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Harassment Prevention�

Ben Earwicker, J.D., Ph.D., Administrator, Idaho Human Rights Commission�Linda Li, Outreach & Education Coordinator, US EEOC

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Agenda

What is (and isn’t) Harassment?
Third Party Harassment
Promising Practices Brainstorm

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Outcomes

Identify red flags for employment harassment
Receive harassment complaints, using fairness for best possible outcomes
Understand your responsibility for third party harassment
Review strategies and resources to halt harassment

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“Harassment”

What do you picture?

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Rude Abusive Illegal Harassment

Using a nickname
Graffiti
Asking a co-worker to hang out / go on a date
Intentionally using the wrong pronoun, or gendered language (c---, b----)
Racial or ethnic slur

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Harassment: Elements

Unwelcome
Frequent OR Severe
Offensive
Based on a Protected Class

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LL: Unwelcome, Offensive be Frequent or Severe (NOT AND) Protected class��Unwelcome Conduct, Words, Graphics, etc.

Based upon Employee’s Protected Class Status

Sufficiently Severe or Pervasive to create an abusive environment or alter conditions of employment

Target subjectively finds environment abusive, AND

Reasonable Person in protected class would find environment abusive

Basis for Employer Liability

“Conduct” = physical, verbal, visual actions

Severe or Pervasive:

Objective analysis:

Would a reasonable person, in the victim’s situation, find the work environment hostile?

Subjective analysis:

Did the employee perceive the work environment to be hostile or abusive?

Consider the totality of circumstances

Consider ages of victim and harasser; employee’s position; victim’s second-hand knowledge of other harassment

Harassment does not need interfere with employee’s job performance to be actionable

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protected characteristic

LL

Gender incl Pregnancy, Sexual Orientation and Gender Identity.

Age – over 40

NO – appearance, accent, etc

Religion – all kinds, not just mainstream, not necessarily by the book /orthodox, covers atheists and agnostics too

Genetic info vs disability (cancer runs in family vs having cancer)
Race vs color? (Pictured: employees with darker skin were treated worse by Af Am manager than lighter-skinned employees)

BE: Everyone is represented within these categories in various ways. Gender is not just female but all genders. Race not just black, etc…

Retaliation: All statues prohibit RETALIATION Number one charge filed with EEOC

Difference btw broad and legal definition

If YOU engage in protected activity:

Reporting discrimination or harassment internally or externally, threatening to file a charge, picketing in opposition, refusing to obey discriminatory order, testify as a witness in an internal or EEOC investigation…

Request an accommodation for a disability or religious belief

Covered Individuals:

1) opposed unlawful practices (reasonably perceived as unlawful)

2) requested reasonable accommodations

3) participated in proceedings related to employment discrimination (can include complaining internally, filing charge with EEOC, being a witness, etc.); could include family members, friends (?)

Then face an adverse action: unfair discipline, worse assignments, shunning, termination…

That may be illegal retaliation

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HARASSMENT Review

Can be verbal, visual, physical, electronic, off-site
Harasser | Victim: male or female, opposite or same sex
Harasser can be supervisor, agent of employer, co-worker, or third party
Victim can be someone not directly targeted but nevertheless affected by the hostile work environment
Sexual harassment – doesn’t have to involve lust or sexual attraction
Not just sexual - also applies to gender, race, color, national origin, religion, disability, age

LL start = trade back and forth

Consider someone who overhears others talking about offensive matter.

Trend: Managers who watch porn on their work computers. That can be easily tracked!

Employee inadvertently uses computer either they’re gone and they need something and then exposure.

Violates company rules

Offensive emailed jokes. Easily mined if there is a lawsuit

Texts

Phone calls

Areas to include/ discuss:

Actual or attempted rape or sexual assault

Unwanted pressure for sexual favors or dates

Unwanted deliberate touching

Unwanted communication of a sexual nature -emails, letters, calls

Unwanted sexual teasing, jokes, remarks

Unwanted attention – sexual looks, staring, gestures

Displaying offensive symbols (i.e. noose, swastika)

Mocking employee’s religious practices

Imitating employee’s disability

Ignoring, hazing,

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Employer Liability

Knew

or

Should Have Known

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Prompt, Appropriate, Effective

LL

What does it mean to take action? Once supes know /should have known, your action must be prompt, appropriate and effective at stopping the harassing conduct.

If you tell someone to knock it off and they keep harassing, that is not enough.
If you give it a few weeks and then stop it, that may not be enough.

(Audience Q: If you report it to HR, how long before an investigation? Silva v Lucky Stores w/in a week, How wd company deal with other crises?)

Effective action means that you ensure that all three legs of the stool are implemented AND that you document any actions you take.

i.e. handling the situation yourself, documenting and being sure you are letting your HR partner know what action you take.

Bring the matter to the attention of someone who can address it and documenting that you did so.

Whatever choice you make, you cannot ignore the harassment. The responsibility to deal with it is yours.

