Workplace Bullying: Understanding the Increased Legal Risks

Presented by: Johan Lubbe

Clear Law Institute | 4601 N. Fairfax Dr., Ste 1200 | Arlington | VA | 22203

www.clearlawinstitute.com

Questions? Please call us at 703-372-0550 or email us at [email protected] All-Access Membership Program

● Earn continuing education credit (CLE, CPE, SHRM, HRCI, etc.) in all states at no additional cost ● Access courses on a computer, tablet, or smartphone ● Access more than 75 live webinars each month ● Access more than 750 on-demand courses Register within 7 days after the webinar using promo code “7member” to receive a $200 discount off the $799 base price.

Workplace Bullying – Understanding the Increased Risks Presented by: Johan Lubbe, Esq. Littler Mendelson, P.C.

Clear Law Institute

Presented By

Johan Lubbe, Esq. Littler Mendelson, P.C. New York Office (212) 471-4490 [email protected]

Introduction

• “Bullying” or “mobbing” at work is receiving increased attention • Bullying is status-blind harassment, which affects the victim’s mental and physical health • Cyber-bullying – technology making bully instantaneous, personally – removed, and possibly easier • Presentation will address the origins of workplace bullying protection, recent legal developments (internationally and local) and some preventive strategies for proactive human resource professionals

DEFINING WORKPLACE BULLYING

What Is Workplace Bullying?

• Rayner, Helge & Cooper (2001): Workplace bullying constitutes unwanted, offensive, humiliating, undermining behaviour towards an individual or group of employees. Such persistently malicious attacks on personal or professional performance are typically unpredictable, irrational and often unfair. This abuse of power or position can cause such chronic stress and anxiety that people gradually lose belief in themselves, suffering physical ill health and mental distress as a result. • Wayne State University: Verbal and nonverbal behavior that is persistent, unwelcome, and directed at a person such that the target’s sense of self as a competent worker is negatively affected.

Towards a Legal Definition: EU Definition Under Equal Treatment Directive

Sexual Harassment (Article 2): Where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment

Towards a Legal Definition Irish Code of Practice - 2007

Workplace bullying is repeated inappropriate behaviour, direct or indirect whether verbal, physical, or otherwise conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but as a once off incident is not considered to be bullying.

*Irish Health and Safety Authority Code of Practice for Employers and Employees on Prevention and Resolution of Bulling at Work 2007

Towards a Legal Definition: Canada: Quebec Statutory Definition of Psychological Harassment

• Any vexatious behavior • In form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures • That effects an employee’s dignity or psychological or physical integrity • And results in a harmful work environment for that employee

Quebec’s Act Respecting Labour Standards 2004

Towards a Legal Definition: Canada: Manitoba Expanded Definition of Harassment

• Harassment includes severe conduct that adversely affects a worker’s psychological or physical well-being. – But excludes reasonable conduct regarding management and direction of employees. • Conduct is “severe” if it reasonably causes a worker to be humiliated or intimidated and is repeated, or in case of a single occurrence, has a lasting, harmful effect on a worker.

* Regulation 147/2010 issued on October 15, 2010, amending the Workplace Safety and Health Regulations

Towards a Legal Definition: Spain – Madrid High Court of Justice

Mobbing includes psychological terror and behaviours that create humiliating or offensive environment for the victim, which is directed in a systematic manner by one or more individuals, mainly towards one individual who, due to the mobbing is forced into a helpless and defenseless position. The mobbing conduct occurs frequently (at least once a week) and over a long period of time (lasting at least six months). *Decision of the Madrid High Court of Justice (as summarized by Vincent Calle Bulling and Harassment in the Workplace: An overview of the Spanish situation, IBA Employment & Industrial Relations Law Newsletter (Oct. 2013)

Workplace Bullying– The Essential Elements

The essential elements: 1. Repeated behavior 2. Inappropriate or abusive behavior 3. Direct or indirect behavior 4. Verbal, physical or otherwise 5. Conducted by one or more persons 6. At workplace and/or in course of employment 7. Reasonably undermining a person’s dignity or perceived self worth.

