Sexual Harassment Employer Liability Lecture | LGLA 1323

[00:00:00]welcome to our third lecture on the topic of sexual harassment let's begin this lecture reviewing what we learned in our last lecture about the elements of a hostile work environment sexual harassment claim you may recall that there are two types of harassment we have quid pro quo which is our traditional sexual harassment where there's a if you do x for me i will do y for you if you want to sleep with me i will promote you or i will not fire you whatever the circumstances are and then we have the hostile work environment and in that last lecture we talked about the six elements in order for the plaintiff to successfully make a hostile work environment claim a sexual harassment hostile work environment claim he or she needs to allege that the conduct was unwelcome to the victim that it was based upon the victim's gender that it created for the victim a hostile or abusive work environment that it unreasonably interfered with the victim's ability to do his or her job that it was sufficiently severe and or pervasive and that affected a term or condition of the victim's employment if the plaintiff can prove those things then he or she is on track to be successful in a hostile work environment sexual harassment claim so at this point we've completed our introduction to sexual harassment and we've talked about the quid pro quo and hostile work environment theories of the case now we have some remaining topics to cover but certainly this second one is where the bulk of the material relating sexual harassment is so let's talk about the topic of employer liability before we do that though i'm going to talk briefly about the love contract this is not something that i recommend clients consider doing but it is something out there that sometimes clients are interested in and that needs i think it's important to be aware that this is out there and this is a document that two individuals who work in the same uh facility and who are romantically involved may uh with with the leadership of their manager decide to enter into so we're going to talk briefly about how it works what's involved what its purpose is and um what its level of utility is and this is the idea that a love contract the um the individuals they may be peers they may be subordinate and superior that they sign a document acknowledging that the relationship is voluntarily entered into that they understand they can end the relationship whenever they want to without any kind of retaliation that they also that the other person that they understand the other person has the right to end the relationship and that there can't be any retaliation for having done so um it we use the term contract here but it really isn't a contract it won't affect the employment it will status and it's really an agreement between the two individuals in the relationship so the word contract is kind of used more artfully than literally it is intended to establish voluntariness and to reinforce the the rules of the road in terms of consensual relationships it also usually covers the complaint process that the company has that way the employees can't claim later on they didn't know what that policy looked like now is a love contract going to somehow protect the employer against bad behavior by one of the participants no it won't it's not a magic bullet but when both parties are aware of the seriousness of the matter and understand what the company policy is it may make that bad behavior less likely to happen or it may cause the other person to immediately report the bad behavior and so while it doesn't cure the problem it perhaps reduces the likelihood of a problem developing is it worth the effort well that's hard to say um i think a better plan is especially when the individuals in the romantic relationship are within a reporting relationship it's better to just say that's not a good plan to have and one of the other person needs to be moved or the relationship needs to be ended or one of the parties needs to leave the organization if it's between peers a love contract might be a possibility i don't particularly care for the term love contract so i think perhaps just reinforcing the policies within the organization is the better course of action so um by no means a full endorsement on my part for this idea but it's something that you need to be aware of in the event that you have a client that's interested in let's consider how it can play out in a particular organization so mary works for this bank and she's involved with a romantic relationship with bob who is in a more senior position within the bank they are you know happily involved in this relationship but bob is concerned that there could be some sexual harassment issues in the future i would stop right here and say bob are you in a relationship with somebody you think this could end up this way what are you doing that is causing this vibe number one or number two why are you with somebody that you think might make up an allegation so i'm not sure that this is a recipe for a good relationship to begin with it would the contract should restate the voluntary nature of the relationship it should assure mary that any decisions about her employment will not be influenced by the end of the relationship and it also ought to document how the complaint process works in this particular organization it also ought to have bob uh be told that you know he needs to not retaliate it's a relationship doesn't work out so again it is an approach to consider let's talk about how employers should respond to the possibility of a sexual harassment issue in the workplace so let's consider the issue of liability we've talked about the two theories quid pro quo and hostile work environment and those two theories have differing implications for employer liability now if we have a tangible employment action which is typically going to be the quid pro quo situation then the employer is strictly liable we've talked about this term being responded superior we've talked about it being vicarious liability those are all synonyms for the idea of strictly liable and so this means that there really is no way that the employer can avoid liability when a tangible job action is taken this doesn't mean that a smart employer doesn't work conscientiously to avoid sexual harassment under these circumstances the the ways that employer can avoid it before the tangible job action happens can be having multiple levels of review and having that complaint process so that the employer is aware of the concern as early as possible when the concern develops so if you have managers for example before they can terminate somebody that it has to be approved by somebody maybe outside that particular facility that can be some protection against having a tangible job action that ultimately ends up being a quid pro quo situation now i'm going to let you know that the cat's paul doctrine is a real problem here because if you have somebody who wants to harass let's say we'll go back to our example of bob and mary bob is a senior person he wants to harass mary because mary has rejected him and so he wants to terminate her employment we'll say well if bob is conveying the information to somebody in another facility hey um i want to fire mary it's very likely bob can present the facts in the compelling way that this person who is completely separated from the unit we'll think well yes we ought to fire mary um