July 18th, 2009 at 01:23am
Under Sexual Harassment
Sexual Harassment Policy Guidelines – Part IPermission is hereby granted to modify and use the information in this draft sexual harassment guideline, provided you include reference to the author as shown at the end.We shall take all reasonable steps to see that this sexual harassment policy is followed everyone in our organization who has contact with employees. This prevention plan will include training sessions, ongoing monitoring of the work site and a confidential employee survey to be conducted and evaluated each year. Sexual harassment refers to all types of unwanted sexual attention. Sexual harassment does not mean occasional compliments of a socially acceptable nature. Sexual harassment refers to conduct which is offensive to the individual, which harms morale, and which interferes with the accomplishment of our organization mission. This includes pressure to provide sexual favors, and offensive, intimidating comments or actions concerning one’s gender or sexual orientation. Four basic types of sexual harassment:1. Verbal harassment: Sexually suggestive comments, e.g., about a person’s clothing, body, and/or sexual activities; sexually provocative compliments about a person’s clothes or the way their clothes fit; comments of a sexual nature about weight, body shape, size, or figure; comments or questions about the sensuality of a person, or his/her spouse or significant other; repeated unsolicited propositions for dates and/or sexual intercourse; pseudo-medical advice such as “you might be feeling bad because you didn’t get enough” or “A little Tender Loving Care (TLC) will cure your ailments”; continuous idle chatter of a sexual nature and graphic sexual descriptions; telephone calls of a sexual nature; derogatory comments or slurs; verbal abuse or threats; sexual jokes; suggestive or insulting sounds such as whistling, wolf-calls, or kissing sounds; homophobic insults.2. Physical harassment: Sexual gestures, e.g., licking lips or teeth, holding or eating food provocatively, and lewd gestures such as hand or sign language to denote sexual activity; sexual looks such as leering and ogling with suggestive overtones; sexual innuendoes; cornering, impeding or blocking movement, or any physical interference with normal work or movement; touching that is inappropriate in the workplace such as patting, pinching, stroking, or brushing up against the body, mauling, attempted or actual kissing or fondling; assault, coerced sexual intercourse, attempted rape or rape.3. Visual harassment: Showing and distributing derogatory or pornographic posters, cartoons, drawings, books or magazines. 4. Sexual favors: Persistent pressure for dates, unwanted sexual advances that condition an employment benefit upon an exchange of sexual favors.It is not permissible to suggest, threaten or imply that failure to accept a request for a date or sexual intimacy will affect an employee’s job prospects. For example, it is forbidden either to imply or actually withhold support for an appointment, promotion or change of assignment or suggest that a poor performance report will be given because an employee has declined a personal proposition. Also, offering benefits such as promotions, favorable performance evaluations, favorable assigned duties or shifts, recommendations or reclassifications in exchange for sexual favors is forbidden. Any employee found to have violated this policy shall be subject to appropriate disciplinary action according to the findings of the complaint investigation. If an investigation reveals that sexual harassment has occurred, the harasser may also be held legally liable for his or her actions under provincial and federal law. Anyone making a false claim of sexual harassment will also be subject to disciplinary action.Any employee bringing a sexual harassment complaint or assisting in investigating such a complaint will not be adversely affected in terms and conditions of employment, or discriminated against or discharge because of the compliant. Complaints of such retaliation will be promptly and thoroughly investigated.Sexual harassment can occur in any situation, but is especially common in situations where there is a power imbalance between the perpetrator and the victim, due to gender, race, sexual orientation, status or rank differences. Sexual harassment, however, can also occur between peers. Both women and men can be victims of sexual harassment, although it is most common for women to be harassed by men. Sexual harassment also occurs between members of the same sex. Sexual harassment differs from healthy sexual attraction because it is unwelcome and unsolicited. Sexual conduct becomes unlawful only when it is unwelcome. The challenged conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive. NOTE: An employee who was previously involved in a mutual consenting intimate relationship with another person maintains his or her entitlement to protection from sexual harassment, but