Minimizing Exposure for Minimizing Exposure for Unlawful Workplace Harassment Unlawful Workplace Harassment

and Retaliationand Retaliation

Tamsen L. LeachmanTamsen L. LeachmanDunn Carney Allen Higgins & Tongue LLPDunn Carney Allen Higgins & Tongue LLP

tll@dunn-carney.comtll@dunn-carney.com • 503-417-5513• 503-417-5513www.dunncarney.comwww.dunncarney.com

Employer Alert!Employer Alert!

$6.85M verdict for 4 employees $6.85M verdict for 4 employees where managers placed the women where managers placed the women in police holds, inappropriately in police holds, inappropriately touched them, and placed a touched them, and placed a retractible knife to their throatsretractible knife to their throats

$1.5M to female pastry chef whose $1.5M to female pastry chef whose boss touched her sexually and made boss touched her sexually and made comments to her, and who was fired comments to her, and who was fired after complainingafter complaining

What is at IssueWhat is at Issue

Third Party HarassmentThird Party Harassment Co-worker HarassmentCo-worker Harassment Supervisor HarassmentSupervisor Harassment Conduct based on protected statusConduct based on protected status Conduct that creates a negative work Conduct that creates a negative work

environment and impacts performanceenvironment and impacts performance Situations that ultimately result in Situations that ultimately result in

retaliation or deterioration of work retaliation or deterioration of work environment – tangible job injuryenvironment – tangible job injury

Harassment Proof Scheme …Harassment Proof Scheme … HarassmentHarassment

Quid Pro QuoQuid Pro Quo This for ThatThis for That

Hostile EnvironmentHostile Environment Because of … Because of … UnwelcomeUnwelcome Severe and PervasiveSevere and Pervasive Inadequate Remedial Measures Inadequate Remedial Measures Identity of Harasser may be important – supervisor, Identity of Harasser may be important – supervisor,

customer, former paramour customer, former paramour

Harassment Comes in Many FormsHarassment Comes in Many Forms

Sexual, including same sexSexual, including same sex GenderGender Sexual Orientation/Gender IdentitySexual Orientation/Gender Identity RacialRacial ReligiousReligious DisabilityDisability PregnancyPregnancy AgeAge Marital StatusMarital Status

Where are the Cases Coming FromWhere are the Cases Coming From

35% of 2006 charges focused on race35% of 2006 charges focused on race

Race - includes ancestry, physical Race - includes ancestry, physical characteristics, race-linked illnesses, characteristics, race-linked illnesses, culture, perception, association with culture, perception, association with someone of particular race, and reverse someone of particular race, and reverse discriminationdiscrimination

Color – pigmentation, complexion, skin Color – pigmentation, complexion, skin shade, and skin toneshade, and skin tone

Employer Alert!Employer Alert!

California jury awards two delivery California jury awards two delivery drivers $61M in race harassment casedrivers $61M in race harassment case

Later reduced to $12MLater reduced to $12M Lebanese-Americans called “Camel Lebanese-Americans called “Camel

Jockey” and “sand nigger” by terminal Jockey” and “sand nigger” by terminal managermanager

Initially claim against Roadway Initially claim against Roadway Express, but later against FedEx after Express, but later against FedEx after purchasepurchase

How Bad Does it Have to Be To How Bad Does it Have to Be To Create Actionable Harassment?Create Actionable Harassment?

Severe or pervasive considers …Severe or pervasive considers … The frequency of the conductThe frequency of the conduct Its severity (how shocking is it?)Its severity (how shocking is it?)

Purely subjective sliding scale Purely subjective sliding scale Each juror gets to evaluateEach juror gets to evaluate

Whether the conduct is physically Whether the conduct is physically threatening or humiliating, or merely threatening or humiliating, or merely offensive offensive

Whether the conduct reasonably Whether the conduct reasonably interferes with work performanceinterferes with work performance

Severe or Pervasive …Severe or Pervasive …

Offensive sexual comments, physical Offensive sexual comments, physical contact, including kissing and rubbing in a contact, including kissing and rubbing in a sexually suggestive way, by a manager sexually suggestive way, by a manager were sufficient to alter the work were sufficient to alter the work environment – environment – Olson v. Lowe’sOlson v. Lowe’s

Workplace permeated with profanity, crude Workplace permeated with profanity, crude humor, sexual graffiti, and where co-humor, sexual graffiti, and where co-workers grabbed plaintiff and tried to kiss workers grabbed plaintiff and tried to kiss and grope her was bad enough to create and grope her was bad enough to create liability for employer – liability for employer – Petrosino v. Bell Petrosino v. Bell AtlanticAtlantic

Standard Lowered - ???Standard Lowered - ???