Typical Conduct of Workplace Bullies

• Flaunting status (but not all bullying is from position of power) • Ignoring target employee’s contributions • Excessive or unwarranted criticism • Interrupting and preventing expression of opinions • Fail to respond to calls or memos • Exclude/failing to invite employee to meetings • The silent treatment • Shouting • Verbal attacks • Swearing/foul language at target employee • Spreading (untrue) gossip • Blaming target employee for others’ errors • Playing mean pranks

International developments in Employer legal liability for workplace bullying

UK – No Statute, But Some Cases

• Equality Act of 2010 outlaws protected category harassment, but not bullying • ACAS Guide for Employers re Bullying and Harassment at Work (October 2010) – Accessible at https://www.gov.uk/workplace-bullying-and-harassment – Defines bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient” – Examples of bullying include: • ridiculing or demeaning someone – picking on them or setting them up to fail • overbearing supervision or other misuse of power or position • deliberately undermining a competent worker by overloading and constant criticism • ACAS Guide expressly states that “It is not possible to make a direct complaint to an Employment Tribunal about bullying as it is not related to a protected characteristic.”

English case - Horkulak v. Cantor Fitzgerald International (2003)

• Bullying conduct of CEO:  Foul and abusive language  Not give chance to respond to criticism  Insisted on unattainable standards of performance • Effect of conduct:  Severely undermined authority to manage employees, because CEO’s outburst were common knowledge  Not given chance to re-establish trust  Not properly raised and handled criticism of work performance issues

Cantor Fitzgerald International [2]

• Court’s reasoning:  Contractual duty of mutual trust and confidence (mutual cooperation)  Can’t instantly dismiss senior manager’s exercise of judgment  Can insist on high levels of performance, but level of rebuke must be proportionate  Can’t use threats of termination to intimidate  Modern law of employment contracts recognize self-esteem and dignity of employee

English case – Majrowski v. Guys’ & St. Thomas NHS Trust (2006)

• Female department manager bullied gay male employee • Bullying conduct included: 1. Excessively critical of and strict about employee’s time keeping and work 2. Isolated employee by refusing to talk to him 3. Rude and abusive to employee in front of other staff 4. Imposed unrealistic performance targets and threatened him with termination for not achieving targets • Claim brought under Protection From Harassment Act of 1997, an anti-stalking law. Act prohibits pursuing a course of conduct which amounts to harassment of another. • Court of Appeal (and affirmed by House of Lords) held employer is vicariously liable for this stalking/bullying at work: – “The purpose of this statute is to protect victims of harassment, whatever form the harassment takes, wherever it occurs and whatever its motivation. The Act seeks to provide protection against stalkers, racial abusers, disruptive neighbours, bullying at work and so forth.” © Littler Presentation | 2018 Proprietary and Confidential

Ireland – Bullying Cases Reach Highest Court Twice

• Quigley v. Complex Tooling & Moulding Ltd (2009): – Test for a viable claim for damages the bullying must be 1) repeated, (2 inappropriate, and 3) undermining of the dignity of an employee at work" and further that "where the personal injury is not of a direct physical kind, it must amount to an identifiable psychiatric injury.“ – Each component of that test should be assessed separately and sequentially • Ruffley v. The Board of Management of Saint Anne's School (2017): – Special Needs Assistant claims she bullied in the course of the disciplinary process, resulting in a serious impact on her mental health – The test is objective, not subjective – Held - “A single definition and a single test: was the defendant guilty of repeated inappropriate behavior against the plaintiff which could reasonably be regarded as undermining the individual's right to dignity at work." – This means in practice: unless there are repeated incidents of inappropriate conduct, each of which individually undermines an individual's right to dignity at work, the test for bullying is not met.

Australia – Criminalizing Workplace Bullying

• After 2006 suicide of a restaurant employee due to bullying by her 3 male co- workers, State of Victoria in 2011 expanded anti-stalking criminal laws to cover bullying. – Crimes Amendment (Bullying) Act No. 20 of 2011, effective June 7, 2011 (“Brodie’s Law) – The new law makes it unlawful to make "threats to the victim," to use, perform or direct towards the victim "abusive or offending" words or acts. Also punishable is acting "in any other way that could be reasonably be expected to cause physical or mental harm to the victim, including self- harm.." Mental harm is defined as psychological harm and suicidal thoughts. – Conviction carries a penalty up to 10 years in prison • State of South Australia in 2017 introduced a similar Bill -- Statutes Amendment (Bullying) Bill 2017 after suicide death of 13 year old Adelaide student, Libby Bell, after a prolonged period of bullying in the schoolyard, in public places and over the online mediums of Facebook, Snapchat and Instagram. The law is called “‘Libby’s Law.”