s/he should inform the other party that any further sexual advances are unwelcome. Sexual harassment degrades all persons and creates a hostile work environment. It is extremely costly for employers as well as damaging to employees. The effects of sexual harassment on the complainant may include loss of self-confidence and self-esteem, physical symptoms of stress, diminished work productivity, and low morale.To fight sexual harassment, remember four tactics: confront, report, document, and support. CONFRONT the harasser. Say No Clearly. Inform the harasser that their attentions are unwanted. Make clear you find the behavior offensive. If it persists, write a memo to the harasser asking them to stop; keep a copy. REPORT the problem immediately, verbally and/or in writing directly to your supervisor, or to the supervisor of the accused, and to your union steward. Our door is always open and anyone who has been harassed or thinks harassment is occurring, can seek our confidential advice. We will speak with the accused at your request and inform them about illegal conduct and its consequences. We have a zero-tolerance policy for sexual harassment. If the incident is confirmed, the offending employee faces the following possible sanctions: verbal or written reprimand, negative evaluation, denial of promotion, poor recommendations, suspension, demotion, forced resignation, and termination. We will make every effort to create an atmosphere of comfort for recipients of sexual harassment to request assistance in the resolution of complaints, but at the same time we will also protect the rights of the accused until proven guilty. Note: A single sexual advance, unless severe, may not constitute harassment unless it is linked to the granting or denial of employment or employment benefits. The unwelcome, intentional touching of a person’s intimate body areas is sufficiently offensive to be considered severe, and even a single incident can be considered as harassment. Asking someone for a date is not considered severe. But a repetitive series of non-severe incidents will be considered harassment if the offender was told to stop. It is important for the victim to communicate that the conduct is unwelcome, particularly when the alleged harasser may have some reason to believe that the advance may be welcomed such as a previous consenting relationship.SEXUAL POLLUTIONThere are some acts perceived by the recipient to have a “sexual nature” that are offensive and annoying, but may not be sexual harassment. These offensive behaviors in the workplace pollute the working environment. Therefore, these acts have been labeled sexual pollution. Sexual pollution has the potential of becoming a sexually harassing act. It is an offensive act and should be considered improper. Examples of sexual pollution are: continuous “pet” name calling, such as “baby,” “sweetie, “or ” honey”; referring to an individual as a “hunk,” “fox,” or “broad”; referring to men in general as “dogs,” “swine,” or to women as “bitches,” “wenches, ” or “chicks”; remarks of a sexual nature, open displays of written and pictorial erotica, or nude photographs or posters (such as a nude magazine centerfold) in the workplace, and continuous gift giving with the intention of getting sexual favors in return.A single act of sexual pollution by itself may not constitute sexual harassment. However, continuous acts with the appearance of a sexual nature probably would be. The “reasonable person” standard will be used to determine if it is or not.DOCUMENT the harassment. While the incident is still fresh in your mind, write down what happened, where, when, and how you responded, if possible, word for word. Include the names of witnesses, if any. Keep notes in a journal or notebook to show a continuous record. Send a dated, certified, return-receipt letter to the harasser, asking that the harassment stop, and keep a copy for yourself. Use your telephone answering machine to tape phone calls from the harasser, and save phone messages that are left for you. Keep the records in a safe place, away from work. Documentation will be essential if you must defend yourself in court or before an administrative hearing panel. Document your work. Keep copies of performance evaluations and memos that attest to the quality of your work. The harasser may question your job performance in order to justify his behavior. SEEK SUPPORT from others. Talk to a friend, colleague, or relative, an organized group, or counselor, and your supervisor or someone in personnel that you trust. Not only will you benefit, you may learn of others who have had similar experiences who can offer strategies for dealing with the harassment and support. Look for witnesses and other victims. You may not be the first person who has been mistreated by this individual. Ask around discretely; you may find others who will support your charge. Two accusations are much harder to ignore. Get the union steward involved right away.REMEDIES AVAILABLE TO VICTIMS OF SEXUAL HARASSMENTIf you have been discriminated against on the basis of sex, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay and other remuneration. You may also be entitled to damages to compensate you for future pecuniary losses, mental anguish and inconvenience. Punitive damages may be available, as well, if an employer acted with malice or reckless indifference. You may also be entitled to attorney’s fees.ARE YOU THE HARASSER?Those accused of sexual harassment are often surprised to learn how their behavior is perceived by those who feel victimized by such behavior. • Review your attitudes and actions toward others. Examine how others respond to what you do and say. Is your behavior sex-neutral and bias-free?