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Navigating the “Me Too” Movement in Public Transit

Explore the impact of the "Me Too" movement on public transit systems and the challenges faced by employers in addressing sexual harassment. Learn about legal liabilities, actions to take, and employer responsibilities.

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Navigating the “Me Too” Movement in Public Transit

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  1. Navigating the “Me Too” Movement in Public Transit Robbie L Sarles RLS & Associates, Inc.

  2. Session Objectives • What is the “Me Too” Movement? • What is Sexual Harassment? • What are the Challenges Facing Employers? • What are the Unique Challenges Facing Public Transit Systems

  3. “Me Too” Movement • A Single Tweet—October 15, 2017 • Tarana Burke—Battle Cry of Rape and Trauma Victim Advocate a Decade Ago • Alyssa Milano--Social Media Campaign to Draw Attention to the Epidemic of Sexual Harassment and Assault

  4. “Me Too” Movement • Provided a Sense of Magnitude of the Problem • Within 24 hours 12+ Million Posts on Facebook • Within 48 hours Twitter posts > 1 Million • 45% of Social Media Users in the US Posted about “Me Too”

  5. “Me Too” Movement • Two Issues Came to Light • Sexual Harassment • Silence

  6. “Me Too” Movement • Everyone Impacted • Personal • Emotional • Divisive • Generational • Conflicted • Complicated-Multiple Layers • Political

  7. Why Now • Direct Access to Media • Social Media Allows Direct Access to the Masses • Social Media is Not Influenced or Controlled by Power Brokers, Employers, Risk Managers, Public Relations • Political Environment that is Oppressive to Women’s Rights • Celebrities Speak Out • “Enough is Enough”

  8. Implications for Employers • Legal Liability • Law Suits • Title VII of the Civil Rights Act of 1964 Violations • Sexual Harassment is Unwelcome Conduct that is Sexual in Nature and Based on Sex. • Social Media • Not Legal Standard • Political

  9. What Does This Mean For You? • Sexual Harassment Is Real and Prevalent • Impacts Both Genders • New Normal • Speak Out—Silence Breakers • Expectation to Report • People Are Angry

  10. What Does This Mean For You? • Prevalent in News Media and Social Media • Issues Are Confused By News and Political Agendas

  11. Actions To Take • Separate Politics from Personal • Every Situation Should Be Addressed Based on the Facts • Acknowledge Sexual Harassment Is Real and is Prevalent • Avoid blanket responses

  12. Actions to Take • Create a Culture of Respect and Civility of All People • Create a Safe Space for the Silent and Vocal • Genuine Commitment to Combatting Harassment • Zero Tolerance • All Concerns Will Be Taken Seriously and Addressed Objectively on a Case-by-case Basis • Provide Resources

  13. Actions to Take • Hold Everyone Accountable • Perpetrator • Bystander • Strong, Comprehensive Anti-Harassment and Anti-Retaliation Policies and Training • Provide Alternative Outlet to Legal and Social Media Channels • Provide Neutral, Third Party Experts To Encourage Anonymous Reporting

  14. Actions to Take • Create a Policy and Establish Guidelines • Prohibit Harassment • Provide Examples of Improper Conduct for Employees • Have Employees Acknowledge Receipt and Understanding of Policy • Prohibit Retaliation

  15. Employer Legal Responsibilities • Be Prepared To Handle Claim • Conduct Insurance Carrier • Consult with Employment Attorney • Prepare As If EECOC Claim

  16. Employer Legal Responsibilities • Duty to Investigate • Formal or Informal Complaint • Employer Knew or Should Have Known and Failed to Stop It • Liability Can Be Minimized by Investigating and Taking Prompt Corrective Action to Stop the Harassment • Tangible Employment Action • Employer Is Liable

  17. Employer Legal Responsibilities • Duty to Investigate (Continued) • Intangible Employment Action—Hostile Work Environment • Vicariously Liable For Supervisors Actions • Affirmative Defense • Exercised Care to Prevent and Correct • Individual Failed to Take Advantage of Opportunities Provided by Employer or to Otherwise Avoid Harm • Complaints by a Third Person or Supervisor Observations • Investigate Even When Individual Does Not Request or Consent to Investigation

  18. Employer Legal Responsibilities • Duty to Investigate (Continued) • Complaint Does Not Have to Use the Word Harassment • Observation of Inappropriate Conduct • Inappropriate Comments • General Office Knowledge of Harassing Behavior • Requests that Inappropriate Conduct Stop • Conduct must be Unwelcomed based on Sex and Unreasonable Based on Objective and Subjective Standards

  19. Employer Legal Responsibilities • Duty to Investigate (Continued) • Take Immediate Action to Neutralize Situation • Remove Harasser, Not Alleged Victim • Protect Alleged Victim from Retaliation or Hostile Work Environment • Conclude Quickly

  20. Employer Legal Responsibilities • Conduct the Investigation • Establish Written Internal Complaint Procedure • Employees • Supervisors, Managers, Human Resource Personnel • Do Not Make Employees Discuss with the Supervisor First • All Anonymous Reporting • Provide Multiple Avenues to Report

  21. Employer Legal Responsibilities • Conduct the Investigation (Continued) • Determine Who Should Conduct Investigation • Respected By Employees • Objective • Understanding of Issues • Willing and Able to Devote Necessary Time and Resources to Investigation

  22. Employer Legal Responsibilities • Conduct the Investigation (Continued) • Interview Individual Making Complaint • Each Incident Described In Writing • When, Where, What • Witnesses • Effects of the Incident • Documentation • Knowledge of Other Incidents • Protect Individual from Retaliation • Limit Information to Only Persons with Legitimate Need to Know