and so uh the the um the hr manager outside the facility obviously has no desire to retaliate or to harass mary but you know it's a garbage and garbage out situation since this person is only hearing what bob is telling him and bob has an evil intention it's very likely that bob can persuade the hr manager to dismiss but there is some level of checking i mean after all bob is completely inventing things then the hr manager should say well show me when you covered that corrective with mary or show me her attendance records and so there needs to be that level of review sometimes what happens in these situations is that bob will say he's the unit manager has a particularly good relationship with the hr manager they deal with each other and you know 99 times out of 100 bob has a pure motive he's trying to just do the best job he can at his place of employment and so what happens is the hr manager and the unit manager develop a rapport and the hr manager comes to trust the judgment of bob or whoever is the uh the unit manager or the person in that responsibility and so the hr manager may well not rigorously check to make sure that every i is dotted every t is crossed and so it's important that the hr manager doesn't get too chummy with the unit managers and retain some level of separation and some level of independent review another way to make sure that the tangible job action doesn't become an issue is to have people outside the unit regularly be in the unit to get the tempo and the feel of the unit to see what's permitted how people are behaving with respect to one another and to be available for that face-to-face concern if it comes up sometimes people are reluctant to have a conversation about something that personal with someone who they haven't met before and so having that connection can reduce the likelihood of that tangible job action actually happening and therefore avoiding that quid pro quo situation of course the real time that the employer has the best chance to avoid liability is when we're looking at a hostile work environment situation when there hasn't at least yet been any tangible job action this is the time that the employer is best situated to avoid liability entirely so while it's possible tangible employment action if you can stop the tangible employment action from happening once it's happened the employer is on the hook there's just no two ways about it but if there is no tangible job action that happens that's when the employer is able to potentially avoid the stroke liability the responding is superior the vicarious liability outcome and the method to do that is through the ellerth verifying i know i actually most people say ferrari or alert and i know i have the names the other way you can certainly say ellospherical but for what some reason it doesn't fall fall off the lips as easily and so the secret to this type of defense which is an affirmative defense so the burden is on the employer who is the defendant to prove this particular defense it's not on the burden is not on the plaintiff to disprove the existence of this defense so there's really two steps the first step is that the employer is going to have to prove that there was an effective prevention policy in place and this usually has a few different elements to it one element that's going to have is is going to have a training element and it's a best practice to train the new employees ideally on their first day of employment but certainly in their first week of employment and to document that training to make sure that it happens and to periodically remind employees of that training typically this happens once a year it doesn't have to be once a year but it kind of makes sense if it's easy for think people to forget about it you may have you know a particular month in the year that okay this is sexual harassment training month and you make sure you get everyone through that training at that point in time then the other part is having some kind of complaint process and of course that's going to be an important part of your training to not only talk about what is sexual harassment how to avoid it but also to talk about what to do if you observe it or you're a victim of it and so you need to make sure that's communicated effectively the types of communications that are the the types of complaint process you want to have are going to depend somewhat upon the facility but these are some minimums that you want to have you want to have at least two paths that this person can go to to complain because if you say well simply go to your manager what the manager is the person harassing you or only go to hr well what if someone in hr is the person who's harassing you so you need to have at least two paths and typically the paths are through your chain of command either your direct supervisor or manager or the person above him or her also somebody in hr those are the two paths you definitely want to have but some organizations have additional paths and those are also good in fact they're better to have more than two paths one path can be a 1 800 hotline and many times this is actually run through a third party organization and so this the employees will actually oftentimes have a higher level of comfort with this because they recognize that the person they're speaking to doesn't even work for the organization actually has no investment in any of the people that you're going to be talking about and so it can be a process that is even feels even more safe typically the employer hires this third-party vendor to kind of run the program and at the third-party vendor location usually it's kind of like a call center and the employees there take calls write down the other set list of questions typically provided by the the company hiring them and they they take notes about what the employee says and then that information is sent to a centralized person within the organization who would process that particular complaint the outside organization typically doesn't process the complaint although certainly you can probably set that up as well there can also be emails that employers send to me complaining employees send the information to it is a good practice to also allow these to be anonymous and of course the 1 800 number is the best way to send anonymous complaints um then of course the the third part so you've educated people about it you've had an effective complaint process the third part is to have an effective investigative process and it's really important if you're going to have this effective prevention policy to make sure that your investigation is very quick on the immediately after the complaint is lodged you ought not wait longer than 24 hours and really you on that way 24 hours um but i mean if it's a weekend and you get the complaint on you know friday night at 8pm and no one's working until monday that's fine but if people who are involved in the situation are continuing to work at that time then you really need to jump in within 24 hours for sure you want to make sure that you're interviewing people that are appropriate obviously the alleged victim obviously the lead harasser but there probably will be additional people who are going to be interviewed you want it to appear to be a complete investigation that doesn't assume there's a particular result that is being sought and then you need to reach a conclusion and all this needs to happen pretty quickly you don't want to rush the conclusion sometimes there's