Workplace Harrassment - What Supervisors Must Know

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WORKPLACE HARASSMENT –
WHAT SUPERVISORS MUST KNOW
BLUEGRASS WORKFORCE INVESTMENT BOARD
WORKFORCE SUMMIT
Jay E. Ingle
175 East Main Street, Suite 500
Lexington, Kentucky 40507
Phone: (859) 255-9500
www.jacksonkelly.com
[email protected] • www.jacksonkelly.com
THE LAW
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THERE IS MORE THAN JUST
SEXUAL HARASSMENT
• Sexual harassment is not the only unlawful
harassment
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Race/color
National origin
Disability/blindness
Religion
Age
Sexual orientation
And more!
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IT CAN TAKE MANY FORMS
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Heterosexual harassment is not the only form of sexual
harassment
– Homosexual harassment
– Bisexual harassment
– Non-sexual harassment (if based on gender)
The accusers are not always women—and the accused
are not always men
– Just the most common scenario
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LEGAL PROHIBITIONS
AGAINST DISCRIMINATION
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Kentucky Civil Rights Act
Title VII of Civil Rights Act of 1964 (“Title VII”)
– Race, Color
– Religion
– National Origin
– Sex
Fairness Ordinances
Age Discrimination in Employment Act (“ADEA”)
– Age (Over 40)
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MORE LEGAL PROHIBITIONS
AGAINST DISCRIMINATION
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Pregnancy Discrimination Act (“PDA”)
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Veterans Act
– Veteran Status
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Americans with Disabilities Act (“ADA”)
– Disability
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Harassment or Discrimination on Any of These Bases Is Illegal
– Sexual and Racial Harassment are the most common
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DEFINING SEXUAL HARASSMENT
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“Unwelcome sexual conduct submission to which is
made either explicitly or implicitly a term or condition of
an individual’s employment.”
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May include “unwelcome sexual advances, requests for
sexual favors, or other verbal or physical conduct of a
sexual nature.”
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COMMON TYPES OF SEXUAL HARASSMENT
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Quid Pro Quo
– Using the power of your position to obtain sex
Hostile Environment
– Making the workplace hostile to a protected
class
– This goes for all types of harassment
Third-party sexual harassment
– Vendors, contractors, customers
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QUID PRO QUO HARASSMENT
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Means “this for that”
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Occurs when “submission to or rejection of [unwelcome
sexual conduct] is used as the basis for employment
decisions affecting that individual.”
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Involves supervisory conduct
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QUID PRO QUO HARASSMENT
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Must involve a tangible adverse employment action, i.e.,
a significant change in employment status, such as:
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Hiring
Firing
Failing to promote
Reassigning with significantly different
responsibilities
– Significant change in benefits
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QUID PRO QUO HARASSMENT
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Reward if sex is given—the carrot
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Punishment if sex is not given—the Stick
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Unfulfilled threats not “quid pro quo.”
– Same probably true of unfulfilled promises
– But both may be “hostile environment”
harassment
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HOSTILE ENVIRONMENT HARASSMENT
• According to the law it is:
“Unwelcome sexual conduct that
unreasonably interferes with an individual’s
job performance or creates an intimidating,
hostile or offensive working environment.”
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HOSTILE ENVIRONMENT HARASSMENT
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Must be “sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an
abusive working environment.”
– If more severe (e.g. sexual assault), need not be
as pervasive
– If less severe (e.g. sexual jokes), must be more
pervasive
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Must be unwelcome.
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IS CONDUCT “SEVERE” ENOUGH
TO CREATE A HOSTILE ENVIRONMENT?
Two-Part Test:
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Subjective
– Did this person actually find the conduct
offensive?
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Objective
– Would a reasonable person find the conduct
offensive?