  23. Employer Legal Responsibilities • Conduct Investigation (Continued) • Interview the Alleged Harasser • Explain Circumstances that Led Up to the Investigation • Investigation Conducted Confidentially • Refrain from Reprisal (or Appearance of ) • Avoid Contact If Possible • Investigate Alleged Harasser’s Take on the Events • Claims the Accuser Lied

  24. Employer Legal Responsibilities • Conduct Investigation (Continued) • Interview Others With Knowledge of the Events • Get Statement in Writing • Re-interview Individual and Alleged Harasser as Necessary • Attempt to Substantiate Allegations • Monitor Current and Future Behavior

  25. Employer Legal Responsibilities • Conduct Investigation (Continued) • Conclude the Investigation • Evaluate Facts • First-hand Knowledge, Hearsay, Rumors, Gossip and Motivations to Lie or Embellish • Intent Does Not Matter in Whether Sexual Harassment Has Occurred if a Person Feels Harassed or Humiliated • Delays In Reporting Should Not Be Construed As Weakening the Complaint • Document • File Separately from the Personnel File

  26. Employer Legal Responsibilities • Take Prompt Action • Communicate Conclusion to Both Parties • Others Only on a Need to Know Basis • Protect Confidentiality

  27. Employer Legal Responsibilities • Take Prompt Action (Continued) • Result—No Action • Future Events Should Be Reported and Policy will be Enforced in the Future • Follow-up Occasionally and Monitor • Retaliation Will Not Be Tolerated • If Possible, Minimize Contact Between Parties • Do not Force Move or Transfer of Individual Making the Complaint • Acknowledge Legal Standard for Harassment Was Not Met—Do Not State or Insinuate that the Individual Lied

  28. Employer Legal Responsibilities • Take Prompt Action (Continued) • Result—Harassment Has Occurred • Disciplinary Action Against the Accused • End the Harassment • Prevent Future Harassment • Discipline the Harasser • Oral Warning to Termination • Severity of the Conduct • Consistency with Previous Cases • Consistency with Other Company Policies • Harasser’s work and disciplinary history

  29. Employer Legal Responsibilities • Take Prompt Action (Continued) • Severity of Discipline • Written Discipline • Suspension, Demotion, Discharge • Transfer or Reassignment • Do Not Provide Perception of Promotion • Loss of Pay • Instruct Not to Discuss with Others • Risk of Defamation

  30. Employer Legal Responsibilities • Take Prompt Action (Continued) • Change the Culture—Eliminate Hostile Work Environment • Retrain All Employees • Accountability for Everyone • Meaningful Training Designed to Influence Behavior—Not Check In a Box • New Hires • Existing Employee—Periodic (i.e., Annual) • Managers /Supervisors—Extensive Training

  31. Managing Social Media • The “Weinstein Effect” • Not a Legal Definition or Legal Standard • Broader than Sexual Harassment • Not Tied to an Employment Relationship • No Limits • Public and Social Media Criticism

  32. Managing Social Media • Treat Everyone Fairly And With Respect • Give Employees Other Channels Where They Believe They Are Being Heard • Identify One and Only One Spokesperson for the Agency • Stick to the Facts and Avoid Emotional Responses • Enforce Social Media Policy

  33. Avoiding Issues with Passengers • New Environment • Awareness • Hypersensitivity • Cameras On Vehicles

  34. Avoiding Issues with Passengers • Passenger Interaction • Always Professional • Avoid Becoming Socially Involved With Passenger • Vulnerable Passengers • Limited Social Skills Or Ability to Discern/Interpret Actions • Do Not Offer Advice or Guidance to a Passenger on Social or Personal Topics • Focus On Transportation Needs

  35. Avoiding Issues with Passengers • Passenger Assistance • Explain to Passenger What You Will Be Doing • Ask Permission to Touch Passenger • Use Back of Hand Against Passengers Body • Avoid Body Language Or Actions That Can Be Misinterpreted

  36. Avoiding Issues with Passengers • Passenger Communication • Call Passenger By Name • Avoid Pet Names or Terms of Endearment • Do Not Make Any Comments of a Sexual Nature No Matter How Innocent or Complimentary You Think the Comment Is • Avoid Jokes of Sexual or Implied Sexual Content

  37. Avoiding Issues with Passengers • Passenger Behavior • Follow Passenger Individualized Plan, If Appropriate • Ignore Passenger Inappropriate Behavior or Sexual Overtures • Divert Attention to Appropriate Topics • Report Behavior of a Serious, Questionable, or Inappropriate Nature

  38. Avoiding Issues With Passengers • Your Intent Is Irrelevant • Actions and Words Are What Matters • Subject to Misinterpretation

  39. Actions Following Complaint • Follow Procedures Defined Above • Policy—Create Safe Space for Passengers • Guidance--Accountability • Training • Establish Reporting Process—Alternative Outlet • Investigate Claims—Described Previously • Take Prompt Action • Risk Management • Legal • Social Media

  40. Conclusion • Best Outcome for Everyone--Stop It Before It Happens!!!

  41. Resources • RAINN—https://www.rain.org/ • National Sexual Assault Hotline • Laws In Your State • Safety, Prevention, and Response Resources • Consulting Services • 2018 SART Toolkit • https://ovc.ncjrs.gov/sartkit • National Sexual Violence Resource Center • https://www.nsvrc.org

  42. Robbie Sarles RLS & Associates, Inc. 937-299-5007 rsarles@rlsandassoc.com

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