July 01, 2016 Anti-Harassment Policies
KEEPING YOU INFORMED…
According to the Equal Employment Opportunity Commission (“EEOC”), the total number of federal complaints for non-sexual harassment has dramatically increased since 2000, with employees in workplaces without policies reporting the highest levels of harassment. To combat workplace harassment, it is critical to have in place an effective anti-harassment policy. For this reason, we suggest that you create, re-examine and, if necessary, revise your anti-harassment policies.
Illegal harassment is generally defined as any unwelcome verbal or physical conduct that is based upon an individual’s protected class status. Unwelcome conduct typically involves sexual advances, inappropriate comments (including use of slurs or innuendos), inappropriate jokes, physical touching or inappropriate gestures or pictures. To be actionable, harassment must result in a “tangible employment action,” such as a termination or demotion, or be so “severe and pervasive” as to alter the terms and conditions of an employee’s working environment.
When this occurs, the harassment is often considered to have created a hostile work environment. Illegal harassment can be actionable if committed by supervisors, co-workers or even non-employees. It can occur openly in the workplace or more subtly, particularly as employees rely upon text messaging and social networking as a primary form of communication.
An anti-harassment policy (and accompanying procedures) should not be limited to sexual harassment. An effective anti-harassment policy should also apply to harassment on the basis of race, national origin, religion, disability, age, sexual orientation and other legally protected characteristics (according to the EEOC, this would also include harassment based on an individual’s transgender status).
An anti-harassment policy should clearly and in detail describe the specific steps an employee should take if he/she believes that he/she is being harassed or discriminated against. The policy should also include clear assurance that employees who make complaints or participate in an investigation will be protected from retaliation. It is a “best practice” to ensure that all employees are provided with a copy of your anti-harassment policy when they are first hired and annually thereafter. Employees should also be required to sign an acknowledgement of their receipt and review of the policy. Regular training of supervisors on how to identify potential harassment and how to take appropriate action is an additional “best practice” that can and should be implemented.
In addition, an effective anti-harassment policy should include a detailed internal reporting procedure. The reporting procedure should provide for initial reporting of harassment and for conducting prompt, thorough and impartial investigations based upon those reports. If a complaint is made, the employer should conduct an investigation and, if needed, take any and all appropriate remedial actions. Failure to do so may result in an employer being found to have condoned the harasser’s improper conduct.
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 emphasized the importance of offering anti-harassment training to employees at every level on a regular basis as a tool to prevent harassment in the workplace. 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 anti-harassment policies and procedures or 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 2016