An employer’s first line of defense to address harassment in the workplace is to adopt an anti-discrimination and anti-harassment policy and procedure. Having an “effective” policy can provide an affirmative defense to harassment claims lodged against the employer. However, if your company’s policy does not include essential terms, you run the risk that the policy will be rejected by the Equal Employment Opportunity Commission (EEOC) or the courts.
The EEOC recommends that every employer should have an anti-harassment policy that is written in a clear, easy-to-understand format. Your policy should be provided to employees when they are hired and during training. In addition, the policy should be translated into all languages commonly used by employees. It should also be included in the employee handbook and be accessible on the company’s intranet site.
Here is a checklist of the ten components that should be contained in your policy to make it “effective” according to EEOC standards:
- A clear statement that discrimination and/or harassment based on any legally protected characteristic is prohibited and will not be tolerated. Your policy should clearly identify the protected groups (e.g., age, gender, sex, race, color, religion, national origin, disability, genetic information, status as a covered veteran, and any other legally protected status under state law). Your policy should confirm that discrimination and harassment in the workplace are prohibited and will not be tolerated.
- A clear explanation of the prohibited conduct. Your policy should state that it applies to recruitment, hiring, training, promotion, compensation and benefits, discipline, terminations and other employment decisions. Furthermore, your policy should identify when certain acts or conduct will constitute prohibited sexual harassment in the workplace and reference the prohibited acts (e.g., sexual propositions, sexual innuendo, jokes, obscene language or gestures, physical conduct, etc.).
- A clearly described complaint process that provides reasonable avenues to complain about discrimination and/or harassment. We recommend that an employer should identify a specific position and phone number to contact for making reports of discrimination and harassment in the workplace. Multiple avenues should be available in the event a supervisor is the one being accused of harassment.
- A statement encouraging employees to report conduct that they believe may constitute unlawful harassment (or, if left unchecked, may rise to the level of unlawful harassment) even if they are not sure the conduct violates the policy. A “belief” that an individual has been subjected to or witnessed harassment should be enough under your policy to trigger the complaint process.
- An assurance that complaints will be addressed with a prompt, thorough and impartial investigation. It goes without saying that any reports of discrimination should be addressed in quick order to protect the victim and to help avoid further liability exposure.
- An assurance that the Company will protect confidentiality of complaints to the extent possible. Confidentiality is designed to ensure that employees feel comfortable reporting issues of harassment and discrimination and further promotes the integrity of the investigation. Confidentiality requirements must comply with the National Labor Relations Act (NLRA) which recognizes an employee’s right to engage in protected concerted activities. The National Labor Relations Board (NLRB) has concluded that confidentiality can only be enforced if necessary to protect witnesses, prevent evidence from being destroyed, prevent testimony from being fabricated or to prevent a cover-up. Employers can enforce confidentiality with respect to questions asked of employees during interviews as well as the scope of the Company’s investigation.
- A statement that the identity of individuals who report harassment and alleged victims, witnesses and alleged harassers will be kept confidential to the extent consistent with providing a thorough and impartial investigation. Again, employees should be assured that the Company will maintain confidentiality with respect to those involved in the investigation to the extent possible.
- A statement encouraging employees to respond to questions and otherwise participate in investigations regarding discrimination and harassment. The policy should encourage employees to participate in the investigation and respond to questions that are asked.
- An assurance that the organization will take immediate and appropriate corrective action if it determines that discrimination or harassment has occurred. It is imperative for the employer to move quickly to resolve any issues relating to discrimination and harassment in the workplace.
- An assurance that employees who make complaints or provide information relating to a complaint are protected against retaliation. An anti-retaliation provision is essential to any policy. The policy must prohibit retaliation – not only against those who make complaints, but also against those who participate in the investigation.