The Respectful Workplace

1. The Respectful Workplace University of Wisconsin 2009

2. Training Objectives • To understand University of Wisconsin policies as well as federal and state laws. • To understand the role of supervisors and coworkers in preventing discrimination and sexual harassment in the workplace.

3. Training Objectives • To develop a workplace environment where employees respect and value each other as individuals; and • To identify University resources for addressing concerns.

4. Federal laws include: • Title VII of the Civil Rights Act of 1964 • Age Discrimination in Employment Act • Federal Rehabilitation Act of 1973 • American with Disabilities Act • Civil Rights Act of 1866 • Title IV and IX of the Education Amendments of 1972

5. Unlawful Harassment • Unlawful harassment is a form of discrimination that violates state and federal law. • Includes unwelcome verbal or physical conduct based upon an employee’s membership in a protected category.

6. Harassment is illegal if it is based upon a protected group status under any of the federal or state discrimination laws. Protected categories include:

7. Age • Arrest/Conviction Record • Disability • Marital Status • National Guard/Reserve Status • National Original (also ‘ancestry’) • Race (also ‘color’) • Religion • Sex (includes “condition of pregnancy”) • Sexual Orientation • Veteran Status • Genetic Testing

8. Unlawful Harassment • In order to be unlawful, the offending conduct must be pervasive or severe enough to create a hostile work environment; or • A supervisor’s conduct must result in a negative change in an employee’s employment status or benefits.

9. Intent vs. Impact

10. Lack of Intent is Irrelevant • The conduct is evaluated from the victim’s perspective. • Many offenders may be completely unaware of how their actions are being perceived. • Courts apply a “reasonable person” standard.

11. Lack of Intent is Irrelevant • The reasonable person standard analyzes whether a reasonable person would have found that the conduct in question created a hostile workplace environment. • Therefore, even if a person did not intend to create a hostile work environment, they may still be held responsible for doing so.

12. Basis of An Employment Decision • Also called quid pro quo • Direct coercion • Example: an employee is subjected to unwelcome sexual advances and faces tangible employment consequences, such as demotion or termination if s/he does not submit to advances.

13. Basis of employment decision • Usual form is sexual harassment • Overt proposition not required • Innuendo or implication is sufficient

14. Hostile Work Environment • Occurs when unwelcome comments or conduct unreasonably interfere with an employee’s work performance. • Anyone in the workplace can commit this type of harassment, including supervisors, coworkers, or guests. • The victim can be anyone affected by the conduct, not just the individual at whom the offensive conduct is directed.

15. Examples of a Hostile Environment • Derogatory comments of a sexual nature or based on gender • Off-color jokes or teasing • Comments about clothing, personal behavior, or a person’s body • Sexual or gender-based jokes • Repeatedly propositioning for dates • Telling rumors about a person’s personal or sexual life

16. Three Types of Offensive Work Environment • Commonly offensive • Super offensive • Facially neutral

17. Commonly offensive • Consists of acts, words, or depictions which a reasonable person would generally see as objectionable on their face, but not necessarily intended as an attack upon a group

18. Commonly offensive • Generally, employer liability results only when preceded by a complaint to management and a warning to the offender to stop the behavior • Repetition and continuation then generate discipline and liability

19. Super offensive • Consists of words, acts, or graphic depictions which are so blatant that they constitute a malicious attack against a protected group

20. Super offensive • Can cause automatic legal liability if not corrected upon discovery because the employer should have known that this was harassing • Should be stopped immediately • Don’t wait until someone complains

21. Facially Neutral Policies May Cause Disparate Impact • At first glance, policies that appear neutral may have an impact upon protected status employees that is disproportionate. • Employers must analyze the total situation and its impact on the workplace environment.

22. Offensive environment harassment must be sufficiently severe to create an objectively hostile environment • Isolated instance generally doesn’t rise to level of establishing an “environment”

23. Managers’ Duties • Supreme Court— “supervisor is charged with maintaining a productive, safe work environment” • Supervisors have a duty to talk and act on a higher standard

24. In offensive environment situations, legal liability likely if the following: • Harassment was reported; management knew or should have known • Management failed to act • Thereby condoning the harassment

25. But be careful— • Duty to keep a pulse on the environment • Be proactive • Don’t wait for complaints

26. Duty to— • Ensure health, welfare and safety of those in the environment • Have a policy and distribute it • Monitor (to be somewhat aware) • Listen

27. Duty to— • Not retaliate • Maintain confidentiality as much as possible • Do something

28. What is “something”? • Use common sense • Call Human Resources, Legal Counsel, AA Officer, etc.

29. ‘Management’ may include employees who don’t necessarily hold a supervisory title • Anyone “in charge” of LTE’s or student interns falls under the category of “management” for purposes of harassment law

30. Examples

31. An Office Associate frequently places orders with an outside vendor for supplies. One of the drivers that delivers the supplies frequently makes comments on her appearance (e.g., tells her she “looks sexy”). The employee feels uncomfortable when these comments are made and will walk away quickly without saying anything anytime this vendor makes these types of comments. One day, the employee tells her Chair what is going on. The Chair tells her, “there is nothing he can do,” and that, “she should just try and ignore it.”

32. Ross just got an e-mail at work from a friend in France. It contained the funniest sexual cartoon he has ever seen. Ross passes it along to his friend and co- worker John, whom he knows will think it is really funny. John later unintentionally forwards the e-mail to the entire department.

33. Paul is a savvy accountant who has been to many harassment prevention programs. When he and his coworker are talking and he wants to tell a gay joke, he always prefaces it with “I hope I don’t offend anyone by this, but….” and warns that he’s about to tell a gay joke.

34. The Associate in the office feels that the faculty in the office don’t appreciate or include him. For example, the faculty will leave work on his desk with a post-it note that says “Need tomorrow morning.” The faculty rarely give him direction and when the Associate asks, the faculty will say “Figure it out. I’m too busy.” The faculty never thank him for the work he does. Also, the faculty often have case “brainstorming” sessions. While they invite the academic staff to these sessions, they do not invite the Associate. The Associate has offered to give his opinion to the faculty, but the faculty respond “Why don’t you just focus on your job.”

35. One of the people in the office often mimics the way people of other cultures talk. For example, after she gets off the phone with a client, she’ll come out to the lunchroom /kitchen area and repeat what was said during the phone conversation using an exaggerated accent.

36. Questions?