Parker v. Atlanta Newspaper – daily verbal Parker v. Atlanta Newspaper – daily verbal harassment sufficient to survive summary harassment sufficient to survive summary judgment even if no physical conductjudgment even if no physical conduct

Evaluation criteria – frequency; severity; Evaluation criteria – frequency; severity; physically threatening or humiliating; physically threatening or humiliating; unreasonably interferes with job unreasonably interferes with job performanceperformance

Verbal harassment in threatening or Verbal harassment in threatening or intimidating manner can be perceived as intimidating manner can be perceived as physically threatening or humiliatingphysically threatening or humiliating

Not Severe or Pervasive???Not Severe or Pervasive??? 10-15 comments of a sexually suggestive nature 10-15 comments of a sexually suggestive nature

by a co-worker over 2-month period insufficient - by a co-worker over 2-month period insufficient - Bussell v. MotorolaBussell v. Motorola

Aloof supervisor who one time told female Aloof supervisor who one time told female subordinate that women are only good for ***king subordinate that women are only good for ***king did not create hostile environment – did not create hostile environment – McKenzie v. McKenzie v. Milwaukee Co.Milwaukee Co.

““Malibu Barbie” nickname insufficient – Malibu Barbie” nickname insufficient – Erenberg Erenberg v. Methodist Hospitalv. Methodist Hospital

Dirty jokes told in employees presence, ‘hot lips” Dirty jokes told in employees presence, ‘hot lips” nickname, and verbal sexual advance in context nickname, and verbal sexual advance in context of improving performance evaluation not of improving performance evaluation not sufficient – sufficient – Morris v. Oldham Co. Fiscal CourtMorris v. Oldham Co. Fiscal Court

New Rise in ADA Harassment New Rise in ADA Harassment ClaimsClaims

$100,000 award to HIV positive $100,000 award to HIV positive physician who claimed she was physician who claimed she was subjected to a hostile work subjected to a hostile work environment because of her environment because of her disability/requests for accommodation disability/requests for accommodation – – Flowers v. Southern RegionalFlowers v. Southern Regional

No award where employee called No award where employee called “platehead” – “platehead” – Shaver v. Independent Shaver v. Independent StaveStave

Religious DiscriminationReligious Discrimination Obligation of reasonable accommodation and Obligation of reasonable accommodation and

its interactive process – Balint v. Carson City its interactive process – Balint v. Carson City

If relates to hours – must provide aid in If relates to hours – must provide aid in switching shifts instead of just pointing to switching shifts instead of just pointing to policy - policy - EEOC v. Aldi, Inc.,

Temporary transfer or time off questionableTemporary transfer or time off questionable

Undue hardship – more than Undue hardship – more than de minimusde minimus cost, cost, e.g.e.g., repeated overtime. Speculative , repeated overtime. Speculative costs or hardship insufficient.costs or hardship insufficient.

Baker v. The Home DepotBaker v. The Home Depot

Employer’s failure to fully accommodate Employer’s failure to fully accommodate request for Sundays off can support claimrequest for Sundays off can support claim

Employee’s request granted for one year, Employee’s request granted for one year, but new manager required employee to be but new manager required employee to be “fully flexible”“fully flexible”

Employee given option to work part-time Employee given option to work part-time or work Sunday evening so he could go to or work Sunday evening so he could go to churchchurch

Court found that all religious limitations Court found that all religious limitations and objections must be considered in the and objections must be considered in the accommodation process.accommodation process.

Reasonable Factor Other than AgeReasonable Factor Other than Age

Meacham v. Knolls Atomic Power Meacham v. Knolls Atomic Power LaboratoryLaboratory (2008) (2008) Performance, flexibility, criticality of skills, Performance, flexibility, criticality of skills,

company servicecompany service Disparate impact analysis - 30 of 31 were Disparate impact analysis - 30 of 31 were

40+ 40+ Plaintiff must identify specific practice Plaintiff must identify specific practice

that causes disparitythat causes disparity Employer must prove RFOA was the Employer must prove RFOA was the

reason reason

Scope of Relevant Evidence Scope of Relevant Evidence Impacts Risk in LitigationImpacts Risk in Litigation

Harassment/Discrimination may be Harassment/Discrimination may be easier to prove with “me too” easier to prove with “me too” evidenceevidence

Same Supervisor rule no longer per se Same Supervisor rule no longer per se - Sprint/United Management Company - Sprint/United Management Company v. Mendelsohn (S.Ct. 2008)v. Mendelsohn (S.Ct. 2008)

Impact unclear, but remember past Impact unclear, but remember past events in evaluating current riskevents in evaluating current risk

Where to Begin Preventing These Where to Begin Preventing These Problems … Problems …

Be clear about acceptable workplace Be clear about acceptable workplace conduct. Good dos and don’ts …conduct. Good dos and don’ts … If it involves more than shaking hands, don’tIf it involves more than shaking hands, don’t Flirting is fun, but only causes problems Flirting is fun, but only causes problems

laterlater Comments about body parts are never okayComments about body parts are never okay Off-color jokes are unacceptable Off-color jokes are unacceptable NO relationships between supervisor and NO relationships between supervisor and

subordinate … ever!subordinate … ever!