legitimate reasons to delay it such as someone's on location or somebody is we're all sick on a particular day or something along those lines and so sometimes it can take you know three four five days but ideally you want to do it as quickly as possible and when you get a sexual harassment complaint it's pretty much drop everything and do this for the next couple of days and then you need to reach a conclusion it's attempting in these situations because typically the harasser is going to deny it and the victim's going to say it happened it's oftentimes popular in these situations say we don't know what happened you know it's a big mystery to us because one says one thing one says another but again under those circumstances you're going to refer to these types of credibility determinations yes there are times you're going to say you don't know but that shouldn't be the automatic or inevitable response that you're going to give because sometimes you pretty much do know there's outside corroboration the story or it's pretty clear this person had some evil intention until you want to make sure that that you are you are not scared of making a finding one way or the other and then everyone needs to be retrained in the policy the victim if she here she's a victim the alleged harasser he or she is a you know even if you find that nothing happened or it happened exactly the way the victim said even witnesses to the situation should be retrained the only time you don't retrain the harasser is when you're going to dismiss the harassment and so under those circumstances you also need to have a consequence again um everybody gets retrained even if you find there was no substance to it but if there is some substance there needs to be some consequence and it doesn't have to be dismissal under a local dismissal certainly it should be a tool in the arsenal of the hr department and then you need to touch base periodically with the alleged victim even if you found that there was no merit to the alleged victims case because he or she can still be subject to retaliation and so it's good to calendar that i would recommend you calendar this through the hr professional on on the day that you have that conversation with the victim and calendar something a week or two out and then a month out and then six months out now where you touch base with this person confidentially not in front of other people where you say hey how's everything going are there continuing problems and giving them the opportunity to say the harassment has continued and or retaliation or what you hope to hear is no everything's great and you of course document if you're the hr professionally you document those conversations and of course if there's additional reason to reopen the investigation then you reopen the investigation at that time so the effective prevention policy is a pretty involved thing where you're really looking at three steps education complaint process and resolution and all of those parts need to be in working order in order to have an effective prevention policy if the employer doesn't have an effective prevention policy fairground is not available to the employer so this is non-negotiable you have to have this and you can't just have it on paper it has to be a living breathing process that is applied when it needs to be and then finally the the plaintiff has to unreasonably fail to use it um here the the plaintiff did not reach out and contact the uh the right people to to make the complaint now of course if the plaintiff did do that then you're able to investigate it resolve the issue promptly that the program worked but you know obviously in that situation you were able to end the problem before it became a problem it was just in the very beginning stages a couple of dirty jokes were told nobody was hurt the plaintiff said or the person said hey you know i don't like this oh okay let's reinvestigate it okay stop telling those jokes oh okay i got it everybody's happy it's only when it is allowed to fester and continue that the hostile work environment really becomes an issue so here's the scenario bob is a maintenance worker he is romantically attracted to mary who's also works there mary has no interest in bob but bob stocks are in the workplace how bob's however careful to keep his behavior hidden from everyone except for mary and this is unfortunately a pretty common uh scenario for harassers mary doesn't bring up this complaint but she decides to quit her job and she files a sexual harassment claim against the club under these circumstances the the business can avoid liability if it can show that it had that effective uh prevention policy and mary refused to avail herself of it it doesn't appear that that mary reported to bob um and so there doesn't seem to be any kind of quid pro quo possibility going on so it doesn't look like mary's actions were a reasonable response there was no need for her to quit before she actually made her complaint so bob is the head of the quality control department he propositions mary she works in the the department um after mary declines um bob starts finding fault with her work that's his job and that he is able to get her demoted well now we have a tangible job action it doesn't really matter what kind of effective prevention policy this employer has because we're in quid pro quo territory now now if mary had complained back here when bob was finding fault then the company had the opportunity to jump on it because at that point there hadn't been intangible job action and so again having the effective complaint process can be beneficial in that it can stop the process that leads the tangible job action but once a tangible job action happens the employer's going to be on the hook um mary reasonably believes that she complains about bob to the company management man will take no action against bob because of his reputation with senior management this is an argument that the victim can assert that you know well bob's the ceo of the company or bob's uh the the brother-in-law of the ceo of the company or you know bob is constantly having you know drinks and playing golf and doing stuff with senior management that's going to be somewhat difficult for mary to prove um that you know she reasonably failed to that to do that um but but again um this is one of those elements now ultimately it's the job of the employer assuming the employer to prove that the plaintiff unreasonably failed to use it that it would have been a reasonable approach it'll ultimately go to the jury but obviously this is another reason that hr and line magic probably shouldn't be too chummy because this can provide an avenue for a plaintiff to allege that it would have been unreasonable to require that she used that mechanism the fox industry has a sexual harassment policy in place mary doesn't use it again because it's a quid pro quo situation fox industries can't rely upon the sexual harassment policy now even in a quid pro quo situation fox industries is still going to be benefited by having the policy because certainly things like punitive damages and things like that are going to be less likely if fox industries does have an effective sexual harassment policy has an effective complaint policy policy and so even in a quick pro quo case that policy that ferry or elite defense can still at least reduce some damages now we've been talking as if harasser is always the boss and certainly the harasser can be the boss but it can