Australia – Employer Civil Liability for Workplace Bullying

• Robinson v. State of Queensland (Queensland Supreme Court Oct. 2017) awards $1.47m to female District Director of Nursing for damages after bullying conduct over 11 months by CEO: – unjustified, loud and aggressive disciplining and belittling of her in public and in front of other staff on multiple occasions; – failing to inform her of allegations against her and failing to provide those allegations in writing despite repeated requests; – isolating her on many occasions, including by failing to address her reasonable queries, failing to meet her for requested private discussions, and circumventing her in communications with staff; and – humiliating her by making substantive decisions about her employment and communicating these decisions to staff without first consulting or advising her.

Australia – Employer Remedial Action to Bullying

• Lacey & Kandelaars v. Murrays Australia Pty Ltd (Fair Work Commission 2017): – Determined that manager of bus driver had bullied drivers (including by hiding in the bus whilst driver left the bus running to pay for gas and then springing upon the employee) – Employer reassigned the manager to conduct training drivers and recording breathalyzer results from time to time) – FWC found bullying had occurred but reassignment of manager reduced risk of further bullying. – FWC concluded it was impractical to limit the manager to performing clerical duties in a back office or be prohibited from dealing with drivers alone given the manager’s skills and background.

Workplace Bullying In Canada

• Quebec’s Act Respecting Labour Standards of 2004 prohibits psychological harassment 1. Employer’s duty to take reasonable action to prevent bullying and to put a stop to it when become aware of such conduct 2. First decisions of Quebec Labour Relations Board in Ganley v. Subway Sandwiches (Jan. 13, 2006) and Bourque v. Centre de santé des Etchemins (Feb. 23, 2006) • In 2010, the Ontario legislature amended its OSHA imposing statutory duty on employers to ensure employees are free from “workplace harassment”, which is broadly defined as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”

Quebec Decision – Ganley v. Subway Sandwiches (2006)

• Owner accused of harassing manager • Owners conduct included: 1. Repeatedly yelling at manager in front of customers 2. Calling her ignorant 3. Accusing her of being unable to count 4. Criticizing her work and belittling her sexual orientation 5. When manager hired an assistant who was pregnant, owner called manager stupid • Held: the repeated hostile acts and statements constituted vexatious conduct which undermined the dignity and psychological integrity of the manager

Quebec Decision – Bourque v. Centre de santé des Etchemins (2006)

• Newly-appointed Director of Human, Financial and Information Resources accused of harassing executive secretary • Employee had attendance problems. Director required her to strictly respect her work schedule and to obtain prior authorization for overtime work. Previous manager was more lenient • Held: No psychological harassment proven

Workplace Bullying in Brazil

• Mostly an issue in urban areas due to disparity in economic & social development • Distinguished from sexual harassment, which is a criminal offense: – Bullying humiliates, embarrasses the victim. • Case law examples of unlawful bullying: • Imposing unattainable performance goals, threats, name-calling, intimidation and punishment, such as the demand of standing up throughout the shift, prohibition to go to the bathroom, eat or even drink water • Requiring the employee to dress up in costumes or underwear if they do not reach sales or production targets • Changing the furniture and computer of employee at workplace for others of lower quality, different from other colleagues of the same level • Requiring the employee to work excessive hours for a long period of time, leading to potential health problems

Workplace Bullying in South Africa

• Definition of “bullying” – Bullying has been described as ‘any unfavourable or offensive conduct on the part of a person or persons which has the effect of creating a hostile working environment and includes conduct ranging from insulting or demeaning or intimidating behaviour that lowers the self-esteem or self-confidence of an employee’ • Employers’ duty of fair dealing requires prevention of workplace bulling. *Murray v. Minister of Defense (2008)

America and workplace bullying

Bullying in American Workforce – 2017 WBI Survey

• Surveys by Workplace Bullying Institute performed by Zogby Analytics to conduct an online survey of 1,000 adults in the US. in 2017.

• 19% of adult Americans have experienced abuse; 60.4 million have been affected by it. 61% of Americans now are aware that workplace bullying happen, 46% report worsening of work relationships, post-Trump election; and 77% want a law.

