Discrimination and
Harassment
Training
Presentation
Why are you reviewing this
presentation today?
Inappropriate behavior is a serious issue in the
workplace. It has a negative impact on the victim,
can result in disciplinary action (including
termination) for the perpetrator, and can create
legal liability for Hanford.
Your objectives
– Making clear a commitment to dignity and
respect at Hanford
– Learning what types of behaviors are
prohibited
– Learning what to do to address inappropriate
behavior
Why are you reviewing this
presentation today?
Did you know that over 53 charges of sexual harassment
are filed with the Equal Employment Opportunity
Commission every business day?
Did you also know that the average jury award for a sexual
harassment complaint is $250,000?
Harassment and discrimination of all types can hurt
businesses. According to the U.S. Equal Employment
Opportunity Commission (EEOC), in the past 10 years, the
average jury verdict in a case of sexual harassment was
$250,000, not including legal fees, court costs and punitive
damages, making it the most expensive harassment
complaint. With such significant jury verdicts, companies
have to take the issue seriously.
What you will learn
Hanford’s policy on harassment
How harassment is defined
The types of sexual harassment
How to counsel employees
How you prevent sexual harassment
What the effects of sexual harassment are
The basis of anti-discrimination law
What Family Responsibilities Discrimination
(FRD) is all about
The broad spectrum of inappropriate workplace
behavior
Common sense approach to dealing with
situations
Let’s start with the basics
It all begins with Title VII of the Civil Rights Act of 1964,
and its subsequent amendments:
Title VII of the Civil Rights Act of 1964, as amended,
prohibits discrimination in employment on the basis of
race, sex, national origin and religion. It also is unlawful
under the Act for an employer to take retaliatory action
against any individual for opposing employment
practices made unlawful by Title VII or for filing a
discrimination charge or for testifying or assisting or
participating in an investigation, proceeding, or hearing
under Title VII.
Let’s start with the basics
The American with Disabilities Act of 1990 brought
additional changes:
Title I of the Americans with Disabilities Act (the
"ADA"), as amended, prohibits discrimination in
employment against a qualified individual with a
disability because of the disability. It also is unlawful
under the Act for an employer to take retaliatory action
against any individual for opposing employment
practices made unlawful by the ADA or for filing a
discrimination charge or for testifying or assisting or
participating in an investigation, proceeding, or hearing
under the ADA.
Let’s start with the basics
Discrimination on the basis of race, color, sex, sexual
orientation, religion, creed, national origin, age,
ancestry, veteran status, disability unrelated to job
requirements, and genetic information is unlawful.
Hanford attracts and recruits a richly diverse
population of employees. Discrimination can isolate,
humiliate, and silence an individual, as well as limit
his/her capacity to be a contributing member of the
company.
It is important to be attentive to our interactions with
others and be diligent not only in recognizing
discriminatory behavior, but in speaking up when it is
observed.
The many forms of discrimination
Discrimination takes many forms. They key is to maintain Hanford’s policy of
anti-discrimination.
One new form of discrimination is called Family Responsibility Discrimination"
(FRD). This is a form of gender-based discrimination and occurs when an
employee suffers an adverse employment action based on biases about how
employees with family care giving responsibilities will or should act.
Also, keep in mind the broad definition of ―adverse employment action.‖ This
can mean termination, disciplinary action, demotion, or even lateral transfer,
restriction from training, or even restriction from employee interactions.
FDR is discrimination by stereotyping about an employee’s care giving
responsibilities.
This is a new segment of discrimination but one which is increasing in the
courts. To date there have been hundreds of cases with many favorable to the
plaintiff. Locally claims would be handled by the New York State Division of
Human Rights (DHR).
The many forms of discrimination
Some examples of FRD are as follows:
creating a hostile work environment to encourage resignation of
employees with care giving responsibilities
treating women harshly and giving them unfounded critical evaluations
after they become pregnant or give birth
retaliating against an employee for using benefits or exercising their rights
disallowing leaves for one gender while allowing leaves for the other
gender
disallowing shift accommodations for one gender while allowing same
accommodations for the other gender
ridiculing an employee for family care taking responsibilities, to include
eldercare care taking responsibilities
refusing to give family leave to male employees to take care of newborns
The many forms of discrimination
How to carefully avoid FRD claims:
creating a hostile work environment to encourage resignation of
avoid off hand remarks or verbalizing assumptions about pregnant
employees
avoid gender-based biases or sentiments in your in your
performance evaluations and employee conversations
avoid an overly paternalistic approach e.g., ―Why is she still
working? She should take time off to be at home with the
children.‖
handle pregnancy similar to any other non–work disability
use common sense and think before speaking
Let’s start with the basics
To help companies comply with anti-discrimination laws
the EEOC established a set of guidelines defining three
primary elements a company must implement to
demonstrate its commitment to providing employees with
a safe work environment free of harassment.
