Employers experience the highest volume of harassment complaints during the spring and summer months, based upon filing information distributed by the Equal Employment Opportunity Commission. For this reason, this is a good time for you to 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.

According to the Equal Employment Opportunity Commission, the total number of federal complaints for non-sexual harassment has dramatically increased since 2000. To combat workplace harassment, it is critical to have in place an effective anti-harassment policy. The policies (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, disability, age, sexual orientation and other legally protected characteristics.

Your anti-harassment policy should clearly and in detail describe the specific steps an employee should take if the employee believes he/she is being harassed or discriminated against. 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 investigations based upon those reports. In the event that 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.

Please contact us if you have any questions or concerns regarding anti-harassment policies and procedures or require assistance creating, reviewing or updating a policy or procedure.

THIS MEMORANDUM IS MEANT TO ASSIST IN THE GENERAL UNDERSTANDING OF CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2014