also be a co-worker we've also talked about that pretty regularly but the scenario we haven't really talked about is when the harasser is a customer or a third party you may recall we had this scenario involving mary who was a filipino nurse in a nursing home and bob who was a patient in the nursing home and bob would make offensive comments about mary's national origin in that situation bob was kind of the equivalent of a customer he was a patient in the nursing home and we talked about how the employers can't effectively say to mary well you know we can't control bob bob's a customer that isn't a successful excuse for letting mary or anyone else to be subject to a type of discrimination or harassment that also applies to third parties and the the employer is going to be liable if it knew about the acts of harassment but failed to take appropriate corrective action so it needs to address the issue with the customer the bob in the situation or the third party or maybe the third party's employer let's consider some scenarios here so mary works in a warehouse bob is a truck driver working for a logistics company that supplies uh you know that transports the the product of the warehouse bob makes live remarks and asks for sexual favors whenever he sees mary um she indicates she doesn't want this behavior to continue but he continues it mary complains to her supervisor she is using the mechanism the fair girl earth mechanism that koala bear has but what does the supervisor say is no not the company's policy because bob doesn't work for us bob is a third party in this scenario so therefore bob that does or assuming the company where mary works doesn't address the issue under the scenario the scenario the employer is going to be strictly liable for the harassment because bob is a third party in this case not a coworker but a third party so what should the supervisor have done well the supervisor should have alerted someone in hr about the concern and then an investigation ought to have been launched the hr person is not going to talk to bob directly but is going to let bob's employer we'll say it's ups and know about the concern and see how ups wants to follow up on that ups may want to get bob's statement ups may say no you can talk to bob a lot of employers don't want to talk directly to bob because they don't want to get into a joint employer situation but whatever the mechanism is we need to understand bob's version of the incident we need to obviously get mary's version and very likely there may be other people in the facility who can confirm or dispute what mary is saying there may also be video cameras or other indications that would point to this type of issue what we don't want to do is we don't want to move mary to a different part of the facility a better approach would be to move bob maybe bob typically works at a certain loading dock that has been assigned to mary maybe mary works with floating.3 will bob may be moved to loading.7 during the course of the investigation so that we can decide what's going on it's a best practice not to remove the harassed victim or at least the alleged harassed victim unless she or he wants to be moved moving the alleged harasser especially temporarily is not a problem from a legal standpoint unless it's obvious under the circumstances this is a made-up complaint you don't have to remove bob but you definitely ought to make sure that both parties understand that they ought not be interacting together except when strictly necessary for the because of the nature of the world okay obviously ferrager and ellerth our u.s supreme court decisions and they held that employers can be vicariously liable and again let's just reflect on our other two words for this responded superior and strictly liable and as we said that they can be liable for the unlawful sexual harassment of employees by company supervisors and again the goal here is to in is the reason this liability exists is so that employers are motivated to train and to monitor the behaviors of their supervisors so an employer is going to be strictly liable for quid pro quo um harassment really by anyone or pro discrimination by a supervisor in other words the fairgrounds defense is not available in quid pro quo situations it's only in the hostile work environment situation that it arises so here we have our summary about ferrari and again we see the date here this case has been around for a while back in 1998. this is a really important case you need to know its names it's facts of significance it's holding now we talk about this as a sexual harassment case and it absolutely is that but the same logic that we see in verager and ellerth applies to any type of harassment hostile work environment harassment claim including ones that relate to racial harassment national origin harassment religious harassment age harassment you name the type of harassment obviously the facts are going to be somewhat different but the the defense is available so when you're crafting your fair girl defense your policy you want to make sure you open it up so it includes not just sexual harassment but any other type of harassment type theory now i'm going to be honest with you 90 plus percent of your actual harassment cases are going to be sexual harassment but you don't want to limit it to that situation so let's see what the issue is raised in fairness will an employer be liable for the actions of an employee whose sexual harassment and subordinates has created a hostile work environment and yes that is true it will be usually except we do have the possibility of an affirmative defense you can see that even when the supervisor is the one engaging in the hostile work environment the affirmative defense is still available it's only when we're in the quid pro quo area that there is no affirmative defense available now when the when the harasser in the hostile work environment situation is a supervisor it's going to be more possible for the employee to say it was unreasonable for the employee to think that following a complaint would be effective so it is harder to make the fairgrounds defense from a defense if the hostile work environment creator is a supervisor but it's not impossible so let's look at the facts briefly so uh ferrager resigned from her position as a lifeguard she brings a suitors their supervisor sexually a sexually hostile work environment by their touching by their remarks and their comments i'm not sure what those remarks and comments are but clearly when i was writing and i wasn't being as precise with my language as i should have been okay so we know that the u.s supreme court has said that the employer is going to be vicariously liable for the actionable discrimination caused by the supervisor that's the standard that's the rule but we do have the option again if the defendant can prove it of asserting an affirmative offense and that is was there an effective let's go back here something see the elements the affirmative offense was there an effective prevention policy in place and did the plaintiff unreasonably fail to use it okay and here we have from the other part the ellerth portion of it again this is a companion case the us supreme court will oftentimes accept two it's usually two but there can be more than two uh two cases uh kind of over the same topic um and the reason that they do that is that they can flush out some of the subtleties of their analysis because again their case their their opinion