# Presentation: 497924

## “LESSONS LEARNED: SEXUAL HARASSMENT”AGRICULTURAL RESEARCH SERVICEMIDWEST AREA LEADERSHIP MEETINGNovember 14, 2007

- USDA Office of the General Counsel
- Civil Rights Division

- Neha N. Hewitt

## LESSONS LEARNED

- All Employees at ARS should work in an environment free from sexual harassment and retaliation.
- Sexual harassment is an offensive work condition that is not tolerated by the Agency.

## LESSONS LEARNED

- What Is Sexual Harassment?
- Sexual harassment is a form of sex discrimination that violates _[Title VII of the Civil Rights Act of 1964](http://www.eeoc.gov/policy/vii.html)__. _
- The legal definition of sexual harassment is “unwelcome verbal, visual, or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment.”

## LESSONS LEARNED

- UNWELCOME
- Conduct is not sexual harassment if it is welcome.  For this reason, it is important to communicate (either verbally, in writing, or by your own actions) to the harasser that the conduct makes you uncomfortable and that you want it to stop.

## LESSONS LEARNED

- EXAMPLES OF TYPES OF SEXUAL HARASSMENT:
**Verbal or written:**	Comments about clothing, personal behavior, or a person’s body; sexual or sex-based jokes; requesting sexual favors or repeatedly asking a person out; sexual innuendoes; telling rumors about a person’s personal or sexual life; threatening a person

## LESSONS LEARNED

- OTHER EXAMPLES:
**Physical:** Assault; impeding or blocking movement; inappropriate touching of a person or a person’s clothing; kissing, hugging, patting, stroking, brushing against another person’s body

## LESSONS LEARNED

- MORE EXAMPLES:
**Nonverbal:** Looking up and down a person’s body; derogatory gestures or facial expressions of a sexual nature; following a person
**Visual:** Posters, drawings, pictures, screensavers or emails of a sexual nature

## LESSONS LEARNED

**Quid pro quo** is a Latin term meaning “this for that.”
- Quid pro quo occurs when a supervisor or a person acting with authority, withholds, demands and/or promises a benefit by pressuring an employee to submit to unwelcome sexual conduct.
- For example:  An employee is denied a promotion because he/she refuses to be romantically involved with his/her supervisor

## LESSONS LEARNED

- Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
- The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
- The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
- The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

## LESSONS LEARNED

- Non-sexual conduct may also be sexual harassment if you are harassed because you are female, rather than male, or because you are male, rather than female.
- For example, it may be sexual harassment if you are a woman working as a carpenter on an all-male job, and you are the only one whose tools are frequently hidden by your male co-workers.

## LESSONS LEARNED

- STEPS TO ADDRESS SEXUAL HARASSMENT:
- Harassing behavior if ignored, will not go away, and will probably become worse.
- Any person who believes they are a victim should make it clear the behavior is inappropriate and unwelcome.
- If the behavior does not stop, report the person to your supervisor.
- If the harasser is your supervisor, report the person to your second line supervisor.
- If it still persists or is not dealt with, contact the ARS Civil Rights Staff.

## LESSONS LEARNED

- SUPERVISOR ROLE
- Communicate to employees that this behavior is not tolerated.
- Set the tone with appropriate conduct.
- Take all allegations seriously.
- Take immediate corrective action.
- Investigate promptly and effectively.
- Follow up with those who report.

## LESSONS LEARNED

- VICARIOUS LIABILITY
- 	the Supreme Court made clear that the Agency is subject to vicarious liability for unlawful harassment by supervisors.

## LESSONS LEARNED

- VICARIOUS LIABILITY
-   The standard of vicarious liability is based on two principles:
- 1) an employer is responsible for the acts of its supervisors, and
- 2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.

## LESSONS LEARNED

- VICARIOUS LIABILITY
- In order to accommodate these principles, the Supreme Court held that an employer is always liable for a supervisor's harassment if it culminates in a tangible employment action. (i.e. firing, demotion).

## LESSONS LEARNED

- 	VICARIOUS LIABILITY
- 	If the harassment culminated in a hostile work environment, the Agency may be able to avoid liability or limit damages by establishing that:
- (a) the Agency exercised reasonable care to prevent and correct promptly any harassing behavior, and
- (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

## LESSONS LEARNED

- In a case of **co-worker** harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.

## LESSONS LEARNED

**REMEDIAL MEASURES**
- An employer should make clear that it will undertake immediate and appropriate corrective action, including discipline
- Remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur.
- These remedial measures need not be those that the employee requests or prefers, as long as they are effective.
- To balance the competing concerns, disciplinary measures should be proportional to the seriousness of the offense.

## LESSONS LEARNED

- Remedial measures should not adversely affect the complainant. Thus, for example, if it is necessary to separate the parties, then the harasser should be transferred (unless the complainant prefers otherwise).
- Remedial responses that penalize the complainant could constitute unlawful retaliation and are not effective in correcting the harassment.

## LESSONS LEARNED

- SEXUAL HARASSMENT IS A VERY BIG PROBLEM!
- Statistics:  In Fiscal Year 2006, EEOC received 12,025 charges of sexual harassment. 15.4% of those charges were filed by males.
- EEOC resolved 11,936 sexual harassment charges in FY 2006 and recovered $48.8 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).

