Tag Archives: sexual harassment

Office Holiday Parties: Avoid Adding Your Company to the Naughty List

Harvey Weinstein, Kevin Spacey, Michael Oreskes, Brett Ratner, Louis C.K., Charlie Rose, and Matt Lauer are a few well-known names that have already appeared on the naughty list for 2017. Although the Mad Men days of the sexy secretary sitting on Santa’s lap (the boss’s lap) with his arms wrapped around her while both are drinking a dry martini SHOULD be a vestige of the past, there are those that believe that “keep your hands to yourself” does not apply to them.  And, there are those that understand the “hands-off” rule, yet when under the influence of alcohol, find their inhibitions on the copy room floor.

This year, with stories of sexual harassment and abuse dominating the news, it is more important than ever for employers to consider the potential risks associated with any planned celebration. Employers should keep in mind that office policies that are generally recognized in the workplace sometimes are forgotten when there is a party, especially a party with libations. A holiday office party can embolden inappropriate behavior, from simple innuendos to unwelcome touching that could lead to claims of sexual harassment. The office holiday party can be a quagmire of potential employment issues, even beyond sexual harassment. These issues can include claims due to on-the-job injuries (workers compensation), unpaid wages for attending the party (the Fair Labor Standards Act), or other types of workplace harassment or discrimination (e.g. religion).

As you prepare for your office party, consider whether alcohol should be available, as most issues arise due to someone bending the elbow a bit too much. If you do decide to provide spirits make sure you have someone (a designated responsible adult) that is watching to ensure that your workforce does not get too “relaxed” and cross the line. Possibly limit how much alcohol is served and make sure any employee that drinks a little too much has a ride home. Evaluate in advance whether the party is going to be mandatory or not. If its voluntary and employees do not feel compelled to attend, then employers are not required to compensate employees for their attendance. Review the plans for the party in advance to see if there are any activities that could be considered inappropriate or offensive to members of any protected class.  Finally, make sure that employees understand that the company’s policies and procedures, especially those related to conduct, are still in effect at the party. Most parties are benign and conclude with no real issues to speak of, but you don’t want to be the exception to the rule. You do not want your CEO or VP added to the naughty list.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Seminar: What’s a Business to Do in the Age of #MeToo?

In light of all of the attention that is being focused on issues relating to harassment and the #MeToo movement, it is now more important than ever for businesses to develop a better understanding of what constitutes harassment in the workplace.

Join us Wednesday, April 11, at the Lakewood Ranch Business Alliance’s upcoming seminar featuring Williams Parker board certified labor and employment attorney Jennifer Fowler-Hermes. Jennifer will discuss types of harassment and provide guidance on how employers can prevent, recognize, and respond to harassment.

WHEN:
Wednesday, April 11, 2018
7:30-8:00 a.m. Networking & Breakfast
8:00-9:00 a.m. Presentation

WHERE:
Keiser University
6151 Lake Osprey Drive
Sarasota, FL 34240

COST:
$10 Members, $20 Non-members

Register Online

MORE ON #METOO:
Catch Williams Parker labor and employment attorney Gail Farb discussing the #MeToo movement on a recent ABC7 news TV segment and roundtable discussion.

Intro Segment (Gail first appears at 2:31):

Roundtable Discussion (Gail first appears at 2:55).

The Tax Act May Limit Resolutions of Sexual Harassment Complaints

One aspect of the new Tax Act (the Act) that has not been widely reported impacts employers that amicably resolve claims of sexual harassment. The provision denies tax deductions for any settlements, payouts, or attorneys’ fees related to sexual harassment or sexual abuse if such payments are subject to a non-disclosure or confidentiality agreement. Specifically, Section 162(q) to the Internal Revenue Code provides:

PAYMENTS RELATED TO SEXUAL HARASSMENT AND SEXUAL ABUSE.—No deduction shall be allowed under this chapter for—

(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or
(2) attorney’s fees related to such a settlement or payment.

The intent of this provision is to deter confidentiality provisions in settlements of harassment claims. It is unclear if this provision will actually have the desired impact. Companies may value the confidentiality provisions more than the tax deductions permitted in their absence, and thus continue to enter into confidential settlement agreements. Alternatively, this provision of the Act may end up hurting those bringing harassment claims. Alleged victims may want confidentiality provisions in order to avoid any publicity about their claims. However, by removing tax incentives for employers, an employer may reject a higher settlement amount or settlement of claims altogether.

