EMPLOYEE TRAINING

1. EMPLOYEE TRAINING TUSCULUM COLLEGE August 16, 2012 Kate E. Tucker Kramer Rayson LLP

2. Tusculum College Handbooks Employee Handbook (rev’d 05-19-2012) Faculty Handbook (rev’d 05-19-2012) Student Handbook (rev’d August 2010) You are responsible for knowing the content and adhering to the rules.

3. Policies for Today Harassment (Policy 10.02) Hazing (Policy 10.02 & Student Handbook IV(I) Disabilities / Accommodation (Policy 10.03) Disciplinary Procedure (Policy # 12.01) Importance of Documentation Other policies (HR Director)

5. HARASSMENT

6. Harassment • All employees have the right to work in an environment that is free from unlawful discrimination and harassment. • It is the law, but maintaining a civil working environment is equally important because of the disruption to the Company’s business and the damage that would be caused to its reputation.

7. Harassment – A Hidden Danger • Most dangerous cases an employer faces. • Anticipate claims over promotions, demotions, and terminations. • Harassment claims often catch management completely by surprise. • Why? Harassers are covert; and victims are often reluctant to come forward.

8. Federal Law Prohibits Harassment Because of: • Race, Color • Sex / Gender (including pregnancy) • Religion • Age (over 40) • Disability or handicap • National Origin • Genetic Information

9. Policy is Broader than the Law • Prohibits harassment based on military or veteran service and sexual orientation. • Prohibits behavior that, standing alone, may not meet the legal definition of “harassment”. • Based on: • Guidelines from EEOC, Title VII of the Civil Rights Act and the TN Human Rights Act. • Goal of a pleasant & productive work environment for all.

10. What is “Harassment”? • Originally arose in the context of sexual discrimination (i.e. the manager who demanded sexual favors in return for keeping your job). • Definition has expanded: • Hostile working environment; and • Other protected categories.

11. Sexual Harassment Unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal or physical conduct of a sexual nature, where: • Submission is made a term or condition of employment; • Submission or rejection is used as the basis for an employment decision; or • The conduct has the purpose or effect of unreasonably interfering with work performance or creating an intimidating, hostile or offensive work environment.

12. Hostile Work Environment(Sex Based) • Need not be sexual in nature - - but must be because ofvictim’s sex • Must be unwelcome • Severeorpervasiveenough to create objectively hostile environment • Victim must subjectively perceive it as abusive • Isolated statements/actions not enough • Can be same sex harassment

13. Types of Conduct/Behavior Verbal: Sexual innuendoes, suggestive comments, sexual jokes, sexual propositions Non-Verbal: Staring at a person’s body, looking a person up and down, blocking a person’s path, giving personal gifts, sexually suggestive objects, offensive e-mail, internet pornography, cartoons Physical: Unwanted physical contact, e.g., touching, shoulder/ neck rubbing, brushing up against the body, touching yourself sexually, pinching, breast/buttock grabbing, outright assaults

15. Same Sex Harassment • Harassment can be by the same sex. • Sexual in nature (i.e. homosexual alleged harasser) • Not sexual in nature (hostile work environment) • Key: was victim targeted because of sex (gender)? • Case Study (female to female) • “Are those your real boobs?” • “Who did you sleep with to get here?” • Court: sex harassment exists (distinguish being “loose” from having breasts).

16. Other Workplace Harassment Verbal or physical conduct that denigrates or shows hostility or aversion toward an individual based on race, color, religion, national origin, age, genetic information or disability, that: • Creates a hostile or offensive work environment; • Unreasonably interferes with one’s work performance; or • Otherwise adversely affects one’s employment opportunities.

