Workplace Sexual Harassment & Discrimination

1. Workplace Sexual Harassment & Discrimination The Union’s Roles Sally E. Barker seb@schuchatcw.com Rochelle G. Skolnick rgs@schuchatcw.com Schuchat, Cook & Werner 1221 Locust Street, Second Floor St. Louis, MO 63103-2364 (314) 621-2626

2. Sources of Law • Federal, state and some municipal laws prohibit discrimination and harassment on the basis of sex and other protected characteristics. • Title VII of the Civil Rights Act of 1964 • Missouri Human Rights Act, Illinois Human Rights Act and other state-specific statutes • Federal and Missouri statutes do not protect against discrimination based upon sexual orientation, but some state and city (e.g. St. Louis City) laws do • Administered by Equal Employment Opportunity Commission (EEOC) and state (and in some cases municipal) agencies.

3. Duty of Fair Representation • In addition to complying with government anti-discrimination laws, Unions also have a duty to fairly represent their members under federal labor law. A Union breaches this duty when it treats a member differently because of the member’s sex or any other protected characteristic. • In addition to sex, protected characteristics include race, age, national origin, religion, and certain disabilities.

4. What is Sexual Harassment? • A form of unlawful sex discrimination that occurs when unwelcome sexual conduct is so severe or pervasive that it unreasonably interferes with work performance or participation in union activities. • The law recognizes two types: • Quid pro quo (this for that) • Hostile environment

5. Quid Pro Quo Harassment • Demands for sexual conduct in exchange for some benefit to the member/employee • Submission to such demands is made an explicit or implicit condition of continued employment or union membership • Submission to or rejection of such demands is used as a basis for decisions about employment status or union membership • Promotion, transfer to desirable job assignment, overlooking failure to pay dues • Discharge, demotion or refusal to give job referrals

6. Hostile Environment Harassment • Unwelcome, offensive conduct of a sexual nature that is severe or pervasive enough that it interferes with a reasonable person’s ability to work or to participate in union activities. Examples: • Comments, jokes or verbal abuse of a sexual nature • Displays or e-mails of pornography • Repeated unwelcome requests for dates or sexual favors • Offensive physical touching of any body part or interfering with an employee's ability to move.

7. What is “unwelcome” sexual conduct? • The employee did not invite or incite it and regards it as offensive • Best evidence conduct is unwelcome is an employee complaint or protest made at the time of the conduct • Conduct may be unwelcome even if the employee submits to it • When employee uses vulgar language or initiates sexually-oriented conversations with co-workers, it may be evidence that sexual conduct from the same co-workers was not unwelcome

8. Remember… • A harasser may be a man or a woman, and harassment may be directed toward a member of the same or the opposite sex. • A harasser can be anyone connected to the work or union environment: supervisor, manager, co-worker, customer, supplier, or vendor. • Employees/members who are not the target of the harassment, but who observe and are offended by it may still be victims of the harasser’s conduct. • Consensual socializing, minor incidents, isolated stray remarks, bad taste and rudeness do not constitute unlawful harassment.

9. The Union’s Roles in Combating Harassment & Discrimination • Bargaining and enforcement of collective bargaining agreements • Representation of member/employee who complains of harassment or discrimination • Administration of union membership, hiring hall or apprenticeship program • Employer of union staff

10. Union Policies Against Unlawful Discrimination & Harassment • To fulfill all of these roles, it is useful for a Union to adopt policies prohibiting unlawful harassment and discrimination and implementing procedures for dealing with complaints of harassment or discrimination by Union staff and members. • The Union should distribute the policies and educate staff, stewards and members about their obligations under the policies and the law.

11. Union’s Role in CBA Negotiations & Enforcement • Most CBAs contain non-discrimination clauses. • If the employer does not already have a policy on sexual harassment and discrimination, the Union should urge the employer to develop one. • Union can also urge the employer to hold training sessions to make supervisors and employees aware of its sexual harassment and discrimination policies and the law.

12. Union’s Role in Responding to Harassment Complaints and Discipline • The Union may be called upon to represent a member who complains of harassment by a supervisor or co-worker who is not a member of the union. • The Union may also be called upon to represent a member who complains of harassment by a fellow member. • This situation poses potential conflict of interest problems for the Union • The Union may be called upon to represent a member who has been disciplined for sexual harassment.

13. If a member complains of harassment on the job… • Remember that it is the employer, not the union, that is in control of the workplace and therefore primarily responsible for preventing sexual harassment and discrimination on the job. The Union’s principal role is to help members when the employer has not effectively corrected meritorious complaints of discrimination and harassment. • If the alleged harasser is not a bargaining unit member, tell the complainant to follow the employer’s procedure for complaining about harassment. • If the employer does not respond appropriately to the complaint, the Union can file a grievance.

14. If the alleged harasser is a bargaining unit member… • The Union can try to resolve the matter informally. • If that approach does not work or is inappropriate due to the seriousness of the alleged conduct, the Union should advise the victim to follow the employer’s procedure for complaining about harassment. • If the employer does not respond appropriately to the complaint, the Union can consider filing a grievance. • However, when both accuser and accused are members of the bargaining unit, the Union can and should fairly investigate both members’ claims before deciding whether and how to pursue any grievance.