1. Educate management and employees. Explain what
harassing behavior is and that it's not tolerated.
2. Provide a reporting system and make all employees
aware of that system. Make sure everyone knows who
they can go to if they feel they're being harassed.
3. Plan for action. Have investigative procedures in place
and look into the claim quickly.
The above guidelines help to provide a company with an
affirmative defense.
Let’s start with the basics
So, to limit potential liability,
Hanford must immediately respond to complaints of
inappropriate behavior, harassment, violence or threats of
violence, and discrimination.
Such complaints must be handled through a formalized
process.
Hanford must provide annual training to management staff.
Management should not attempt to resolve such issues alone
but rather should notify top management and human resources
for an organizational response.
Additionally, Hanford’s response to a complaint must be
carefully documented.
What is Hanford’s policy?
It is the policy of Hanford Pharmaceuticals to maintain a work
environment that is free from intimidation, coercion, or
harassment, including sexual harassment. All employees are
responsible for conducting themselves in a business-like manner
which provides respect to others. Any behavior or action which is
unduly coercive, intimidating, harassing, or sexual in nature is
inappropriate and prohibited.
The Company does not discriminate in any aspect of employment
with regard to race, disabled veterans, Vietnam era veterans,
religion, color, national origin, age, sex, genetic predisposition or
carrier status, marital status, disability, or any other basis upon
which discrimination is prohibited by the municipal, state, or
federal law which can be reasonably accommodated.
Employment includes (but is not limited to) recruiting, hiring,
transfer, promotion, training, compensation, benefits, layoff and
termination.
Harassment Defined – More than
Sexual Harassment
Harassment may include any type of unlawful discrimination. Harassment will
include unwanted, unwelcomed and uninvited behavior that demeans,
threatens or offends the victim and results in a hostile environment for the
victim. Harassing behavior may include but is not limited to epithets,
derogatory comments or slurs and lewd propositions, assault, impeding or
blocking movement, offensive touching or any physical interference with
normal work or movement, and visual insults, such as derogatory posters or
cartoons.
The hostile environment can be created through pervasive or persistent
misbehavior or a single incident.
It is possible for harassment to occur at various levels of interaction such as
(1) between fellow workers, (2) between supervisors and direct reports, (3)
imposed by non-employees, including visitors, on employees. In addition,
harassment can occur between members of the opposite sex or the same sex.
Now, let’s look more closely at
sexual harassment
Sexual harassment is a form of
gender discrimination and
violates both Title VII of the
1964 Civil Rights Act as well as
State discrimination laws. The
Equal Employment Opportunity
Commission (EEOC) is the
federal agency that enforces
the federal law.
EEOC Guidelines
The EEOC’s guidelines define sexual harassment
as unwelcome sexual advances, requests for
sexual favors and other verbal or physical
conduct of a sexual nature when:
– Submission to such conduct is made an implicit or
explicit condition of employment;
– Submission to or rejection of such conduct affects
employment opportunities; or
– The conduct interferes with an employee's work or
creates an intimidating, hostile, or offensive work
environment.
Form of Harassment – Quid Pro Quo
Where employment decision or expectations are
based on an employee’s willingness to grant or
deny sexual favors.
Examples
– Demanding sexual favors in exchange for a promotion
or a raise
– Disciplining or firing a subordinate who ends a romantic
relationship
– Changing performance expectations after a subordinate
refuses repeated requests for a date
Form of Harassment -
Environmental
Where verbal or non-verbal behavior in
the workplace:
1. Focuses on the sexuality of another person
or occurs because of the person’s gender
2. Is unwanted or unwelcome, and
3. Is severe or pervasive enough to affect the
person’s work environment
Form of Harassment – Third Party
Third Party – any person who observes
someone else being harassed, or observes
sexual conduct and is adversely affected may
claim this type of sexual harassment
• For example, direct (or telephone)
conversations about sex in the hearing
range of others to whom it is unwelcome.
Such behavior must be stopped if others
request it or if management becomes aware
of the behavior.
Examples of Harassment –
Inappropriate Behavior
– Off-color jokes or teasing
– Comments about body parts or sex life
– Suggestive pictures, posters, calendars or cartoons
– Leering, stares, or gestures
– Repeated requests for dates
– Excessive attention in the form of love letters, telephone calls
or gifts
– Touching – brushes, pats, hugs, shoulder rubs or pinches
– Assault / rape
– Impeding work of employee on basis of discriminatory factors
(i.e., race, gender, disability etc.)