• Imagine yourself a victim of unwelcome sexual attention by someone having control over your career or livelihood. • Consider the impact you have on other’s attitudes toward their work and self-esteem. • Do not assume that your colleagues, peers or employees enjoy sexually oriented comments about their appearance, or being touched or stared at. • Do not assume that others will tell you if they are offended or harassed by what you say or do. • Be aware of other’s feelings and responses to sexual harassment. Could your behavior cause others to experience the vulnerability, powerlessness, and anger described by victims?Permission is hereby granted for you to modify and use the information in this article provided that you include a reference as follows: Original document created by Al Link (4 Freedoms Relationship Tantra)
July 15th, 2009 at 03:01am
Under Uncategorized
SEXUAL PREJUDICE AND HARASSMENT, GENDER EQUALITY AND OPPORTUNITIES –AND WORKPLACE SEX DISCRIMINATION(Based on author’s site www.geocities.com/sxdsc)
Legislation which, except in specific exceptional circumstances, prohibit discriminating against one on the ground of one’s sex is not limited to but most often becomes involved in relation to or in the course employment, in, e.g., recruitment, job selection, terms and conditions of employment, training and promotion, and pay -including in the form of fringe benefits and redundancy pay and pensions.
In law, discrimination can be direct or indirect -or as harassment or victimization.
The law expects employers to have specific policies to ensure in all respects non-discriminatory treatment of all their employees of either gender or transgender -whether male or female and regardless of the marital status of men or women in their employ, and neglect or recklessness by the employer may make in law the employers (including vicariously) liable for sex discrimination or sexual harassment.
Sex discrimination is, simply, subjecting to less favourable treatment a person because of that person’s sex -because the person is boy or girl, is a man or a woman (including, in the case of female persons, whether pregnant, expecting, or with a baby or children as covered by the equality and employment legislation, and also male persons in relation to paternity leave), or because of that person’s marital status -because that the person is married or single -mostly applicable to married women.
It is also unlawful sex discrimination if on the ground of one’s sex one is not paid equally for what the law calls ‘equal work’ ~which is not necessarily same work but also is work of equal value -in other words such work that is like work or work which cannot be argued in law reasonably not to be work that is rated as being equivalent work (Hayward -v- Canwell Laird Shipyards 1988).
‘Pay’ in the European Union in Article 119 of the Treaty of Rome is defined this as being the ordinary, basic, or minimum wage or salary or any other consideration, whether in cash or kind, which the worker receives, directly or indirectly, in respect of his [or her] employment from [the] employer -including any benefit involved in relation to after the employment ends ~such as concessions in respect of travel benefits following retirement (Garland -v- British Rail Engineering 1982) and early-retirement pension (Barber -v- Royal Exchange Assurance Groups 1990).
Sex discrimination can be ‘direct’, or ‘indirect’.
Direct sex discrimination would be, for example, if one is refused employment on the ground that the job traditionally is regarded as being ‘a man’s job’ or as being ‘a woman’s job’ (Baksha -v- Say 1977).
Indirect sex discrimination is by way of a requirement which without reasonable justification can not be or can less be met by the other sex ~for example if a job advertisement said that the position advertised persons of either sex could apply but unjustifiably stated that hand-bags or purses were not allowed to work or must wear perfume -in England under European Union Law’s definitions it was held that it was unlawful discrimination that in government employment the age limit for appointment to executive officer grade was 28 since many women in their 20s planned or had babies to look after (Price -v- Civil Service Commission 1978).
