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Handling Harassment Complaints and Managing
the New Retaliation Standards Tips on Avoiding
Employment Lawsuits July 12, 2007Presented by
ACCs Nonprofit Organizations Committee
Sponsored by Pillsbury Winthrop Shaw Pittman
LLPAssociation of Corporate Counselwww.acc.com
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• Panel
• Julia Judish, Esq., is a member of Pillsbury
  Winthrop Shaw Pittman LLPs Employment practice
  group. Julia concentrates her practice on
  preventing employment problems and defending
  employment disputes. She counsels employers on
  all aspects of the employment relationship,
  regularly speaks and conducts trainings on
  employment law issues, and represents employers
  in state and federal court and before the EEOC
  and other agencies.
• Steve Garrett, Esq., will moderate the
  discussion. Steve is the Associate Vice
  President General Counsel of Texas AM Research
  Foundation.

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• Overview
• Our agenda today includes
• Understanding the contours of harassment law
• The new broader standard for retaliation claims
• How-to steps for responding to harassment
  complaints and reducing the risk of retaliation
  suits
• Special issues for non-profits
• liability issues relating to volunteers
• how to meet legal standards with small
  organization resources
• responding to claims against top officers.

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• Harassment Law
• Harassment is a form of illegal discrimination.
• Harassment claims are premised on mistreatment
  due to the protected status of the complainant
  e.g., race, religion, sex, age, disability,
  national origin, or any other status protected by
  law against discrimination.
• State and local laws often protect
  characteristics not covered by federal law
  e.g., sexual orientation, marital status.
• The same legal framework applies to any
  harassment complaint, with some additional issues
  arising in sexual harassment claims.

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• Different Tests
• The test for harassment depends on the factual
  circumstances
• The relationship of the alleged harasser and the
  complainant (e.g., supervisor or co-worker)
• Whether the harassment involves a tangible
  employment action (quid pro quo)
• Whether the harassment creates a hostile working
  environment.
• Employees can bring harassment claims based on
  conduct of volunteers, members, or other third
  parties, if it affects their working environment.

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• Quid Pro Quo Harassment
• Quid pro quo harassment consists of
• tangible employment actions
• implicitly or explicitly based on
• an employees acceptance or rejection of
• unwelcome sexual behavior.
• There is no defense to vicarious liability for
  employers against quid pro quo claims.

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• Hostile Work Environment
• An illegal hostile work environment consists of
• unwelcome
• verbal or physical conduct
• of a sexual nature or based on a protected status
• that is sufficiently severe or pervasive that it
• creates a hostile or offensive working
  environment (alters the terms and conditions of
  employment)
• for a reasonable person of the same
  characteristics of the complainant.

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• The Perspective of the Victim
• The hostile work environment test includes both a
  subjective and an objective element a ceiling
  and a floor for liability
• The conduct must be subjectively unwelcome to the
  complainant
• The conduct must be considered unwelcome by a
  reasonable person in the victims shoes
• Persons overhearing or observing interactions can
  claim harassment be aware of your unintended
  audience.
• The intent of the harasser is not determinative.

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• Affirmative Defense
• If a hostile work environment created by a
  supervisor is not paired with a tangible
  employment action, an employer can assert an
  affirmative defense to vicarious liability, if
• the employer took measures designed to prevent
  and correct harassment (e.g., a readily
  accessible and effective policy for reporting and
  resolving harassment complaints) and
• the employee unreasonably failed to avail herself
  of those measures or to avoid harm otherwise.

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• Sexual Harassment
• Both men and women are legally protected from
  sexual harassment
• Same-sex harassment is illegal if it is motivated
  by the victims gender
• Sexual harassment can be sexual in content (e.g.,
  sexual advances, touching, sexual comments) or
  can be free of sexual content but motivated by
  gender (e.g., male supervisor who bullies women
  harshly but not men).

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• Retaliation
• Employment laws protect employees from reprisal
  for raising or communicating an intent to raise
  an internal or external complaint of unlawful
  treatment.
• Internal complaints are protected if made in good
  faith, even if mistaken.
• Filing or assisting another in filing a charge
  with the government is fully protected.
• Participating in an investigation or other
  opposition to unlawful conduct is also protected,
  if done in a reasonable fashion.

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• Retaliation is the New Frontier of Claims
• A retaliation claim is now a component of a third
  of all EEOC charges over 22,000 retaliation
  charges were filed in FY 2006
• More retaliations claims are successful than the
  underlying claims of discrimination
• In June 2006, the U.S. Supreme Court broadened
  the standard for retaliation claims, in
  Burlington Northern Railroad v. White.

