay/hours Economic impact Work assignment/reassignment Compensation decisions Generally, a Significant change in

employment status 17 Constructive Discharge Working conditions are so intolerable that a reasonable person in the employees place would have felt compelled to resign May be reasonable woman, or whatever protected class is implicated As if terminated from employment 18 Harassment/Hostile Work

Environment Elements 1. Employee is a member of a protected class (sex, male/female); 2. Employee was subjected to unwelcome conduct; 3. Conduct was because of employees sex or protected class; 4. Conduct was sufficiently severe or pervasive to alter the terms or conditions of employment and create an intimidating, hostile, offensive work environment; 5. Employer knew or should have known about the harassment/conduct, but failed to take prompt and 19

What is Severe or Pervasive? One incident of sexual harassment, especially if it is of the "quid pro quo" type, may constitute harassment if it is linked to the granting or denial of employment or benefits. Can be single severe incident, such as assault, which would be egregious enough to create a hostile work environment. Little v. Windermere Relocation, Inc., 301 F.3d 958 (9th Cir. 2002) A pattern of offensive conduct. 20

ADDRESSING HARASSMENT Employees are responsible for letting the harasser know the conduct is unwanted, reporting the harassment to the Employer, and cooperating in the Employers investigation. Employers are responsible for taking Prompt and Remedial Action to stop the offensive behavior. Prompt and Remedial action means reasonably calculated to prevent further harassment. Knabe v. Boury Corp., 114 F.3d 407, 412 (3d Cir. 1997). 21 What do

You Think? A group of employees works in a government agency for a very difficult boss. The boss frequently yells, has unpredictable outbursts of anger and has a history of overreacting to minor mistakes. The employees have tried to work with this boss, and even had a surprise party for the bosss birthday, which resulted in the boss accusing them of wasting time and money and popping all of the balloons in the conference room in a bout of anger over the party. Over time, some of the employees have developed stress-related physical ailments; some have left for other jobs because they could no longer bear the cruel environment. Eventually, the remaining employees filed suit against the boss for intentional infliction of emotional distress.

22 What is NOT harassment (within the realm of employment discrimination) Title VII is not a general civility code for the American Workplace. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) Not Severe or Pervasive: Single off color

sexual comment is not. Clark County School District v. Breeden, 532 U.S. 268 (2001) Conduct that is Not Unwelcome Not related to Protected Class 23 What do You Think?

Coworkers Drew and Kelly are together in a common work area when another employee approaches and makes jokes regarding Drews gender and sexual orientation. Kelly feels extremely uncomfortable. Drew responds with laughter and makes jokes about the employees appearance. Kelly shares the incident with management. During managements investigation, Drew reports that this is common behavior for them and they are both friends outside of work. The offending employee states that the comment was not intended to be offensive and explains that there was just a misunderstanding.

24 What do You Think? Ashley and colleagues are gathered together at a table in Ashleys office, laughing and having a good time as they share some pictures, reading material and magazines that Ashley brought to the office. A coworker is really bothered by this, and is suspicious that the material is pornographic, obscene and derogatory 25 About Sexual Harassment Harassment targeting the

effeminate behavior of a male employee constitutes sexual harassment. Nichols v. Azteca Restaurant th Enterprises, 256 F.3d 864 (9 Cir. 2001) Can be single severe incident, such as assault, which would be egregious enough to create a hostile work environment. Little v. th Windermere Relocation, Inc., 301 F.3d 958 (9 Cir. 2002) 26

About Sexual Harassment Harasser may be: Male or female; Same or opposite sex as victim; Supervisors, co-workers or nonemployees (such as clients or customers) Victim does not have to be the one harassed, but could be a witness offended by the behavior. 27 Office Romance

Consensual Even consensual relationships can quickly become "unwelcome" Formerly Consensual Depending on the individuals involved, the situation could turn into a hostile work environment With Supervisors May create discriminatory environment for coworkers Miller v. Department of Corrections. 36 Cal.4th 28 446; 115 P.3d 77(2005) Office Romance Widespread sexual favoritism in the workplace may create a

hostile work environment for other employees. Miller v. Department of Corrections. 36 Cal.4th 446; 115 P.3d 77(2005) Although an "isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair" does not ordinarily constitute sexual harassment, when sexual favoritism is sufficiently widespread, it may create an actionable hostile work environment for those who are not engaged in the affair. The California Supreme Court found that this type of favoritism may convey the demeaning message to employees that management views them as nothing more than "sexual playthings" and implies "that the 29

way required for women to get ahead in the workplace Consensual Relationships Miller v. Department of Corrections. 36 Cal.4th 446; 115 P.3d 77(2005) The Department of Corrections argued that this case would mean that courts were starting to regulate private consensual relationships, and the personal privacy of employees and employers alike should not be compromised. The Court stated, it is not the relationship, but its effect on the workplace, that is relevant 30 Sexually Charged Workplace

