Sexual Harassment Outside of the Workplace

(Post by Rick Dacri, September 25, 2015)

The issue of sexual harassment just won’t go away. Most employers work hard to make sure that they develop a workplace culture of respect, where issues of harassment are not tolerated. But it is hard enough to constantly monitor behaviors in the workplace. Do you also have to scrutinize your employees actions outside? This is a question I frequently get from clients and unfortunately, the answers is often “maybe.”

The law may apply to harassment that occurs between co-workers that takes place outside the workplace. When the conduct complained of occurs outside of the workplace, consider the following factors in assessing whether the conduct constitutes sexual harassment:

1. Whether the event at which the conduct occurred is linked to the workplace in any way, such as at an employer-sponsored function;
2. Whether the conduct occurred during work hours;
3. The severity of the alleged outside-of-work conduct;
4. The work relationship of the complainant and alleged harasser, which includes whether the alleged harasser is a supervisor and whether the alleged harasser and complainant come into contact with one another on the job;
5. Whether the conduct adversely affected the terms and conditions of the complainant’s employment or impacted the complainant’s work environment.

If you become aware of a situation or if a complaint is presented, take it seriously. Listen to the complainant. Evaluate the situation. Contact the Dacri HR HelpLine or your attorney to determine your next steps. Just because the actions took place outside of work, does not mean the harassment did not occur. And remember, if it is determined to be harassment or not, the impact of the situation is sure to bleed into your workplace, impacting your employees, productivity and employee relations.

Other posts you may like:

•  6 Sexual Harassment Warning Signs
• Discrimination Claims: 7 Ways to Effectively Protect Your Company
• Harassment Prevention Training: What Must Be Included

6 Sexual Harassment Warning Signs

(Post by Rick Dacri, September 24, 2015)

When discussing sexual harassment, I am frequently asked what to watch for to determine whether harassment might be occurring in their workplace. It is a problem for managers, who are rightfully concerned about it, but can’t be everywhere all the time.

As a manager, you might not be present when an alleged incident of sexual harassment takes place. But, some warning signs may point to potential problems. Here are a few things you should watch for:

1. Whispered sexual comments and staring when members of the opposite sex pass by.
2. People frequently gather and tell sexual jokes, stories, or make innuendos.
3. Employees are subjected to sexual looks, stares, leering or ogling.
4. Sexually explicit materials, screen savers, pictures, or calendars are in the workplace.
5. There is deliberate touching, cornering, back rubs or leaning over individuals.
6. Employees get addressed in a sexual manner.

Management Principal: Make clear to your employees that harassment by supervisors, co-workers and third parties will not be tolerated and that reporting objectionable behavior will not result in any form or retaliation–even when the harasser is a key person in the organization.

So what should you do to ensure that they have a harassment free workplace? There are five key steps to take:

1. Send the message loud and clear to all employees (and vendors, customers, and visitors) that harassment of any kind will not be tolerated here. And if it does occur, it will be dealt with swiftly and severely.
2. Model respectful behavior. Position and power does not mean dominance and disrespect. Productive companies value and respect all their employees, regardless of their position or gender. They foster a culture that can best be described as egalitarian.
3. Train all managers annually on harassment prevention and investigation procedures. Educate all employees on harassment with a clear message that we won’t tolerate it, but if it occurs we will protect you and we will do something about it.
4. Have clear policy in place—and make sure that everyone reads it and understands it. There must never be any question in anyone’s mind about the company’s position and everyone must know what will happen if harassment occurs.
5. Train everyone in interpersonal communications and conflict resolution. Give employees the tools to address problems as they occur—but always provide them with a safety net if they can’t resolve the issue.

   There is no place in the workplace for harassment. Employers and employees need to get that.

If you need assistance developing a sexual harassment prevention program or want training for your managers, call me. I can help.