Increased Employee Awareness

• Recent Books And Articles 1. Duffy & Sperry, Mobbing: Causes, Consequences, and Solutions (Oxford Univ. Press 2012) 2. Namie & Namie, The Bully – Free Workplace – Stop jerks, weasels & snakes from killing your organization (John Wiley & Sons, 2011) 3. Namie & Namie, The Bully at Work – what you can do to stop the hurt and reclaim your dignity on the job (Sourcebooks 2009)

• Conferences Dedicated to the Workplace Bullying 1. 11th International Conference on Workplace Bullying and Harassment Bullying 2018: “Better Understanding of Workplace Bullying and Harassment in a Changing World” on June 5-8, 2018, in Bordeaux, France

• Websites For Victims Of Workplace Bullying 1. The Workplace Bullying Institute at www.workplacebullying.org 2. Emotional Abuse in the American Workplace at www.mobbing-usa.com 3. www.nobullyforme.org (in Vancouver, BC) 4. Workplace Bully Busters (Canada) at workplacebullybusters.com

Workplace Bullying in the U.S.

• Unlike Canada (and some other countries), no independent specific legal protection against bullying • Although various legal theories have been used to pursue claims for essentially workplace bullying, courts have mostly rejected such claims • Increased focus on this workplace challenge and also attempts to pass specific protective laws at state level

Even If Inappropriate, It Is Not Illegal

• Case in New York (2013) – Johnson v. Strive East Harlem Employment Services – $250,000 compensatory damage plus punitive damages • African-American using N-word towards fellow African Americans at work. • Verbal abuse - - petty insults and trivial inconveniences - - not sufficient strong to amount to unlawful harassment. • Argument on appeal (11/5/13): “As of today, being a bully is not against the law.”

Attempts at Legislating Against Workplace Bullying

• Since 2003, multiple attempts made in 30 states & 2 territories to introduce Healthy Workplace Bills but most have died somewhere in committee procedures. • However in three states, laws were passed that include some elements of regulating workplace bullying: – TN (2014) – Passed first Healthy Workplace Act that applies to all public sector employees eff. Jun. 3, 2014. TN advisory commission developed a model policy re prevention of abusive conduct. Public employers who adopt policy become immune against suits for any employee's abusive conduct that results in negligent or intentional infliction of mental anguish. – CA (2014) - Fair Employment and Housing Act, AB 2053 eff. Jan. 1, 2015 requires training on bullying as part of sexual harassment training. – UT (2015) - Workplace Abusive Conduct Amendments apply to UT state employees, and prohibits retaliation, which includes “abusive conduct “ plus requires bi-annual training

Definition of “Abusive Conduct”

Tennessee Utah

“Abusive conduct” means acts or omissions that Abusive conduct means verbal, nonverbal, or would cause a reasonable person, based on the physical conduct of an employee to another severity, nature, and frequency of the conduct, to employee that, based on its severity, nature, and believe that an employee was subject to an frequency of occurrence, a reasonable person abusive work environment, such as: would determine: (A) Repeated verbal abuse in the workplace, (A) is intended to cause intimidation, humiliation, or including derogatory remarks, insults, and epithets; unwarranted distress; (B) Verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature in (B) results in substantial physical or psychological the workplace; or harm as a result of intimidation, humiliation, or unwarranted distress; or (C) The sabotage or undermining of an employee’s work performance in the workplace; (C) exploits an employee's known physical or psychological disability.

Non-abusive conduct in TN

Under TN model policy, abusive conduct does not include: • Disciplinary procedures in accordance with adopted policies of [the public employer] • Routine coaching and counseling, including feedback about and correction of work performance • Reasonable work assignments, including shift, post, and overtime assignments • Individual differences in styles of personal expression • Passionate, loud expression with no intent to harm others • Differences of opinion on work-related concerns • The non-abusive exercise of managerial prerogative

Training re Abusive Conduct

California Utah

Employers with 50 or more employees must Each UT state dep’t. must provide training to include, as part of their sexual harassment training, educate employees and supervisors about how to a section on preventing abusive conduct and prevent abusive workplace conduct. workplace bullying Training must include information on: • what constitutes abusive conduct and the ramifications of abusive conduct; • resources available to employees who are subject to abusive conduct; and • the grievance process.