15. Investigating Complaints • Make a plan for the investigation based on what you know at the start; begin it as soon as possible; adjust the plan as you get additional information. • Assign a person trained in conducting an investigation to be the investigator. The investigator should not have a close relationship with either the alleged victim or accused. Involve an outside investigator and/or attorney in appropriate, complex situations. • Set up a file to collect all documents and interview notes from the investigation. • Safeguard confidentiality by discussing the complaint with others only to the extent necessary to conduct a full and fair investigation. • However, do not agree to keep any complaint “off the record.” A union has a duty, whether as advocate or employer, to fully investigate any complaint of sexual harassment and take appropriate action. • When the investigation is complete, tell the complainant and those accused of harassment what the outcome of the investigation was.

16. Investigating Harassment Between Members • Interview the complainant and have him/her complete a grievance fact sheet. • Notify bargaining unit member(s) accused of harassment about the complaint and interview them. • Interview witnesses named by complainant or accused. • After investigation is complete, make a fair and objective evaluation of the merits of the grievance. • Assess credibility of statements of both complainant and accused harassers • Assess whether conduct alleged was severe enough to interfere with the complainant’s working conditions • Assess whether employer failed to take reasonable corrective action. • Remember that the grievance is against the employer, not the individual member, for failing to take action to stop the harassment.

17. Interviewing the Complainant • Reassure the complainant that s/he has a right to file a complaint. • Ask whether the employer has been informed of the complaint, and if not, explore doing so. • Explain how the union will procedure (e.g. conduct an investigation). Do not promise a grievance or other action at this stage. • Discuss the possibility of retaliation. Assure the complainant that the union will not tolerate retaliation from other members. • Ask the complainant to tell you immediately about any retaliation or ongoing harassment s/he experiences. • Listen carefully and respectfully. Take notes and add them to the investigation file. • Ask the complainant to fill out a grievance fact sheet.

18. Questions for the Complainant Follow up grievance fact sheet with specific questions. Examples: • Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur, and is it still ongoing? Where did it occur? How often did it occur? • How did you react? What response did you make when the incident(s) occurred or afterwards? • How did the harassment affect you? Has your job been affected in any way? • Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment? • Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person? • Are there any notes, physical evidence, or other documentation regarding the incident(s)? • How would you like to see the situation resolved? • Do you know of any other relevant information?

19. Interviewing the Alleged Harasser • Tell the alleged harasser that a complaint has been filed. • Assure him/her that the Union will make a full and fair investigation. • Remind the alleged harasser that retaliation against the complainant is unlawful and will not be tolerated. • Listen carefully and respectfully to the alleged harasser just as you did to the complainant.

20. Questions for the Alleged Harasser • What is your response to each of the allegations? • If the harasser claims that the allegations are false, ask why the complainant might lie. • Are there any persons who have relevant information? • Are there any notes, physical evidence, or other documentation regarding the incident(s)? • Do you know of any other relevant information?

21. Interviewing Witnesses • What did you see or hear? When did this occur? • Describe the alleged harasser's behavior toward the complainant and toward others in the workplace. • What did the complainant tell you? When did s/he tell you this? • Do you know of any other relevant information? • Are there others who have relevant information?

22. Representing a member disciplined for sexual harassment • The Union may have a duty to pursue a grievance for a member who has been disciplined by the employer for harassment. • But success on the alleged harasser’s grievance may adversely affect the complainant’s employment, so the Union should not automatically pursue such a grievance without careful evaluation.

23. Evaluating the grievance of a member disciplined for harassment • Interview the grievant and ask him/her to complete a grievance fact sheet. • Interview the member who complained of harassment and any witnesses. • Once investigation is complete, evaluate the grievance considering the following: • Credibility of competing factual claims of members involved • Competing interest of grievant and member who accused him/her of harassment • Grievant’s potential due process defenses, even if s/he did engage in objectionable conduct, such as: • Lack of employer training on meaning of sexual harassment • Principle that punishment must fit the offense • Failure to follow progressive discipline, if appropriate

24. Preventing Union Liability for Sexual Harassment • Understand that you have an important role to play in preventing union liability for unlawful sexual harassment. • Read the union’s policy and make sure others understand it. • Understand that the union’s policy protects Union employees and Union members from sexually harassing conduct by other Union employees and Union members at the Union hall and while engaged in Union activities. • Do not ignore complaints about offensive conduct. • Listen carefully to the details of the complaint and how the person complaining feels about the conduct. • Do not jump to conclusions about the complaint or judge the complaint by how you feel about the conduct. Keep an open mind. • Remember that conduct that may be okay in an all male construction site, may be offensive to women employees or members and interfere with their work or participation in union activities. • Treat the complaint confidentially by discussing it only with those who need to know in order to conduct a fair investigation. • Do not promise to keep a complaint “off the record.” The Union has a responsibility to the complaining party and the accused to conduct a fair investigation and take appropriate action. • Investigate the complaint fairly by getting all sides of what happened. • If the complaint has merit, take only the corrective action that is appropriate to resolve it. Counseling and progressive discipline can be appropriate for less serious kinds of sexual harassment. • Tell the person who complained and those accused the outcome of the investigation.