Reinforcing the Message Reinforcing the Message

Sexual and Workplace Harassment policies Sexual and Workplace Harassment policies are an important toolare an important tool Statement that conduct is unacceptableStatement that conduct is unacceptable Definition and examples Definition and examples Scope of situations covered, e.g., trips, and Scope of situations covered, e.g., trips, and

people covered, e.g., customers, vendorspeople covered, e.g., customers, vendors Reporting procedure and encouragement to do soReporting procedure and encouragement to do so Assurance of no retaliation and description of Assurance of no retaliation and description of

investigation protocolinvestigation protocol Commitment to enforcing consequences of Commitment to enforcing consequences of

behaviorbehavior

What Are Love Contracts?What Are Love Contracts?

Purpose – clarify the consensual nature Purpose – clarify the consensual nature of the relationship, clarify ground rules, of the relationship, clarify ground rules, and reaffirm the s.h. policy … just in and reaffirm the s.h. policy … just in case … case …

Potential BenefitsPotential Benefits Evidence of nature of relationship at one Evidence of nature of relationship at one

point in timepoint in time Easier to start a dialogue laterEasier to start a dialogue later *These assume that employees will disclose *These assume that employees will disclose

the relationship initially the relationship initially

Don’t ForgetDon’t Forget

Creation and distribution of a policyCreation and distribution of a policy Training about the policyTraining about the policy Holding managers and supervisor Holding managers and supervisor

accountable for environment and handling accountable for environment and handling of complaintsof complaints

Putting in place adequate remedial Putting in place adequate remedial measures measures

These are often the only facts employers These are often the only facts employers can rely on to counterbalance the ugly bad can rely on to counterbalance the ugly bad behavior allegations … behavior allegations …

Workplace Investigations – Workplace Investigations – Preventative and RemedialPreventative and Remedial

Immediate response & prompt resolution Immediate response & prompt resolution of investigationof investigation EEOC position – launched immediately & EEOC position – launched immediately &

completed as soon as possiblecompleted as soon as possible

Case lawCase law Investigation began on day of complaint, Investigation began on day of complaint,

concluded in 2 days, and discharge in 10concluded in 2 days, and discharge in 10 Investigation began 1 day later and concluded in Investigation began 1 day later and concluded in

2 weeks2 weeks Investigation inadequate where did not occur Investigation inadequate where did not occur

until after agency filing until after agency filing

A Word of Caution …A Word of Caution … In In Crawford v. Metro. Crawford v. Metro. GvtGvt. Nashville. Nashville, (Jan. , (Jan.

26, 2009), Supreme Court interpreted 26, 2009), Supreme Court interpreted ‘opposition’ activity broadly‘opposition’ activity broadly

Court held it protected employee who Court held it protected employee who voluntarily answer questions in voluntarily answer questions in investigation of another’s complaintinvestigation of another’s complaint

Suggestion that broad reading of coverage Suggestion that broad reading of coverage might also apply to protected might also apply to protected ‘participation’ activity‘participation’ activity

Witness Involvement in Employer Process Witness Involvement in Employer Process Creates Sphere of Protection Creates Sphere of Protection Still requires good faith reporting of unlawful Still requires good faith reporting of unlawful

conductconduct

Pro-active attention and increased Pro-active attention and increased sensitivity required by employers - sensitivity required by employers - protected activity can arise when you are protected activity can arise when you are not expecting itnot expecting it Informal charges to supervisorInformal charges to supervisor

Employee threats to file a chargeEmployee threats to file a charge

Association with protected employees Association with protected employees

Defending self against claim of unlawful conductDefending self against claim of unlawful conduct

Immediate Remedial MeasuresImmediate Remedial Measures

Should occur a.s.a.p. - consider ways Should occur a.s.a.p. - consider ways to avoid contactto avoid contact Scheduling changesScheduling changes Transferring accusedTransferring accused Placing accused on administrative leavePlacing accused on administrative leave Giving complainant time off – preferably Giving complainant time off – preferably

WITH payWITH pay Be sensitive to perceived adverse Be sensitive to perceived adverse

action by complainantaction by complainant

Ultimate Remedial MeasuresUltimate Remedial Measures

Preventive measures always Preventive measures always appropriateappropriate

Remedial measures should …Remedial measures should … End current harassmentEnd current harassment Deter future harassmentDeter future harassment