2018 – The New Legislative Season

• In 2018, Healthy Workplace Bills have been introduced and are pending in five states and are currently under consideration. (MA, OR, RI, WA & WV) • Titles of proposed bills: – MA - SB1013 on Jan. 23, 2017 - An Act addressing workplace bullying, mobbing, and harassment, without regard to protected class status and then the accompanying bill (SB 2448) on Apr. 19, 2018 – OR - SB 292 and HB 2167 - Oregon Safe Employment Act for creating or maintaining abusive work environment. – WA – SB6435 on Jan. 17, 2018 - An Act to establishing healthy workplaces (Also in RI Healthy Workplace Act and WV The Healthy and Safe Workplace Act )

Healthy Workplace Bills

• Make it an unlawful employment practice to subject an employee to an abusive work environment. • Creates a civil cause of action • Abusive work environment is an environment in which an employer or one or more of its employees, acting with intent to cause pain or distress to an employee subjects that employee to abusive conduct that causes physical harm, psychological harm or both. • Employer will be vicariously liable for abusive work environment conduct. Bully–employee may be individually liable. • Affirmative employer defense – exercised reasonable care to prevent and promptly correct abusive conduct and employee unreasonably failed to take advantage of employer’s preventive or corrective opportunities.

Healthy Workplace Bills (2)

• Remedies to bullied employee: – Cease & desist order – Other relief deemed appropriate including: 1) Reinstatement 2) Removal of bully from work environment 3) Award lost wages 4) Front pay 5) Medical expenses 6) Emotional distress damages 7) Punitive damages (only if conduct was “extreme and outrageous” - WA Bill 2018) 8) Attorney fees

Defining “Abusive Conduct” in the Pending Bills

Washington (SB 6435) Massachusetts (SB 2248)

• "Abusive conduct" means conduct of an employer or • “Abusive conduct”, acts, omissions or both, that a reasonable employee in workplace, with malice, that a reasonable person person would find abusive, based on the severity, nature and would find hostile, offensive, and unrelated to an employer's frequency of the conduct, including, but is not limited to: legitimate business interests. – repeated verbal abuse such as the use of derogatory • Abusive conduct may include, but is not limited to: remarks, insults and epithets; verbal, non- – repeated infliction of verbal abuse such as the use of – verbal or physical conduct of a threatening, intimidating derogatory remarks, insults, and epithets; or humiliating nature; or – verbal or physical conduct that a reasonable person – the sabotage or undermining of an employee’s work would find threatening, intimidating, or humiliating; or performance. – the gratuitous sabotage or undermining of a person's • It shall be considered an aggravating factor if the conduct work performance. exploited an employee’s known psychological or physical • A single act normally will not constitute abusive conduct, illness or disability. unless especially severe and egregious. • A single act normally shall not constitute abusive conduct, but an especially severe and egregious act may meet this standard

Workplace bullying claims in absence of a specific law

Workplace Bullying – The Hostile Working Environment

• EEOC v. National Educ. Ass’n Alaska, 422 F. 3d 840 (9th Cir. 2005) • Male supervisor yells without provocation at female employees, invaded their personal space, and used foul language • On facts, was a quantitative and qualitative difference in supervisor’s treatment of male and female employees • Court of Appeals held: 1. Equal opportunity harasser defense questionable 2. Harassing conduct need not be motivated by the intent to discriminate against females. Title VII is not a fault-based tort scheme 3. Not require facially sex-specific conduct to prove sexual harassment 4. Ultimate question is whether females are exposed to disadvantageous terms or conditions of employment to which male employees are not exposed 5. Jury to decide if supervisor was more abusive and treated females worse than males

Workplace Harassment – Is Stereotyping Required?

• Straight male on straight male harassment/bullying actionable? • Significance: 2010 WIB Survey found that 68% of bullying is same-gender harassment. • Title VII is not “a general civility code for the American Workplace.” – Oncale v. Sundowner Offshore Services, Inc. (US S. Ct. 1998). • EEOC’s same sex stereotyping harassment theory. • EEOC v. Bott Brothers Construction Co., L.L.C. (pending 5th Cir. 2013). – Harassment by crew leader. – Gay epithets and lewd gestures. – After hearing, lower court granted male co-worker $300,000 in damages. – En banc review by Fifth Circuit Court of Appeals.

