Preventing Workplace Harassment November 2014

Preventing Workplace Harassment

Presented by the Employee Assistance Program of the College of the Holy Cross Trainer: Martha Deering , MA, CAGS, CRC, LADC-I/CADC-II & Page Kohlhepp, JD, LICSW

Scope of Course • • • •

Workplace harassment Inappropriate conduct Sexual harassment Bullying

What Will We Learn? • Recognition o

Illegal harassment vs. inappropriate conduct

• Prevention o

• • • •

All types of harassment and inappropriate conduct

Know it when you see it. Know what to do about it. Understand your role. Know how and when to react to it.

What is Workplace Harassment? Conduct that degrades or shows hostility or aversion toward an individual because of his or her protected status, or that of his or her relatives, friends, or associates, and that: (1) Has the purpose or effect of creating an intimidating, hostile, or offensive work/education environment; (2) Has the purpose or effect of unreasonably interfering with an individual’s work/academic performance; or (3) Otherwise adversely affects an individual’s employment/education opportunity

Workplace Harassment • Must be subjectively and objectively offensive to a reasonable person • Must be severe and pervasive • Employee/student need not communicate objection to demonstrate its unwelcomeness. Employee’s/student’s rejection of or failure to respond positively may demonstrate unwelcomeness.

Workplace Harassment: Categories • Quid Pro Quo (usually involves power differential): o o o

o

o

Behavior is unwelcome Protected group/status Subjected to unlawful harassment based on sex or other protected status Harassment affected aspects/terms of employment/education – i.e., “fired”, “failed” Submission is used: • As term of employment /education • To make decisions that affect the employee/student

Workplace Harassment: Categories •

Environment (Hostile Work Place) [general] o

Environment is tainted with sex, gender based, and/or other protected status discrimination such that the terms, conditions or privileges of employment/education are adversely affected. • Unwelcome in nature • Gender or protected status was the cause of harassment • Had the effect/purpose of creating an intimidating, hostile, humiliating or sexually offensive work/education environment • Interfered with work/education; altered the terms or conditions of employment/education

Unpleasant Behavior is not Always Unlawful Discrimination • Individuals often use the phrase “hostile environment” to describe any condition they find unpleasant. • Law does not require work/school to be an “idyllic retreat”. • Threshold questions under law: o o

Are all employees/students treated consistently? If conditions are inconsistent, is inconsistency related to protected characteristic, such as race or sex?

Why Is Harassment Prohibited? • • • • •

Legal obligation College values, policies Reputation Morale Productivity

Legal Basis State and federal law prohibits employers from discriminating against employees based on their protected status/group:  Title VII of the Civil Rights Act of 1964 and 1991  Age Discrimination in Employment Act of 1967 (ADEA)  Americans with Disabilities Act of 1990 and 2008 (ADA)  Genetic Information Nondiscrimination Act of 2008(GINA)  Title IX of the Education Amendments of 1972 – recently updated – check your policies

Civil Rights Act of 1964/1991 • Title VII imposes a duty on employers to guard against harassment and to take effective steps when a violation of the Act occurs, such as proven, effective means by which an employee can report complaints. • Prompt action: hours, rather than days, and days, rather than weeks. • Sufficient awareness of the civil and private rights of the accused.

Title IX • Title IX of the Education Amendments of 1972 (revised 2014) prohibits discrimination on the basis of sex in education programs and activities receiving Federal financial assistance. Sexual harassment of students can be a form of discrimination prohibited by Title IX. • Requires written policies and wide dissemination of policies, training, specialized reporting • Applies to everyone on campus • Forbids retaliation • Requires Title IX Coordinator

Student-to-Student Issues • Students of all ages • Wide range of physical and verbal behaviors • School officials often uncertain when and how to respond • School Districts & Higher Education are being held responsible

Protected Categories Include: • Gender • Gender identity/ Transgender (state) • Sexual orientation (state) • Genetics • Race • Religion • Color • Ethnicity • Marital/pregnancy status

• • • • •

Age Disability National origin Military or veteran status Perception of any of the above

• Massachusetts Criminal Harassment Law

Discrimination Includes . . . • Treating employees/students differently with respect to any term or condition of employment/education based on their protected characteristic. • Harassing employees/students or allowing employees/students to be harassed based on their protected characteristic.