ought to just talk about the cases that they are in fact litigating and so if you have the companion cases it allows there to be more granularity more precision in the opinion and as we saw before when we were looking at um meritor versus um harris um that there was a several year gap between the first case and the case that kind of set the standard well you can see if there had been two cases at the same time that the us supreme court had had at the same time that they had had the marital savings case then they could have maybe protected employers and plaintiffs from a lot of uncertainty that lasted for years and years so the companion case method is a smart one the court does not always do it by any means but in this case it did and it was probably a good decision on its part to do so so what the el earth decision did which of course is consistent with the fargo decision and said that the harass employee because the house employee has not suffered any job-related consequences so there's no quid pro quo the employer can defend himself by showing it quickly acted to prevent and correct any harassing behavior and the harass employee unreasonably failed to use that mechanism so here are two steps that we were looking at earlier and again we don't have this affirmative action defense when it uh results in an actual tangible job action when there is a quid pro quo let's consider the scenario so mary works in a uh place she's the only female and she's referred to as sexy married by her male colleagues sometimes they leave new pictures send her role their emails follow her into the restroom okay that's pretty scary um bob tries to get physically intimate with her one day at work so mary complains with the head of hr a head of hr sounds like a really awesome manager here says the guys are just having some fun she needs to be a good sport under these circumstances it's possible that this company actually did have an effective complaint process but of course the hr manager didn't follow it uh mary have tried to evaluate herself of it but obviously it wasn't successful so under these circumstances unfortunately the distillery is going to be out of luck so bob is the branch manager the big boss of a particular bank and he hires mary as a teller so there's a reporting relationship here a few months later he wants her to have sex with him in return for promotion mary agrees after having sex with him for a while she tells him it's over and she applies for a promotion and he gives the job to somebody else who's less experienced this is the tangible job action so now we're in quid pro quo territory up to this point we're probably in the hostile work environment scenario now let me pause here and say that let's say that bob had actually selected somebody who had more experience than mary well then we wouldn't be in a tangible job action situation necessarily i mean it would become a matter of evidence um you know just for the jury to decide but you know i see uh bob may well not be uh discriminating or see me harassing her or retaliating against her in any way it just may be that you know she doesn't have as much experience or she doesn't have the right kind of experience or her job performance hasn't been as positive as this other person's but if it appears that this person is a less strong candidate than mary then we absolutely do have a quid quote quote in spite of the well-developed sexual harassment policy mary doesn't avail herself of that but it doesn't matter because this is a quid pro quo situation and so mary doesn't have to complain doesn't have to use the complaint process and a quick pro quo scenario of course mary could and if mary had made the complaint it could be that the hr department might have stepped in and put mary into her position and probably fired bob and that would have probably been a better solution for both mary and the bank but mary doesn't have to use that mechanism it's just one option available to her so let's consider what the fallout from the fairground earth is what should employers do as a result of having the availability of this defense well first of all the employer needs to train all employees regarding the policy it should be at the beginning of the employment ideally the first day but certainly the first week and it should be periodically repeated it's also a good idea to put this in employee communications like handbooks and things along those lines a good rule of thumb in the hr function is if you don't document it it's like it never happened so you need to figure out a way to record the attendance of people at this training a lot of times these days the training is an electronic tool and so you do have an electronic record if you happen to choose face to face you need to make sure you have these attendance records somebody keeps them in a safe place so they can be accessed um another thing for employers to think about is using some kind of alternative dispute resolution tool um adr so you want to see what this is called and these can resolve these types of disputes we've talked about adr in other contexts the rsc can resolve employment discrimination matters more generally now it is my experience that employers don't have so many of these types of complaints that you need to have a separate system just for sexual harassment type concerns if you happen to be having that many of those concerns you have other problems that you need to address in terms of corporate culture but certainly adr in any type of employment area can be a good tool for reducing some of the tensions in the workplace and resolving issues in a positive way that may preserve relationships and result in a better outcome and you need to have at least a two-prong approach this is good to have on posters around the facilities and certainly in the employee handbook at least two approaches um two methods to reporting it so when the complaint arrives employers need to be prompt and respectful only the only people who ought to know about the sexual harassment complaint are those who need to know and that's going to be obviously the alleged harasser the person who received the complaint the person who's investigating it who may or may not be the person who received the complaint the victim or alleged victim is obviously going to know and there may well be other people that need to know for example if you're needing to pull emails well you may need to talk to someone in i.t but you don't need to tell them why you need this documentation you may need to interview other people who may have been present for certain conversations but again those people only need to know what they need to know they don't need to know the whole scope of the situation sometimes employees in these situations will say well can you keep this confidential you know i have this complaint but i don't want anyone to know that's not possible um the the alleged harasser is entitled to know what the complaints are against him or her and respond to those complaints and so if the manager knows who made the complaint it's really not possible to shield that information from the alleged harasser i'm not going to say it's impossible in every case but certainly that would be a rare circumstance um after all if the harassment really is happening then the harasser is going to know you know i mean unless the rest is harassing like 50 people at the same time presumably the harasser's going to be able to put two and two together sometimes complaints