Good policies drive good cultures. Here are some recommendations to consider as you revisit your organization’s anti-harassment policy.
1. Don’t Limit It to Sexual Harassment
Of course, you must cover sexual harassment, but don’t forget that other kinds of harassment are equally unlawful and must be addressed in your policy, too.
Simply stated, harassment based on any protected status, including race, ethnicity and religion, is illegal.
Imagine the question you’ll be asked at a deposition if your policy addresses sexual harassment but not the racial form: “Why do you think sexual harassment is worse than racial harassment?” There’s no good answer.
[SHRM Member Resource: Workplace Harassment]
2. Avoid Legal Definitions
All of us have seen policies that quote regulations published by the Equal Employment Opportunity Commission (EEOC). They’re technically accurate but not particularly useful or relatable to employees. The legal definition is fine for lawyers, but you’ll want to use clear language to give more context and explanation in your policy, including real-life examples of unacceptable conduct. Pick scenarios that will resonate with your workforce based on your organization’s culture.
Sometimes it’s a struggle to figure out how much detail to provide, especially when describing lewd behavior. I get it. You don’t want to use words or phrases that make employees uncomfortable with a policy that was designed to create a safe working environment for everyone.
Why not make this concern explicit in the policy? State that your intent is not to make anyone feel awkward or embarrassed but instead to make clear what is unacceptable so that employees can work in a harassment-free environment.
Even with this disclaimer, please be thoughtful about how you describe prohibited conduct. For example, every policy should include the phrase “hate words,” but I don’t recommend sharing any actual slurs in your language.
3. Focus On What Is Prohibited
In order for harassment to violate federal law, it must be, among other things, severe or pervasive. The more severe it is, the less pervasive it need be—and vice versa.
However, you do not want to wait until conduct is unlawful before banning (or responding to) it. The goal is to prevent and remedy harassing behavior before it rises to the level of illegality.
That’s why I recommend starting your policy with examples of conduct that is forbidden, such as “The following behaviors are unacceptable and therefore prohibited, even if not unlawful in and of themselves.”
4. Steer Clear of Problematic Language
On a related note, don’t start by saying “Sexual harassment includes but is not limited to ...” This language is problematic for multiple reasons.
First, the conduct at issue may not constitute harassment as a matter of law. Mocking the way a disabled employee walks is harassing behavior based on disability. But, at least under federal law, if there is nothing more, that act in and of itself may not be enough to create a hostile work environment.
Second, if your prohibitions are framed in terms of legal wrongs, your corrective actions may need to be, too. And here you risk defamation claims. That is, the conduct may not be severe or pervasive enough to violate federal law, but it may be bad enough to meet your judgment as to what is unacceptable and thus prohibited. So why apply a standard to conduct you may not be able to prove?
5. Drill Down on Sexual Harassment
Of course, you will want to include quid pro quo harassment and give an example of what that means—for example, requiring an employee to submit to sexual advances as a condition of a promotion.
But also be sure to include examples of conduct that may give rise to a hostile work environment, such as inappropriate touching and sexual banter or “jokes.” And don’t forget to share instances that involve pregnancy as well as gender-biased statements, such as stereotypes about women or men. In other words, it’s not just comments about someone’s sexual desirability that may give rise to a hostile work environment. So too can remarks about a person’s perceived lack of attractiveness. Any form of sexual objectification—whether favorable or negative—is unacceptable.
Jonathan A. Segal is a partner at Duane Morris in Philadelphia and New York City, and a SHRM columnist. Follow him on Twitter @Jonathan_HR_Law.
Illustration by Adam Niklewicz for HR Magazine.
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