Cast a Wide Net with Harassment Policies

By Allen Smith, J.D. Jul 1, 2015
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LAS VEGAS—Be careful about the wording of harassment policies, which should be broad enough to prohibit all types of harassment without making employers more vulnerable to claims than they would be without the policies, recommended Jonathan Segal, an attorney with Duane Morris in Philadelphia.

Speaking at a June 30, 2015, concurrent session at the Society for Human Resource Management 2015 Annual Conference & Exposition, Segal noted that half of all harassment claims involve sexual harassment, while the other half involve racial, religious and disability harassment.

Harassment claims are increasingly based on gender; these claims are not sexual in nature, but they involve derogatory comments about women or men. It’s imperative that policies make clear that harassment based on gender as well as all other forms of harassment are prohibited, Segal said.

Specific Examples

Include practical examples of prohibited behavior, but “focus on inappropriateness, not illegality,” he remarked. If you say certain behaviors are examples of sexual harassment and then they occur in your workplace, a court may construe the circumstances to be harassment, he cautioned.

Instead, say “The following behaviors are inappropriate, regardless of whether they are unlawful,” Segal recommended.

“Give specific examples to educate employees through the policy what’s not OK,” he said. Quid pro quo harassment is, of course, always illegal, but make that clear in your policy anyway. Also, the policy should prohibit a supervisor politely asking for sex, as it may be perceived as quid pro quo harassment by the recipient. “Power is relevant,” he noted. A supervisor asking a subordinate for a date once is fine, but more than once is not. No means no, Segal said.

Power isn’t the only factor, though. Make clear that inappropriate behavior between employees on the same level within an organization will not be tolerated either.

Sexual comments among two men could be perceived as harassment, as one of the men may be uncomfortable about the conversation because of power, sexual orientation or religion, Segal noted. And any conversation might be overheard by other co-workers and be deemed offensive.

What about complimenting someone on what they’re wearing or saying, “You look nice”? Whether that crosses the line may depend on how or when it’s said, he noted. For example, compliments during an employee’s performance review would be inappropriate.

Segal recalled one situation involving three men and one woman on a dais. A CEO complimented the men on the job they were doing and then turned to the woman and said, “Doesn’t she look good today?” The woman explained to him why that was inappropriate, so he got off easy; often, that’s not how the story plays out.

Consider including in harassment policies a prohibition on “jokes” that make fun of sexuality, ethnicity, sexual orientation or other characteristics. Also, prohibit any hate symbols or microaggressions, such as saying “You don’t act gay” or “You don’t look Jewish.”

Segal recalled one workplace where a male employee called all the female employees “sweetheart.” After he was counseled about it, he started calling everyone “sweetheart,” Segal said, noting that wasn’t the correction the company had in mind.

“Make clear the policy’s application to e-mail, text messages and social media. We see a lot of harassment with social media,” Segal said.

Additionally, the harassment policy should note that it covers inappropriate behavior from employees, customers and vendors.

After-hours work-related events are another possible venue for harassment. Segal said that, of the last 12 harassment claims he has defended, five have involved social events. Too much alcohol and a lack of inhibition lead to inappropriate behavior that harassment policies should prohibit.

Complaint Procedures

Clarify, as well, that complaint procedures are available for employees to use to raise concerns about all kinds of harassment, in addition to discrimination and retaliation, Segal recommended. And have multiple points of access for complaint procedures, not just the supervisor and HR.

Managers need guidance about what to say in response to complaints. They shouldn’t say, “That’s horrible, if true,” because they then are calling the complainant a liar.

Segal noted that a manager once said, “You’re not the first person who’s said that to me,” which was as good as admitting liability.

The manager should thank the individual for bringing the complaint, assure the person that there will be no retaliation, inform him or her that as much confidentiality as possible will be provided, and let the individual know company procedures will be followed in handling the complaint. “It’s OK to use a script,” Segal said.

Procedures should be available to complain about conduct by employees and nonemployees alike, including suppliers, vendors and customers.

It’s not necessary to have an appeals procedure, Segal said, but it’s a good idea. Give employees an e-mail address to appeal complaint procedure determinations and tell employees all they need to say is “I wish to appeal.”

Segal concluded by saying, “The EEOC [Equal Employment Opportunity Commission] has said systemically harassing is a problem, and in some places it is. I’ve tried to show areas where you can fill some of the gaps, so the workplace you want to have is reflected in the policies you do have.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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