On Tuesday, Feb. 27, two attorneys from Jackson Lewis LLP, Diane Winholtz and Alexander Leonard, discussed non-typical sexual harassment situations that can occur in the workplace.
The seminar was dedicated to a discussion about workplace discrimination cases.
Winholtz began the informal session by describingtopics such as what is sex harassment, what to do when you learn or are the victim of sex harassment, and what are the appropriate actions to prevent sex harassment from a lawyers perspective. She began with the basics of filing a lawsuit.
Anyone that files a lawsuit against their employer claiming that they been discriminated based on race, age, national origin, gender, religion, disability, claiming they've been harassed in someway we would defend the employer in that situation in a lawsuit," said Winholtz.
Winholtz questioned the audience, "How many of you are familiar of the harassment policies here at Baruch? Have you all seen the harassment policies at Baruch? Do any of you know whether there is a harassment policy at Baruch?" The audience remained silent for each question, which ultimately created to laugher in the audience.
A precise legal definition for sex harassment, asserted Leonard is, "unwanted conduct by one employee to another based on that person's sex that means because of that persons sex that conduct would not have occurred." "Quid pro quo is a glaringly obvious case of sex harassment," Winholtz added.
A hostile work environment can consist of comments, staring in a sexually suggestive way, leering and even e-mailing jokes that contain either profanity or sexual innuendos could conceivable create hostile environment.
Winholtz later explains that anyone can be a sexual harasser including a visitor. Her example was her colleague.
Being on Baruch grounds, he could potentially violate state, federal or city law. She emphasized: "Everything is protected by law."
"Everybody is in a protective classification: a category of employees who are protected based on their participation in a particular class, they either belong to the same gender, age group; federal over 40 and state over 18, national origin, some type of disability–even an allergy can be in the disability," she said.
The Jackson Lewis law firm is facing an ongoing peanut allergy disability case. An employer's attempt to entice customers to purchase candy, placed the candy near the register, and the casher claims the company placed her in a situation were a serious allergic reaction may take place knowing her condition. Under the expansive laws of the city, even an allergy can be considered a disability.
Sexual harassment can occur almost anywhere: a school, school party and even a company-sponsored party. However, among peers, outside the work place, not including a supervisor and his subordinate, "the law doesn't require an employer to regulate its employees conduct on their own time when it has nothing at all to do with work," asserted Winholtz. Leonard added, "going out socially with person would already know of my demeanor. If I make sexual jokes –the law requires that the conduct be unwelcome –and continuously going out with me to bowl it's not unwelcome conduct."
Winholtz then spoke of a case that involved two well-respected, high earning adults, engaged in a relationship.
The woman was not pleased with the ending of the relationship, especially when the colleague began dating another co-worker. A sexual harassment claim was filed, and the company was forced to defend the claim. Ultimately, the company prevailed, but, it served as a wake up call.
Employers may attempt to motion for summary judgment to get the case dismissed, Winholtz asserted, "sex harassment cases almost never get dismissed."
"It's the quintessential ‘he said she said' case that's difficult to prove and disprove," she said.
Leonard stated, "as an employer's key activities to help prevent liability including having a stark policy in place."
"If the company learns that you've engaged in that type of conduct you will be disciplined accordingly up to and including termination," Leonard said.
If the offense is egregious enough, the guilty party can be dismissed.
When handling a complaint, a co-worker or direct supervisor should not investigate; it needs to be someone objective and further removed from the situation.
One student asked if these policies apply to non-paid internships, Winholtz replied, "if they are unsure of who to report to, talk to the school since they are responsible for the internships."
The victims are protected against retaliation, covering a reduction in pay, hours, demotion, moving a desk to a less desirable location. In a past case, someone had complained that they were no longer receiving lunch invitations.
Winholtz also wanted students to know that, "there is no such thing as a confidential complaint." A supervisor that keeps quiet is enabling a potential liability and must take action.
If no proof could substantiate the claims and the person unequivocally denies the allegation, Winholtz advises the employer reaffirm, reiterate the policies, and consider holding another session with the staff to reiterate the rules of conduct.
Some last remarks were towards what employers should do, such as contacting the person that filed the complaint and give them an update whether the allegations had been proven or not. And lastly, check back with the employee every so often to make sure they are left feeling comfortable.