would be anonymous though again through that 1 800 number or it could be through a dummy email that you get the complaint or it could be a letter left in somebody's office or shoved under a door those complaints need to be taken seriously now you shouldn't assume that because it's anonymous that it must be not something that is accurate also the complainer is not always the victim it can be somebody who's observed the situation and is concerned about it and so sometimes that person is the hero in the story um the employer the investigator needs to make findings you need to have a a period to the end of the investigation you need to close it down and have an end if the if you conclude that the um the alleged harasser did violate the employer's policies then there needs to be a consequence if you're not sure and you you kind of give a wishing washing conclusion which sometimes you need to do you need to make sure that the the consequences of further violations are communicated clearly to the harasser and as i said before you need to periodically touch base with the complainer and if the complainer is different than the victim you would also do this with the victim and document those follow-ups really important steps um the remedy should stop the harassment any other inappropriate contact conduct but it shouldn't be out of proportion to the act one dirty joke probably shouldn't result in dismissal unless this person was already on some kind of corrective action plan or something like that um so it needs to be proportionate um if you decide that you have a zero tolerance policy and you apply that policy consistently yes you can fire people because after all we're an animal employment situation but you have to be consistent because the alleged harasser can also file a claim let's say bob is the alleged harasser you conclude that he did whatever the action is and you fire bob bob is african-american three weeks later ted who is white supposedly harasses somebody you conclude he did it and you don't fire ted well now bob can allege race discrimination because he was dismissed and ted wasn't so and it is in a situation where you kind of have the right to do whatever you want to with the alleged harasser it does need to be proportionate at least in terms of how you've treated other folks who have engaged in the same behavior also your findings of your investigation need to make sense you know if it if if you find that that bob harassed but you find that ted didn't well is that because the investigator had certain preconceived notions about african-american men either that they were more likely to be dishonest or more likely to harass and so you have to make sure that if you conclude that that bob harassed and maybe ted didn't that you have you explained how you reached that conclusion what was the facts that made you conclude that bob was guilty and ted wasn't and you want to be sure that you don't say something as simple as well ted was more credible than bob well what about ted was more credible than bob because the jury might conclude well the only reason you think ted was more credible is because ted is caucasian and bob is african-american so you have to parse it as much as possible to objective facts again you're not going to want to move the victim unless the victim wants to be moved because that act can be considered retaliation so mary sees her supervisor bob acting out with anna later she asked anna and discovers that bob has been uh you know engaging in this favor with anna pretty regularly but anna doesn't want to lose her job so she doesn't want to report it under these situations mary even though mary hasn't been harassed at all should notify the hr department about this concern if bob ultimately does fire anna then obviously anna can file a complaint of sexual harassment or retaliation with the eoc but mary can do so as well here's another scenario mary worked as a nutritionist at work she's constantly subjected to her manager sexual gestures and comments mary quits her job instead of using the complaint process mary files the sexual harassment complaint against their employer but the employer can use the fair gorilla affirmative defense because there was no quid pro quo there was no tangible job action so if the employer can prove the fair or illness affirmative defense the employer can avoid strict liability now of course just to be clear the manager this person will call this person bob he can be sued mary can still sue bob even if mary can't successfully sue her employer most of the time this isn't very effective because usually the bombs of this world the supervisor aren't wealthy people and so there really isn't a deep pocket for mary to access in terms of a lawsuit so if mary can't successfully sue the employer the illegal entity that employs both she and bob and most of the time it's not going to be worth her effort to try to um sue the individual harassing person but obviously she always has that opportunity to do so let's consider um changes to logging i don't require for this course that you know what parts of title vii uh came into existence in the civil rights act of 1991 and what parts were always part of title vii i don't require that you know the distinction because after all 1991 was a long time ago and there aren't going to be any claims percolating out there from before 1990 but just so you'll know from a point of reference is uh the civil rights act of 1991 had several major changes to title seven but the two that we're focusing on right here is that after this law was passed in 1991 employees for the first time was that were able to get compensatory damages and punitive damages from the employers before that they were really just entitled to back pay from pay and reinstatement compensatory damages are things like kind of the mental anguish e-type damages as you can imagine losing your job can be devastating emotionally financially you can lose your house and this gives a mechanism that allows that person to recoup some of that money which may ultimately end up being more than the amount of lost wages and then of course punitive damages would be in addition to that while title 7 does permit both compensatory and punitive damages it does cap them um at 200 300 000 and that's both of them combined now juries aren't told about the 300 000 cap so a jury might well award 500 000 in compensatories and you know a million dollars in um punitives and what the court will do is reduce these total to three hundred thousand dollars in this case and actually three hundred thousand dollars is for the very largest of employers if it's a smaller employer the amount the cap will be significantly less than three to a thousand dollars um another thing that the civil rights act of 1991 granted to plaintiffs and not just and this this by the way is not just for sexual harassment this is for all title seven claims but prior to 1991 cases were not tried to a jury but were tried to a judge in a bench trial situation but after this amendment to title vii we did have jury trials and we still do have jury trials for all types of title vii cases it does require is all jury trials required does require that the plaintiff or the defendant request it but the plaintiff almost always requests requested jury trial the thought process is that juries are much more likely to side with plaintiffs and are much more likely to give us more money to plaintiffs if the plaintiff is successful um uh uh