Greater Liability for Harassment and Discrimination Do What I - PowerPoint Presentation

Greater Liability for Harassment and Discrimination Do What I Say AND What I Do Jennifer Jacobus, PHR-CASan Diego Employers AssociationFebruary 28, 2014

What We Already KnowEmployers Must :Provide a harassment and discrimination free work environmentMake employment-related decisions based on the job, i.e., essential functions, skills, abilitiesConsider reasonable accommodations when it will not cause undue hardship Train your employees—whether required or not

Good News for EmployersVance v. Ball State University Supreme Court narrows definition of “supervisor” for Title VII vicarious liability purposes

What Does This Mean?Prior to Vance, “supervisor” was defined as: anyone who has the authority to undertake or recommend important employment decisions such as hiring, firing, or transfer, or he or she has the authority to direct the daily activities of anotherAfter Vance, only a person with the authority to hire, fire, demote, promote, transfer, or discipline workers qualifies as a supervisor

Why Is This Important?In California, an employer is automatically held liable for the harassing behavior of their supervisors, managers, or any other member of management, whether the employer knew or did not know of the behavior. Under the theory that managers act as agents of the employer, the employer will he held vicariously liable.

Really…Why Is This Important?Has the potential to reduce liability for companiesHas the potential to reduce liability for supervisors and managersPractical Tips:Review job descriptionsAudit jobsTrain your managers

Retaliation…A B$G DealMcCoy v. Pacific Maritime Assn., Courts affirmed summary judgment on sexual harassment and emotional distress Harassment was not so severe and pervasive to alter conditions of plaintiff’s employment S ubstantial evidence in plaintiff’s favor on the retaliation claim $660,000 in economic damages, $540,000 in emotional distress damages

Retaliation Cont.Moran v. Salasha EnterprisesPlaintiff alleged that boss offered 10% raise if she performed sexual favorsPlaintiff declined, boss got angry, threatened to fire her; 30 days later she was terminated “at-will” $1,000,000 in emotional distress $250,000 in punitive damages $800,000 in attorneys fees

Retaliation Cont.Westendorf v. West Coast ContractorsCrude and offensive remarks did not create a hostile work environment under Title VII whenRepeatedly inquired if plaintiff was intimidated by Double D breasts Suggested weekly that plaintiff wear a “French Maid” outfit to work Made sexual comments about other women in the office

What’s the Trend?Court interpretations:Courts are becoming more literal in their interpretations of sexual harassmentHarassment must be “severe or pervasive ”Actions must result in adverse employment action Must negatively affect employment Does not have to be sexual in nature Reduction of “sex” claims, rise in retaliation claims

RetaliationRetaliation cases are very dangerousJuries believe in retaliation“Big Bad” employerTitle VII prohibits retaliation against:The complainantAnyone interviewed Witnesses Retaliation

Retaliation Claims on the Rise

Claim Snapshot

They Did What?Plaintiff (Miller) filed a claim against his employer (Sparx) for retaliationMiller complained of offensive display in restaurantWas fired three weeks after complaintJury awarded $15,000 in emotional distress damages, $41,000 in back pay and interest, plus 15% for tax liability

Retaliation—Not Limited to SexPlaintiff requested a leave of absence plus accommodations due to panic attacks—she was placed on a 30-day medical leaveSupervisor ignored all attempts at communicationShe was terminated without reason Unanimous jury awarded $16 million in punitive damages; $5 million in economic and emotional distress damages equaling $27,789,000

Scary Trend?Employers are successfully defending harassment and discrimination claims, but are unprepared and uneducated on retaliation

Practical TipsProperly acknowledge all employee complaintsLet the employee explainRestate the complaintMake sure you and the employee share an understanding of the issues Ask the employee what resolution he or she would like to seeDon’t agree or disagree until you have all the facts Don’t get drawn into a power struggle

Practical Tips Cont.Consider all optionsFollow policies and proceduresBe fair and objectiveSeek to bring closure to the issue Get back to employee with decisionAll complaints deserve an answer

Do What You SayNot so much what the claim of harassment was (is)Problems arise with lack of action on the side of the employerRetaliation claims are very dangerousJuries believe in retaliationTrain your managers

Handling Chronic ComplainersGive chronic complainers a fair hearingListen for a legitimate issueTake a counseling approachInvolve the employee in positive, problem-solving tasks

Harassment That Wasn’tFemale subordinate complained of harassment after male boss smacked her on the buttocksBoss “got off” because of “why” he smacked her buttNo previous instancesNo one had seen manager act inappropriately to othersComplainant stated that she had never had problems with boss in the past Woman stated she believed that the smack was not meant to hurt her and wasn’t “sexual”

Key Points to RememberOccasional employee complaints are to be expectedTake all complaints seriouslyGive employees a fair hearingWork with employees to find solutions to their complaints Always follow established policies and procedures when handling complaints

Questions…Jennifer Jacobus, PHR-CADirector of HR ServicesSan Diego Employers Associationjjacobus@sdea.comwww.sdea.com858-505-0024