Sources . . . • • • •

Employee/Student Manual Policies: Sexual Harassment, Workplace Harassment, Bullying, Respectful Workplace, etc. Human Resources Department Deans, managers

Why Does Harassment Occur? •

Not about sex, religion, race, etc.

•

Abuse of power

•

Intimidation

Respectful Workplace Policy • “Holy Cross Prides itself as a community [where]… each individual is entitled to respectful treatment from others in an environment free from harassment. … The goal of this policy is … to transcend legal considerations and appeal to principles governing honorable behavior in a just and principled community. … Holy Cross seeks to build a community marked by freedom, mutual respect and civility…”

Holy Cross Sexual & Discriminatory Harassment Policy • “Each person has the right to work and be educated in an atmosphere that is free from discrimination and harassment… This policy is neither designed nor intended to limit the College’s authority to discipline or take remedial action for conduct which is deemed unacceptable, regardless of whether that conduct satisfies the legal definition off harassment.”

Where Does Bullying Fit in? • Bullying may/may not be inappropriate conduct. • Inappropriate conduct that may rise to the level of illegal conduct. • Core concept: Repeated, persistent, unwelcome, intrusive, health-threatening behavior of one person by another in work or work related circumstances. • Risk of being bullied: 1 in 6 o

Issues: No specific laws, few policies, denial, societal acceptance

Bullying Behaviors: Examples • Making threats about job security/grades with no basis • Constant criticism, especially unwarranted • Deliberately undermining through overloading, refusal to make equipment/information available • Silent treatment, isolation

Bullying Behaviors: Examples continued • Making up rules “on the fly” • Starting or failing to stop destructive rumors/gossip • Different rules for target • Screaming • Post complaint retaliation

MA Criminal Harassment Law G.L. c265, s43A • Willfully and maliciously • Pattern of conduct or series of acts directed at a specific person • OR one act that in force, threat or distress causes a person to involuntarily engage in sexual relations

• Seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress • Includes acts committed by mail, telephone, telephonic device, email and internet

An Act Relative to Harassment Prevention Orders (G.L. c. 258E) A new law that allows victims of stalking, sexual assault and/or harassment to obtain a harassment order against his/her perpetrator. • A victim is not required to pay a filing fee. • A victim does not need legal representation. • Victim must demonstrate “harassment”. • While obtaining the harassment order is a civil process, a violation of the harassment order is criminally enforceable. • No relationship with perpetrator is required.

What is Sexual Harassment? • Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: • (a) Submission to such conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment/education decisions or • (b) Such requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work/academic performance by creating an intimidating, hostile, humiliating, or sexually offensive work/academic environment.

Some Disturbing Statistics • 1993 Louis Harris & Associates study for the American Association of University Women (AAUW). • 1,632 field surveys - students, grades 8 -11, from 79 school systems across the U.S. • 81% had experienced some form of sexual harassment. • First sexual harassment experience was most likely to occur in the middle school/junior high school years. • The two most common forms of harassment were: o 1) sexual comments, jokes, gestures or looks o 2) being touched, grabbed, or pinched in a sexual way.

Disturbing Statistics • 2064 public school students • 83% of female students reported being sexually harassed during school career • 79% of male students reported being sexually harassed during school career • A recent similar survey of college students still showed almost 70% of students experienced some form of sexual harassment. ~ 2001 Louis Harris & Associates study for the American Association of University Women (AAUW).