Other Posts You Might Like:

• Maine Mandates Sexual Harassment Training
• Why Cleavage Should Not Be A Job Requirement
• Avoid Litigation: 20 Things to do Today

How The Civil Rights Act Changed the Modern Workplace

President Johnson gives Martin Luther King, Jr. the pen he used to sign the Civil Rights Act

This article was written by Rick Dacri and was originally published in the York County Coast Star on July 31, 2014

I’m old enough to remember the segregated South; the race riots of the 60’s; when jobs were divided between jobs for men and jobs for women; when schoolteachers were asked to resign because they became pregnant; and when older workers were forced to retire. These practices have ended, for the most part, because of the passage of the Civil Rights Act of 1964, an act designed to end segregation; an act that also changed the American workplace. As we celebrate the fiftieth anniversary of its passage; it is helpful to look back to understand where we came from, to appreciate the progress we have made, and to recognize that work that stills needs to be done.

A little history: While discrimination has been an ugly reality of American life for much of our history, acceptance of this intolerance hit a crescendo in the 1950’s and ‘60s. The Supreme Court’s banning of school segregation in Brown v. Board of Education; Rosa Park’s brave refusal to give up her seat on a public bus; and Martin Luther King, Jr.’s march for racial equality became catalysts for change that ultimately resulted in the passage of the Civil Rights Act. That single piece of legislation, which barred discrimination based on race, color, creed, sex and national origin, advanced equality and changed America and its workplaces forever. While discrimination in some forms still exists today, the walls of intolerance began to crumble by the force of that law. Since its enactment, Congress has passed subsequent laws barring discrimination based on veteran’s status, disability, pregnancy and genetics. On the state level, protections are now afforded to individuals based on their sexual orientation.

Today it is hard to imagine a workplace where discrimination was allowed. But it wasn’t long ago when employment was denied because of color or gender; where women were relegated to low paying jobs, rarely being considered for promotion (those depictions of women in the TV series “Mad Men” are real); and when individuals with a disability were rarely considered for employment.

Today we have workplaces that embrace and even celebrate diversity; where women enjoy opportunities once prohibited; and where male only and female only jobs are simply just jobs. Fifty years after the Act’s passage, we have seen both legal changes and cultural changes in how we treat people in the workplace. Overt, blatant discrimination is no longer tolerated. And while that’s a good thing, we still see and experience signs of it. How many times have you heard, or maybe said or thought the following:

• He’s too old to do that
• Can’t hire her, she’s likely to get pregnant
• Got to pay him more than her, he’s raising a family
• Don’t think they’ll fit in with the rest of us
• She just got back from the Afghanistan, not sure she’ll be stable
• She’s slowing down, when is she retiring
• They need to speak English
• They’re taking the job of “real” Americans

Subtle, attitudinal forms of discrimination still abound, preventing real equality and unfairly holding people back. Promotion and pay are new battlegrounds. The glass ceiling prevents many women from achieving comparable pay and entrance to the boardroom. Baby Boomers, who are opting to remain in the workplace rather than taking expected retirements, are causing tensions with younger decision makers. The memories of 9-11 dredge up intolerance for certain people, religions and beliefs. And the issue of immigration is highlighting differences and resurrecting prejudices and intolerance.

The Civil Rights Act of 1964 set off a wave of change unanticipated by its signers. Our workplace has changed for the better. But much more needs to be done. Employers must be diligent. Managers and supervisors need to understand the law and the importance of creating a positive work culture. Policies should be reviewed to ensure they both meet the law’s requirements, but that they promote an inclusive, diverse workplace.

In fifty years we have come to realize that the single passage of this law both barred discrimination, but it also made our workplace better. Studies consistently show that fostering a diverse workplace with different people, genders, backgrounds and ideas results in a more productive, innovative, creative workforce and profitable organizations. That’s good for our businesses; that’s good for our workers; and that’s good for our country.

If this post was of interest, you may want to read:

1. Discrimination Claims: 7 Ways to Effectively Protect Your Company
2. Abercrombie & Fitch Accused of Discrimination
3. EEOC Reports Nearly 100,000 Job Discrimination Charges

Cultural Issues Makes Employee Uncomfortable

This question came in from one of Dacri’s HR HelpLine clients.