we've already talked about adr is a common mechanism for resolving all types of employment cases the eoc is going to recommend or request the parties use alternative dispute resolutions a case is relatively rarely go to try on this case and that's really because neither party wants to go to trial these cases are embarrassing for everyone for the victim for the alleged harasser for the company and so as a result it usually makes sense to resolve this or settle the case before going to trial one thing i didn't touch on i don't know if i missed it in the slides or not but let me go back um to the corrective action one of the things that smart employers do in this area is okay they've concluded their investigation and um they say to let's say they've concluded that the harasser did behave inappropriately and so they are documenting some kind of corrective action maybe termination it may be a warning it may be suspension whatever it is it is a best practice not to say in the document you know you sexually harassed mary the reason you don't want to say that is because that is a legal conclusion and so if mary does ultimately sue the employer for bob's actions then the employer then the employer's termination or whatever the corrective action with bob was is going to be an exhibited trial and so americans say look jury even the employer agrees that i was sexually harassed so now this case is just about damages so please give me lots of money and the jury will likely find that argument compelling so typically what an employer does is say that bob violated company policy and or bob behaved inappropriately there's really no reason that the employer has to reach the legal conclusion about whether sexual harassment actually happened or not this typically employer's policy in this area is more restrictive than sexual harassment laws remember we talked about how workers can be real jerks and still it may not meet the threshold of sexual harassment well it may not meet this threshold of sexual harassment but i would hope that employers would prohibit offensive conduct even if it doesn't reach that threshold because it's destructive of work relationships and it's a waste of company resources and time so no one dirty joke isn't going to be sexual harassment but why would an employer allow a single dirty joke does doesn't make any sense it's not a productive use of time and so typically an employer's policy is going to be significantly more requiring of employees than just what the law says about sexual harassment and so when the um employ when the alleged harasser violates the company policy mp may or may not have actually engaged in sexual harassment and so what the issue is that the employer ought to establish is did this employee by employee employee violate the company's policy and um then if mary sues for sexual harassment in those situations the employer can say look bob violated our policy but he didn't commit sexual harassment his behavior was somewhere between sexual harassment and where our policy was and so therefore you can still find even though bob was fired or given some other corrective action you you the jury can still find that bob did not sexually harass mary that's an important distinction to work through as you are drafting the documentation this case and this also ought to appear in the findings of the investigation you don't want to use the term sexual harassment okay so now we're going to talk about so completely talking about employer liability now we're going to talk about tort and criminal claims how these play a role in the sexual harassment area we've talked about tort claims before tort claims are not statutory as a general they certainly aren't statutory in texas so we're not going to be looking at a statute here these are part of the common law they've existed for hundreds and hundreds of years and two very common tort claims are assault and battery assault is the apprehension of unwanted touching so this is um assault does not actually require that touching occur now in everyday conversation if we say he assaulted me certainly touching is involved in the everyday meaning of that term but when we're talking about the tort of assault there doesn't need to actually be touching it just has to be that the person was made to feel that touching was about to happen so for example if bob is if he marries in the elevator bob gets on the elevator with mary and he gets very close to mary and kind of crowds her into the corner he doesn't actually touch her but mary is in a very uh intimidated position that could be assault now of course battery was when actual touching happens it's important to keep in mind that when we hear the term batter or battery we think about bruises or broken bones and certainly those would count as batteries but battery doesn't require physical injury or pain it just means unwanted touching so somebody reaching over and massaging a person's shoulder being not so hard to leave bruises or to hurt but that is still a type of battery if it was unwanted now the way i keep a salt and battery straight is alphabetically a comes before b assault comes before battery so the person gets really close to the person before touching you can't it's very difficult to batter somebody if you haven't first assaulted them i suppose a person could be asleep and so they don't know that they're about to be touched until they are touched but generally speaking if a person is conscious they know they're about to be touched before they actually are touched so the assault part happens before the battery part these are very common tort claims now these terms assault and battery are also criminal law claims the terms in the criminal law context have different meanings this isn't a criminal law course so we're not going to talk about those um but certainly the plaintiff can certainly press criminal charges of assault and battery in addition to civilly suing for assault and battery i've listed three other torts that are possible claims that the plaintiff can advance one is intentional infliction of emotional distress this is a common tort theory it's somewhat difficult to prove but it's it's certainly one that almost if you're going to assert assault and battery almost certainly been a certain potential fictional emotional stress and this would be when you when a person is made to feel very very uncomfortable very distressful i'll give you an extreme example that is in the sexual harassment area if i were to tell you with a completely straight face i'm so sorry to tell you that your your parents just died in a terrible car accident and you believe me and i say it in a way that's credible and then you know five minutes later say april fools well i intended to cause you great emotional distress so that would be an example of intentional infliction of emotional distress and certainly somebody who um sexually harasses somebody typically intends to now whether they intended to inflict emotional distress might be an issue but but they did intend a particular action and so this could be a reasonable interpretation false imprisonment also often arises in assault battery cases we think about imprisonment being you know locked away and somewhere in huntsville for example but imprisonment actually isn't restricted to actually being behind locked prison door somebody can be imprisoned simply when they feel they can't safely leave a particular area so in my example where bob crowds mary into the corner of