Statistics • EEOC reports: • 15,000 claims of sexual harassment/year • 40-60% of women experience sexual harassment in the workplace • 16% of men report sexual harassment in the workplace

Levels of Sexual Harassment • • • • •

Gender harassment Seductive behavior Sexual bribery Sexual coercion Sexual imposition

What Is Involved in Sexual Harassment? • The harassment can be physical (touching, kissing), verbal (lewd jokes, sexual comments), and visual (pornographic materials). • The conduct must be sexual in nature. • The conduct must be severe and/or pervasive. • The conduct must be unwelcome. NOTE: An employee/student need not communicate objection to the conduct to demonstrate its unwelcomeness. • The conduct must be both subjectively and objectively offensive. • Can occur between or within genders.

What Is Involved in Sexual Harassment? • Conduct need not be motivated by sexual desire to be actionable. • Acceptance/submission is made explicitly or implicitly a term or condition of employment/education. • Individual’s response to conduct is used as a basis for decisions impacting the employee/student.

• The harasser: supervisor, supervisor in other area, coworker, professor, student, contractor, manager, nonemployee • Victim does not have to be the person targeted • Economic injury to the victim not required

What Determines If Conduct Is “Unwelcome”? • When the target says so! • Is there an equal level of initiation and participation in the behavior? • Can it be fairly said that there is equal economic power between the people involved?

Recognizing Harassment • VERBAL…… • Telling sexual stories or jokes and using “four-letter” obscenities. • Using such terms as sweetie, doll, honey, dearie, babe. • Making sexual comments and innuendoes about a person’s body or appearance. • Probing into a person’s sexual experience or preferences. • Making suggestive sounds or whistling at a person. • Stereotyping (older people lack energy, “they” are all stupid)

Avoiding Offensive Speech/Action • Would you say/do it in front of your spouse/domestic partner, parent or child? • Would you say/do it if you were going to be quoted in the paper? • Would you say/do it the same way, or behave the same way – regardless of the other’s protected status? • Why does it need to be said/done at all?

Nonverbal... • Leering and ogling suggestively at a person • Following a person or blocking their way • Showing a sexually explicit picture, cartoon or other visual • Making suggestive gestures or body movements • Sending unwanted notes or other written material • Giving unwanted personal gifts

Physical... • Touching a person’s clothing or hair • Massaging a person’s neck or shoulders • Leaning over, standing too close to, or brushing up against a person; invading their space • Kissing, caressing or pinching a person

Effects of Harassment, Sexual Harassment & Bullying Psychological Effects

Physiological Effects

Career-Related Effects

 Depression, anxiety, shock, denial  Anger, fear, frustration  Insecurity, embarrassment, betrayal  Confusion, powerlessness  Shame, selfconsciousness  Guilt, self-blame, isolation

 Headaches  Lethargy  Gastrointestinal distress  Dermatological reactions  Weight fluctuations  Sleep disturbances, nightmares  Phobias, panic reactionsSexual problems

 Decreased job satisfaction  Unfavorable performance evaluations  Loss of job promotion  Drop in academic or work performance due to stress  Absenteeism  Withdrawal from work or school

The employer….

Responsibility for Harassment Who’s Liable?

Managers/administrators, Deans, department heads, boards committees, etc. The Harasser…. employees, managers, faculty, students, supervisors, visitors, independent contractors, etc. Third Parties…. anyone aiding, abetting, inciting, compelling, coercing; or deliberate indifference

Personal Liability • The law holds individuals, as well as employers, liable for discrimination. • Holy Cross policies hold individuals responsible. • To determine if you acted in good faith, did you: • • •

•

Put the College’s interest ahead of individual interest? Follow College policy? Obtain your supervisor’s approval of a course of action? Consult College experts and follow their advice?

