Copyright © 2018 by Strategic Labor & Human Resources, LLC. All rights reserved. Not for quotation,
duplication, distribution or attribution without the express permission of the author.
Sexual Harassment in the Work Place
SHRM at WSUFebruary 28, 2018
Presented byRobert Chiaravalli, Esq.
&Kathy Chiaravalli
Strategic Labor & Human Resourceswww.HRStrategy.biz
This information is general in nature and should not be construed as legal advice, nor the formation of a lawyer/client
relationship. Persons are encouraged to seek independent counsel for advice regarding their individual legal concerns.
#MeToo Ubiquitous
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Ford tackled a factory
harassment culture
before. Why is it still
happening?
Dec 22, 2017 6:40 pm
EST PBS Newshour
RBG – Sundance 2018
THE SALT
Allegations Against
Celebrity Chefs
Reveal Abuse In
The Restaurant
Industry
Under cover of darkness, female janitors face rape and
assault
#MeToo Brief History
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Date What
20-JanWomens March
8-FebAnd yet she persisted
19-Feb Former Uber engineer Susan Fowler publishes a blog
19-Apr Fox fires Bill O'Rielly
15-Aug Taylor Swift wins suit against DJ who grabbed her butt
14-SepThree women file class action against Google for pay discrimination
19-Sep Ellen Pao v Kleiner Perkins
5-OctNY Times reports Weinstein
16-OctAlyssa Milano starts #MeToo on facebook18-OctAmazon's Roy Price Resigns
9-NovKeven Spacey replaced
10-Nov Louis CK alleged
16-NovAl Franken accused
21-NovRoy Moore defended by Trump
29-NovGarrison Keillor fired
29-NovMatt Lauer fired
4-DecWomen in film hotline established
6-Dec The Silence Broken by Time
Incidence of Harassment by Type
0 20 40 60 80 100
Sexual Assault
Unwanted Genital Flashing
Being Physically Followed
Cybersexual Harassment
Unwelcomed Sexual Touching
Verbal Sexual Harassment
Men
Women
Source: Stop Street Harassment, as reported in NPR February 21, 2018.
First Experience of Harassment
0 5 10 15 20 25 30
Don't Recall
> 40 years
31 to 40 years
23 to 30 years
18 to 22 years
14 to 17 years
11 to 13 years
6 to 10 years
0 to 5 years
Men
Women
Source: Stop Street Harassment, as reported in NPR February 21, 2018.
#MeToo Movement
Source: American Management Association Survey of 3,247 Executives, Managers, and Professionals, December 2017, as reported in WSJ, January 25, 2018.
Percent of People Who Have Been Direct Victim of Sexual Harassment At Work
12
51
0 10 20 30 40 50 60
Men
Women
Direct Victim in the Work Place
#MeToo Movement
38
51
0 10 20 30 40 50 60
Men
Women
Witnessed Harassment
Source: American Management Association Survey of 3,247 Executives, Managers, and Professionals, December 2017, as reported in WSJ, January 25, 2018.
Percent of People Who Witnessed Sexual Harassment At Work
#MeToo Movement
12
24
0 5 10 15 20 25 30
Men
Women
Uncomfortable Reporting
Source: American Management Association Survey of 3,247 Executives, Managers, and Professionals, December 2017, as reported in WSJ, January 25, 2018.
Percent of People Uncomfortable to Report Sexual Harassment
At Work
SHRM 2018
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
#MeToo Movement
0 10 20 30 40 50 60
Shame or Shared Blame
Fear of Retribution
Won't Result in Any Action
Avoid Creating a Fuss
Reasons for Not Reporting by Percent
Source: Fairygodboss survey, November 2017, as reported in WSJ, January 25, 2018.
