THE MAGAZINE

Preventing Harassment

By John M. Bagyi and Matthew G. Boyd

Avoiding Liability

The first step in avoiding liability is to have a comprehensive harassment prevention, detection, reporting, and response policy. The next step is to ensure that employees are aware of the policy. This step entails having staff sign the policy, conducting periodic harassment-prevention training, and posting the policy in prominent locations.

The company must also ensure that managers are trained in how to implement and enforce the policy. Most importantly, management must ensure that every aspect of the policy is enforced.

Ultimately, to defend against a claim of sexual or other workplace harassment, should one arise, an employer must demonstrate that it had an accessible and effective policy for reporting and resolving harassment complaints, that employees knew of it, that it was consistently enforced, and that the employee filing the claim unreasonably failed to take advantage of the complaint procedure. 

Policies. In developing or revising a workplace-harassment complaint policy, employers must explain what type of conduct is prohibited, who is subject to the policy, who should report harassment, who should receive the harassment complaints, what is involved in the investigation process, and what constitutes retaliation.

Prohibited conduct. Many employers make the mistake of drafting their policy too narrowly by prohibiting only sexual harassment. An effective policy should state the employer’s prohibition of workplace harassment based on any protected characteristic, including sex, race, national origin, religion, age, or disability, and any other basis protected by applicable law. The policy should also describe and provide examples of the type of conduct prohibited, including verbal, visual, and physical conduct.

Affected parties. The policy should apply to anyone affiliated with the company, paid by it, or on its property; thus, it will cover not only activity between and among employees but also conduct of third parties, such as independent contractors. With regard to clients, customers, and visitors, the policy should inform employees of their right not to be subjected to harassment by these groups. It should make clear that the company will not tolerate harassment by customers and it should encourage staff to file complaints if such harassment occurs.

Reporting. The policy should set out how incidents can be reported. Just as importantly, it should require that incidents be reported by all employees who have witnessed or otherwise have knowledge of conduct that may violate the policy. Too often, employees and supervisors take the “it’s not my job” approach when harassment is observed. The policy should make it clear that eliminating harassment in the workplace is the responsibility of all employees.

An effective harassment complaint procedure designates several individuals to whom employees may bring complaints. This ensures that no matter who the harasser is, or is friends with, the employee has someone to go to with complaints. For example, policies should allow harassment victims to complain not only to direct supervisors or managers but also to HR representatives and senior management.

Complaint process. The policy should generally describe the process the employer will follow when it receives a complaint, including how the investigation will proceed, what might happen if the investigation substantiates the alleged conduct, and the potential discipline that may be imposed. However, the policy should not provide specific time frames (except if required by applicable law) or other specific details, such as identifying specifically who will conduct the investigation. These specifics may unnecessarily restrict the employer.

Retaliation. In a separately headed section within the harassment policy, retaliation should be defined and expressly prohibited (more on this later).

Fraternization. Given the potential liability associated with workplace relationships, even those that are consensual, employers should consider adopting an antifraternization policy. Such policies may prohibit amorous relationships between supervisors and subordinates or even between employees. Alternatively, these policies may simply require that any such relationships be disclosed. Enacting such a policy puts employees on notice of the employer’s expectations concerning amorous relationships and helps prevent claims by employees that they were coerced into a relationship with a supervisor or coworker.

Technology. As use of technological resources is frequently at the center of workplace harassment claims, it is important that employers adopt policies concerning use of these resources. Such policies should clearly define acceptable and unacceptable use and put employees on notice that the technological resources and data stored on or transmitted across those resources are company property. In addition, these policies should clearly indicate that the employer retains the right to access, intercept, or monitor employee use of its technological resources, and that the employee’s use of these resources constitutes consent to employer access.

Workplace harassment policies may encourage, but should not require, a harassment victim to confront the alleged harasser to let him or her know that the conduct is unwelcome. While doing so may avoid misunderstanding from turning into a harassment complaint, the law does not permit an employer to require a victim to take this course of action.

Dissemination. Once a policy is drafted, reviewed by legal counsel, and adopted, all employees must be required to read the policy and acknowledge that they understand it. Employers should incorporate their harassment complaint procedures into the employee handbook. It is also advisable to distribute the policy to employees on an annual or semiannual basis. 

Employers should also require that employees sign and date an acknowledgement of receipt of the document every time the policy is distributed. This acknowledgement should clearly state that the employee understands the requirement to read the policy and raise any questions. This practice will prevent the employee from later claiming ignorance of the antiharassment policy.

Training. The mere existence of a harassment policy will not establish that an employer has exercised reasonable care to prevent harassment. As one federal court specifically pointed out, “[h]aving written antidiscrimination policies is not enough to avoid punitive damages; rather, an employer must also show that efforts have been made to implement its antidiscrimination policy, through education of its employees and active enforcement of its mandate.” (Neal v. Manpower International, Inc., U.S. District Court for the Northern District of Florida, 2001)

Antiharassment awareness training should be carried out for all employees at orientation and refresher information should be provided at least annually. This regular reinforcement of antiharassment policies increases the likelihood that employees will report inappropriate conduct before it reaches the level of an actionable hostile work environment.

Harassment-prevention training should educate employees on what constitutes harassment by laying out the key elements of the policy. The factors that should be discussed include the obligation of all employees to report harassment that they experience or witness, the options for making such reports, and the process the employer will follow in response to a harassment complaint. The presentation should include an explanation of what constitutes retaliation.

Training should address joking or kidding behavior as well as conduct outside the workplace that may create a hostile work environment. Employees should be invited to ask questions to ensure that there is no misunderstanding concerning the employer’s expectations and each employee’s responsibilities.

For managers, supervisors, and others in authority, specific training must be provided to ensure that these individuals understand their role in carrying out the company’s harassment prevention, detection, and response policies.

The company should consider developing additional awareness training for other individuals who have regular contact with employees and have some relationship with the employer, such as board members or contractors, for example. 

Complaint response. To successfully defend against any claim that arises, employers must be able to demonstrate that they consistently follow their workplace harassment policy. Companies can do so by taking every claim seriously and promptly investigating all allegations of workplace harassment. They must also take appropriate remedial measures to address prohibited conduct whenever the investigation finds evidence of it.

To ensure that an investigation can be initiated quickly, the company should have procedural plans in place as part of the harassment prevention policy. If the investigation is to be carried out by in-house personnel, the company must ensure that those individuals have the proper training to fulfill that function.

In reviewing an employer’s response to a complaint of workplace harassment, juries look not only for promptness but also fairness and impartiality. In addition, juries expect that investigations will be thorough. That means the investigation must examine all relevant documents and interview all relevant parties. Employers must also act to protect the dignity of all those involved, including the accused, the accuser, and witnesses. 

In conducting investigations, employers should generally first take the complaint from the alleged victim and interview the accused, allowing the alleged wrongdoer to give his or her own version of the events. Investigators should then interview all of the witnesses and potential witnesses and review relevant work records.

After gathering as much information as possible, the investigator should make a determination about what occurred, and make a recommendation to management, concerning what, if any, remedial action is appropriate. That outcome should be communicated to the complaining party and to the accused.

At every stage of the investigation, the investigator should make clear to all parties—including the victim, the alleged harasser, and any witnesses—that reprisals will not be tolerated. Each stage of the investigation must be thoroughly documented. The company should keep in mind the possibility that these records will be sought in the future as a part of discovery procedures if the accuser chooses to file a lawsuit.

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