Section 162(q) of the Act is bound to create confusion as to its applicability as it fails to define key terms. Namely, the Act fails to define “sexual harassment” or “sexual abuse,” both of which are pivotal to the application of the new provision. The Act also fails to contemplate how the provision is to be applied in settlement arrangements involving a variety of claims. Are the sex-based claims separable from a universal confidentiality covenant? Causing further confusion, the Act fails to explain what attorney’s fees are considered to be “related to such a settlement or payment.” Are these only the fees related to settlement negotiations, drafting the agreement, and execution or payment? Or does it extend to the claim’s inception and include the underlying investigation of the claims?

In light of the numerous questions raised by Section 162(q), employers should review their standard settlement agreements and practices and consider revising the breadth of any releases, nondisclosure provisions, or any representations or remedies.

Ryan P. Portugal
rportugal@williamsparker.com
941-329-6626

What is Harassment?

In light of all of the attention that is now being focused on issues relating to harassment and the #metoo movement, employers that do not take time to review policies and train employees may be at a disadvantage if claims ever arise. It is now more important than ever for employers to develop a better understanding of what constitutes harassment in the workplace, as well as how to prevent, recognize, and respond to harassment. Sexual (and other) harassment training is not just about reviewing company policies and telling employees how to report complaints. Training should be tailored for the specific workforce, in person, and promote respect and civility. It should be geared to help employees at all levels in an organization recognize harassment and when others are uncomfortable. In addition, employees that are responsible for receiving, investigating, and responding to complaints should be trained on how to properly fulfill these duties.

Harassment can occur both inside and outside of the workplace. Certain forms of harassment, such as a woman walking down the street getting cat-called by a stranger, do not implicate the workplace at all. However, if that same woman works for a construction company and is walking past other employees of the organization when she is cat-called by them, the same conduct may be workplace harassment and actionable. For more details on what is actionable harassment, see our October 14, 2016 blog post. Not all harassment is immediately obvious, and answering the question “what is harassment?” can sometimes be a difficult task. Are you able to recognize it?

Friends star David Schwimmer and writer and director Sigal Avin released several short videos that reflect different types of harassment in society, including three that involve workplace harassment. These videos start innocent enough, but develop into awkward and uncomfortable situations. At the end of this post is a link to one of these videos. Test yourself, watch the video, and consider the following questions:

Are you able to recognize when the harassment begins?

Can you identify the non-verbal and verbal cues that the employee is giving to indicate that she is not comfortable with the interaction?

Do you think that others in your organization would be able to recognize these cues?

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Office Holiday Parties: Avoiding Adding Names from Your Company to the Naughty List

Harvey Weinstein, Kevin Spacey, Michael Oreskes, Brett Ratner, Louis C.K., Charlie Rose, and Matt Lauer are a few well-known names that have already appeared on the naughty list for 2017. Although the Mad Men days of the sexy secretary sitting on Santa’s lap (the boss’s lap) with his arms wrapped around her while both are drinking a dry martini SHOULD be a vestige of the past, there are those that believe that “keep your hands to yourself” does not apply to them.  And, there are those that understand the “hands-off” rule, yet when under the influence of alcohol, find their inhibitions on the copy room floor.

Most employers and employees now recognize that in today’s world there is a different expectation as to how to behave appropriately at work then there was in, say, the 1950s or 1960s. Setting aside a discussion of power and how power can lead some to believe that these social norms do not apply to them (see the list above), employers should keep in mind that social norms that are generally recognized in the workplace sometimes are forgotten when there is a party, especially a party with libations. A holiday office party can embolden inappropriate behavior, from simple innuendos to unwelcome touching. The office holiday party can be a quagmire of potential employment issues, even beyond sex harassment including, but not limited to, workers compensation, the Fair Labor Standards Act, and religion. However, this year, with stories of sexual harassment and abuse dominating the news, it is more important than ever for employers to consider the potential risks associated with any planned celebration.

As you prepare for your office party, consider whether alcohol should be available, as most issues arise due to someone bending the elbow a bit too much. If you do decide to provide spirits make sure you have someone (a designated responsible adult) that is watching to ensure that your workforce does not get too “relaxed” and cross the line. Possibly limit how much alcohol is served and make sure any employee that drinks a little too much has a ride home. Evaluate in advance whether the party is going to be mandatory or not. If its voluntary and employees do not feel compelled to attend, then employers are not required to compensate employees for their attendance. Review the plans for the party in advance to see if there are any activities that could be considered inappropriate or offensive to members of any protected class.  Finally, make sure that employees understand that the company’s policies and procedures, especially those related to conduct, are still in effect at the party. Most parties are benign and conclude with no real issues to speak of, but you don’t want to be the exception to the rule. You do not want your CEO or VP added to the naughty list.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

An Employer’s Response to #MeToo

If you did not know the name Harvey Weinstein prior to October 2017, you should now, following the well-publicized allegations against him of sexual assault and harassment spanning decades. The focus on the allegations against Weinstein has resulted in women and men sharing their personal accounts of sexual assault and harassment. Often these personal accounts of improper sexual behavior are tied to the workplace and are prompting a national conversation of the abuse of power in the workplace. Many of these accounts are being made with the hashtag #MeToo. Even persons not willing to share the specifics of their experiences have been using #MeToo to confirm that they were indeed victims. The hashtag itself is not a specific call to action but instead aims to raise awareness of the magnitude of the problem of sexual assault and harassment.

