dec2010_abusive_workplace_behavior

Abusive Workplace Behavior:Bad for SEIU 1000, Worse for You

Presented By:

Joseph L. [email protected]

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FIRST CLASS SERVICE, COAST TO COAST

Expectation of SEIU 1000

Expectation of Employees

Expectation of Courts

Expectation of Juries

Dignity & Respect

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Workplace Harassment

Prohibited by federal and state law/SEIU policy

It’s not just about sex – all protected classes are entitled to protection from harassing behavior

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Protected Classes

Sex Race Citizenship Religion National Origin Marital Status

Sexual Orientation Color Disability Age Medical Condition Military Status

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High employee turnover

Absenteeism

Lowered concentration at work

Lowered morale/teamwork/cooperation

Time spent talking about/dealing with sexual harassment instead of performing work

Workplace Harassment – Employer Impact

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Workplace Harassment – Employer Impact (Cont’d) Time-consuming investigations

Distrust among employees

Adverse publicity

Costs to the employees involved; money out of their pocket

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Case Study Issa v. FedEx Ground (Oakland, CA)

$61 million / $1 million individually

$12 million / $250,000 individually

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Hostile Environment Harassment Three key elements

Unwelcome conduct

Based on a protected category

Unreasonably interferes with employee’s work performance or creates an intimidating, hostile or offensive work environment

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Hostile Environment Harassment Intent is irrelevant

Need not complain

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Examples Of Unacceptable Examples Of Unacceptable Workplace Behavior That May Workplace Behavior That May Lead To Harassment LitigationLead To Harassment Litigation

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Examples Of Unacceptable Verbal Behavior

Repeatedly asking a person out who is not interested

Leaving offensive or disturbing voicemails

Turning work discussions to sexual topics

Offensive jokes about sex, race, age, etc.

Remarks about bodyMocking, ridiculing or mimicking another culture’s accent, appearance or customs

Discussing sexual activitiesRacial epithets or slurs

Sexual HarassmentDiscrimination/Harassment

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Examples Of Unacceptable Non-Verbal Behavior

Posting offensive materials on walls or bulletin boards

Circulating offensive e-mails


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Non-Verbal Communication When communicating verbally, not just what you say

but how you say it and to whom. Remember – when you talk in person, 80% of what you say is in tone and body language.

Harassment is harassment, regardless of how it’s communicated – face-to-face, email, texting, Facebook, Twitter, LinkedIn, MySpace, YouTube – it makes no difference.

Be careful with social media – you don’t always know who your audience is, hard for recipient to assess tone, can’t see body language – easy for comments to be misconstrued.

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Social Media Facebook – more than 500 million active users;

average user has 130 friends (Sept 2010)

Blogs – more than 400 million active blogs (Sept 2010)

Twitter – more than 105,000,000 registered users tweeting an average of 55 million tweets per day; new users signing up at the rate of 300,000 per day (Sept 2010)

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It’s Not Just What You Speak

RULE – If you would not say or show something to someone face-to-face, don’t communicate it in any other way.

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Textual Harassment Sending offensive or inappropriate text messages to

co-worker (i.e., boss sending flirty text to subordinate, asking for dates)

46 states (including CA and NY) have laws that refer

to electronic forms of communication in stalking or harassment laws. A single text message in CA is enough to meet the definition of textual harassment if the message threatens physical harm or is obscene.

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Examples Of Unacceptable Non-Verbal Behavior

Giving unwelcome personal gifts

Sexual gestures, body movements, touching oneself sexually

Ostracizing someone or playing pranks because of someone’s protected class

StalkingPosting offensive materials on walls or bulletin boards

“Elevator eyes”Circulating offensive e-mails


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Examples Of Unacceptable Physical Behavior

Continually brushing up against another

Touching clothing, hair or bodyOffensive pranks

Massaging, hugging or kissingOffensive gestures


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Where Does The Harassment Occur?

Conduct outside the “workplace”

Liability for harassment does not stop at the workplace door.

In fact, liability for harassment may attach to unlawful conduct that occurs in any location found to be an extension of the workplace.

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Case Study

Myers v. Trendwest Resorts, Inc. (CA Court of Appeal)

Alleged harassment occurred off-site and arose during a relationship that had evidence of becoming consensual.