Question: I have a male international worker who has made one of my female non-international worker uncomfortable with some of the comments he has made to her. I am going to address this with him, but I want to make sure I handle this correctly. Some of the comments were how she needs to learn to cook for her husband and the like. She said he also has an attitude that she can’t handle some of the tasks because she is female. I know the Jamaican culture is quite different from here, so I want to let him know that he is making her uncomfortable without discounting what he believes to be true…Any insight you can provide, will be most helpful.

Expert Advice: While it is important to be sensitive to different cultures and an individuals personal beliefs, that does not give anyone license to espouse their beliefs to all. I would pull him aside, let him know that you have something to discuss with him that may make him uncomfortable, but his comments (walk him through them) are making some people uncomfortable. Let him know that this kind of language is unacceptable in the workplace and you expect it to stop immediately. At this point, stop talking and wait for his response. Assuming it goes well (it should), tell him you hope this is the end of it. Then, document your discussion. Let the female employee know you’ve talked to him and let her know if it happens again to let you know immediately. If it does happen again, I recommend a formal written warning, but let’s further discuss at that point.

It is important to be sensitive to cultural issues, but in this case, his comments are making your other employee very uncomfortable. After you address this, follow-up with the female employee in a few days to be sure everything is OK.

If you would like to learn more about Dacri’s HR HelpLine service, where you can get all your workforce questions answered, click HR HelpLine.

Other posts you may want to read:

1. HR HelpLine: When You Need Expert Advice
2. Body Odor: It’s a Problem Supervisors Must address
3. Medical Marijuana: Hospitality Issues

Why Cleavage Should Not Be A Job Requirement

(This article, written by Rick Dacri, was originally published in the York County Coast Star on May 22, 2014)

You can only make one first impression, so you want to make it a good one. You’ve heard this a million times. Yet, so many companies ignore this advice. In this competitive world, the impression we convey can either open or close a door.

We form quick opinions about people we meet. Same for a company. Walking into their facility, meeting their employees, reading their annual report or reviewing their website—all convey a certain message about them. Most recently I learned a lot about a company through a recruitment ad they placed on Craigslist seeking an assistant to the president called a “Director of First Impressions.” Yes, that’s the real position title.

A little background: One of my clients spotted this company’s ad and forwarded it to me seeking my first impression. Well, I formed one quickly and it wasn’t all that good. This small, but busy office, was seeking “a mature, think outside the box, open minded, assistant to the president.” So far so good–this should draw people I thought. The ad went on to state they wanted someone who “wants to prove themselves, make themselves invaluable, and if selected, retire from here in 30 years!” While I applaud their desire for a stable person who isn’t into job hopping, I would advise they be careful with their wording. “Retire from here in 30 years” could be code for “we want someone young” and that would be discriminatory. It gets worse. In describing their ideal candidate, they noted that they wanted someone with a sense of humor because “we are definitely not always politically correct.” Well, OK, but what does that mean? Here it comes: “the successful candidate should be aware that naughty words are spoken frequently and it is a male dominated culture…think cleavage.” What? Did they really mean to put that in writing? What kind of impression do they expect their Director of First Impressions to present? Is a certain dress expected? Are they suggesting only women should apply?

Abercrombie & Fitch Accused of Discrimination

(This post written by Rick Dacri on September 10, 2013)

Some companies just don’t get it.

A federal judge in California ruled last week that Abercrombie & Fitch discriminated against a Muslim employee on religious grounds, according to the EEOC.

The employee, a Muslim woman, was asked to wear head scarves in the colors of her store when she began working there. She complied, but four months later was told her head scarf violated the dress code, known as the “Look Policy” and that she would need to remove it at work. She refused and was terminated. The judge stated that her termination violated Title VII of the 1964 Civil Rights Act, which bars religious discrimination and mandates that employers accommodate religious practices unless they impose “undue hardship” on the company.

Abercrombie stated that it doesn’t discriminate based on religion and grants “religious accommodations when reasonable.”

Previously they were accused of committing religious discrimination for not hiring a Muslim applicant who was wearing a head scarf during her interview and in another suit paid a $40 million settlement to minority and female plaintiffs who accused the retailer of race and gender discrimination.

Want to add to this story. Let us know in the comments or send an email to Rick Dacri at rick@dacri.com.

