Randy J. Sparks, Jr. (804) 771.5709 rcsparks@kaufcan

1. Workplace Harassment in the Social Media Age:Established and New Thoughts On an Old Workplace Problem Virginia Employment Commission2018 Employer ConferenceEngaging Employers: Managing Relationships Randy J. Sparks, Jr. (804) 771.5709 rcsparks@kaufcan.com

2. Quick Initial Thoughts: No big changes at the EEOC – yet Three Commissioners, all holdovers Acting Chair No General Counsel Example: dueling amicus briefs on LGBT Recognition of sexual orientation harassment by the courts

3. Basic Legal Concepts Discrimination Most basic: “No Irish Need Apply” More subtle: Glass Ceiling Harassment The word never appears in any law “Hostile Environment” and quid pro quo Retaliation The most dangerous Includes less egregious conduct

4. The National Discussion

5. To establish a national code of civility in the workplace. To provide a steady stream of work for employment lawyers. To ensure co-workers only interact on work-related topics in the office. To prevent and deter harassment. What Is the Purpose of the Law Against Sexual Harassment?

6. What Is the Purpose of the Law Against Sexual Harassment? The focus of the law is deterrence. “Title VII does not establish a national civility code for the workplace.” In the case of co-worker harassment: Prompt and effective remedial action is a defense to liability. An employee’s failure to report and cooperate is a defense to liability.

7. Purpose of the Law The law itself has not changed National discussion has heightened awareness of disproportionate male dominance and its exercise in selected industries The courts have accepted more of the EEOC’s views on what “because of sex” means The Court of Appeals for the Fourth Circuit, traditionally employer-friendly, has become more accepting of claims of harassment

8. Management’s Role Prevent and deter inappropriate conduct, by word and example Detect and identify inappropriate conduct, at the earliest possible stage Cooperate in prompt and effective investigation and remedial action Ensure complaining employees can do so without fear of retaliation

9. The National Discussion Many if not most accusations are time-barred Some are not pervasive Some are not severe (GHWBush) Leads to casual misuse of “sexual harassment” for any imperfect interaction between the sexes “Sexual harassment” in the media does not mean “sexual harassment” in violation of federal civil rights law

10. The National Discussion You, as managers and human resource professionals, are not limited to taking action only if you conclude an illegal, timely violation of the federal civil rights laws has occurred Conduct that violates company policy may not be sufficient to state a federal claim, but can still be the basis for disciplinary action up to and including discharge

11. A Quick Review: What is harassment and what makes it unlawful? Meritor Savings Bank // Forklift Systems, Inc.

12. Unlawful Harassment: Developed in the context of race discrimination under Title VII Applies to all “protected categories” Hostile, abusive, severe, pervasive, unwelcome .

13. Who Knows What It Is? “Abusive" (or "hostile," which in this context I take to mean the same thing) does not seem to me a very clear standard—and I do not think clarity is at all increased by adding the adverb "objectively" or by appealing to a "reasonable person['s]" notion of what the vague word means. . . . As a practical matter, today's holding lets virtually unguided juries decide whether sex-related conduct engaged in (or permitted by) an employer is egregious enough to warrant an award of damages. . . . Be that as it may, I know of no alternative to the course the Court today has taken. ” Justice Scalia, concurring in Harris v. Forklift Systems

14. Who Knows What It Is? Since 2015, the U.S. Court of Appeals for the Fourth Circuit has become much more plaintiff-friendly in harassment and discrimination cases.