Workplace Bullying – Employers’ Duty To Maintain a Safe Working Environment

• General duty to create and maintain a safe working environment • Some psychologists warn that if workplace bullying and intimidation is tolerated, some employees may cross the line to threaten or even commit violence

Workplace Bullying – Employers’ Breach Of Contract (Policies)

• Anti-harassment policies typically include affirmative statements that employer does not tolerate harassing conduct and will take prompt remedial action if notified of conduct • Are these contractual commitments? • Claims generally unsuccessful

Workplace Bullying – Intentional Infliction Of Emotional Distress

• Required elements: 1. Intentional or reckless conduct 2. Conduct must be outrageous and intolerable (offends against generally accepted standards of decency and morality) 3. Conduct caused emotional distress 4. Emotional distress must be severe • Extremely difficult to prove • In some states workers’ compensation claim is employees’ exclusive remedy, especially for negligent emotional distress claims

Workplace Bullying – Failure To Accommodate Employees With Disabilities

• Workplace stress can cause or aggravate a mental disability • Statutory duty to make reasonable accommodation may include removing harasser or stopping harassing environment • Failure could possibly result in a claim of breach of statutory duty to accommodate claim

Workplace Bullying – Constructive Discharge Theory

• Required elements- 1. Intolerable conduct 2. Aimed at getting employee to quit • Claims usually fail because proving employer engaged in conduct with intention to force employee out is difficult to prove

Proactive & preventive employer actions re Workplace bullying

Financial Implications of Workplace Bullying

• Increased employee absenteeism • Increased stress-related workers' compensation claims • Primary medical benefit, short- and long-term disability premiums • Higher employee turnover

Preventive Strategy: Is Bullying Present At Our Workplace?

• Survey bullying-tolerance level at the workplace  Absenteeism – why?  Any recurring issue in specific department or with a specific supervisor? • Categorize employee turnover data  Any trend or outlier terminations in a specific department or supervisor • Expand issues covered in exit interviews  Cover soft workplace environment issues  Cover effectiveness and interpersonal relations of supervisor

Preventive Strategy: Establish Appropriate Workplace Policies

• Essential to establish affirmative defense of exercising reasonable care to prevent an abusive working environment • Some generalized anti-harassment policies may already cover general abusive conduct • “Civility/Dignity at work” or “Anti-mobbing” policy  Department of Environmental Quality at State of Oregon adopted Anti-Mobbing Policy • Essential elements of the policies: 1. Describe expected appropriate business conduct 2. Define abusive conduct 3. Clear statement: won’t tolerate abusive conduct 4. Set forth reporting procedure 5. Promises of 1) no retaliation; and 2) prompt investigation 6. State violation will lead to appropriate discipline 7. How policy will be monitored and audited © Littler Presentation | 2018 Proprietary and Confidential

Preventive Strategy: Selection And Training of Supervisors And Employees

• Selection:  Interview and reference check questions on interpersonal relations • Training:  The higher bar of appropriate business conduct (need not be unlawful before unacceptable)  Dignity at work  Distinguish between high performance standards/ work excellence and being abusive  Underscore company’s goal of being a preferred employer

(703) 372-0550

Preventive Strategy: Expand Performance Evaluation Criteria

• Elaborate people skills evaluation criteria on annual performance evaluations • Introduce 360° evaluations. Inquire about – 1) leadership style – 2) effectiveness as manager – 3) interpersonal skills

Preventive Strategy: Expand Progressive Discipline System

• Ensure anti-mobbing policy violations treated as seriously as violation of anti- discrimination and harassment policies • Avoid trap: top results-driven employees are treated leniently

Preventive Strategy: Promptly Investigate Internal Complaints

• Necessary to qualify for affirmative defense (under Faragher discrimination/harassment and possible Healthy Workplace laws) • When on notice, act immediately and effectively • Monitor corrective behavior • Shows top-down commitment to maintain harassment-free working environment • Good employer practice to attract and retain employees

Concluding Comments

• Expect expanded protection of employees against abusive workplace conduct • Focus on appropriate business conduct • Prevent liability… don’t create the headline

Questions

E. Johan Lubbe, Esq. Littler Mendelson, P.C. New York Office (212) 471-4490 [email protected]

Thank You!

This information provided by Littler is not a substitute for experienced legal counsel and does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and the current status of any decision or principle of law should be verified by counsel. 58 www.ClearLawInstitute.com (703) 372-0550