LIMITING YOUR RISK FROM ANGER, HARASSMENT BASED EMPLOYMENT CLAIMS - PowerPoint PPT Presentation

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LIMITING YOUR RISK FROM ANGER, HARASSMENT BASED EMPLOYMENT CLAIMS

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Title: LIMITING YOUR RISK FROM ANGER, HARASSMENT BASED EMPLOYMENT CLAIMS


1
LIMITING YOUR RISK FROM ANGER, HARASSMENT BASED
EMPLOYMENT CLAIMS
2010 GULF STATES ASC CONFERENCE RITZ CARLTON
HOTEL, NEW ORLEANS, LOUISIANA JUNE 15,
2010 Presented By Armin J. Moeller, Jr. BALCH
BINGHAM, LLP 401 Capitol Street, Suite 200,
Jackson, MS 39201 amoeller_at_balch.com Tel.
601-965-8156 Fax 888-594-5405
2
(No Transcript)
3
  • WHAT IS ANGER?
  • Strong Feeling of Displeasure/Antagonism Rage
  • Intense Emotional State Induced by Displeasure
  • Identifies the Reaction, not Intensity or
    Justification
  • Anger Describes Displeasure but not Loss of Self
    Control
  • Rage Suggests Loss of Emotional Self Control

4
  • WHAT IS HARASSMENT?
  • To Harass
  • persistently annoy
  • Create an unpleasant/hostile situation for
    someone especially by uninvited, unwelcome verbal
    or physical conduct
  • To Worry and Impede by Repeated Conduct
  • Sexual Harassment Uninvited and Unwelcome
    Verbal/Physical Behavior of a Sexual Nature
    Especially by a Superior to a Subordinate (1975)

5
  • EMPLOYER'S DUTY
  • Nondelegable Duty to Provide Safe Working
    Conditions for Employees
  • Must Provide Competent Coworkers
  • Reckless/Vicious Disposition Incompetence
  • Employer Liable for Lack of Reasonable Care in
    Selection of Employee with Propensity for
    Viciousness
  • Duty of care in selecting employees

6
  • EMPLOYER'S DUTY Continued
  • Negligent Hiring
  • Duty of care to hire competent/nonvicious
    employees
  • Breach of duty
  • Injury/damages to employee(s)
  • Negligent Training or Supervision
  • Most states recognize claim
  • Failure to adequately train or supervise
  • Resulting injury to coworkers or public
  • Negligent Retention
  • Knew or should have known employee unfit
  • Injury to coworkers under circumstances type of
    injury foreseeable
  • OSHA Duty
  • Safe, healthful workplace free of recognized
    hazards

7
  • ANGER/HARASSMENT BASED CONDUCT WHAT'S ILLEGAL
  • Title VII, Age Discrimination in Employment Act,
    Americans with Disabilities Act
  • Prohibit Race, Sex, National Origin, Religion,
    Age, Disability Based Harassment
  • Employer Liability
  • Supervisors Quid Pro Quo
  • Coworkers Hostile working environment
  • Affirmative defenses
  • Policy for complaints
  • Prompt remedial action to
  • end harassment

8
  • WHAT IS NOT ILLEGAL OFFICIALLY
  • Workplace Bullying
  • "Being Mean Just for the Sake Of Being Mean In
    the Workplace"
  • Title VII/Current Law Not a "General Civility
    Code"
  • Oncale V. Sundowner Offshore Services, Inc.
    (1998)
  • Three Times More Common than Sexual Harassment?
  • Fifteen States Considering Legislation
  • California Healthy Workplace Bill
  • Unlawful Employment Practice to "Subject an
    Employee to an Abusive Work Environment."
  • Abusive Work Environment Workplace Where an
    Employee is Subjected to Abusive Conduct that is
    so Severe that it Causes Physical or
    Psychological Harm to the Employee