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SEXUAL HARASSMENT THAT
NEED NOT BE PERVASIVE
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Rape or forced sex
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Other sexual assault
– Forced kiss
– Grabbing breast or crotch
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Coerced sex or other contact
– Physical contact without force
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SEXUAL HARASSMENT THAT
REQUIRES MORE PERVASIVE ACTIONS
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Other unwelcome touching
– Pat on butt
– Hand on knee under table
– Candy in breast pocket
– Hug
Unwelcome propositions
– Suggesting sex
– Requesting a date
– Flirting after being asked to stop
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LESS SEVERE,
MORE PERVASIVE ACTIONS
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Personal Sexual Comments
– I bet you’d be good in bed
– If I were your husband, I’d never spend a night
away from home
– Great legs (or other body parts)
Other personal comments
– Stereotyped comments
– Derogatory slurs
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EVEN LESS SEVERE,
MORE PERVASIVE ACTIONS
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Demeaning general comments
– Little lady, Missie
– Are you gonna let a woman beat you in sales?
– We need some younger blood in here
– He’s light in the loafers
– You’re retarded
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REQUIRES PERVASIVE ACTION
TO BE UNLAWFUL
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Conversations, emails and visuals
– Off-color jokes
– Sexual stories
– Sexual puns
– Inappropriate cartoons or photos
– Video clips
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Belittling names for women
– Babe, honey, girl, sweetheart
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SAME-SEX HARASSMENT
– Recognized by both state and federal law
– Plaintiff must show that harassment directed to them
was “because of” their gender by presenting evidence
that:
• the harasser used sex-specific/derogatory terms
demonstrating general hostility to the gender or
• the harasser treated one gender worse than
another
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EMPLOYER LIABILITY
• Depends on who is doing the harassment, according to
both Title VII and Kentucky law
– Supervisors – different standards depending on whether adverse
employment action taken. If none, depends on employer’s
reasonableness in taking remedial action;
– Co-employees - employer liable only if it (management) knew or
should have known and failed to take prompt, remedial action;
– Non-employees (customers, delivery men) - employer liable only
if management knew or should have known and failed to take
prompt, remedial action.
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Case Studies – You Be the Judge
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IS IT HARASSMENT? – Case One
• Employee filed suit against employer for same-gender hostile
environment and sexual harassment
• Evening supervisor (male) began physically grabbing employee’s
(male) body parts, calling him sexually explicit names, and making
sexual and lewd comments/requests to employee. If other
employees were around, supervisor would make the comments
loudly
• Supervisor never suggested that the employee’s job would be in
jeopardy if he didn’t comply
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IS IT HARASSMENT? – Case One
• Employee reported this supervisor’s behavior to the midnight
supervisor.
• Midnight supervisor gave the employee a copy of the company’s
harassment policy and informed the employee she would report the
conduct to the Manager.
• Midnight supervisor told the Manager about it, and his response was
he did not care what the supervisor said or did as long as the acts
were not done on company time.
• After hearing this, employee testified he made no effort to pursue
the matter because he felt no one cared.
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IS IT HARASSMENT? – Case One
• Employee was then hospitalized for a few days for heart
palpitations. The treating physician testified the problems could be
related to caffeine intake and stress and the doctor’s notes indicated
the employee reported he had lots of conflict at work causing anxiety
and stress. Employee did not ever state he was being sexually
harassed.
• Upon returning to work, supervisor’s conduct continued and
employee ultimately sought medical help for depression.
• Employee was off work for several weeks during this period and
then upon his return to work, employee finally reported the
supervisor’s behavior to the Manager.
• Supervisor’s conduct stopped.
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IS IT HARASSMENT? – Case One
Thoughts????
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IT IS HARASSMENT – Case One
• Jury returned $75,000 verdict
• Court of Appeals affirmed
– Same gender sexual harassment is
cognizable under KCRA
– Evidence was sufficient to support jury finding
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IS IT HARASSMENT? – Case Two
• Former employee brought gender and disability discrimination action
against employer after her contract was terminated.
• Employee was hired as part-time faculty member. Three years later,
employee believed she could obtain her doctorate before the next
school term and applied for a full-time, tenured track position.
• Employee did not get that job, stayed on part-time, but failed to get
her doctorate.
• A year later, employee again applied for a full time position and
represented her doctorate degree was imminent.
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IS IT HARASSMENT? – Case Two
• Employer agreed to hire employee full-time with the contract to be
executed each year of a five year probationary period during which
employee would obtain her doctorate by the fifth year.
