Is Mere Existence of Anti-Harassment Policy Enough to Win Disputes?

Allen Smith, J.D. By Allen Smith, J.D. October 18, 2018
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​Judges may be prone to dismiss harassment claims against companies that have anti-harassment policies, recent research indicates, but companies shouldn't rely on that to get them off the hook if they are faced with a claim. Attorneys advise their clients to do all they can to avoid the claim in the first place, including training to prevent harassment and investigating claims impartially.

Many harassment claims are dismissed long before they go to trial, said Lauren Edelman, a professor of law and sociology at the University of California, Berkeley. She has studied more than a thousand discrimination and harassment decisions from 1965 through 1999, as well as a follow-up sample of decisions every five years through 2014.

Of those cases that survive motions to dismiss, most are decided by summary judgment motions. If courts deny employers' summary judgment motions, cases go to trial or settle. Of the harassment claims that proceed to trial, employers win the vast majority—80 percent.

Edelman's research shows that at the summary judgment stage judges are especially likely to assume that the presence of an anti-harassment policy and grievance procedures shows there is fair treatment, even if there is strong evidence harassment is occurring. She argued in a Harvard Business Review article that judges' overreliance on anti-harassment policies has made it almost impossible for victims of sexual harassment to win in court.

If judges see a policy in place and the structure to deal with anti-harassment claims, most courts "don't look much very much further."

Robust Internal Policies Needed

However, Jenn Betts, an attorney with Ogletree Deakins in Pittsburgh, said, "As someone who regularly litigates these cases, I can tell you that simply having a policy is usually not, standing alone, enough."

She noted that the "policy defense" is available only in certain kinds of harassment cases—those without a tangible employment action such as a discharge.

Under the Faragher-Ellerth defense, named for the 1998 Supreme Court case that created it, an employer may be able to avoid liability if it can establish two things:

  • The employer exercised reasonable care to prevent and promptly remedy any harassing behavior.
  • The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

It's not a foregone conclusion that the defense will be accepted by a court in any given case, Betts noted. "Even if a company prevails on the merits of a claim, it almost always takes significant time, cost and energy to get to that resolution," she said. "The organizations I work with are less focused on how they can win a case and more focused on avoiding such claims in the first place."

They can accomplish this by emphasizing robust internal policies and practices to prevent and promptly correct workplace harassment.

Equal Employment Opportunity Commission (EEOC) guidance suggests that an anti-harassment policy and complaint procedures should have, at a minimum, the following elements:

  • A clear explanation of prohibited conduct.
  • Assurances that employees who make harassment complaints or provide information related to such complaints will be protected from retaliation.
  • A clearly described complaint process that provides accessible avenues of complaint.
  • Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.
  • A complaint process that provides a prompt, thorough and impartial investigation.
  • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

There should be multiple avenues for reporting harassment, said Bonnie Mayfield, an attorney with Dykema in Bloomfield Hills, Mich., and chair of the Diversity and Inclusion Committee and the Employment Law Committee of the International Association of Defense Counsel.

Some state laws require anti-harassment and discrimination training, Betts added. "Regardless, I always recommend that clients conduct regular training," she said.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Point of Anti-Harassment Policies

"I would never advise a client not to worry about harassment claims if it simply adopts an anti-harassment policy," said Lauren Daming, an attorney with Greensfelder, Hemker & Gale in St. Louis. "Thinking about anti-harassment policies as only a shield against claims misses the point."

Anti-harassment policies should be adopted to advise employees of their rights and responsibilities, so they know what to do if they observe or experience harassment, she noted.

"Sure, the policy is going to be Exhibit 1 if an employer is sued for harassment, but beyond just having a policy in place, employers need to make sure that employees understand what's in the policy," Daming said. This includes what type of behavior is unacceptable and the potential consequences of engaging in harassment.

"Employers must diligently abide by their policies and investigation procedures," she said. "That means taking all reports of harassment seriously and fully investigating and remediating any claims. A policy sitting on a shelf doesn't do any good for anyone."

As far as creating evidence of compliance through anti-harassment policies, employers need to understand that having a policy is not enough, said Margo Wolf O'Donnell, an attorney with Benesch in Chicago. "There needs to be evidence that managers and employees are aware of the policy," she said. "Also, there needs to be buy-in from company leadership—leadership should attend trainings and regularly communicate the company's anti-harassment and anti-discrimination policies."

But Edelman said that she has repeatedly seen courts latch onto anti-harassment policies and complaint procedures and not look beyond that, even when employers failed to take needed, swift corrective action. "I'm not sure how well known it is that judges defer to these structures," she said. "I hope it's not more well-known," she added, saying that she wants employers and courts to take harassment more seriously.

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