R ELIGION , S EX AND P OLITICS , O H M Y ! H OW T O H ANDLE T OUGH S ITUATIONS W HILE E NCOURAGING D IVERSITY AND I NCLUSION November 15, 2017 SHRM Diversity & Inclusion Lunch and Learn
W HAT IS W ORKPLACE H ARASSMENT ?—N OT J UST S EX • Harassment is unwelcome conduct that is based on: • race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. • Harassment becomes unlawful where: • enduring the offensive conduct becomes a condition of continued employment. • the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. • the conduct alters the condition of employment. • What is Unwelcome? • Individual did not solicit or invite the conduct SHRM D&I L UNCH & LEARN • Individual regarded the conduct as undesirable N OVEMBER 14, 20 17
W HO IS I NVOLVED IN W ORKPLACE H ARASSMENT ? • Victims • Male or female • Different or same protected basis • Can be a third party • Harasser • Male, female, over 40, under 40, same or different race, etc. • Supervisor, co-worker or non-employee SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
T ANGIBLE E MPLOYMENT A CTIONS • Significant change in employment status • Tangible job benefits are granted/ denied based on submission/ rejection of unwelcome conduct. • Harasser is a supervisory/ managerial official • Employer always liable for tangible employment action harassment. SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
H OSTILE W ORK E NVIRONMENT • Does not result in a tangible employment action • Unreasonably interferes with an individual’s work performance, or • Creates an intimidating, hostile or offensive work environment • Any one can commit this type of harassment: supervisor, co-worker, non employee Liability depends on who is involved in the harassment: • Manager/ Supervisor • Co-worker • Third Party SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
H ARASSMENT : C OSTS IN THE W ORKPLACE • Quality of work • Depression & Anxiety • Cooperation • Litigation costs • Productivity • Physical Health • Loyalty • Customer complaints • Company reputation • Absenteeism • Morale • Turnover • Employee engagement • Revenge • Ability to meet goals • Wasted time • Bottom line $$ • Workers Comp Claims SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
T OP 5 E MPLOYMENT C HARGES F ILED WITH EEOC IN FY 20 16 • Retaliation : 42,018 (45.9 percent of all charges filed) • Race : 32,309 (35.3 percent) • Disability : 28,073 (30.7 percent) • Sex : 26,934 (29.4 percent) • Age : 20,857 (22.8 percent) SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
T OP 5 E MPLOYMENT C HARGES F ILED WITH THRC IN FY 20 16 • Harassm ent : 362 • Sexual Harassment: 52 • Intim idation : 342 • Discharge : 280 • Wages : 138 • Discipline : 106 SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
E LEMENTS OF R ETALIATION C LAIMS • Opposition to discrimination or participation in covered proceedings • Adverse action • Causal connection between the protected activity and the adverse action • Opposition to Practice • Opposition to practice believed to be unlawful discrimination • Informing an employer of believed discrimination (ex. Complaining of sexual harassment ). • Reasonable, good-faith belief that practice violated anti-discrimiantion laws • Manner of opposition is reasonable SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
A DVERSE A CTION • Action taken to keep som eone from : • Opposing a discriminatory practice • Participating in an employment discrimination proceeding • If the adverse action serves to deter the filing of complaints of discrimination it harms the public interest and will be closely scrutinized. SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
R ETALIATION • A bystander who speaks out or participates in intervening would be engaged in a protected activity and would be covered by the anti-retaliation provisions. • If an employer encourages bystanders to be proactive in responding to harassment should also recognize the risk of retaliation and expressly communicate to employees that bystanders will be protected from retaliation. SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
W HAT CAN E MPLOYERS D O ? • Bystander action in the workplace is successful when : • Strong leadership demonstrates harassment is not permitted • Employer actively promotes equality and respectful working relationships • Develop policies and guidelines for bystander action on harassment • Provide education and training • Create a work environment that encourages reporting of harassment: • No harassment permitted policy • Effective written complaint procedure that everyone knows about • Promptly responding to complaints and taking appropriate action • Ensuring retaliation does not occur • Monitor and evaluate bystander strategies SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
EEOC R ESOLUTIONS EEOC v . Resource Em p loy m ent Solutions, (N.D. MS, August 26, 20 16) EEOC alleged defendant, a temporary staffing company, failed to place, assign, and/ or refer Charging Party, a laborer, and a class of other Black and non-Hispanic employees because of their race and national origin; retaliated against Charging Party by not promoting her to team leader and then discharging or failing to assign her because she complained of discrimination. EEOC also alleged defendant failed to preserve records. Case resolved through a consent decree and with a payment of $435,000. Defendant agreed to injunctive relief enjoining it from discriminating or retaliating against any applicant or employee due to race or national origin and because they engaged in protected activity under Title VII. The injunction applies to defendant’s operations in Memphis and any operations at FedEx Smart Post n Southaven, MS during the 4 year term of the decree. SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
EEOC R ESOLUTIONS EEOC et a l v . SFI (W .D. Tenn. 20 16) EEOC sued defendant, a fabricator and supplier of steel products, alleging it discharged three Black employees from their positions (purchasing manager, supply chain specialist and supply chain expeditor) because of race. Case resolved by consent decree enjoining defendant, its managers, supervisory employees, and agents from discriminating against any employee because of his or her race and from retaliating against any applicant or employee because he or she opposed discrimination during its two year term. Defendant agrees to maintain records of complaints of race discrimination and to provide two reports to the Commission. Defendant paid the form employees $210,000. SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
EEOC R ESOLUTIONS EEOC et a l. v . Dolla r Genera l (e.d. Tenn 20 16) EEOC sued Defendant under the ADA. EEOC alleged Defendant failed to provide Charging Party, a lead sales associate, with a reasonable accommodation for her disability, diabetes, and discharged her for consuming juice prior to paying for it to prevent a hypoglycemic attack. Jury Verdict on September 16, 2016 Plaintiffs awarded $27,565.44 back pay and $250,000 in damages. Magistrate recommended court award plaintiff’s counsel $445,322.25 in attorney’s fees and $1,676.95 in litigation expenses. SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
EEOC R ESOLUTIONS EEOC et a l. v . Cov ena nt Tra nsp ort (E.D. Tenn. 20 16) EEOC sued trucking company after it failed to hire Charging Party as a commercial driver because of his disability, bladder extrophy. Company offered Charging Party a conditional offer of employment pending a urinalysis drug screen, but withdrew offer when he could not provide urine sample due to his condition. Case resolved for payment of $30,000. Charging party declined instatement. Consent decree requires Defendant to maintain records of any complaints of disability involving an applicant or employee alleging a failure to hire due to an inability for medical reasons to provide a urine sample. Defendant agreed to post a notice in the workplace for two years regarding the settlement. SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
H OT T OPICS Religion Politics Sex SHRM D&I L UNCH & LEARN N OVEMBER 14, 20 17
Q UESTIONS OR C OMMENTS ?
C ONTACT T ENNESSEE H UMAN R IGHTS C OMMISSION William R. Snodgrass Tennessee Tower 312 Rosa L. Parks Ave., 23 rd Floor Nashville, TN 37243 tn.gov/ hum anrights 800-251-3589 @TNHum anRights
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