It is equally unlawful sex discrimination to segregate male and female sexes without reasonable justification in places of work, as it is also to victimize one because of applicable e.g. feminism or feminist activity or if is known or suspected to have made or be intending to make an allegation of having been subjected to sex discrimination or sexual harassment.
Sexual harassment at work sometimes may also be a criminal offence ~in Europe the EU Code of Practice defined it as being unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of a woman [or a man] at work -it is a detriment on the ground of one’s gender (it was unlawful for example for two male employees to have made frequently remarks which were suggestive to one of their female colleagues and to have brushed against her deliberately causing such unpleasantness as to have necessitated her requesting to be transferred to another post -Porcelli -v- Strathclyde Regional District Council 1980).
In Europe the member states of the European Union must have an Equal Opportunities Commission or its equivalent to regulate these under e.g. the Sex Discrimination Act 1975 (supplemented by the Equal Pay Act, Maternity and Parental Leave Regulations, Maternity and Paternity (Amendment) Regulations, EE (Sexual Orientation) Regulations -and in the Employment Rights Act and the Employment Relations Act).
The Equal Opportunities Commission must also to provide information and assistance -including legal representation subject to meeting specified criteria, to persons who wish to complain to a county court, or in the case of trainees or employees to an employment tribunal.
The complaints process includes, if the person alleging discrimination so chooses, serving a questionnaire on the alleged discriminator -requiring to related questions written answers ~it may be used in evidence and inference be drawn from failure to respond or vague or ambiguous answers.
The person alleging discrimination may be, up to limits specified by law, in the case of the industrial / employment tribunals, ordered to pay costs, if the allegation proves to be unreasonably groundless, frivolous, or vexatious, and whereas financial remedy in respect of other matters is limited to a maximum, following a European Court of Justice confirmation there is, at the discretion of the tribunal, no limit on the amount of compensation which may be awarded for injury to feelings arising from sex discrimination in the workplace.
It is not unlawful sex discrimination, though, to discriminate in life or accident insurance risk assessment for employees fringe benefits justifiable by statistics, or in competitive sport if strength or stamina or physique matters -nor is it sex discrimination in employment if discrimination relates to, e.g., unadvertised managing of premises partly in one’s or relatives’ occupation, voluntary non-profit bodies or charities insignificant to other sex or statutory single sex colleges, or facilities which may embarrass men or women or would offend significantly a religion on grounds or privacy and decency.
Sex discrimination may be perfectly lawfully practised by employers, if there is an imbalance of male and female employees, without the dismissal of any by recruiting specifically from one sex alone, and in such cases as of necessity only from one particular sex must be recruited ~for example as in the case of a movie company’s advertising Edgar Rice Borough’s ‘Tarzan’ specifically for a male person or for his ‘Jane’ auditioning only female persons -or, e.g., in the case of a modelling agency employing as a fashion model only persons of one sex for modelling wear for that sex only.
Sex discrimination laws may vary in detail among countries that have such legislation, and in the European Union they are more or less uniform -in the case of allegations of discrimination in education in England (whether one does or not settle through the Advisory Conciliation and Arbitration Service -ACAS) with a requirement within a specified time before taking legal action to inform the secretary of state for education.(Laws change –always ascertain current law)The author has a website at: http://www.geocities.com/eoa_uk
July 14th, 2009 at 08:56pm
Under Construction Law
EMPLOYMENT LAW BASICS FOR HAWAII EMPLOYERS: ILLINOIS RULING HIGHLIGHTS THE IMPORTANCE OF POLICIES AND TRAINING TO HAWAII EMPLOYERS
It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with “immediate (or successively higher) authority over the employee.” However, in cases where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.
Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence. Also important is effective supervisory training and training of employees on the harassment policy and complaint procedure.
Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378. State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors.
While the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant.