• Shortly thereafter, employee was diagnosed with breast cancer and
had several surgeries.
• Employee tried re-negotiating her contract to remove the time frame
when she was to obtain her doctorate degree but was denied.
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IS IT HARASSMENT? – Case Two
• A year later, employee was successful in re-negotiating the contract
giving her another year to complete the degree and if not her
employment would be terminated.
• Employee asked for another extension but was denied, and
subsequently her employment was terminated.
• Employee brought suit
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IS IT HARASSMENT? – Case Two
Thoughts????
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IT IS NOT HARASSMENT – Case Two
• Employer initially filed summary judgment motion which was denied
• After years of discovery, employer renewed its motion for summary
judgment and the trial court granted it
• Court of Appeals affirmed, finding:
– That the employee failed to establish a prima facie case for discrimination
because she was not qualified for the position; and
– That similarly situated non-protected employees were not treated more favorably.
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IS IT HARASSMENT? – Case Three
• Former State Police female cadet filed suit against State Police and
associated individuals alleging sexual harassment, constructive
discharge, and intentional infliction of emotional distress.
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While at the training academy, the female cadet was subjected to
an environment similar to military basic training.
• The female cadet alleges that one of the instructors shouted “do you
have on a sports bra. You disgust me.”
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IS IT HARASSMENT? – Case Three
• She also alleged that instructors used profanity, cadets were not
allowed to sleep or rest for 24 hours, and that cadets were required
to share meal table with people bleeding.
• The female cadet resigned and filed a complaint with the Kentucky
Commission on Human Rights, alleging she had been sexually
harassed.
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IS IT HARASSMENT? – Case Three
Thoughts????
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IT IS NOT HARASSMENT – Case Three
• Commission found no probable cause and the female cadet filed a
civil action
• Trial court granted motion for summary judgment, finding insufficient
evidence to sustain her claims.
• The trial court noted that if the female cadet’s allegations were true,
that such treatment did not establish a violation of her rights. She
had not alleged any disparate treatment based on gender.
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IT IS NOT HARASSMENT – Case Three
• The trial court further noted that it is undisputed that many women
have successfully completed the KSP academy and that the alleged
behavior is not outside the bounds of acceptable conduct in a
military-style training program in which the cadets are required to be
subjected to stressful situations
• Court of Appeals affirmed the trial court’s decision, finding the
alleged misconduct to not be severe or pervasive enough to
establish her claim for sexual harassment based on a hostile or
abusive work environment
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Prevention, Prevention,
Prevention
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A GOOD POLICY
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ELEMENTS OF AN
ANTI-HARASSMENT POLICY
• Prohibition
• Definition
• Reporting mechanism
• Resolution
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PROHIBITION
• The employer prohibits and will not tolerate
harassment on the basis of:
▪ sex
▪ age
▪ disability
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▪ race
▪ color
▪ national origin
Employees engaging in harassment will be
subject to discipline, up to and including
discharge
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DEFINITION
• Quid pro quo sexual and hostile environment
harassment:
• Offensive or inappropriate sexual conduct at
work, including unwelcome sexual advances,
requests for sexual acts or favors, or other
verbal or physical conduct of a sexual nature.
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DEFINITION
• Hostile work environment harassment:
• Verbal, visual or physical conduct such as
comments, slurs, jokes, making gestures,
threats, cartoons, touching or other similar
conduct
• Any comment or action that is gender-based,
whether it is sexually oriented or not, or
derogatory toward a protected class
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REPORTING HARASSMENT
• Identifying individuals who will hear complaints
of harassment
• Include at least two options (in case supervisor
is involved)
• Prohibition against retaliation
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RESOLUTION
• No retaliation for legitimate complaints
• Confidentiality may not be absolute
• Appropriate action will be taken if harassment is
found to exist
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TRAINING FUNDAMENTALS
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IF EMPLOYEES REMEMBER ONLY
THREE THINGS ABOUT HARASSMENT
• Discourage harassment
– Don’t participate in harassing activity
• Don’t do it
• Walk away when others do
– Say Something to the offender
• Verbally or in writing
• Publicly or privately
• Openly or anonymously
– Report the conduct to management or HR
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HOW DO I TELL IF CONDUCT
IS UNWELCOME?