�

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Receiving a complaint

The importance of FAIRNESS

LL

Fairness: when people perceive a process as fair, they are far more likely to abide by the results, even if unfavorable.

How you treat people impacts whether or not they’ll trust in your process or feel driven to go outside your organization for results.

Thank them: express appreciation and prompt for more

Name feelings

Get the contours of the issue

Determine safety

Finish with action

Most employees wait months before ever complaining – and the worse the situation, the longer they wait . Sooner the better, when the problem is still manageable.

Employees that perceive FAIRNESS in the process are more likely to accept the outcome, even if it’s not the outcome they wanted

Doing it right from the beginning is essential – added benefit is fairness builds trust

When a person files a complaint about harassment or discrimination, they are seeking help. They have experienced a hurtful and often dehumanizing event.

Such events can be emotional so they deserve your full attention and proper respect.

How do you demonstrate active listening? Ask for examples of things you can do or say to communicate you’re paying attention.

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“Hey, can I talk to you about something?”

Hector seems nervous and maybe on the point of tears. He’s a solid employee, knowledgeable and usually detail-oriented. For the past several weeks, however, he’s been showing up to work late, spending too much time on his phone, and has just seemed out of it.

“And by the way, can we just keep this between us?”

What stands out to you in this scenario? �As a manager, what would you do next?

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When you pull Hector aside, he is visibly upset – he get choked up and seems on the point of tears. He discloses that he is dyslexic and sometimes has trouble reading things out loud. He tells you that another employee keeps calling him “retarded,” and mocking the way he talks. In addition, this employee says things like “You’ll never be a real man” and repeatedly uses the wrong pronouns for Hector.
What stands out to you in this scenario? �As a manager, what would you do next?

Co-worker harassment due to disability and gender or gender identity?

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Supervisor receiving the “Gift”

Thanks for bringing this up. It probably wasn’t easy to talk about this, and I appreciate that you came to me with it.

Employee with a Complaint

One of my co-workers keeps calling me “retard” and makes fun of the way I talk. Actually, I’m dyslexic and sometimes I have trouble reading things out loud.

Show appreciation

I can see you’re really upset by this.

Name the feeling

Please tell me more about what happened.

Prompt for more

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“Also, this employee has said “You’ll never be a real man,” and repeatedly uses the wrong pronouns for me.”

Whoa. Are you cryi… Uh, do you need a second? We can talk later...

Oh, I’m sure they were just joking. Don’t take it so seriously.

Hector

Supervisor

I’m glad you brought this up to me. I can tell you are really upset by what happened.

Let me make sure I understand. Can you tell me a little more about what happened?

Hold it right there! You should take this to HR

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Is there a better way to word these questions?

Get the contours of the issue

Follow up on anything that would raise concerns for physical or mental safety.

Check for Safety

“This is what I will do…”

“Let’s meet again at (date/time).”

End with Action

Why didn’t you make a complaint earlier?

What did you do to try and stop the behavior?

Why did you go along with it?

Is there anything recent that prompted you to come forward?

Was there anything that could be done to stop the behavior?

Did you ever feel as if you needed to look like it didn’t bother you?

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Third Party Harassment

The customer is NOT always right.

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Merlita is upset. A library patron who has been coming in during her shift for a few weeks now and noticeably staring at her up and down, approached her today to ask for her phone number. Merlita politely but firmly turned them down, but feels unsettled out by the encounter.

What stands out to you in this scenario?
As an employee, what would you do? Does something else need to happen before you report it?
As a coworker or supervisor, what might be your response?
What kinds of conduct have you witnessed or have concerns about?

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“…when [women] tried to report it to male managers, they were often ignored because the incidents seemed unthreatening through a male lens.”

Erin Wade March 29
Erin Wade is a chef, restaurateur and co-author of “The Mac + Cheese Cookbook.”

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Restauranteur Erin Wade’s solution to�removing bias from the reporting process

YELLOW

Creepy vibe or unsavory look
Manager must take over the table if the staff member chooses

ORANGE

Comments with sexual undertones, such as certain compliments on a worker’s appearance
Manager takes over the table

RED

Overtly sexual comments or touching, or repeated incidents in the orange category after being told the comments were unwelcome.
Customer is ejected from the restaurant

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Tips for Workers

Know your rights (spot the issue)
Be respectful

Think about your own comments, conversations, behavior

Be an Ally

Intervene when safe to do so. Tell people about their rights. �Support your coworkers.

Report discrimination

to the company
to the EEOC before the deadline (300 days most states)

Keep records

dates, places, what was said or done, witnesses

https://righttobe.org/ �Free active bystander training

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TIPS for Employer & Supervisors

Have a clear publicized policy against harassment
Have a clear publicized complaint procedure
Use it: Respond seriously to complaints received

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Questions?

Review online resources
Talk with your DAGs
Reach out to DHR
Contact the �Human Rights �Commission �or the EEOC

Please take one minute to write down:

Top takeaway from today’s discussion

1 person you will teach this information to.

1 person you can report / talk to about workplace issues.

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What’s your takeaway?

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