17. Types of Conduct/Behavior Epithets, slurs, negative stereotyping, threats, intimidating or hostile acts. Written or graphic material that denigrates, shows aversion or hostility toward an individual or group that is placed on walls, bulletin boards, in computers or elsewhere on firm premises, worksites, or is circulated at work. Hazing (primarily involves students)

18. Social Media and Texting Can provide the basis for harassment claim Nothing is private! No more “he said/she said”

19. What is Unwelcome? • A previous consensual relationship is NOT a defense to actions after relationship ends. • Alleged victim may engage in rough joking or language, but may still bring suit. • Alleged victim is not required to inform the harasser the conduct is unwelcome. • A victim may smile or even laugh at a crude remark but still claim he/she was offended. • It is impossible to “get inside someone else’s head”

20. Can Be Unintentional “That’s not what I meant.” “You should be flattered.” “I didn’t mean to bother you.” “Lighten up – it was just a joke.” THESE ARE NOT DEFENSES/EXCUSES!

21. The Sliding Scale • “Severe or pervasive” harassment is illegal. • If all verbal, it must occur frequently, over a long period of time, and be extremely offensive. • Physical intimidation or touching is more “severe” and requires less frequency and duration to be illegal. • One incident (e.g., sexual assault) without more may suffice.

22. Who? What? When? Where? • By other employees, students, contractors, outside vendors or customers. • Speaking (in person, on the phone), writing (notes, e-mails), touching, posting photos or jokes, playing pranks. • During working hours or outside (work related). • In the workplace, at company events, and in all employment relationships and dealings.

23. Harassment by Supervisors • Employer is liable (even with a policy) if a supervisor harasses an employee who then suffers a “tangible job detriment” • If no tangible job detriment, employer may avoid liability if: • Reasonable care to prevent and correct harassment, & • Employee acted unreasonably in failing to take advantage of the preventive/corrective opportunities or otherwise failed to avoid harm.

24. Harassment by Co-Workers • Harassment unreasonably interfered with the employee’s work performance or created a severe and pervasive hostile work environment; and • The employer knew or should have known of the harassment AND failed to take prompt and appropriate corrective action. • Employers with knowledge cannot respond with indifference or utter ineptitude.

25. Tusculum College Responsibilities • Have a clear policy prohibiting harassment • Educate employees about the policy • Promptly and thoroughly investigate complaints and reports of potentially harassing behavior • Take prompt, appropriate action to stop any harassment that occurs • Do not retaliate against complainants or others who participate in an investigation

26. Supervisor Responsibilities Don’t engage in harassment Report to HR if observed by or reported to you. Even where Complainant says, “Don’t tell anyone!” YOU MUST REPORT Duty to create harassment-free environment for everyone - - not just complainant Cooperate in investigations Don’t retaliate against complainants

27. West v. Tyson Foods Employee harassed by co-workers Employee complained to supervisor (said he’d take care of it but never passed complaint along) Employee transferred (didn’t stop harassment) Employee terminated (for legitimate attendance issues) HR promised investigation (never happened) Lawsuit = $1.8 Million verdict

28. Employee Responsibilities • Know and adhere to the policy. • Know and follow the complaint procedures. • Immediately report behavior that might violate the policy if: • The behavior is directed toward you; • You observe the behavior; or • The behavior is reported to you by another. • Immediately report any retaliation you experience after making a report/complaint.

29. Making a Complaint or Report • You do NOT have to confront the alleged harasser • But you can (often resolves the issue) • Not a substitute for complaint procedure • Report to either : • Your supervisor • VP of your department • Director of HR • You do not have to make a written complaint • No “do nothing / tell no one” complaints

30. I Don’t Like to Cause Trouble Cannot permit harassment to continue. By reporting small problems before they grow into serious issues, you can end up saving someone from making a career-ending error. Your job isn’t to distinguish between a predator and someone who is simply immature or insensitive; its to provide management with the information it needs to take effective action.

31. Investigation • Tusculum has a duty to investigate. • Not every investigation is going to be the same – no “one size fits all”. • Cooperate fully and honestly if you are interviewed (either as the accuser, a witness or the accused). • Will be asked for a written statement. • Do NOT discuss the investigation with other employees. • Do NOT retaliate.