The April 16, 2009 Illinois decision will certainly be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation. Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.
I. The Importance of Having an Effective Harassment Policy
A. The Faragher/Ellerth Defense
Having an effective sexual harassment policy and training program will greatly increase the chance of avoiding liability under the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (“Faragher”) and Burlington Industries v. Ellerth, 523 U.S. 742 (1998) (“Ellerth”).
Where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm. “A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.” Ellerth, supra.
The importance of the Faragher/Ellerth defense was significantly increased by the U.S. Supreme Court’s decision in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.
A zero-tolerance harassment policy must fit the environment and employees. The Ellerth court stated:
While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it … [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.
Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense.
B. Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure.
(1) Write in simple English.
(2) Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.
(3) State the company’s “zero-tolerance” philosophy in the policy regarding all forms of harassment,
(4) Designate at least two specially trained managers who will be responsible for investigating harassment complaints for the company.
(5) Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders.
(6) Provide a “clear chain of communication,” allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and consider having a toll-free number employees can call.
(7) State that employees who report prohibited conduct will be protected from retaliation.
(8) State that the employer will promptly investigate the matter in an objective and discrete manner.
(9) Provide the form of disciplinary action to which offenders can expect to be subjected.
(10) State that the employer will also take remedial action.
(11) Train your management employees and line employees on the policy and procedure.
(12) Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy.
C. The Faragher/Ellerth Defense and Hawaii Law
Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in virtually all aspects of employment. However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense.
Currently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken:
§12-46-109 Sexual harassment.
(a) Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when:
(1) Submission to that conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or
(2) Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or
(3) That conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
(b) In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.
(c) An employer shall be responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisory or agency capacity.
(d) With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee’s failure to give such notice may not be an affirmative defense.
D. Problem Areas for Employers
* Inadequate complaint procedure
* Failure to disseminate policy
* Employer on notice of harassment
* Failure to promptly investigate
* Failure to take appropriate disciplinary action
* Failure to apply it even-handedly
* Failure to review and revise when necessary
* Failure to provide training
E. Illinois Supreme Court Decision a Foreshadowing of Hawaii Law?
In Sangamon Cty Sheriff’s Dep’t v. The Illinois Human Rights Comm’n, Nos. 105517, 105518 cons. (Ill. Apr. 16, 2009), decided on April 16, 2009, the Illinois Supreme Court gave the HCRC direct support of the HCRC’s own interpretation of HRS Chapter 378.
The Sangamon decision holds Illinois employers strictly liable for sexual harassment by any of their management or supervisory personnel, and, as noted by the dissent, “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”
In that case employee Feleccia filed a sexual harassment claim against employer Sangamon County Sheriff’s Department and Ron Yanor, who was a supervisor, but was not Feleccia’s direct supervisor. The Illinois Human Rights Commission ruled that the Sheriff’s Department was strictly liable for Yanor’s conduct under the Act because Yanor was a supervisor. The Illinois appellate court reversed, and Feleccia and the Commission appealed to the Illinois Supreme Court.
The Illinois Supreme Court reversed and confirmed the Commission’s decision. In a 4-2 ruling, the Illinois Supreme Court agreed that the Sheriff’s Department could be held strictly liable in such circumstances. The basis of the decision was the plain and ordinary meaning of the statute, which states that “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”
According to the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability standard. As such, the Court found “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.” The Court rejected the employer’s argument that federal case law should apply to the case.
II. The Importance of Conducting EEO Training
Of course, in Hawaii the HCRC has merely interpreted HRS Chapter 378’s statutory language to impose strict liability for supervisory harassment. Unlike the Illinois statute interpreted by the Illinois Supreme Court it is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward.
Nevertheless, the HCRC is charged with the interpretation and enforcement of HRS Chapter 378 and it does not bode well for Hawaii employers that another state’s high court is willing to impose what some would consider harsh penalties on the employer defendant. Accordingly, employers in Hawaii should redouble its efforts to train supervisors AND employees regularly on preventing discrimination and harassment in the workplace. Training should include the consequences of violating company policy.