9
WHAT IS NOT ILLEGAL OFFICIALLY Continued
  • EU Framework Agreement Prohibits Workplace
    Harassment/Violence
  • Provides complaints procedure/investigations/remed
    ial action
  • "Harassment" occurs when one or more
    workers/managers repeatedly/deliberately abused,
    threatened and/or humiliated in circumstances
    related to work.
  • Includes abuse, threats and humiliation that
    occur inside/outside workplace
  • Harassment when "repeatedly and deliberately
    abused, threatened and/or humiliated in
    circumstances relating to work
  • Violence occurs when worker/manager "assaulted in
    circumstances relating to work"
  • Purpose/effect may be to violate individual's
    dignity, effect his/her health or create a
    hostile work environment
  • What is Wrong with Prohibiting
  • Workplace Bullying?
  • Are your supervisors reluctant to
    evaluate/discipline now?

10
  • SEVERE BULLYING WORKERS' COMPENSATION/AMERICANS
  • WITH DISABILITIES ACT
  • Mental/Mental Claim
  • "Clear evidence" standard
  • Causal connection between employment and injury
  • Post Traumatic Stress Syndrome/ Eggshell
    Employee
  • Reduce employee's exposure to traumatic
  • stress inducing events
  • Interactive Process
  • Knowledge of impairment/limitation?
  • Reasonable accommodation

11
FROM ANGER TO RAGE TO VIOLENCE
  • Assault
  • A threat or attempt to inflict offensive physical
    contact or bodily harm that places a person in
    danger or apprehension of harm/contact
  • Battery
  • Act of battering/beating
  • Offensive touching/use of force on person without
    their consent

12
  • WHAT IS AN EMPLOYER'S DUTY?
  • Harassment Free Environment?
  • Only if based on prohibited characteristics
  • Retaliation? Whistleblowers? Participation?
    Opposition?
  • Anger Free Environment?

13
  • PROACTIVE MEASURES TO LIMIT RISK
  • Recruiting/Hiring
  • background investigations
  • Candidate Profile Assessment
  • testing for personal characteristics
  • service orientation
  • integrity
  • team work
  • discipline
  • racial/ethnic/cultural acceptance
  • emotional stability
  • drug/alcohol use
  • safety
  • interpersonal skill
  • self confidence
  • multitasking
  • psychological toughness

14
PROACTIVE MEASURES TO LIMIT RISK Continued
  • Code of Conduct
  • Workplace civility code?
  • Values statement
  • Educating/Training Workforce to Expectations
  • Do unto others what expect them to do unto you.
  • Culture of respect, recognition, communication,
    teamwork
  • Training Our Supervisors
  • Thou shall not create/foster an abusive work
    environment
  • Thou shall not tolerate an environment that
    creates one
  • Eliminating abusive conduct
  • enforcing the Code of Conduct
  • recognizing violation
  • counseling/coaching to civility
  • actions reasonably calculated to end abusive
    conduct
  • communication and interpersonal conflict
    resolution

Values
15
PROACTIVE MEASURES TO LIMIT RISK Continued
  • Abusive Conduct Investigations
  • Natural extension of sexual harassment
    investigations?
  • Abusive workplace conduct complaints policy.
  • complaint
  • investigation
  • findings/determination
  • communication
  • remedial action reasonably calculated to end
    abusive conduct

16
PROACTIVE MEASURES TO LIMIT RISK Continued
  • Remedial Options
  • Mandatory EAP Referral/Leave
  • Anger management program abuser's expense
  • Personal coach/counselor abuser's expense
  • Transfer of Abuser/Abused
  • Suspension without Pay
  • Demotion
  • Termination
  • Objective - End Abusive Conduct
  • Respect, Recognition, Communication, Self-Control
  • Living Our Values, the Code of Conduct
  • The Law Firm Example
  • A type personalities vs. collegiality,
    camaraderie, professionalism

17
  • Armin J. Moeller, Jr.
  • Phone 601-961-9900
  • Fax 601-961-4466
  • amoeller_at_balch.com
  • 401 East Capitol Street, Suite 200
  • Jackson, Mississippi 39201
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