– Limiting access to tools on same basis
– Sexually explicit materials in a cubicle, office, other location, or
on a computer have no work-related purpose
Hanford’s Liability for Harassment
Standards vary across the United States, because
harassment is covered both by Federal and State law.
The Federal standard derives mainly from Title VII of
the Civil Rights Act, which forbids
"discriminat[ion] against any individual with respect to his . . .
terms [or] conditions . . . of employment, because of . . . sex."
In New York, courts use a ―reasonable woman‖
standard to determine whether conduct should be
considered sexual harassment. In other words, courts
look at whether a reasonable woman in the same
situation would find the conduct offensive.
Actions of the employer that are based on the sex of
the employee and that negatively affect the terms or
conditions of the employment relationship are
actionable.
Hanford’s Liability for Harassment
Issues that lawyers have arguments about:
– ―Actions of the employer?‖ In other words, lawyers
ask under what circumstances will we hold the
employer accountable for actions by an employee?
• What if the employer has a specific policy that bans the
harassing employee's conduct? Should we still hold the
employer accountable?
Actions of the employer that are based on the
gender of the employee and that negatively
affect the terms or conditions of the
employment relationship are actionable.
Hanford’s Liability for Harassment
What attorneys look at:
– ―Based on the gender of the employee?‖ What about
harassment of men or between people of the same sex? Is
this actionable?
– ―Has the behavior negatively affected the terms or
conditions of the employment relationship?‖
• What actually affects those terms or conditions?
• How much of a change is enough (or too little)?
• Because different people have different perceptions of the
severity of harassing behaviours, whose perception governs?
Do we look at this from the viewpoint of the employee, the
employer, a reasonable person, a reasonable woman (or man if
the victim is male) in the position of the victim, or someone else?
• Could the harassed employee have taken steps to reduce the
effect? Should s/he have to?
Hanford’s Liability for Harassment
Issues that lawyers have arguments about:
– ―Has the behavior negatively affected the terms
or conditions of the employment relationship?‖
• If the employee quits because of harassment, under
what circumstances can s/he claim that she was
“constructively discharged?”
• If the employee quits without going through the
company's internal complaint process, can s/he still
claim that s/he was constructively discharged?
Hanford’s Liability for Harassment
1. The employer will almost always be responsible for quid pro quo
harassment.
2. The employer will almost always be responsible for harassment that
results in a tangible impact on the employee's job, such as reassignment to
a lower rank or firing.
3. If the employee voluntarily selects a reassignment or quits, without filing a
complaint with the employer (and if the employer has a clear anti-
harassment policy and a reasonable and trustworthy complaint procedure),
the employee is much less likely to recover damages.
4. To be actionable in court, harassment has to be harassment. It is not
actionable for a supervisor to ask a supervisee for a date, once, even if the
supervisee doesn't want to go out with the supervisor. It is not harassment
to tell the occasional offensive joke. The harassment has to poison the
atmosphere, making a reasonable person in the position of the harassed
employee feel unwelcome or uneasy. However, an employee who is in a
hostile environment does not have to put up with it even if no one is
demanding sex with her or threatening her with transfer or other loss of
privileges.
Hanford’s Policy
Prohibits
> Sexual harassment in any form, by anyone
> Retaliation by anyone against any individual
who, in good faith, has made an allegation of
sexual harassment or who has testified,
assisted, or participated in any investigation,
proceeding, or hearing regarding sexual
harassment
> Knowingly making false accusations or
allegations of sexual harassment
Hanford’s Policy – Sexual Harassment
Cautions against and encourages refraining from
> Involvement in consensual amorous or sexual
relationships between persons of ―unequal power‖
Provides a reporting process for sexual
harassment
> Tell the harasser to stop - that the behavior is
unwelcome and unacceptable
> Tell your supervisor, the department head, or the
supervisor’s/department head’s supervisor of the
offensive behavior
> Tell Human Resources
But there’s more, harassment is also. . .
