Title VII Harassment & Hostile Work Environment

2. Title VII Harassment & Hostile Work Environment Stacy Thompson sthompson@lawcjb.com (812) 332-1000 409 West Patterson DriveSuite 205 Bloomington, Indiana 47403 www.lawcjb.com Clendening Johnson & Bohrer, P.C.

3. Agenda • Title VII basics • What constitutes unlawful harassment? • Employer liability for harassment • Limiting employer liability Clendening Johnson & Bohrer, P.C.

4. Title VII Basics • Prohibits discrimination by employers on the basis of race, color, religion, national origin, sex or pregnancy • Also prohibits harassment on the basis of these protected classifications. • Applies to employers with at least 15 employees • Available remedies: • Back pay, “front pay,” reinstatement, injunctive relief, compensatory damages, and sometimes punitive damages • Limit on compensatory and punitive damages is $50,000 to $300,000 depending on number of employees Clendening Johnson & Bohrer, P.C.

5. What Constitutes Unlawful Harassment? • Harassment occurs whenever: • Unwelcome conduct based on a protected classification has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment. Clendening Johnson & Bohrer, P.C.

6. What Constitutes Unlawful Harassment? • Two categories of sexual harassment: • Quid Pro Quo- “This for That” Occurs when an individual’s submission to or rejection of harassment is used as the basis of an employment decision affecting that individual. • Hostile Work Environment Occurs where conduct has the effect of unreasonably interfering with the individual’s work performance in creating an intimidating, hostile or offensive working environment that seriously affected the psychological well-being of the individual. Clendening Johnson & Bohrer, P.C.

7. What Constitutes Unlawful Harassment? • Hostile Work Environment: • “Severe or pervasive”- must be so severe OR pervasive as to alter the conditions of the victim’s employment in a significant way. • One incident may be sufficiently severe • Multiple incidents may not be individually severe, but may be considered pervasive when taken together • Subjective and Objective analysis- conduct must be BOTH subjectively harassing to the individual & objectively harassing to a reasonable person Clendening Johnson & Bohrer, P.C.

8. Employer Liability for Harassment • Employers have a heightened responsibility to protect against supervisor harassment. • 1. Is harasser a “supervisor”? A person is a “supervisor” only if that employee has the authority to hire, fire, demote, promote, transfer or discipline the victim. • 2. Did victim suffer “tangible employment action”? A significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. • 3. Did employer take reasonable steps to prevent and promptly correct harassing behavior? **The first step is an anti-harassment policy with complaint procedures! The policy must be effective and it must be communicated to the employees! • 4. Did victim unreasonably fail to take advantage of preventative or corrective measures provided by employer? Clendening Johnson & Bohrer, P.C.

9. Employer Liability for Harassment • Employer liability for co-worker harassment- burden shifts to the Plaintiff. • Plaintiff must show that his employer has been negligent either in discovering or remedying the harassment. • Did employer take reasonable steps to prevent and promptly correct harassing behavior? • Anti-harassment policy! Make sure there are multiple lines of reporting and make sure the policy commits to do things you will actually do. • Prompt investigation! Did the employer respond with appropriate remedial action likely to prevent the conduct from recurring? Clendening Johnson & Bohrer, P.C.

10. Anti-harassment policy • Implement a reasonable anti-harassment policy • A “reasonable” anti-harassment policy: • Requires supervisors to report incidents of harassment • Permits informal/formal complaints • Provides a way to bypass harassing supervisor • Policy should consider capabilities of employees • Policy should be effective **WE CAN HELP** Clendening Johnson & Bohrer, P.C.

11. Investigation Some individuals should NOT be the investigtor: - The person accused of the wrongful act. - Other employees with vested personal or corporate interests in the matter. - Individuals who lack restraint and a sense of direction. - A person whose personality simply does not fit with the person(s) being investigated. - Former law enforcement personnel. - Individuals with close personal or professional ties to the accused or complainant. - HR personnel who have a pattern or practice of delivering unrelated discipline to a complainant.

12. Investigation DO • Identify potential witnesses. • Identify documents to be reviewed (personnel files, Employee Handbook, notes made by anyone about the incident, etc.) • Establish a separate, secure file for maintaining notes and records of the investigation. • Select someone, or possibly two persons, to conduct the investigation. • Conduct interviews. • Complete a thorough investigation. • Take action if necessary. • Follow up to make sure the harassment has, in fact, ended. **WE CAN HELP**

13. Investigation DON’T • Delay. • Interview the person alleged to have engaged in misconduct first. • Express an opinion as to whether misconduct occurred. • Be content with generalities. • Leave inconsistencies hanging- ask the person to explain. • Keep anyone against their will. • Fail to document interviews. • End the investigation if the alleged victim recants the allegations. • Promise confidentiality. Instead, inform each interviewee that the matter will be handled as discreetly as possible. • Guarantee any particular outcome. • Try to dissuade the reporting employee from making any more complaints.

14. Potential Remedies for Harassment Physically separating the harasser and the victim. Disciplining/warning the harasser. Anti-harassment training. Additional supervision of the harasser and/or victim to ensure that the harassment has ended.

15. Limiting Employer Liability Distribute policy and train ALL employees on policy Take note of obvious pitfalls Investigate complaints promptly Discipline or fire offenders Clendening Johnson & Bohrer, P.C.

16. Title VII Harassment & Hostile Work Environment Stacy Thompson sthompson@lawcjb.com (812) 332-1000 409 West Patterson DriveSuite 205 Bloomington, Indiana 47403 www.lawcjb.com Clendening Johnson & Bohrer, P.C.