Improper conduct by those in positions of power in several large companies is now being highlighted, and high-ranking officials in several of those companies are having to answer for their conduct, even if such conduct is outside of a relevant limitations period for a legal claim. On November 1, 2017, NPR’s senior vice president for news resigned on the heels of allegations of sexual harassment against him by several women, including two that, according to the Washington Post, claim that “he unexpectedly kissed them on the lips and stuck his tongue in their mouths.” Questions are now being asked regarding when NPR, and other companies, first learned of allegations of harassment and why firmer action was not taken by the company.

Due to this intense focus on harassment in the workplace, companies may want to evaluate if the policies and procedures that they have in place are sufficient, if their leadership truly understands what is appropriate behavior, and if employees are familiar with how to make complaints. To do this employers should consider the following:

  • Review written policies to ensure they are easily understood and provide the proper protections for employees
  • Conduct management training regarding harassment and appropriate behavior
  • Conduct employee training to ensure employees are aware of policies in place to protect them and understand the reporting procedures

Employers should anticipate that, with the increased focus on sexual misconduct, an issue may come up within their own companies. Understanding the issue and being prepared to provide a proper response is usually a better option for employers than merely responding to an issue when it arises.

You may also want to read our past posts relating to sexual harassment.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Is “Locker Room Talk” in the Workplace Sexual Harassment?

The discourse that has followed a political candidate’s recently released 2005 statements regarding women has brought renewed interest in the impact of “locker room talk” in the workplace, as well as when such talk violates the law. Sexual harassment occurs when a work-related benefit is conditioned on the granting of a sexual favor, when an employee or co-worker is subjected to unwanted sexual advances, where hostile conduct is based on the victim’s gender, and when there is offensive, sexually charged workplace behavior. Although sexual banter and ribbing of co-workers can be a basis for a sexual harassment claim, there is only a viable claim of harassment if the conduct at issue is sufficiently severe or pervasive to alter the terms and conditions of employment. Thus, one offensive comment, alone, will generally not support a claim for harassment.  Regardless, one comment can result in a claim being made against the employer. Further, when one off color comment is made in the workplace and it is not dealt with swiftly and appropriately, the employer is often viewed as being complacent. It is best for employers to create a work environment that maintains respect and prohibits conduct that may one day be used as evidence of harassment.

One of the best ways to maintain a respectful workplace is to educate managers and employees about what constitutes harassment, how to report conduct believed to be harassment, and to provide training on promoting respect and civility in the workplace. The September 1, 2016, blog post discussed the EEOC’s Report on its Special Task Force Study of Harassment in the Workplace and what types of training are most effective.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

 

Conducting Appropriate Training for Employees Helps Deter Workplace Harassment

In June 2016, the EEOC issued a report by its Select Task Force on the Study of Harassment in the Workplace. The report details how one third of the 90,000 charges filed with the EEOC in fiscal year 2015 included an allegation of harassment. However, as set forth in the report, this number does not accurately reflect of the number of persons that experience harassment at work. One of the most surprising aspects of the report is that it concludes that “approximately 90 percent of individuals who say they have experienced harassment never [took] formal action against the harassment.” EEOC Commissioner, and report co-author, Victoria Lipnic states that the reason for this failure to take action is fear: “There have been a lot of resources devoted to this in the workplace for many years, but there is a very high percentage of people who still do not report harassment. Part of that is out of fear — fear they might be retaliated against, that they might lose their job, that no one is going to believe them.”

The report also reaches the conclusion that despite efforts of employers to educate workers regarding harassment through workplace training, that most of this training is too focused on avoiding legal liability. The report suggests that different approaches to training should be explored such as bystander intervention training, as well as civility training that focuses less on harassment but instead on promoting respect and civility in the workplace.

This study and the resulting report reinforce the need to provide employees not only with training, but training designed for the specific workforce and presented by a professional. As stated in the report summary, “[in]effective training can be unhelpful or even counterproductive….one size does not fit all: Training is most effective when tailored to the specific workforce and workplace.” Employers should look closely at the training they provide to employees, ensure that it is effective and beneficial for their workplace, and consult with counsel as needed.

A summary of the EEOC’s recommendations can be found at https://www.eeoc.gov/eeoc/task_force/harassment/report_summary.cfm

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558