How To Avoid Liability For Unlawful Workplace Harrasment
By Brian P. Gillan, Esq.
In many instances, an effective equal employment opportunity/anti-harassment policy and complaint procedure that encourages employees to come forward with their complaints allows potential harassment issues to be resolved before an agency or court becomes involved. Such resolution clearly benefits both employers and employees.
In addition, an effective complaint procedure can serve as an employer’s defense if a claim involving harassment is made. Often, harassment claims involve separate incidents that occur over a period of time. By encouraging employees to report these incidents at an early stage, an employer may avoid or significantly limit its liability. Employers with ineffective policies or complaint procedures or who respond to a claim of harassment in a careless, incomplete, or merely symbolic manner risk adverse judgments. The burden of proof is on the employer to show an effective complaint procedure in the event a supervisor’s behavior creates an unlawful hostile environment.
Elements Of An Effective Anti-Harassment Policy
An employer’s anti-harassment policies and complaint procedures should: (1) state the employer’s position respecting harassment in the workplace and prohibit acts that are considered to be harassment; (2) be effectively communicated to all employees so that both potential harassers and potential targets of harassment are fully aware of the policy, the employer’s established procedures, and the potential discipline for violation of the policy; (3) encourage employees to report at the earliest possible time incidents that they consider to be in violation of the employer’s policy; assure employees that their reporting will have no adverse impact on their employment; and stress that investigations of complaints will be designed to protect, to the extent possible, the privacy of all involved; and (4) identify specific personnel (two individuals typically) to whom employees can report complaints of harassment. The policy should allow an employee to go to someone outside his or her supervisory chain of command if he or she prefers. Employers should have their employees sign acknowledgement forms, either created specifically for their anti-harassment policy or for an employee handbook that contains the policy, indicating that they received the policies, have read and understand them, and agree to abide by them.
The policy and complaint procedure will serve its purpose only if the employer conducts an effective investigation in response to every complaint (whether formal/informal, written/verbal, or firsthand/secondhand). The courts closely scrutinize an employer’s investigation. Employers must conduct a fair and thorough investigation that, to the extent possible, protects all employees’ privacy and reputational interests.
Courts generally look favorably on robust anti-harassment policies that designate multiple people to receive employee complaints. However, establishing multiple reporting avenues also creates practical issues such as ensuring (1) that employees understand to whom they should be reporting and (2) that each individual designated or responsible for receiving complaints is trained to follow up properly.
Employee Training As A Means Of Avoiding Liability For Harassment
Employers must ensure that all employees, particularly supervisors, are trained regarding equal employment opportunity (discrimination, harassment, and retaliation) issues to avoid liability. Supervisors must: (a) report to the appropriate personnel any comments or conduct, or reports of any comments or conduct, that might be considered harassing under company policy; (b) be familiar with the employer’s policy and procedure and recognize the various types of workplace harassment; (c) understand the rights of the accuser and the accused; and (d) take care to refrain from discussing the facts and circumstances involved in claims of workplace harassment with anyone other than those with a genuine need to know.
1 Part one of a multi-part series
admin @ June 20, 2007