With the accusedWith the accused With othersWith others

Make victim whole???Make victim whole??? Victim’s choice of remedies not requiredVictim’s choice of remedies not required

Actions should be in proportion to Actions should be in proportion to offenseoffense Nature and severity of conductNature and severity of conduct History of accusedHistory of accused

Actions should not disadvantage Actions should not disadvantage victimvictim EEOC views this as retaliationEEOC views this as retaliation

Examples of Action Designed to Examples of Action Designed to Stop ConductStop Conduct

Oral or written warningOral or written warning Transfer or reassignmentTransfer or reassignment DemotionDemotion Reduction of wages/bonusReduction of wages/bonus SuspensionSuspension DischargeDischarge Training/counselingTraining/counseling Monitoring of accusedMonitoring of accused

Retaliation … Just When You Think Retaliation … Just When You Think You are Out of the WoodsYou are Out of the Woods

RetaliationRetaliation

Protected Conduct – Crawford expansionProtected Conduct – Crawford expansion

Adverse Action – Burlington Northern paradigm shiftAdverse Action – Burlington Northern paradigm shift

Constructive DischargeConstructive Discharge Materially vs Ultimately AdverseMaterially vs Ultimately Adverse Work related vs non-work relatedWork related vs non-work related

CausationCausation

*Employer’s Legitimate Non-Retaliatory Reason*Employer’s Legitimate Non-Retaliatory Reason

Time for ReviewTime for Review

Ensure Retaliation Addressed in Company Ensure Retaliation Addressed in Company Policies on Harassment & DiscriminationPolicies on Harassment & Discrimination

Include statement prohibiting retaliation and Include statement prohibiting retaliation and outlining discipline consequences outlining discipline consequences

Give examples of prohibited conduct Give examples of prohibited conduct

Require Reporting of Retaliation and Require Reporting of Retaliation and Provide OptionsProvide Options

Address investigation, confidentiality and Address investigation, confidentiality and consequencesconsequences

Time for ReviewTime for Review

Train All Supervisors and ManagersTrain All Supervisors and Managers Protected activity Protected activity

Materially adverse employment action Materially adverse employment action

Importance of good documentationImportance of good documentation

Require reporting / coordination with Require reporting / coordination with HRHR

Time for ReviewTime for Review

Review Investigation ProtocolsReview Investigation Protocols Consider limiting the witnesses to be interviewedConsider limiting the witnesses to be interviewed

Limit the number of open-ended questionsLimit the number of open-ended questions

Focus on the issue(s), but pay attention to all Focus on the issue(s), but pay attention to all messagesmessages

Ensure you convey appropriate retaliation Ensure you convey appropriate retaliation message to all participantsmessage to all participants

Consider providing copy of retaliation policyConsider providing copy of retaliation policy

Time for ReviewTime for Review

Review Investigation Follow-Up ProtocolReview Investigation Follow-Up Protocol Fully evaluate with whom to share results and Fully evaluate with whom to share results and

at what level of detailat what level of detail

Refresher training for supervisor – act as if Refresher training for supervisor – act as if nothing has changednothing has changed

Check in with all participants in investigationCheck in with all participants in investigation

Monitor for occurrence of retribution by Monitor for occurrence of retribution by supervisors or by co-workerssupervisors or by co-workers

Managing Your RiskManaging Your RiskCommon Discipline MistakesCommon Discipline Mistakes

Poor Performance EvaluationsPoor Performance Evaluations UntimelyUntimely ConclusoryConclusory Unlike evaluations of othersUnlike evaluations of others Subjective or shows biasSubjective or shows bias Potentially inappropriate commentsPotentially inappropriate comments

Sick leave usage or exercise of other rightsSick leave usage or exercise of other rights

Failure to Document MisconductFailure to Document Misconduct

Inadequate Communication of ExpectationsInadequate Communication of Expectations

Managing Your RiskManaging Your RiskDestroying the NexusDestroying the Nexus

Ensure Process Resolved Ensure Process Resolved Satisfactorily and Door Left Open for Satisfactorily and Door Left Open for Retaliation ConcernsRetaliation Concerns

Communicate regarding resolutionCommunicate regarding resolution

Provide safe contact for follow upProvide safe contact for follow up

Check in with employees to confirm no Check in with employees to confirm no issuesissues

Managing Your RiskManaging Your RiskDestroying the NexusDestroying the Nexus

Review chain of command and Review chain of command and establish oversight for disciplineestablish oversight for discipline

If discipline must occur, understand If discipline must occur, understand your burden of proof and create your your burden of proof and create your evidence accordingly evidence accordingly

Avoid negative, unnecessary Avoid negative, unnecessary comments or actioncomments or action

Questions?Questions?

Tamsen LeachmanTamsen Leachman

503-417-5513503-417-5513

tll@dunn-carney.comtll@dunn-carney.com