## LESSONS LEARNED

- REMEMBER: Prevention is the best tool to eliminate sexual harassment in the workplace.
- Managers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated.

## “LESSONS LEARNED: RETALIATION”Midwest Area Leadership MeetingAgricultural Research ServiceNovember 14, 2007

- USDA Office of the General Counsel
- Civil Rights Division
- Neha N. Hewitt

## LESSONS LEARNED

- What is retaliation?
- Generally, Retaliation is treating someone differently or adversely because he or she:
- Participated in the EEO process
- Contacting EEO counselor
- Filing a complaint
- Being named as a witness in someone else’s complaint
- Representing a complainant
- Raising discrimination in another forum (MSPB or grievance)
- Opposed a discriminatory practice or policy

## LESSONS LEARNED

- There are three main terms that are used to describe retaliation.
- Retaliation occurs when employers take an
-  **adverse action** against a
-  **covered individual** because he or she engaged in a
**protected activity**.

## LESSONS LEARNED

**An adverse action is**
- 	an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Examples of adverse actions include:
- employment actions such as termination, refusal to hire, and denial of promotion,
- other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, and
- any other action likely to “CHILL” or deter a reasonable person from pursuing their rights

## LESSONS LEARNED

**Covered Individuals **
- Covered individuals are people who have opposed unlawful practices,
- participated in proceedings,
- or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability.
- Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals. For example, it is illegal to terminate an employee because his spouse participated in employment discrimination litigation.

## LESSONS LEARNED

**Protected Activity includes:**
- informing an employer that you believe that he/she is engaging in prohibited discrimination.
- Threatening to file a charge of discrimination;
- Picketing in opposition to discrimination; or
- Refusing to obey an order reasonably believed to be discriminatory.
- Participation in an employment discrimination process. (witness, counseling, hearing, etc.).

## LESSONS LEARNED

- Why Do We have Retaliation Laws?
- Without retaliation laws the purposes of the underlying laws may not be accomplished
- If retaliation were not prohibited almost no one would report illegal activity for fear of retaliation and enforcement of the law would be difficult or impossible.

## LESSONS LEARNED

- Why is prevention of retaliation so important?
- Retaliation survives an underlying claim of discrimination that may lack merit
- Carries a lower threshold for adverse actions – “likely to deter a charging party”
- Liability can extend past the actual employment – job references
- Workplace retaliation is the fastest growing type of discrimination reported to the EEOC.** **
- Both managers and employees can be the target of retaliation, and both managers and employees can commit retaliation.

## LESSONS LEARNED

- Defending a Retaliation Claim
- Ensure your reason for action was correct and did not change as a result of the prior EEO activity
- Ensure you followed established procedures in implementing the adverse action
- Ensure you treated the employee the same (no better or worse) as you would treat all other employees in the same situation
- Ensure that you document your reasoning

## LESSONS LEARNED

- Document, Document, Document
- Do not take any actions without a contemporaneous and detailed record to support the actions
- Make sure documentation is signed and dated
- Leave a record for your successors
- Memos to the file are also a good tool

## LESSONS LEARNED

- Provide Honest and Accurate Appraisals
- Employees deserve to be kept informed about their progress
- In EEO context, appraisals that drastically change from period to period are subjected to high scrutiny
- Make sure performance elements and position descriptions match the current expectations for the positions and the actual functions of the jobs
- Sometimes the right thing is not the easiest thing

## LESSONS LEARNED

- Interviews for Selections and Promotions
- Ensure consistent interview questions and procedures during selection process
- Ask managers and panel members to take, and keep, contemporaneous records of interviews during selection process
**There should not be anything in anyone’s notes that cannot be shared**

## LESSONS LEARNED

- Do Not Take EEO Complaints Personally
- There are many reasons why an employee may file an EEO complaint
- Employees have the absolute right to use the EEO process
- Do not treat a complaint as frivolous no matter how right you think that you are
- Do not take unwarranted action against employees – complaints of reprisal are the easiest to prove
- Avoid venting your frustrations and reactions on your colleagues in the workplace
- Ensure a strong support system outside of the office

## LESSONS LEARNED

- Job References
- Develop a policy regarding the scope of employment references – and stick to it
- Employee may be able to show you retaliated if you deviate from normal course of business in giving information to a prospective employer
- Negative reference may be actionable even if the employee received the job for which he applied

## LESSONS LEARNED

- Keep it Close
- No need to discuss fact that an employee filed an EEO complaint with any other employees besides ARS Civil Rights or EEO staff
- Protects managers and employees from involvement in complaints of reprisal

## Contact OGC

- Associate General Counsel for Civil Rights – Arlean Leland:  202-720-1760
- Assistant General Counsel, Civil Rights Litigation Division – Inga Bumbary-Langston:  202-720-3955
- Neha Hewitt, Attorney Advisor:  202-690-2174 _[neha.hewitt@usda.gov](mailto:neha.hewitt@usda.gov)_
- Assistant General Counsel, Civil Rights Policy, Compliance, and Counsel Division - Tami Trost:  202-690-3993 _[tami.trost@usda.gov](mailto:tami.trost@usda.gov)_