• Only “Yes” means “Yes”
• Everything else means “No”
• “No” need not be verbal
• A clear response avoids confusion
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RULES TO REMEMBER
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What is welcome to you may not be welcome to others
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What is welcome from someone else may not be
welcome from you
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What was welcome yesterday may not be welcome
today
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What is welcome in one setting may not be welcome in
another setting
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THERE ARE LOTS OF GOOD RULES
• While every dog gets one bite (if it’s not
severe), steps need to be taken to stop it
• If it persists, it’s probably harassment
• Mixed messages create confusion
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MORE RULES TO REMEMBER
• When it stops being welcome, it starts
becoming harassment
• In workplace relationships, beware an
imbalance of power
• Report the relationship if with a subordinate
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WHAT TO DO ABOUT IT
• Employers must always be alert, aware and proactive to workplace conduct
• If management becomes aware of any
harassing behavior, it must react quickly and
effectively
• Teach supervisors to bring all complaints to the
attention of HR immediately
• Conduct training
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INVESTIGATING COMPLAINTS
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INVESTIGATING HARASSMENT
• Consider the complaint and map out a plan
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Who will you interview?
What documents do you have?
What documents do you need?
Do you need to get anyone else in management or
legal involved?
• Get ready to document it from beginning to end
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GEEZ, LAWYERS
• Don’t think information you document is privileged just
because you send it to a company lawyer
• Ask for in-house counsel’s advice if you want the
communication to be privileged—or just ask for help
• Don’t use legal terms: “Our investigation suggests that
your conduct was harassing” is better than “you created
a hostile work environment.”
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WHO?
• Who was involved in the action?
• Who witnessed the allegedly unacceptable
action?
• Who did you interview and what did each person
say?
• From whom do I need to get a written
statement?
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WHAT?
• What did the employee do (or not do)?
• What policy, practice, rule (but not
necessarily law) did the employee violate?
• What did you do to investigate the
problem?
• What did you do to address the issue?
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WHAT?
• What documentation exists?
– Check and print emails and downloads
– Get photos of grafitti and vandalism
– Take cartoons, calendars, comic books and
the like
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WHAT?
• What happened to the last employee who did (or
didn’t do) the same thing?
• What else do I need to know that I don’t know
already?
• Don’t be afraid to go back and get more
information if you think it might be important (or
even if you think it might not be important)
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WHERE?
• Where did all this happen?
• Where is all this going?
• How did we get where we are?
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WHEN?
• When did significant actions take place?
• Assess specific dates and times
• Document timeliness of investigation
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WHY?
• Why did the employee do (or not do) what he did (or
didn’t do)—what is his or her explanation?
• Why do you not buy his or her story?
• Why do you believe others over the employee?
• If you are taking different action than the past, why are
you doing it this way now?
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WHY NOW?
• Why did you decide to terminate the
employee now?
• What triggered the decision to discharge
the employee?
• How long have you tolerated the
behavior?
• What is the difference this time?
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AM I DONE?
• Is the investigation complete, including written
statements from witnesses?
• Was the employee given chance to explain the
problem?
• Is the proposed action consistent with personnel
policies or collective bargaining agreement?
• Was the employee aware of the rules or
standards he or she is charged with violating?
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LEVEL OF DISCIPLINE
• Does the punishment fit the crime?
• What is the employee’s length of employment?
• What do the employee’s past performance
appraisals show?
• Is there any record of discipline or counseling?
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ADDRESSING HARASSMENT
THROUGH DISCIPLINE
• Document oral counseling to make a
record--just date and sign it
• Always give the employee a place to
comment and disagree on the action.
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THE BIG PICTURE
• Make sure that you understand all the
factual circumstances leading up to the
decision and all the issues surrounding the
decision
• Always put everything in context
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THE END
QUESTIONS?
CONCERNS?
COMMENTS?
THANKS!
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