Overview
� Quid Pro Quo
� Hostile Environment
� Reasonable Person
� Severity and Pervasiveness
� Unwelcomed
� Liability
� Retaliation
� Prevention, Investigation and Correction of Harassment
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Sexual Harassment Is Illegal
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
� Civil Rights Act of 1964, Title VII
� Civil Rights Act amendments
� Affirmed and Expanded in Court Decisions
� Enforce by the EECO
Stakeholders
� Employers
� Employees
� Unions
� Schools
� Hospitals
� Patients
� Visitors
� Vendors
� Regulatory Agencies
� Courts
� Media
� Investors
� Military
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Forms of Harassment
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
� Quid pro quo
� Hostile work environment
Quid Pro Quo
� An exchange that involves sexual conduct
� Supervisory Conduct
� Express or Implied
� Adverse Employment Action
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Hostile Work Environment
� By definition, an illegal hostile work environment is:
Discriminatory or sexual conduct that is 1. unwelcome, and, 2. severe or pervasive enough to interfere with work, and, 3. the employer knew or should have known about the conduct and failed to take effective corrective action
� Does not necessarily involve an exchange, but is evidence that the environment involves words and deeds regarding illegal sexual conduct or sex-related subjects that are unwelcome
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Hostile WorkEnvironment
� Applied to conduct of supervisors, coworkers, vendors, etc.
� Offensive to victims and has a “reasonable person” standard for judging the words or deeds
� Involves degrees of severity and pervasiveness
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
� Show #That’s Harassment Video Clip
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Retaliation
� Companies may not retaliate against employees that
� Are alleged or actual victims
�Make a claim
�Oppose illegal activity
� Exercise a legal right
� Refuse of violate the law
�Whistleblow
� Assist in an investigation
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Company Duty
� In most cases, develop a written policy
� Encourage reporting
� Prompt and thorough investigation
� Prompt remedial action
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
HR’s Compliance Duty
� Policy
� Procedure
� Licensing Standards of Behavior
� Regulatory or Governmental Standards
� Law
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Common Mistakes
� Suffer in silence
� Denial of inappropriate or illegal conduct
� Harmless work place joking
� Part of the job
� Stereotypes
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Liability
� Company liability for acts of supervisors
� Company Liability for acts of non-supervisors where the company knew or should have known and did nothing
� Personal liability
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Impact of Our Conduct
Non-Compliance
� People Feel Disrespect
� Employee Distrust and Disengagement
� Lessened Public Distrust
� Lessened Safety and Security
� High Litigation Cost
Compliance
� People Feel Respect
� Employee Trust and Engagement
� Enhanced Public Trust
� Enhanced Safety and Security
� Low Litigation Cost
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Risk Management
� Eliminate or Reduce Non-Compliance
� Develop Effective Policies and Practices
� Train
� Ensure Proper Documentation and Record Keeping
� Remediate Non-compliance Timely
� Use Friendly and Professional Approaches
� Perform Regular Periodic Reviews and Audits
� Work Closely with Compliance Office
� Read and Understand The Company Plan Compliance Policy
� When in Doubt Ask
� Use formal and informal indicators
� Assume Higher Levels of Scrutiny
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Investigation Considerations
� Who should do the investigation?
� What is the investigative strategy?
� Internal
� External
�Due process
�Completeness
� How should the investigation be done?
� What is the investigative authority?
� How do you treat confidentiality
�Right to know
�Need to know
� Issues of defamation
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Trends
LGBTQIA
� Identify Pitfalls Involving Transgender Transitioning
� Determine the Difference Between Sexual Harassment, Discrimination, and Stereotyping
� Ensure Compliance with the Duty of Confidentiality
� Where Appropriate LGBTQIA-related training
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Trends
� Harassment by EMOJI
� Traditional evidentiary standard of review for hostile work environment to a non-traditional trend
� Severity
� Pervasiveness
� Unwelcome
� Emoji’s are a fast growing language.
� Ninety-two percent of worldwide mobile messages during 2016
� Seventy-one percent of texts/messages in USA
Source: Polls by Harris 2017 and Emogi Technologies 2016, as reported in Workforce, January/February 2018.
Is There a New Role for HR?
� Is HR an advocate?
� Is HR a neutral?
� Is HR an investigator?
� At what level of the organization are HR roles?
� Is HR a policy maker?
� Is HR a risk manager?
Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.
Thank You
Robert Chiaravalli, Esq.
And
Kathy Chiaravalli
Strategic Labor & Human Resources, LLC
www.HRStrategy.biz