Intimidation by threats of or actual
physical violence that create a climate of
hostility or intimidation
Or the use of language, conduct, or
symbols in such manner as to convey
hatred, contempt, or prejudice or to have
the effect of insulting or stigmatizing an
individual
Examples of harassment, and
inappropriate behavior . . .
discourtesy toward others (e.g., failure to work harmoniously with fellow
employees or serve the public with courtesy)
permitting or creating a personal obligation that would lead any person
to expect official favors
rude or uncivil: slamming doors in angry response, making disparaging
comments about another worker, purposefully blocking someone’s view
or path, harshly criticizing a subordinate in public, vulgar or obscene
words or actions, either written or verbal, including email, voice
messages, and graffiti.
acts of abuse: verbal statements, including tone of voice, or physical act
which may be construed as a derogatory, intimidating, bullying or
psychologically or emotionally disturbing
intimidation through direct or veiled verbal threats
throwing objects regardless of size or type or whether a person is the
target of a thrown object
physically touching another employee in an intimidating, malicious or
sexually harassing manner
physically intimidating others including such acts as obscene gestures,
fist-shaking, or ―getting in your face‖ types of gestures
stalking
Who is prohibited by Hanford policy
from committing harassment?
ALL employees
and visitors
Who can experience harassment?
Direct targets of
harassment (visitors, employees)
Bystanders and/or witnesses to
harassment
Consequences of harassment
EMPLOYEE—subject to disciplinary
action including but not limited to
termination of employment
What to do if you or an employee
experience harassment/discrimination?
If you experience or witness this type
of interference SEEK IMMEDIATE
ASSISTANCE.
– Talk to someone you trust
– Keep a written record
– Make it clear to the harasser that the
behavior will not be tolerated
– Report to Human Resources
What if you are harassed by your
boss?
Immediately contact Human
Resources and set up a time to
meet with an HR representative
Who is responsible for addressing
harassment?
ALL management team
members and employees
must be responsible for
implementing Hanford
policy regarding
harassment.
Who handles formal and informal
complaints?
Human Resources
HANFORD’S GOAL
To make our
Company and
working
environment a
safe and
productive
environment.
General guiding principles for managers
Familiarize yourself with Hanford’s
policy
Address incidents of inappropriate
behavior immediately
Cooperate with Hanford officials
Thoroughly report & complete an
investigation with HR
Satisfactory resolution is required
Follow the FACTS
Familiarize yourself with
Hanford’s policy
– Read the policy
– Ask questions
– Keep a copy in a
safe place (never
circular file!)
Follow the FACTS
Address incidents of inappropriate
behavior immediately
– Employee must report
– Management must respond
Follow the FACTS
Cooperate
– Full cooperation of all
parties is expected
and required
Follow the FACTS
Thorough investigation
– Documentation of complaints
– Employee interviews
– Human Resources full involvement
Follow the FACTS
Satisfactory resolution
– Swift response and
resolution
– Objective review of the
facts
– Fair and appropriate
response
What is a supervisor to do?
USE COMMON SENSE
For a common sense,
everyday way of looking
at behavior to help
recognize inappropriate
behavior when it occurs,
evaluate behavior using
the following
YARDSTICKS
What is a supervisor to do?
COMMON SENSE YARDSTICKS
Inappropriate behavior is that which:
1. is unwanted or unwelcome;
2. is often times gender-based;
3. is severe, pervasive and/or repeated;
4. has an adverse impact on a person and the workplace;
5. often occurs in the context of a relationship where a person has
more formal power that the other (such as a supervisor over an
employee) or more informal power (such as a peer over another);
6. may be noticed by more than person.
What is a supervisor to do?
COMMON SENSE APPROACH
Be smart by:
1. showing sensitivity to others at all times;
2. avoiding behavior that may be offensive to others; think
before you speak
3. avoiding discussions that may be offensive to others;
4. listening to others who may warn you of your behavior;
5. understanding how others may perceive your actions and
behaviors;
Summary
Inappropriate behavior may include any type of unlawful
discrimination, to include unwanted, unwelcomed and
uninvited behavior that demeans, threatens or offends
the victim and results in a hostile environment for the
victim.
Discrimination and harassment is prohibited by Title VII.
Any employee or non-employee in our workplace can
behave inappropriately, discriminate against another,
and commit sexual harassment.
It is our goal to educate employees so that the work
environment is free from inappropriate behavior, sexual
harassment, and discrimination.
Hanford’s liability in situations harassment is HUGE.
Summary
To this end, any incident of inappropriate
behavior should be reported immediately.
Responsible management team members must
immediately address and correct any report of
such activity.
All Hanford employees should work together to
eliminate inappropriate behavior and
harassment.
An environment that is free of inappropriate
behavior is one that is supportive and beneficial
to all.
Conclusions
All employees should take conduct in the
workplace very seriously.
Management MUST be aware of problematic
situations and address them promptly,
according to policy.
Seek HR advice and help immediately.
If you ignore a problematic situation, then
YOU become part of the problem.
Legal action can be taken against YOU as
well as the company.
Nobody is above policy.
Nobody is indispensable.