Getting to Know Gardere

1
HARASSMENT POLICIES INVESTIGATIONS
Presented by John B. Brown jbrown_at_gardere.com 214.
999.4969
2
Cost of Harassment to U.S. Employers

• Job Turnover 36.7M
• Sick Leave 26.1M
• Individual Productivity 76.3M
• Work Group Productivity 128.2M
• Total 267.3M
• Reference US Merit Protection Board

3
Litigation Cost

• Avg. cost to defend a sex harassment lawsuit is
  150,000 per plaintiff.
• Harvard Business Review

4
Statistics

• In a survey of federal employees 44 of women and
  19 of men reported some form of unwanted sexual
  attention in the last 2 years.
• U.S. Department of Labor
• Sexual harassment claims are on the rise. Sexual
  harassment claims have more than doubled between
  1991 and 2000.
• U.S. Department of Labor

5
Statistics

• Statistics show that between 70 and 90 of
  harassers and abusers repeat their conduct.
• The Educators Newsletter, Vol. 6, No. 3
• A disproportionate percentage of sexual
  harassment occurred among women aged 18 through
  24. Although this group constituted only 1 out
  of 57 working women, this group reported nearly
  30 of the cases of sexual harassment.
• Sexual Harassment and Different Groups of
  Women
• Penn State, National Council for Research

6
ANTI-HARASSMENT STATUTES

• Title VII (race, color, religion, sex, national
  origin)
• Age Discrimination in Employment Act
• Americans with Disabilities Act
• Pregnancy Discrimination Act
• Parallel State and Local Statutes (some prohibit
  harassment based on sexual orientation)

7
SEX HARASSMENT DEFINED

• Unwelcome conduct of a sexual nature, such as
  sexual advances, requests for sexual favors or
  other verbal or physical conduct of a sexual
  nature when
• Submission to such conduct affects a term or
  condition of employment or is used as a basis for
  an employment decision or
• Such conduct interferes with an employees work
  performance or creates an intimidating, hostile
  or offensive work environment.

8
Other Forms of Harassment

• Unwelcome statements or other verbal or physical
  conduct based on an individuals race, color,
  religion, national origin, age, or disability.
• Where such conduct interferes with an employees
  work performance or creates an intimidating,
  hostile or offensive work environment.

9
IN SUM

• HARASSMENT IS
• Unwelcome
• Unsolicited
• Verbal, physical or visual conduct
• Severe or pervasive
• Sexual in nature or based on a persons sex,
  race, color, religion, national origin, age or
  disability
• Interferes with an individuals job
• Or creates a hostile, intimidating or offensive
  work environment for the victim of harassment

10
HARASSING CONDUCT

• Jokes
• Verbal Slurs / Epithets
• Derogatory Comments / Insults
• Inappropriate Requests / Innuendoes
• Sabotage / Destruction of Work or Personal Items
• Threats

11
DISCRIMINATION AND HARASSMENT

• Harassment can occur in a variety of
  circumstances, including but not limited to the
  following
• The victim as well as the harasser may be a woman
  or a man.
• The victim does not have to be of the opposite
  sex, different race or age.
• The harasser can be the victims supervisor, an
  agent of the employer, a supervisor in another
  area, a co-worker, or a non-employee, such as a
  customer or vendor.
• The victim does not have to be the person
  harassed but could be anyone affected by the
  offensive conduct.
• Unlawful sexual harassment may occur without
  economic injury to or discharge of the the victim.

12
SUPERVISOR SEX HARASSMENT

• Quid Pro QuoThis is when submission to or
  rejection of sexual advances is used as a basis
  for an actual employment decision such as
• Pay increases
• Hiring or firing
• Promotions
• Performance appraisals
• Liability is automatic no defense is available

13
I SAID

• LIABILITY IS AUTOMATIC
• THERE ARE NO DEFENSES

14
QUID PRO QUO HARASSMENT

• EXAMPLES
• TextbookMargarets supervisor gives her an
  undeserved poor job evaluation after she declines
  to have an affair with him.
• Real WorldSupervisor talks about accounting
  clerk with other men in office. Calls her hot,
  etc. Supervisor and female accounting clerk
  flirt in office and others notice. Accounting
  clerk begins frequent absences and work
  performance decreases. Accounting clerk is
  demoted.

15
SUPERVISOR CO-WORKER SEXUAL HARASSMENT

• Hostile EnvironmentThis refers to sexual
  comments, physical touching, or displays of
  objects that unreasonably interfere with work
  performance or that create an intimidating,
  hostile or offensive work environment. These may
  include
• Displaying sexually graphic calendars, graffiti,
  sexual objects, and pictures
• Regular, persistent use of sexually offensive
  language, jokes, suggestions of a sexual nature,
  gestures or comments.