Training employees reduces the likelihood that inappropriate conduct will be engaged in or tolerated at a level that can create a hostile environment. See Arquero v. Hilton Hawaiian Village, 104 Hawai’i 423, 91 P.3d 505 (2004) (coworker pinched buttocks of the plaintiff on two occasions); Nelson v. University of Hawai’i, 97 Hawai’i 376, 38 P.3d 95 (2001) (verbal harassment).
Second, in the event that inappropriate conduct takes place, employees who are offended will be substantially more likely to use the employer’s complaint procedure, thereby permitting the employer to remedy the situation and avoid having a lawsuit filed against it.
Lastly, training is a tool for prevention and reducing the potential of supervisory harassment.
A. Training as a Tool for Prevention
The EEOC’s Policy Guidance on Sexual Harassment states:
An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result. Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.
The HCRC regulations state that “prevention is the best tool for the elimination of sexual harassment. Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.” §12-46-109(g).
As part of its settlements against employers, the EEOC and HCRC have chosen mandatory training as one of its primary responses through the use of consent decrees requiring organizations to conduct training and ensure policy compliance.
In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to conduct compulsory sexual harassment training for all of its supervisory employees by January of 2006, thus supporting the EEOC and HCRC’s position that training and education is the best tool for prevention. Under the California law, the training must re-occur every two years, and all new supervisors brought in after the original round of training must go through the program within six months of their arrival.
Managers who are aware of the implications of sexual harassment may be less likely to take official action they realize will create vicarious liability for the organization – this may preserve the employer’s right to the Faragher/Ellerth affirmative defense in a case of constructive discharge. Further, managers who are aware of how to proceed with complaints from employees about harassment are more likely to intervene with an appropriate employer response thus making a stronger showing under the first prong of the Faragher/Ellerth affirmative defense.
Finally, as noted throughout this article training can be an effective tool to combat inappropriate behavior by supervisors and to reduce risks under state law—especially to the extent it is interpreted similar to the Illinois Supreme Court’s decision.
B. Training and the Faragher/Ellerth Defense
Conducting training will greatly increase the chance of avoiding liability under the Faragher/Ellerth affirmative defense. The importance of this defense was significantly increased by the Suders decision, which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.
The training of rank and file employees should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.
C. Training and Damages Issues Under Hawaii Law
Generally, individuals cannot be found liable for violations under federal law. Under Hawaii law, however, courts may award unlimited punitive and compensatory damages.
Significantly, unlike under Title VII individuals can be held liable for violations of Hawaii’s Employment Practices Act. See HRS §378-1 (defining “employer” to include “any person”) and §378-2 (3) (making it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”); Schefke v. Reliable Collection Agency, 96 Hawai’i 408; 32 P.3d 52, 93-94 (2001) (holding individuals may be found liable under Hawai’i Employment Practices law).
Thus, training employees may alert them to the financial risks they take when they engage in behaviors prohibited by Hawaii law.
D. Training to Reduce Exposure to Punitive Damages
In Kolstad v. American Dental Association, the Court held that “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’” Accordingly, compliance efforts are both necessary and sufficient to avoid liability for punitive damages.
Roman Amaguin, Esq.; http://www.virtualhawaiiemploymentlawyer.com; http://www.amaguinlaw.com
Roman Amaguin, Esq. is a employment law lawyer in Hawaii who also regularly practices in the areas of labor law and civil litigation. Mr. Amaguin regularly appears in regularly appears before all federal and state courts in Hawaii, as well as state and federal administrative agencies such as the U.S. EEOC and Hawaii Civil Rights Commission. He understands now is the time for the legal profession to reconsider the manner in which it provides services to the community. Accordingly, flat rate projects and other alternative fee arrangements are always explored with his clients.
Mr. Amaguin litigates a wide range of civil cases involving common law and statutory claims.
Visit his website at www.amaguinlaw.com