the elevator and blocks her leaving that is an example of false imprisonment even if it only lasted until the elevator doors opened that's a very brief period of imprisonment so i could see that a jury might not buy that but the overall idea of it doesn't have to be you know you're locked in a room where you can't get out or something along those lines another possible theory is intentional interference with contractual relations a benefit to tort cases is that we have unlimited compensatory and punitive damages we also have the ability to use jury trials in this situation so we aren't facing this cap of three hundred thousand dollars so if the jury awards five hundred thousand for compensatories in the tort claim and a million dollars for punitive damages in the tort claim then very possibly the plaintiff actually gets 1.5 million dollars so you can see why torque claims are very powerful tools for the plaintiff to use in his or her case let's consider this scenario so mary is a nurse this particular animal clinic has a lot of employees so it is covered by title seven during one of her night shifts bob a co-worker follows her to the parking lot stands very close to her and touches her inappropriately so here we have the assault and now we have the battery under these situations a mary can press civil charges against bob for assault and battery uh possibly against the frisco animal clinic too we would need more information about that there's not there to be any quid pro quo yet so it doesn't look like frisco animal clinic would be in a position to do that but um certainly uh you know if the fiscal animal clinic doesn't have a fair defense available to it possibly so mary may be able to advance claims against it as well so let's talk about criminal liability certainly uh rape situations happen in the workplace from time to time and those are crimes as it would be anywhere else businesses are unlikely to be guilty of crimes along those situations they might be civilly responsible but it's really going to be the individual who raped or sexually assaulted somebody who's going to be criminally responsible under those circumstances if the harasser is found guilty of the particular crime the victim isn't going to get any financial relief through the criminal justice system but the victim can civilly sue and use that criminal conviction as very powerful evidence to likely increase the verdict that he or she will get in the civil case here are common theories for how the criminal charges might advance it can be rape a sexual assault assault a battery and there's aggravated rape aggravated sexual assault there can be lots of different allegations here it's really up to the district attorney to decide how that particular place case will be planned the victim doesn't decide whether it's an assault case or a battery case obviously the specific requirements of these particular crimes are going to vary from state to state and the philosophy of the district attorney might also affect how these matters are advanced so now we've completed our topics in this course we've talked about sexual harassment generally we talked about quid pro quo and hostile work environment then we talked about ferrager and ellerth and how those cases create an affirmative defense for an employer and what that means for the employer in terms of how he or she or not yet i guess should handle a sexual harassment and other harassment type situations that might occur in the workplace and then we talked about tort and criminal claims toward and criminal claims are especially important in harassment cases but they sometimes are important in other title vii type cases but certainly they are of very significance very great significance in harassment cases so let's look at some management tips that we may have gleaned from what we've talked about so it's really important to have an anti-sexual harassment policy and again your policy you're going to want to be broader than just sexual harassment you want to have an anti-harassment policy generally and perhaps most important you want to follow it you need to have your managers and your supervisors be true believers in it then there needs to be a culture within the organization that a sexual harassment and even titillating or flirtatious behavior is just not okay and leaders in the company need to model that behavior if leaders are swearing or they're using off-color comments then people down the line are going to feel like that's okay for them to do and then they might do a little bit more and so you need to create that environment where that's just not even a possibility nobody even feels that that would ever happen we'd ever have sexual harassment and you want to be sure that everyone knows how to effectively report harassment type situations consider posters putting them in handbooks having them be part of the annual training and also just make sure there's open communication people are going to be willing to make complaints when they feel that it's a safe environment to make complaints and one of the ways to do that is to have an open door policy where people feel like hey i've got a concern i can talk to my boss or my boss's boss about that this is a safe place and so that involves uh having people who are approachable who um there's a philosophy walk and manage by walking around manage by walking around the idea being you got to know people you got to see people not just in the crisis situations but in the everyday world you ought to know that bob just got married oh hey bob how's the how's married life treating you yeah i don't know that sally just you know adopted the child hey congratulations on that sally how is how does the baby do or you know whatever the situation is you know people you have a comfortable relationship with people and that can make it much more comfortable for the bombs inside the world to raise concerns when they do happen you need to take all complaints seriously just because that person is a reputation being a troublemaker doesn't mean that sexual harassment didn't happen you need to have that prompt within 24 hours harassment you need to limit information to just those who need to know you need to make sure that the consequences are proportionate i guess this is where i talk about you don't want to use the term harassment um because that's a legal term so that's what i was talking about before i can find you want to follow up with the victims and the complainers to make sure the problem has not reoccurred it's also probably not a good idea to talk to the alleged harasser hey bob again confidentially respectfully hey bob just wanted to touch base with you make sure everything's going okay um you know i just want to make sure that you're you're still on board with our policy on sexual harassment and document those conversations watch out especially in male dominated jobs if there is an anti-female animus and certainly in female me dominating jobs there can be anti-male animus and that's equally unacceptable and of course you want to have a working workplace that is friendly that is open and that is professional and that is some of your best protection against sexual harassment thank you so much for following this presentation i hope that has been helpful for you if you have any questions please don't hesitate to contact me reach out to me i'd be glad to talk to you in more detail about this thanks for your attention and i hope you have a wonderful day take care