16
CO-WORKER SUPERVISOR SEXUAL HARASSMENT

• EXAMPLES Textbook
• A male employee puts up a graphic pinup calendar
  at the office. The nude female pictures displayed
  on the wall makes Sally uncomfortable whenever
  she looks at it. The male employee ignores
  Sallys repeated requests to remove the
  calendar.
• Real World
• Men take a co-worker to a strip club and return
  to the office and talk explicitly about the
  evening. Emails regularly are circulated with
  sexual content.
• A hostile environment is usually determined by
  what a reasonable Person would think is out of
  bounds

17
AFFIRMATIVE DEFENSE TO HARASSMENT

• If the harassing supervisor takes no tangible
  employment action against the employee (such as
  discharge, demotion, or undesirable
  reassignment), then the employer may raise an
  affirmative defense by establishing that
• The employer exercised reasonable care to prevent
  and correct promptly any sexually harassing
  behavior and
• The employee unreasonably failed to take
  advantage of any preventive or corrective
  opportunities provided by the employer or failed
  otherwise to avoid harm
• No Defense for Supervisor Quid Pro Quo

18
Affirmative DefenseHow to Prove

• Provide preventive or corrective opportunities to
  employees
• Written policy
• Provide effective means for employee to complain
• Take Prompt Remedial Action
• Investigate
• Take appropriate disciplinary action

19
Harassment Policies

• Should be written and given to all employees
• Have employees sign an acknowledgement form and
  place in their personnel file
• Expressly prohibit harassment
• Reporting Procedures
• Supervisor/Store Manager
• HR or company representative
• Owner can go straight to you
• Anonymous complaints
• Provide contact information
• No retaliation

20
IF AN EMPLOYEE REPORTSDISCRIMINATION OR
HARASSMENT TO YOU

• You must take prompt remedial action.

• Respond quickly involve the Human Resources
  Department.
• Be sensitive to the issue and to those involved.
• Remember There is no such thing as an official
  complaint. If the employer has knowledge about
  possible harassment, a duty arises to
  investigate.

21
Prepare to Investigate

• Separate the alleged harasser from the
  complainant.
• Implement interim remedial measures.
• Consider
• Suspending alleged harasser.
• Place alleged harasser on paid leave of absence.

22
Prepare to Investigate

• Avoid accusations of retaliation or further harm
  to complainant.
• Dont transfer complainant.
• What to do if transfer requested?
• Document request.
• Acknowledgement.

23
Prepare to Investigate

• Draft standard set of investigation questions.
• Consider
• Complainants concerns.
• Whether the accusation is valid or patently
  false.
• Protecting confidentiality.
• Backup for remedial actions.

24
Prepare to Investigate

• Sample questions
• Relevant event(s).
• Dates and times.
• Prior occurrences.
• Related performance issues.
• Identity of witnesses.
• Corroborating notes or diaries.
• Has complainant made other harassment complaints?

25
Prepare to Investigate

• Select investigator
• Impartial.
• Trustworthy.
• Appropriately concerned.
• Appear credible.

26
Prepare to Investigate

• Who might be most qualified and impartial?
• Someone with personnel responsibilities.
• Outside counsel.
• Work product.
• Protection of privileged information.

27
Questioning Complainant

• Interview in a confidential setting
• Information
• Identity of alleged harasser, conduct, witnesses,
  when conduct occurred, whether any retaliatory
  conduct has occurred
• Inform complainant you are investigating
• Do not make promises
• Stress no retaliation will occur

28
Questioning the Alleged Harasser

• Confidential setting
• Notify of complaint
• Explain specific allegations and get response
• Get information about the relationship with the
  complainant
• Witnesses
• Any adverse employment actions occurred
• Stress no retaliation will be tolerated and to
  maintain confidentiality
• Consider suspending (with or without pay)

29
Conducting a Thorough Investigation

• Assessments
• Witness credibility.
• Bias/motives.
• Contradictions.
• Relationship between witness and accused.
• Sources of information.
• Personal knowledge.
• Hearsay/gossip.

30
Conducting a Thorough Investigation

• Pervasiveness
• Nature of conduct.
• Active vs. passive.
• Frequency.
• Length of exposure.

31
Conducting a Thorough Investigation

• Written statements
• Proof of investigation.
• Preserve memories.
• Commit witness to story.
• Avoid premature conclusion
• No cursory reviews.
• Interview all witnesses.
• Follow-up where necessary.

32
Concluding Investigation

• Document investigation.
• Document conclusions.
• Secure investigative documents.
• Maintain apart from personnel file.
• Take remedial measures based on
• Severity and persistence of harassment.
• Potential effectiveness of remedy.

33
Appropriate Remedial Measures

• Case by Case
• Examples
• Counseling
• Transfer
• Suspension
• Demotion
• Discharge
• Follow-up
• All employees involved should be counseled about
  policy
• Keep track of subsequent employment actions
  involving complainant
• Have follow-up discussions with complainant

34
What Else Can Go Wrong?

• Youve made an investigation
• Youve remedied the situation
• What else can go wrong?
• Retaliation
• i.e. making an adverse employment decision
  against the complaining party

35
What is an AdverseEmployment Action?

• Any employer action
• Discharge
• Demotion
• Loss of benefits or salary
• Removal of job duties
• Harassment
• Denying vacation

36
Avoiding Retaliation

• Advise all parties in interest of the prohibition
  against retaliation
• Advise complaining party of anti-retaliation and
  of his/her obligation to immediately report any
  actual or perceived retaliation
• Put it in writing

37
Negligent Investigation

• Wal-Mart Stores, Inc. v. Canchola.
• Termination immediately following harassment
  accusation.
• Poor quality of investigation is not enough to
  show pretext.
• Poor quality of investigation will not support
  emotional distress claim.

38
Negligent Investigation

• Texas Farm Bureau Mut. Ins. Co. v. Sears.
• Investigation of insurance agent in alleged
  kickback scheme.
• No cause of action for negligent investigation.
• Emphasis on preserving employment at-will.

39
GARDERE WYNNE SEWELL LLPJohn Brown1601 Elm
Street, Suite 3000Dallas, TX 75201 Phone
214.999.4969 Fax [phone]
jbrown_at_gardere.com