If you like this post, you may want to read these:

1. EEOC Reports Nearly 100,000 Job Discrimination Charges
2. Discrimination Claims: Seven Ways to Effectively Protect Your Company

 

EPLI: Quick Hits In Employment Practices Liability Insurance

(This guest post was written By Scott Simmonds, CPCU, ARM; July 18, 2013)

Hopefully your insurance agent has talked to you about employment practices liability insurance (EPLI). It’s the insurance protection against the financial consequences of job applicants, employees, and former employees who bring suit for discrimination, harassment, wrongful termination, failure to hire, and other workplace torts.

Here’s a partial list of issues your insurance agent may not have told you:

Dollar Limits of Coverage – The coverage limit usually includes the cost of defense. So, as you pay your attorney, the policy uses up the limit of coverage available to pay any award or settlement. Limits are also expressed as an aggregate for the total of all claims in a year. Buy enough insurance.

Sharing Limits – Having EPLI with your directors and officers insurance may be convenient.  It may not be a good idea though. Your directors will not want to hear that EPLI claims have eaten away at the limits available for D&O claims.  Ask your insurance agent if your policy separates claims for D&O and EPLI into separate “buckets” of coverage.

Low Deductibles – Low deductibles cost you premium dollars. Get quotes for higher deductibles to help pay for higher limits of coverage.

Definition of Harassment – Some policies still only cover “Sexual Harassment.” What about harassment based on race, ethnicity, disability. The policy should provide coverage for harassment, including sexual harassment.

Retaliation – Be sure your policy includes coverage for suits alleging that you have retaliated against an employee.

Choice of Attorney – Do you pick your attorney or does your insurance company? Using their attorney may be cheaper.  Is it what you want though?

Common Exclusions – Like all insurance policies there are exclusions:

-Workers’ compensation claims

-ERISA actions

-Employment wage disputes (Fair Labor Standards Act)

-Unemployment Insurance

-Disability benefits law

-National Labor Relations Act

-Occupational Safety and Health Act

Several insurers are now offering low-cost EPLI insurance as part of the workers’ compensation policy.  Talk with your insurance agent.  Is it time for a detailed review of your insurance?

Need more information about EPLI, contact Scott Simmonds.  Scott is an unbiased insurance consultant who offers insurance advice and coverage reviews without the conflict of insurance sales and commission payments.

Other posts you may want to read:

• 13 Tips to Prevent Sexual Harassment
• Affordable Care Act: What’s Delayed and What’s Not
• Workers’ Compensation Nightmare: Cast Study

If you read this far, you may want to subscribe to my free management newsletter. Click Newsletter

Supervisor’s Mistake Opens Company to Lawsuits

Posted by Rick Dacri, July 10, 2013

Mistakes by supervisors often result in lawsuits. In the course of their regular job functions, such as hiring, firing, disciplining, evaluating, or administering leave (FMLA and workers’ comp), they can expose employers to claims of discrimination, harassment and retaliation. And often times, they do or say things that they did not even know were improper.

Equal Employment Opportunity Commission (EEOC) claims against employers have been increasing each year, along with big-ticket dollar settlements. To protect your organization, companies should invest in training their supervisors and managers. When supervisors know what they can and cannot do, you reduce the chance of them exposing the company to an expensive lawsuit.

Managing people is hard. Simple mistakes can be costly—but with knowledge, they can easily be avoided.

If you would like to learn more about how I can help you, click Dacri & Associates.

Since you’ve read this far, you may want to sign up for our free electronic newsletter. Click The Dacri Report.

Other post you may want to read:

Harassment Training: What Must be Included

Harassment Prevention Training: Recent Cases Remind Us of Importance

Compliance: 6 Problem Areas for Employers

 

 

Harassment Claims: Courts New Definition of Supervisor Helps Employers

Posted by Rick Dacri, June 26, 2013

The U.S. Supreme Court has clarified what constitutes a “supervisor” and in doing so, provides employers clarity in defending itself against claims of harassment.

The Court in a newly announced decision (Vance V. Ball State University) defined a supervisor as someone who can undertake or effectively recommend tangible employment decisions affecting an employee. Stating it another way, a supervisor is someone who can make a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or decisions causing a significant change in benefits.”