15. Fourth Circuit Examples: “Single use of an offensive term” – the casino case overrules the DC sniper case Silly district court judge! You followed what we said the law meant, not what we meant after we changed our minds but didn’t tell you! The “Not all Muslims are terrorists” case

16. Hidden Harassment Common workplace-based responses by those who experience sex-based harassment are to avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior. The least common response to harassment is to take some formal action – either to report the harassment internally or file a formal legal complaint. Roughly three out of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct. Approximately 90% of individuals who say they have experienced harassment never take formal action against the harassment, such as filing a charge or a complaint. “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace.” (2016)

17. Prevalence of Sexual Harassment Anywhere from 25% to 85% of women report having experienced sexual harassment in the workplace “probability sample”: experienced “sexual harassment” without that term being defined? 25% of female employees have experienced “convenience samples”: sexual harassment not being defined, the rate rose to 50%.

18. Prevalence, cont’d When employees were asked, in surveys using probability samples, whether they have experienced one or more specific sexually-based behaviors, such as unwanted sexual attention or sexual coercion, the rate of reported harassment rose to approximately 40%. Using convenience samples, the incidence rate rose to 75%.

19. Harassment of Men

20. We See Harassment In Social Media: Threats, belittling comments, things that people would not say face-to-face. Sharp uptick in this since the beginning of 2016: political campaigns and state of politics have liberated idiots on both sides of the aisle.

21. Concerns With Employee Misdeeds:

22. Prompt and Effective Remedial Action: Everyone has a “zero-tolerance” policy for sexual harassment – why, and what does that mean? Mandatory reporting No “secret complaints” Multiple avenues to report (Boca Raton case) (An example of what NOT to do . . . UAL)

23. How Not to Screw Up An Investigation Independence In perception, and in fact Comprehensiveness Witnesses Documents Proper Reporting Preserving the A/C privilege Source: Walters, Sarah E., “Company Cultures, Post #METOO”, Lawyers Weekly, May 28, 2018

24. What Is a Document? Memo, performance review, counseling document, PIP Voicemail, text, e-mail, tweet Social media Small torn pieces of a napkin with beer rings on it

25. What Is Not Sexual Harassment? Holding a door or a chair Saying “Good morning” Smiling Idiot backlash: JMU Alumni case

26. Have Sexual Harassment Claims Skyrocketed? Acting EEOC Chair Victoria Lipnik: No measurable increase in sexual harassment filings with the Commission or with state-level Fair Employment Practice Agencies since the #metoo movement gained prominence Why is that? Guesses: Time-barred claims? Claims that are not based on unlawful conduct? Failure to complain in specified industries

27. EEOC Filing Data:

28. EEOC Filing Data - Virginia:

29. Non-harassment Law: Assault Battery Intentional infliction of emotional distress

30. What Has Been Going Up? Number of Retaliation Claims:

31. A Little About Retaliation Does not require any ultimate employment action (Burlington Northern) Does not require that the underlying claim be valid – only reasonable Often former employee can lose claim for discrimination or harassment and win large verdict for retaliation

32. LGBT Issues Baldwin v. Fox (EEOC July 15, 2015) Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir.), cert. den., 138 S. Ct. 557 (2017) Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc)  Zarda v. Altitude Express (2d Cir. 2/28/18) What will the US Supreme Court think?

33. And How Does Religion Figure In the LGBT Debate? EEOC v. Harris Funeral Home District Court decision 6th Circuit decision, March 7, 2018 Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, No. 16-111 (U.S. Supreme Court argument December 5, 2017)

34. Take-Aways for Managers Bottom line is: EVERYONE is in a protected category, everyone has some special status Bottom line is: NO ONE should be acted against for any reason except pure business performance Bottom line is: NO ONE should be harassed Company policy can be more expansive than the legal definition of “harassment”

35. Company Policies There is a wide variety of inappropriate conduct that may not violate federal or state law, that policy simply will not permit Employees do not have to wait until they believe they have a federal case in order to raise a concern with management Prompt and effective remedial action is key

36. Workplace Harassment in the Social Media Age:Established and New Thoughts On an Old Workplace Problem Virginia Employment Commission2018 Employer ConferenceEngaging Employers: Managing Relationships Randy J. Sparks, Jr. (804) 771.5709 rcsparks@kaufcan.com