Court held employer can be liable for sexual harassment even when the alleged misconduct occurs away from the workplace.

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Who Can Harass?

Anyone in any type of business relationship with anyone else.

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Workplace BullyingWorkplace Bullying

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TEST???

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Who Is A Bully?

“Workplace bullying is repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms:

Verbal abuse;

Threatening, humiliating or offensive behavior/actions; and

Work interference – sabotage – which prevents work from getting done.”

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Who Is A Bully? (Cont’d) Workplace Bullying

Is driven by perpetrators’ need to control the targeted individual(s);

Is initiated by bullies who choose targets, timing, place and methods;

Escalates to involve others who side with the bully, either voluntarily or through coercion; and

Undermines legitimate business interests when bullies’ personal agendas take precedence over work itself.

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Bullying Statistics

44% of American workers have worked for a supervisor or employer who they consider abusive.

More than 50% of American workers have been a victim of or heard about supervisors/employers behaving abusively by making sarcastic jokes/teasing remarks, rudely interrupting, publicly criticizing, giving dirty looks to, yelling at subordinates, or ignoring them as if they were invisible.

64% of American workers believe that an abused worker should have the right to sue to recover damages.

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U.S.A. (Now)

No workplace anti-bullying law

Harassment based on protected category

Intentional infliction of emotional distress

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Case Study EEOC v. NEA of Alaska (9th Circuit)

Male supervisor subjected female employees to frequent episodes of loud, hostile, profane, and often public shouting, with little or no provocation.

Court held conduct need not be “facially sex-specific.”

Employer ultimately agreed to pay $750,000 to settle lawsuit. (May 2006)

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Case Study Raess v. Doescher (Indiana)

First “bullying” case involving Indiana cardiac surgeon

Facts I’ll “smack the shit” out of you Charging employee with clinched fists Backing employee against the wall You’re over. You’re history. You’re finished.

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Case Study Raess v. Doescher (Indiana)

Alleged intentional infliction of emotional distress and assault

First admission of expert testimony from “bullying expert”

$325,000 plaintiff’s verdict on assault claim

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Healthy Workplace Bills 13 states in the past years have attempted to

pass, “Healthy Workplace Bills,” which makes it illegal to subject an employee to an abusive work environment.

The proposed California Assembly Bill, AB 1582, would have provided legal recourse to employees who suffered workplace bullying or were otherwise subjected to an abusive work environment.

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RetaliationRetaliation

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Retaliation Claims On The Rise

010,00020,00030,00040,00050,00060,00070,00080,00090,000

100,000

FY2006

FY2007

FY2008

FY2009

Total RaceSexNat’l OriginReligionRetaliationAgeDisabilityEPA

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In 2009, retaliation moved up to tie with race discrimination as the most common type of charge filed with the EEOC

36 percent of the 93,277 federal workplace discrimination charges filed alleged retaliation

Retaliation Claims On The Rise

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“Protected activity”

“Adverse action”

Causal link between the two

Key Elements

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Escalated Risk

Juries are predisposed to find retaliation.

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Case Study Stevens v. Vons (CA Court of Appeal)

$18.3 million verdict Worker claimed that he was fired in violation of

state law after reporting he had been sexually harassed by his female supervisor

Jury found the company guilty of illegal retaliation

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Case Study Blue v. IBEW Local 159 (Wisconsin)

$206,000 verdict Worker claimed that she was subjected to

harassment and retaliation after she spoke in defense of an African American electrician in a discrimination action

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Case Study Dixon v. Int’l Brotherhood of Police Officers

(1st Circuit) $2.2 million verdict Worker’s claims stemmed “from an ugly incident of

verbal abuse of a female police officer by her fellow male officers on a union-sponsored bus trip”

A campaign of retaliation followed

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Personal LiabilityPersonal Liability

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Personal Liability – Are You At Risk?

You can be sued for workplace harassment

Outside “course and scope of employment” protection

No insurance protection available

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The Golden Rule

Treat people fairly and equally – just as you would want to be treated.

Abusive Workplace Behavior:Bad for SEIU 1000, Worse for You

Presented By:

Joseph L. [email protected]

dec2010_abusive_workplace_behavior

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