The Court sought to give employers clarity of what constitutes a supervisor when addressing employer’s liability for claims of harassment under Title VII.

So what does this mean for employers? In an harassment claim, only supervisors, those defined as having authority to make tangible employment decisions, can create liability for harassment under Title VII. For those of you who have attended my Sexual Harassment Prevention Training programs know, if a supervisor subjects a subordinate employee to a hostile work environment that results in a tangible employment action (ex. firing, demotion), the employer will be liable for the supervisor’s conduct. However, if a non-supervisor harasses, the employer is only liable if it fails to discover and correct the harassment. This is why the definition of what constitutes a supervisor is so important.

So what should employers be doing?

1. Review your job descriptions and titles to ensure they are consistent with the Court’s decision. Anyone carrying the title “supervisor” should meet this definition. Remember, in a claim, the Court will still focus on whether the employee has the authority to make the tangible employment decision and not on the title.
2. Train all supervisors on harassment prevention and their liability under the law. I recommend you do this annually.
3. Put in place strict polices against harassment and discrimination.
4. Take proactive steps to ensure that all forms of harassment and discrimination do not exist in your workplace. Audit all your systems, policies, procedures and guidelines.
5. Educate your workforce about harassment and discrimination. Create a respectful workplace.

The Court in the Vance case helped employers. The issue becomes moot if employers do not have in place a proactive anti-harassment/anti-discrimination program.

If you want to know more about how I can help you develop and implement a proactive anti-harassment/anti-discrimination program, click here: Dacri & Associates.

Other posts you may want to read:

1. Manager: It’s Legal Definition
2. Harassment Prevention training: What Must be Included
3. Harassment Claim: 1st Circuit States Employee’s Failure To Notify Employer of Repeat Harassment Fatal to Claim

Compliance: 6 Problem Areas For Employers

Posted by Rick Dacri on May 30, 2013

The last thing an employer needs is a lawsuit. Yet, when it comes to employment law, it is easy to find yourself in a difficult situation, which has trouble written all over it. Here are 6 areas where mistakes are often made by unprepared managers resulting in a messy and costly suit:

1. Hiring Process: it all begins here. Asking inappropriate interview questions, making a badly chosen, but seemingly “harmless” comment that discriminates, giving an insensitive reason for rejecting a candidate, or simply making bad hire will land you in big trouble. Train all interviewers in proper interviewing techniques and hiring procedures.
2. Negligent hiring and retention: when you know things about a candidate or employee, such as their having violent behavior or a dangerous driving record and you still hire or retain them and then they commit a similar infraction (ex. strike an employee or get into an accident driving a company car), you may be facing a lawsuit. Check references before making a hire decision. Address performance problems immediately.
3. Discrimination in employment: Intentional or even unintentional acts of discrimination will get you into trouble. Audit your polices, procedures, pay policies, hiring, promotion and training practices to make sure all your management systems compliant. Train you managers.
4. Discipline process: There’s nothing that will motivate an employee to call an attorney faster than a supervisor botching a disciplinary meeting. Be consistent in applying your policies, train your managers in having difficult conversations, and review all situations with upper management before meeting with the employee.
5. Evaluation process: Giving a positive evaluation to a poor performer may help you avoid an uncomfortable appraisal interview, but rest assured, it is a recipe for disaster if you ever have to terminate that employee for performance. Give honest appraisals and train your manager on how to give appraisals.
6. Firing process: There is no easy way to fire someone. When not done respectfully, employees nearly always want to strike back and a lawsuit is a great way to get even.  Again, review all cases before approving a termination. Make sure the manager understands what needs to be done and how to do it. Include a second manager in the process to serve as a witness and to lend support.

Minimize the risks of employee lawsuits by implementing the recommendations outlined about. Managing is hard enough without adding a lawsuit. If you need assistance, give me a call for help.

You may also like to read:

EEOC Reports Nearly 100,000 job Discrimination Charges

Reference Checking: 5 Tips to Get Great References

2012 Checklist for People Management

Are there other areas to avoid beyond these 6? Let us know in the comment section.