Publications

THE MORE THINGS CHANGE, THE MORE THEY DON'T STAY THE SAME The New Rules for Avoiding Sexual Harassment, ADA and Other Employment Practices Lawsuits

• Why Do We Need to Know This?
  • Sexual harassment is not what you think it is
  • The ADA is not what you think it is
  • The rules have changed
  • Doing the "right thing" and using "common sense" will not be good enough
  • The liabilities can be monumental
  
  
• The Issue for the Next Decade:
  • I can't always be looking for each manager's and employee's shoulder. How can I keep my company from being liable for the things my managers and employees do?
  
  
• ADA Review
  • The ADA prohibits you from discriminating against a qualified individual with a disability
  • A "disability" includes any mental or physical impairment that substantially limits a major life activity -- includes a multitude of impairments not commonly considered "disabilities"
  • If an employee could perform the "essential functions" of the job with a "reasonable accommodation," you have to provide it.
  
  
• The EEOC's "Enforcement Guidance"
  • "The employee never asked for anything. How was I supposed to know that the employee needed a reasonable accommodation?"
    • Issue: when do you have to initiate the reasonable accommodation process?
  • "I don't believe he has a disability. He's just lazy. I'm not giving him anything."
    • Issue: what do you do if you don't believe the employee?
  • Issue: "I need some time to recover. I'd like a month off."
    • Issue: can the employee ask for a reasonable accommodation in the form of leave?
  
  
• Sexual Harassment Review
  • What is sexual harassment?
  • What is "quid pro quo" harassment?
  • What is "hostile environment" harassment?
  
  
• What is Sexual Harassment?
  • Unwelcome advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature can be sexual harassment.
  
  
• "Quid Pro Quo" Sexual Harassment
  • Unwelcome advances, reqeusts for sexual favors, verbal and physical conduct of a sexual nature...
  • When submission to such conduct is made explicitly or implicitly a condition of employment, or when submission to such conduct is used as a basis for employment decisions.
  • Typical case: failure to promote, termination, bad assignment.
  
  
• "Hostile Environment" Sexual Harassment
  • Unwelcome advances, requests for sexual favors, verbal and physical conduct of a sexual nature...
  • When such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.
  • Typical case: employee quits, transfers.
  
  
• Note: There Are Other Kinds of Harassment That Violate Federal Law
  • Harassment that involves gender, race, color, religion, national origin or disability violates federal law
  • We are discussing only opposite gender sexual harassment
  
  
• The "Old Quid Pro Quo" and "Hostile Environment" Defense
  • I had no idea this was going on
  • PTLCB&I drafted a clear policy against this
  • You can't hold the company responsible for unauthorized employee actions that we didn't know about
  
  
• The New Rule for Quid Pro Quo Cases: Get Out the Checkbook
  • Even if you have a clear anti-harassment policy...
  • If a supervisor harasses an employee, and...
  • If this results in the loss of a tangible job benefit, then...
  • YOU LOSE, NO MATTER WHAT
  
  
• Can I Defend Against A "Hostile Environment" Case? The Burlington Industries Decision
  • A manager created a "hostile environment" through boorish, suggstive behavior, plus implied threats.
  • Employer had a clear anti-harassment policy and reporting procedure, but the employee did not report the harassment.
  • None of the threats were carried out and, in fact, the employee was promoted.
  • Employee later quit without citing sexual harassment until much later.
  • Slam dunk for the employee?
  
  
• The New Rule for Hostile Environment Cases: There's Hope for the Extremely Proactive
  • You must prove that you exercised reasonable care to prevent a hostile environment -- training, not just policy manuals, is the key.
  • You must prove that you had an effective complaint mechanism in place.
  • You must prove that you acted reasonably to correct what you had any reason to know about.
  • You must prove that the employee failed to take advantage of the preventive and/or corrective opportunities provided.
  
  
• Five Things You Must Do Now
  • The goal:
    • You need to prevent harassment
    • If you can't prevent it, you need to give yourself a defense to the claim
    • If you can't give yourself a defense to the claim, you need to minimize the damages
  
  
• FIRST: Develop and Reinforce Management Training
  • Shows that you're serious about the policy
  • The training may actually work
  • Should cover avoidance of typical harassment scenarios
  • Should cover how to look for harassment and what to do if you find it
  • Should cover how to handle complaints
  
  
• SECOND: Develop, Distribute and Consistently Apply Anti-harassment Policies
  • Clear statement of policy, and be able to prove that everybody got it
  • Clear, easy complaint procedure; well publicized, not buried; include alternative to alleviate employee fears or conflicts
  • Must stress to everyone the need to report everything; you cannot afford to wait for complaints
  • Tolerance of violations will come back to haunt you
  
  
• THIRD: Create a ZERO Tolerance Atmosphere From the Top Down
  • Your Conduct Sends Messages: It's Not Cute or Funny Anymore
  • Firm Leaders Must Identify and Eliminate The "Time Bombs"
    • The Hugger
    • The Romantic
    • The Joker
    • The Promoter
    • Mr. Subtle
  
  
• FOURTH: Develop a Standard Procedure for the Treatment of Employees Who Make a Complaint
  • Separate the parties.
  • Standardize intake-interview form.
  • Advise the parties of the process: an allegation has been made, a thorough and impartial investigation will be conducted. Period.
  • Don't be judgmental. Hostilty = retaliation claim.
  
  
• FIFTH: Develop a Standard Procedure for the Investigation of Complaints
  • Document everything, but just facts, no conclusions. Consider ultimate reader.
  • What do you say to witnesses and others? Don't promise confidentiality; discuss on need-to-know basis only. Avoid defamation.
  • Investigate even if the accuser does not want you to. You are on notice and must follow through.
  • The investigation must be complete and thorough. Failure to be thorough in the investigation could be devastating.
  • Continue to monitor.
  
  
• Other Traps and Pitfalls
  • Employee e-mail
  • Employee computer use
  • Employee use of chat rooms
  • Employee violence
  • FMLA leave "designation"
  • The employment interview
  • The power of documents
  • The power of training

©2000 Powell, Trachtman, Logan, Carrle & Lombardo, P.C.

This handout is intended for general information purposes only and does not constitute legal advice. The reader should consult with legal counsel to determine how laws, suggestions and illustrations apply to specific situations.