Does Your Company Have an Effective Anti-Harassment Policy?
Proper Creation and Execution May Prevent Litigation
By Andrew P. Burnside, Esq.
Coats Rose – New Orleans
To borrow from a popular phrase, harassment happens.
Harassment happens based on sex (gender), religion, skin color, national origin, disability and race, among other reasons. In 2009, 33 percent of the charges received by the U.S. Equal Employment Opportunity Commission involved a harassment claim. An office romance can turn into a legal claim when one of the participants wants the relationship to end and the other does not. Comments about someone’s dress, speech, or heritage may be good natured shop talk one day, and unwanted harassment the next.
If the harassment is sufficiently severe or frequent and unwelcome, an employer may be liable to the employee-victim if the victim is affected by the conduct. However, a careful employer will have an anti-harassment policy in place and make all of its employees aware of the policy, what it says and how to use it. This article will touch on the essential elements of such a policy.
If harassment happens and a company has a properly drawn policy in place, an employee’s failure to use that policy to stop the behavior might provide a defense to a later claim that the harassment harmed the employee. Conversely, if an employer lacks a policy, the policy is defective or the employer fails to follow the policy, there is no defense.
To provide the employer with this defense, the policy must contain certain elements.
- The policy needs to identify the types of behavior that might qualify as harassment (comments, gestures, emails) and the bases on which it might occur (religion, race, sex, age, etc.). A common problem is a policy that prohibits behavior based on sex but not race, age, national origin, disability, color, etc. So all of the protected characteristics need to be identified in the policy.
- The policy must identify at least two (2) individuals that a victim might complain to about harassment.
- A company must reassure an employee that it will promptly investigate a complaint and respond in a way that is designed to stop the harassment. The policy needs to convey to a complaining employee that the information will be kept confidential as much as practical; however, an employer cannot effectively discuss a claim with an employee alleged to be a harasser without revealing the name of the complaining employee.
- The policy must assure the employee that they will not suffer retaliation as a result of using the policy. A company should also inform all employees that violators of the policy will be fired or disciplined.
- The company should include the policy in its handbook and on any intranet sites. Periodic training about harassment issues is essential. Companies should use email and telephone “hot lines” to encourage reporting.
- An employer needs to review its anti-harassment policy periodically to assure compliance with current law. For example, the internet and email create dynamic opportunities for harassment. If your policy does not address email, it may not work for your company or a jury may be allowed the opportunity to decide whether the policy is adequate.
With a compliant policy in place, an employer gets the opportunity to address a situation before it gets out of hand and forms the basis for an employee lawsuit. If an employer, upon receiving and investigating a complaint, acts promptly to address the problem before the victim gets fired, quits or goes out on leave, the employer will get the benefit of the defense if the employee later files suit.