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Practical Tips on Creating an Effective Anti-Harassment Policy
 

By Kevin C. Donovan  5/20/2014
 

It has been a long time since the Clarence Thomas Supreme Court confirmation hearings brought the issue of sexual harassment to the forefront of public consciousness. Yet the fact that thousands of harassment claims continue to be filed each year, costing employers tens of millions of dollars in damages and attorney fees, indicates that problems remain. Constant changes in the law make formulating the right unlawful harassment policy a continuing challenge. Indeed, sometimes an employer’s well-intended policy simply seeking to combat unlawful harassment can lead to unanticipated legal liability. This article addresses key issues and offers practical guidance for adopting the right policy.

What Is Unlawful ‘Hostile Workplace’ Harassment?

Reduced to its simplest formula, unlawful “hostile workplace” harassment is conduct directed against an individual because of his or her membership in a protected class, which causes the workplace to be “hostile” within the meaning of the law. How many instances of harassment, the types of conduct that are considered harassing and at what point the work environment will be considered “legally hostile” depend on many factors.

Explicitly racial jokes, sexual comments or expressed hostility toward a particular religion or ethnic background are rather easy to characterize as forbidden conduct, but other conduct can also lead to claims. Indeed, offending conduct need not be “sexual” to give rise to a sexual harassment claim.

The absence of any bright line identifying what conduct may be considered unlawful harassment is among the issues that make this subject challenging to address.

Why an Unlawful-Harassment Policy?

Some jurisdictions require employers to create and maintain unlawful-harassment policies, sometimes in connection with mandatory training of all or part of the workforce. Even if not mandated by law, however, employers are wise to adopt such policies.

An employer’s well-crafted unlawful-harassment policy serves many positive purposes. First, such a policy is designed to protect the employer’s workforce from having to endure inappropriate conduct in the workplace, a worthy goal in itself. Second, the policy helps the employer ensure that if there are problems, they are brought forward so they can be addressed. Again, this makes good business sense. Finally, the proper policy can be a vital defense for the employer if a legal claim is nevertheless made by an alleged victim of harassment.

An employer may face a lawsuit filed by an employee (or often, an ex-employee) who never complained of harassment previously. The absence of any prior complaint in the face of a strong policy against harassment provides the employer with a powerful argument that the harassment did not happen or even if something did happen, it could not have been as offensive as the individual now claims (or he or she would have complained at the time). That eminently logical argument may resonate with a jury as simple common sense.

In addition, well-established case law could apply to bar the harassment claim based on the plaintiff’s failure to report the supposed harassment.

What, then, should an unlawful-harassment policy contain?

Identify What Is Unlawful Harassment

An unlawful-harassment policy should explain what harassment is so all can avoid committing it, or take steps to stop it if they feel they are a victim of it.

Keeping in mind that there is no all-encompassing definition, cautious employers know that the first line of defense against a claim of harassment is letting its entire workforce, management and employees, know that unlawful harassment will not be tolerated. The policy should provide examples of verbal and nonverbal actions that could be construed as harassing. The more education that is provided, the less likely that someone will inadvertently fall into a situation in which he or she commits an act that the law considers harassment.

The policy should ensure that employees know that harassment is not limited to sexual harassment, but includes harassment based on any protected classification (e.g., age, disability, national origin, race and, in some jurisdictions, sexual orientation).

Not only will identifying harassment for the workforce help prevent it from ever occurring, but providing such education will make it more difficult for an employee to later claim that he or she was not aware of the right to complain about the conduct at issue.

Cover Harassment by Anyone

The policy should make it clear that everyone who works for the employer is protected from harassment, and that such protection applies regardless of who is the harasser. This should include an announcement that harassment by any persons with whom employees come into contact (e.g., customers and vendors) is covered by the policy.

A Strong Policy, But Don’t Overdo It

No employer wants unlawful harassment in the workplace. Not only is such conduct wrong and subject to legal liability, but it introduces an unwelcome dynamic to the workplace and can hurt productivity. It is thus tempting for an employer to use strong language in its policy, such as making an ironclad commitment to prevent harassment and promising to punish anyone who is guilty of harassment.

Such promissory language should be avoided. In many states, promises set forth in employee handbooks and other employer policies can give rise to enforceable contracts. Contract claims generally have longer statutes of limitations, meaning that a claim based on a breach of contract may remain viable long after it is too late for an employee to bring a claim under state or federal anti-discrimination laws.

While an appropriate disclaimer that nothing in the unlawful-harassment policy is an enforceable promise can provide a safeguard, it is better that the employer does not, in an excess of enthusiasm for doing the right thing, leave itself open to an old claim it could otherwise avoid. Consult legal counsel for appropriate language.

