July 21, 2017 Anti-Harassment, Discrimination and Retaliation Policies
KEEPING YOU INFORMED…
We are writing to remind you of your obligation to have in place policies prohibiting unlawful harassment, discrimination and retaliation and to provide a forum for internal complaints of alleged violations. With the summer months upon us, this may be a good time to re-examine, revise and, if necessary, first create these policies and any accompanying regulations or procedures.
Employers must have an anti-harassment policy prohibiting sexual and all other forms of unlawful harassment and an anti-discrimination policy prohibiting, among other things, unlawful discrimination based upon race, creed, color, national origin, sex, pregnancy, gender identity, transgender status, sexual orientation, disability, age, religion, military or veteran status, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, use of a guide dog, hearing dog or service dog and any other characteristic or basis protected by applicable law.
School district and BOCES policies that are adopted in accordance with the Dignity for All Students Act, which protects students from harassment, bullying and discrimination, should also prohibit discrimination based on a student’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (including gender identity or expression) or sex.
The Equal Employment Opportunity Commission (“EEOC”) has recently recommended that employers adopt a separate written anti-retaliation policy. Retaliation occurs when an employer takes a materially adverse employment action against an employee because the employee engaged in protected activity (for example, because the employee filed a complaint of harassment or discrimination or participated in an investigation or complaint regarding alleged harassment or discrimination). This policy should include, among other things, examples of prohibited retaliation, proactive steps for avoiding actual or perceived retaliation, a reporting mechanism for employee concerns/complaints about retaliation, access to a mechanism for informal resolution and a clear explanation that those who are found to have engaged in prohibited retaliation may be subject to discipline, up to and including termination.
The anti-harassment, anti-discrimination and anti-retaliation policies should, at a minimum, define all relevant terms, describe all unacceptable conduct and clearly describe how an employee may file a complaint if he/she believes that he/she is being harassed, discriminated against or is the subject of retaliation.
The policies should provide for a prompt, thorough and impartial investigation of all complaints and require the employer to take prompt corrective actions, if appropriate. The policies should also address, among other things, confidentiality and a prohibition of retaliation. It is a “best practice” to ensure that all employees are provided with a copy of these policies, along with any accompanying regulations or procedures, when they are first hired and at least annually thereafter, or more frequently if the policies are updated. All employees should be required to sign an acknowledgement of their receipt of these policies and, as is set forth below, should participate in training on these policies.
This is particularly important because an employer may be held liable where its own negligence caused the harassment. For example, an employer may be liable for a hostile work environment; i.e., one in which the “bad things” that happened were caused by a supervisor with immediate (or successively higher) authority over the employee and caused a tangible negative impact upon the employee. The U.S. Supreme Court has stated that, if no tangible employment action was in fact taken against the employee, the existence and effective implementation of an anti-harassment policy and/or reporting procedure is one of the ways in which the employer may demonstrate that it exercised reasonable care and thereby insulate itself from liability.
In a 2016 report, the EEOC described that compliance training for all employees is one of the primary mechanisms used to prevent harassment. Compliance training includes educating employees about the various forms of unacceptable conduct and the employer’s internal complaint procedures. The training should also explain the potential consequences of engaging in unacceptable conduct, including that any corrective action will be proportionate to the severity of the conduct.
The EEOC recommended additional training for middle-management and first-line supervisors on how to respond quickly and effectively to harassment that they observe, that is reported to them, or about which they have knowledge – even before the harassment reaches a legally actionable level. The EEOC described managers and supervisors as “the heart of an employer’s prevention system” and stated that this additional training is important to prevent harassment or stop and remedy harassment once it occurs.
If you have any questions regarding your policies or procedures or if you require assistance creating, reviewing or updating a policy or procedure, please contact Lauren Schnitzer or one of our other attorneys by calling (631) 694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2017