General Guidelines for Dealing With a Complaint : Supervisors • Listen to the complaint carefully without judging. Explain the process. • Protect privacy. • Document everything. • Allegation/claim ≠ fact • For violations, contact: o

o o

Supervisor Director of Human Resources X3391 Director of Administrative Services/Affirmative Action Officer X3423

General Guidelines - continued To file a complaint (formal/informal), contact: • Against students: o

Vice President for Student Affairs/Dean of Students X2414

• Against teaching faculty: o

Vice President for Academic Affairs/Dean of the College X2541

• Against administrators: o

Appropriate divisional contact – see policies (page 30) for more details

General Guidelines for Dealing With a Complaint: Harassment Officer • Listens to the complaint carefully without judging. • Explains the process. • Protects privacy. • Interviews accused party and relevant others. • Determines credibility of allegation and takes appropriate action.

• Documents the entire process. Does follow up. • Checks Harassment Policies for specifics. • Even where an organization may not be directly responsible for all harassing conduct, they are required to take appropriate responsive action.

What Can The Target Of Harassment Do? • Tell harasser to stop! • Be sure that you know your policies and procedures. • Report the harassment immediately to one of your Harassment/Bullying Officers. • Talk to a friend. • Document everything: o

Personal log, evidence, record of action taken, phone calls, witness statements

What Can The Target Of Harassment Do? • Know your rights under your policies, your state’s harassment/sexual harassment law, and the federal laws prohibiting harassment/sexual harassment. • Massachusetts Criminal Harassment (MGL c265, s43A) and Harassment Prevention (MGL c.258E) laws.

What Can The Target Of Harassment Do? • If warranted, file a complaint with: o

o

o

U.S. Equal Employment Opportunity Commission (EEOC – 300 days) JFK Federal Building, 475 Government Center, Boston, MA 02203 (800)669-4000 Massachusetts Commission Against Discrimination (MCAD- 6 months), 1 Ashburton Place, Boston, MA (617)994-6000 Office for Civil Rights, US Dept. of Education, 8th floor, 5 Post Office Square, Boston, MA 02109-3921 (617)289-0111

What Can We All Do to Prevent Harassment? • Respect differences. • Communicate concerns. • Never take the position that the anyone should simply learn to cope with or ignore the harassment!!

Situations

1. A female employee wears tight T-shirts, low cut jeans and jeans with revealing holes to work; some of her male peers make sexual comments and jokes about her. 2. A group of employees consisting of two women and four men have an on-site celebration at the end of the work day to celebrate a group member’s birthday. One of the men tells a joke with sexual overtones. Everyone laughs except one of the women, who is quite offended. When she says so, everyone tells her she is “too uptight” and she needs to “lighten up.”

3. An employee who is an immigrant from another country has reported that a group of employees consistently makes broad generalizations and uses phrases, the least offensive of which is, “You people,” when addressing him. He has asked them to address him by his name on several occasions. 4. A student uses his/her cell in public campus locations for graphic personal conversations about his/her intimate relationships. These conversations can be overheard by employees, students, and visitors.

5. An employee, new to the University, complains to a supervisor that another employee has been leaving suggestive notes and cartoons in his locker and in his work area. He states that he doesn’t want to involve Human Resources or upper management, and that he can handle the situation.

6. Jill and Mike, work study students, have jobs in your area. Both believe the manager treats them differently than the rest of the staff. The manager constantly points out their mistakes or criticizes them, while leaving alone others who make as many mistakes. The manager has yelled profanities at them in front of staff, students, and the public.

7. Josh was overweight as a child but is now in really good shape. Lori, his co-worker has said four times that he has a very nice butt. 8. A female employee confides in you that her new supervisor yells at her, leans over her, frequently tells her she is useless. Today, she learned that this supervisor has had similar behaviors with other employees, as well as students.

9. In a faculty lounge, a faculty member reportedly makes derogatory remarks about gays and lesbians, and has denounced gay marriages as “unnatural” and “against the laws of nature.” 10. Jim, a student intern, complains to the director that Hector, one of the supervisors, periodically rubs against him, simulating sex with his clothes on. Hector has done this with many of the young staff, both male and female. The director takes no action and says, “Oh, it’s just hazing, it’s just teasing, you can’t take it seriously. He does this with everyone.”

Always available. Always confidential.

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