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• The New Standard
• Retaliation includes any action that is
  materially adverse to a reasonable employee or
  job applicant.
• Not all actions are material cannot immunize
  employees from those petty slights or minor
  annoyances that all employees experience.
• Unlike harassment, retaliation need not be
  related to employment or occur in the
  workplace.
• The test Would the action be likely to
  dissuade a reasonable worker from making or
  supporting a charge of discrimination?

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• No Bright-Line Rule
• Context matters.
• The same action (e.g., a one-hour shift in
  schedule) can be retaliatory for one employee but
  not for another. As in analyzing harassment
  claims, the court must place itself in the
  position of the affected employee.
• Causation remains key is the action because of
  the protected conduct?

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• Controlling a Natural Response
• Retaliation is not necessarily nefarious in
  intent it is a natural reaction to a perceived
  troublemaker.
• Many complaints of unlawful treatment are either
  mistaken or the best defense is a good offense
  approach to criticism by a supervisor.
• Fear of future false accusations leads to
  isolating or taking adverse action against the
  complainant acts that may dissuade future
  complaints.
• Those accused must be made to understand that
  reprisal will not be tolerated, even if they were
  innocent of the original complaint.

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• Basic Prevention Steps
• Adopt and publicize policies against harassment
  and retaliation.
• Adopt and use a complaint procedure, with
  multiple reporting options.
• Mandate that supervisors inform Human Resources
  of reported or witnessed incidents of harassment
  or discrimination.
• Train all employees about harassment and
  discrimination law and about your policies and
  complaint procedures.

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• When a Complaint is Made
• Promptly investigate all complaints, even if the
  alleged victim has left the organization.
• Decide who should conduct the investigation
  Human Resources, the General Counsel, outside
  counsel?
• Document all interviews and have interviewed
  employees review and attest to the accuracy of
  summary. Consider having a witness take notes.
• Keep allegations confidential to the extent
  practicable but never promise absolute
  confidentiality.

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• When a Complaint is Made, contd
• Preserve and review all relevant records (e.g.,
  appraisals, e-mails), as federal law requires
  preservation of evidence relevant to a potential
  claim of which you have notice.
• Take appropriate corrective action, if wrongdoing
  is found.
• Document findings.
• Ensure independent review of all subsequent
  personnel actions involving complainant to ward
  against retaliation.

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• Special Issues Volunteers
• Employers have a duty to protect their employees
  from a hostile work environment, even if that
  environment is caused by non-employees whom they
  encounter on the job (e.g., vendors, members,
  volunteer officers).
• Liability issue is a negligence standard did the
  organization take reasonable measures to prevent
  and correct harassment?
• Organization must be willing to confront
  offender, even if it impacts organizations
  bottom line customer preference no defense for
  tolerating harassment or discrimination.

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• Special Issues Volunteers, contd
• Be aware of high risk situations for employees
  conferences often involve alcohol, overnight
  stays, relaxed business attitudes.
• Institute and enforce conduct guidelines for
  attendees and volunteers.
• Empower your employees to move away from or say
  no to uncomfortable situations.
• Train Board members and officers on harassment
  policy because they have authority in the
  organization, their conduct is viewed differently
  than lower status individuals.

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• Special Issues Small Organizations
• The same legal standards apply to small
  organizations as to large, but definition of
  reasonableness is context-dependent.
• Challenges common to small organizations include
  limited resources fewer options for realigning
  problematic relationships more relaxed conduct
  standards identifying neutral recipient of
  complaints.
• Workplace norms are not a defense to a hostile
  work environment claim, except in rare instances.

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• Special Issues Small Organizations, contd
• Ensure that complaint procedure includes person
  outside the organization (e.g., outside counsel,
  member of the Board).
• Dont let small problems mushroom because there
  a fewer alternatives to termination, it does no
  favors to let problems go unaddressed.
• Consider allowing anonymous complaints but only
  if enough detail is provided to conduct an
  investigation.

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• Special Issues Responding to Claims Against
  Leadership
• Adopt a whistleblower policy with outside
  reporting mechanism (Board committee, external
  hotline, outside counsel).
• Outside investigation is critical so results
  wont appear tainted.
• Ensure executive employment contracts have
  termination for cause provisions that include
  violations of organization policy.

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• Questions?

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