32. Discipline for Harassment • Must be designed to stop the harassment. • Tailored to the conduct. • E.g.: written warnings, suspension, demotion, denial of promotion, or termination. • Managers/supervisors held to a higher standard — subject to more severe discipline. • Can still be disciplined even if not “unlawful.” • Can be disciplined for false accusations.

33. Manager/Supervisor Liability No liability under Title VII (federal) Potential liability as an “aider and abettor” under THRA (state) Harris v. Dalton – doctor in a physicians group individually liable where he denied the conduct and urged employer to fire the complaining employee.

34. Rules To Live (And Work) By • If you don’t want to hear about it in the newspaper or on the news, don’t do/say it. • If you’d be ashamed for your spouse/children to find out - - don’t do/say it. • Would I want someone else to act this way towards a person I am in a relationship with? • If its wrong to speak it, its wrong to email it. • It’s not just sexual harassment that’s illegal, race, religion, national origin, etc. are also protected.

35. HAZING

36. Hazing Conduct that subjects an individual to mental or physical discomfort, embarrassment, harassment or ridicule. Prohibited under harassment policy. Separate policy in Student Handbook Generally be / toward students. Employees must be aware and report hazing to HR (HR will coordinate with student affairs).

37. Types of Conduct/Behavior Destructive initiation activities (paddling, line-ups, other activities w/ potential for injury) Public ridicule Bullying Interference with Tusculum College policies or state/federal rules and regulations

38. TN Law Prohibits Hazing Intentional or reckless act in TN; On or off school property; Acting alone or with others; Directed against other students; Endangers mental or physical health or safety. Does not include: Customary athletic events or competitions. Actions not connected to initiation.

39. DISABILITIES & REASONABLE ACCOMMODATIONS

40. Disabilities • Tusculum College prohibits discrimination • against qualifying employees; • with respect to the terms, privileges, or conditions of employment; • because of a disability. • Disability = permanent or chronic physical or mental condition that imposes a substantial limitation on a major life activity.

41. Reasonable Accommodation • Tusculum College will provide reasonable accommodations • To qualified applicants/employees • With a disability; • Who require accommodations to safely perform the essential functions of their position; • Unless it constitutes an undue hardship to TC. • Separate policy for students.

42. Requesting Accommodation • Inform TC of the need for accommodation. • Identify the type of accommodation needed. • Verbal or written request. • To Director of Human Resources. • Supervisor must forward any requests to HR. • HR will work with applicant/employee. • TC may request documentation. • Report any retaliation to HR.

43. DISCIPLINARY PROCEDURE

44. Disciplinary Procedure TC has an established, written procedure for disciplinary action. Purpose: fair and consistent treatment of all employees. Will investigate to the extent necessary. Investigation must be unbiased and kept confidential to the extent possible.

45. Progressive Discipline • Verbal Reprimand • Written Reprimand • Termination • Exceptions: • Offense requires immediate termination (e.g. gross violation involving assault or stealing). • Faculty – different termination procedures but same standard of progressive discipline.

46. Who May Discipline? • Supervisors (Director, VP, Chair) • Verbal counseling sessions for minor issues. • Verbal Reprimands (in consultation with VP). • Written Reprimands (in consultation with VP). • PIP (in consultation with HR) • Must immediately report (with documentation) to HR (and VPAA if faculty involved). • May consult HR at any point for assistance. • Termination – President (via HR or VPAA).

47. DOCUMENTATION

48. Supervisors Must Document! Document all issues (e.g. policy violations, performance, attendance, insubordination, mistakes, counseling sessions). Be consistent – treat all employees the same and be ready to justify exceptions. Don’t over document (e.g. single occurrence of spelling mistakes on a letter). Counsel employees in private.

49. FAILURE TO PROPERLY DOCUMENT MAY RESULT IN DISCIPLINARY ACTION

50. How to Document Act quickly while you still recall details. Be specific - vague descriptions (e.g. “bad attitude” or “poor attendance”) are inadequate. Be detailed – dates, statements, effect on other employees. Report issues to HR immediately (she has the expertise to help or even handle it if necessary). Provide copies of documentation to HR.