Environments Voluntary or not, Unwelcome or not, Nonparticipants may have a hostile work environment complaint Violates Employer Policy Sets up Dangerous Environment that can quickly turn into a liability situation 31 What do You Think? An employee reports to the manager that a client who regularly makes visits to their workplace often stares, makes jokes and comments about appearance, and asks personal questions about weekend plans and relationship status. In response to the complaint, the manager says that the company has had a relationship with this client for decades; they have a longstanding contract which generates large amounts of revenue; the

client is a little idiosyncratic but harmless and gets along well with everyone; and to just ignore the comments, but remain courteous because this is an important business relationship. 32 Co-Worker or Non-Employee Harassment Did Employer Know? Should Employer have Known? Employers are responsible for taking prompt and remedial action to stop the offensive behavior. Action may include discipline, termination of employment or customer/client

33 relationship Conduct outside of the Workplace Some courts have held that employers are liable for conduct that occurs outside of the workplace between supervisors and employees, and between co-workers. Liability on employers for the acts of their employees typically turns on whether the employees' actions were taken within the course and scope of employment. 34

What do You Think? Shortly after being hired as a clerk in a department store, Roberts manager started calling him sexually derogatory names (e.g. B*TCH and F*GG*T) when giving him assignments and monitoring his work. Robert does not know what to do. He feels he has nowhere to turn because his boss is the one engaging in the offensive behavior. Robert finds it so upsetting that he ends up seeing a psychiatrist for treatment for Post Traumatic Stress Disorder related to this harassment. Because he recently spent time in prison where he was traumatized by other inmates who called him similar names, Robert experiences severe PTSD reactions. After a few weeks, he quits his job on the advice of his doctor. 35

EMPLOYER RESPONSIBILITY Vicarious Liability An employer is subject to vicarious liability for an employees acts if the employee used his/her position to effect a tangible employment action on a subordinate. A manager or supervisor with hiring, firing , disciplinary or other power over the affected subordinate imputes liability to the employer for harassment that results in a tangible employment action. Includes supervisors without authority to take tangible employment action if the employee

36 What if there is NO tangible employment action? The employer can raise an AFFIRMATIVE DEFENSE (excuse defense) Limits liability Employer bears the burden of proof 37 Ellerth/Faragher Affirmative Defense

The Employer must prove by a preponderance that: (1)It exercised reasonable care to prevent and correct harassment (through having policies and complaint procedures, which were followed), and (2) The employee unreasonably failed to take advantage of the preventive and corrective opportunities provided by the 38 employer Burlington Industries, Inc. v. Ellerth, 524 U.S. EMPLOYER RESPONSIBILITY: REASONABLE CARE Anti-Harassment Policy/Non-Retaliation Policy Dissemination of Policy/Reporting Procedures to

Staff Training for Staff and Management Reviewing Policy with New Employees Signed Acknowledgment of Policy/Reporting Procedures/Training Clear Reporting Procedures for Employees with Non-Retaliation Policy Alternate Reporting Procedures if the Harasser is a Supervisor Investigation of All complaints All complaints taken seriously 39 I changed my mind.

What if the Complaining Party Backtracks? In some circumstances, the employee will want to remain anonymous. In other cases, the employee may complain of harassment and then ask the employer not to investigate since it "is not a big deal." In these circumstances, the employer still has the legal obligation to investigate and, if appropriate, remedy the conflict. [The employer] can inform the alleged victim that it will make every effort to keep the matter confidential, but that it cannot promise to do so, since it has the legal obligation to fully investigate the workplace dispute and the disclosure of events and names may be inevitable. Adapted from the American Bar Association Business Law Section, Properly Investigating Complaints of Harassment: How to Limit a Companys Exposure 40

Supervisor and Manager Responsibilities Refrain from engaging in harassment Maintain Policies and Procedures for Reporting Harassment Promptly respond to observed or reported instances of sexual harassment Refrain from Retaliation and have a clear mandate against retaliation in the workplace Encourage participants to promptly report any incidents of retaliation Promptly investigate the complaint. Take all complaints seriously to reduce liability

If discrimination is found, take appropriate corrective action so that the harassment stops 41 Employee Responsibilities Set an example of respectful workplace behavior. Have clear expectations that discrimination, workplace harassment and sexual harassment are not tolerated Report and object to inappropriate workplace behavior Voluntarily participate in investigations as discretely and confidentially as possible. Be sensitive to the feelings of all involved. It is

not easy for the complainant, the accused or anyone participating in an investigation. Anything else? 42 Thank you for your kind attention and participation 1-800-233-3247 43

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