Encourage That Claims Be Made

This may seem a strange statement, but the unlawful-harassment policy should encourage that claims be made. There are practical reasons for this approach. First, the more quickly claims are made, the sooner they can be addressed, limiting potential legal exposure.

Also, harassment claims might be based on a simple misunderstanding. A manager or a co-worker may not be aware that his or her conduct is offensive to another. Employees should be encouraged to speak up directly to someone whose conduct is offensive. That alone may solve the problem. However, if the employee is uncomfortable with confronting the harasser (who may be a direct supervisor), it is important that the employee bring the matter to higher-ups quickly. Better to nip the problem in the bud than to allow it to fester.

Moreover, if the situation surfaces promptly and is addressed, it is possible that the conduct will not even be found by a court to satisfy the threshold of creating a hostile work environment if a legal claim is later made.

Managers should be told that they are independently responsible for bringing forward claims of possible harassment. Sometimes a manager is approached by an employee who asks to speak “off the record.” That employee may complain about another worker’s conduct, and then say he or she does not want to make a formal claim.

Maybe the employee just wants to blow off steam, but the manager is now in an awkward position. If the manager honors the employee’s request and does not report the conduct, the employee may later sue and claim that, despite his or her own request not to report the claim, the employer was still on notice of the conduct through the report to the manager. Managers also should be instructed not to try to handle a possible harassment complaint alone. Ultimately, the decision whether to act and in what manner should remain in the hands of the employer’s HR department. Again, this requires that all managers receiving a complaint report it to HR for handling.

Individuals similarly should be encouraged to report any possible harassment, even if it is not directed against them. Again, the employer should be on record as encouraging the unsurfacing of any possible unlawful harassment situations as part of its commitment to eradicate the problem.

(Although beyond the scope of this article, it is important to note that training of managers and employees on the subject of unlawful harassment is an important element of a total unlawful-harassment prevention and remediation program.)

Identify How Claims Can Be Made

The unlawful-harassment policy should identify how the employee can make a complaint and to whom. A number of different individuals (or titles) should be identified to receive complaints to guard against the possibility that the only person identified to receive complaints under the policy is the alleged harasser. The policy should not state that the chain of command must be followed, to avoid this very issue.

The employer may prefer that complaints be put in writing as a way of ensuring that it has all the facts, and perhaps to help guard against the complaining employee changing his or her story later; however, the employee should not be told that the complaint will not be investigated unless it is in writing.

Retaliation Is Verboten

The policy should state that no employee will be subject to retaliation for making a complaint of unlawful harassment or for cooperating with an investigation into such a complaint. The policy should also encourage persons who feel that they have been subject to retaliation to come forward just the same as victims of a harasser are expected to do.

This no-retaliation policy should be explained to the alleged harasser, who may be shocked and upset to be accused of such misconduct.

Ensure Policy Is Published and Distributed

Even the best unlawful-harassment policy does little good if employees do not know about it, or are allowed to be in a position to claim they did not know about it.

Employers should ensure that their policy is widely disseminated. Make sure that every individual, management and employees, receives his or her own copy of the policy.

Have everyone sign receipts stating that they have received a copy of the policy and understand that they are required to read it and adhere to it. Post the policy in prominent locations throughout the workplace. Include the policy in the company handbook at the earliest opportunity.

Mandatory Confidentiality

The policy should avoid threatening employees with discipline if they fail to maintain the confidentiality of the complaint during the investigation.

It would seem only logical—for a number of good reasons—to impose such a rule. For example, ensuring that the employer receives facts from each relevant witness without the possibility of the witness being influenced by others, as well as protecting the privacy of the complaining employee who may not wish his or her complaint to become the subject of gossip.

However, the federal National Labor Relations Board (NLRB) recently took the position that a blanket policy of mandating that employees not discuss an investigation into workplace misconduct under threat of discipline may violate federal labor laws and the National Labor Relations Act (NLRA). The NLRA applies to employers even if they are nonunionized, so the NLRB’s position must be taken into account both in drafting a policy and during an investigation.

Purposes of Well-Crafted Policy

A well-considered unlawful-harassment policy is an extremely valuable employer initiative on many levels. Apart from the fact that the failure to have such a policy in place may be used against the employer in any litigation claiming unlawful harassment, a well-crafted policy may constitute a defense against a later claim. It also is an effective teaching tool that could well prevent harassment before it starts, which after all is the ultimate goal.

Kevin C. Donovan is an attorney with Wilson Elser in Florham Park, N.J.

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