Advanced Issues in the Harassment and Sex Discrimination World
Susan Desmond, Partner, Jackson Lewis LLP
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It has been a number of years since the Supreme Court definitely stated that a hostile working environment due to a protected class violates Title VII. In light of these cases, lower courts are finding a hostile working environment that at once would have been unimaginable. Cases have found hostile working environments, for example, when one is perceived to a homosexual even though it is not a protected class. Courts have also been struggling with the idea that Title VII is not a civility code. If it is not a civility code, what behavior can be considered “severe and pervasive” to cross the line? This course will also discuss new theories of sex discrimination such as “sex plus” discrimination.
What’s at stake here? Depending on the situation, your company could be looking at back pay, an order of reinstatement (front pay if this is not possible), and compensatory and punitive damages. And, of course, attorneys’ fees (both yours and the plaintiff’s). While compensatory and punitive damages are capped under federal law, many states have their own anti-discrimination laws which have no caps.
Key goals of the conference will include learning:
- Learning how harassment law has evolved since the passage of Title VII.
- Analyzing Supreme Court decisions and how they have been construed to cover those that might not otherwise be covered under Title VII.
- Analyzing lower court decisions of “who is the supervisor”?
- Understanding what is a tangible employment action?
- What should be in an harassment policy?
- How to conduct a proper investigation and how to document the investigation.
- Understanding how your company may be an employer even if you're not signing the paycheck.
- How to avoid retaliation claims.
- Understanding the new theories of sex discrimination.
- Analyzing pending legislation.
Who will Benefit:
Those who have responsibility for human resource or supervisory functions, both large and small corporations, and governmental entities. In house legal counsel who has responsibility of overseeing human resources will also benefit. Supervisors will benefit greatly from the second day of the program.
- Senior Executives
|Day One - Understanding Harassment and New Legal Theories
||Day Two - Conducting the Investigation and Nuts and Bolts
- Update on What Type of Behavior is Considered Harassment under the Law
- History of How Harassment Became Illegal
- Important Cases throughout history, including Meritor Savings Bank v. Vinson, Burlington Industries v. Ellerth, City of Boca Raton v. Faragher
- Harassment Cases after Vinson, Ellerth, and Faragher
- Title VII isn’t intended to be a “civil morality code” – so when is harassment considered to be illegal?
- How the courts are defining and applying the requirement that conduct be “severe and pervasive”
- Sexual Harassment
- Racial Harassment
- National Origin Harassment
- Same Sex Harassment
- Harassment based on Stereotypes
- When is the Employer Liable?
- Supervisor Harassment
- Who is a supervisor (including discussion currently pending before the Supreme Court on this issue)
- Hostile Work environment
- Tangible Employment Action
- Co-Workers and Third Parties
- Application of knew or should have known standard.
- Application of the Ellerth/Faragher affirmative defense.
- Drafting an effective harassment policy to withstand scrutiny under Ellerth/Faragher?
- When can it be said that an employee unreasonably failed to use the employer’s complaint procedures?
- New Theories of Sex Discrimination
- Pregnancy and Breastfeeding Issues
- Sex-Plus Discrimination
- The EEOC’s latest stance on employees being subjected to domestic violence
- Conducting an Investigation and Avoiding liability
- Triggering the Investigation
- What Conduct Puts an Employer on Notice?
- Official Complaints
- “Knew or Should Have Known”
- Rumor Mill
- Off Duty Conduct
- New Social Media Concerns
- Who should conduct the investigation? Understanding the Risks with Each Choice
- In house counsel
- Outside counsel
- Human Resources
- Handling Employee Grievances
- Grievance Principles
- Dealing with Complainants and Witnesses
- Managing a Grievance Investigation Fairly
- Documenting the Investigation
- Getting a Statement from the Complainant
- Getting Statements from Witnesses
- How to Document Your Conclusions to Stand Up in Court
- What to Do When Your Investigation is Inconclusive
- Avoiding Retaliation Claims
- When is conduct considered to be “protected activity”?
- What conduct can be construed as retaliatory?
- Handling the Employee Who Engages in Protective Activity While a Termination is In Progress
Meet Your Instructor
Partner, Jackson Lewis LLP
Ms. Desmond, who maintains an active practice in both Louisiana and Mississippi, specializes in the areas of labor and employment and civil litigation, including representing employers in Family and Medical Leave cases, discrimination claims relative to age, sex, disability, race, religion, and sexual harassment, and handling EEOC charges and other administrative complaints through the administrative and judicial process. She is a frequent speaker for the Society for Human Resource Management, Compliance Online, and other management organizations.
Ms. Desmond also routinely counsels clients on a variety of employment practices, including employment contracts and employee handbooks and policies. She conducts employee training seminars, harassment investigations, and frequently speaks on employment-related topics.
Ms. Desmond is admitted to practice law in Mississippi, Louisiana, and Colorado. She is a member of the Federal and American Bar Associations (member, Labor and Employment Law Section; past chair, Labor Committee; Executive Council Coordinator, Young Lawyers Section; member, Torts and Insurance Practice Section; member, Emerging Issues Committee). Ms. Desmond has served as a director for both The Mississippi Bar Young Lawyers Division and the Jackson Young Lawyers Association.
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