Making Your Harassment Policy Work

Court decisions emphasize that it is not enough just to have a written harassment policy. You also must make sure that it is implemented in an "effective" manner. This standard means you must be proactive and take steps to apply your policy properly.

You probably have a sexual harassment policy in place. But, are you sure that it will protect your organization against legal claims? Is it an "effective" policy as defined in the Supreme Court’s 1998 decisions? Does it include a complaint and resolution procedure? Have you trained your employees on how to use it? Does it promote positive employee relations? Does it cover all forms of harassment, not just sex? If you answered "no" to any one of these questions, it may be time for you to review your policy. The Editors have made the job easy by providing a step-by-step analysis of how to create and implement an effective harassment policy.

There are two primary reasons why all employers should have a harassment policy:

• To create a productive work environment. A strong and consistently enforced policy against sexual and other forms of harassment shows your commitment to a productive work environment. Harassment that is unchecked has the very real potential to debilitate your operations through decreased morale and productivity and increased employee turnover.

• To prevent liability. Court decisions and guidances from the Equal Employment Opportunity Commission (EEOC) consistently show that you can decrease your liability for hostile work environment harassment, when it involves coworkers, by maintaining and enforcing internal policies to prevent and deal with harassment.

It is, however, more difficult to avoid liability when supervisors are involved. According to the Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, Fla., 524 U.S. 775 (1998), if a supervisor’s harassment results in a tangible employment action (such as termination or discipline), the employer is always liable. No consideration is even given to factors such as whether the employer condoned the behavior or took steps to prevent it. However, if the harassment does not result in a tangible employment action, the employer can defend itself by showing:

1. It has taken reasonable care to prevent and properly correct sexual harassment (such as by adopting and disseminating an effective policy and complaint procedure); and

2. The affected employee unreasonably failed to take advantage of the preventive or corrective opportunities provided.

Although the Supreme Court did not spell out specifically what makes a policy and complaint procedure effective, HR experts agree that the policy generally should include the following elements:

• A strong statement prohibiting all forms of harassment. Specifically, you should prohibit sexual harassment and also harassment based on race, gender, national origin, religion, disability, pregnancy, age, and military status. In addition, you should include any other categories protected by your state’s equal opportunity laws (such as sexual orientation if your organization is in California).

• A definition of harassment, and in particular, sexual harassment. This section should include the EEOC’s legal definition of both "quid pro quo" and "hostile environment" sexual harassment.

• An explanation of what conduct is prohibited. Your policy should prohibit at least the following conduct:

• quid pro quo threats or promises by a supervisor (loss or promise of job, promotion, or other employment benefit);

• offensive touching;

• verbal harassment (lewd comments, sexual jokes or references, offensive or inappropriate personal questions, or negative comments based on the person’s protected class status);

• "girlie" or other offensive pictures displayed in the workplace; and

• offensive or inappropriate written materials (letters, e-mail messages, or graffiti).

Note that some of the prohibited conduct included above may not technically be considered illegal harassment by a court or agency, but it still warrants disciplinary action since it can have a negative effect on your workplace. For example, you can discipline an employee who uses obscene language or tells off-color jokes, even though that conduct generally would not be considered illegal sexual harassment unless the employee engaged in it on an ongoing basis.

• A viable complaint and resolution procedure. This procedure should include a bypass mechanism so that an employee does not have to complain to a supervisor or other person who may be involved in the harassment. It also should provide for an investigative process and a specific time frame for resolving complaints. If you already have a complaint procedure in place that covers workplace problems, you can use that as long as it includes these safeguards.

• Specific disciplinary procedures. The policy should make clear the consequences for any employee who violates the policy or who brings false accusations. For example, it should specify that discipline up to and including termination may be imposed depending on the nature and severity of the situation and the number of occurrences.

• A "no retaliation" statement. This reassurance helps employees trust the policy and believe that they will be protected if they make a complaint or cooperate in an investigation. However, employees also must understand that false complaints will be grounds for disciplinary action. It is important to convey this information in a way that does not discourage good-faith reports.

Even the most carefully worded and explicit policy will not prevent harassment and limit liability if you do not ensure that it is followed in a consistent manner. To implement the harassment policy properly, you should:

• Distribute the policy. Make sure all employees receive a copy. In addition, publish it in any employee handbook or manual and consider posting it on bulletin boards.

• Select an appropriate person (or persons) to oversee the policy. Usually this person is an HR manager or other person well versed in handling harassment complaints.

• Anticipate situations that can develop into harassment. By analyzing where your organization may be at risk for abuses, you can allocate resources (such as training) to these areas to help prevent foreseeable problems. For example, trouble areas may include relationships between supervisors and their subordinates and the integration of women into a predominantly male workforce.

• Train supervisors and employees. In particular, explain the policy and describe specifically what conduct may be considered harassment, how to use the complaint procedures, and what discipline will be imposed on employees who violate the policy. In addition, you should train supervisors as to their particular obligations under the policy and instruct them to report any incidents of harassment to the designated contact person.

• Conduct prompt investigations. Take all complaints seriously and investigate them in a timely manner, generally within a few days. Interview all involved parties and, to the extent possible, maintain confidentiality.

• Evaluate the evidence and determine if the policy was violated. In making a final determination, you should point to as many factual elements as possible to support your decision. Each reason for the decision should be documented. Often in harassment complaints, however, there are no witnesses or other corroborating evidence. In these situations, you may have to make a decision based on the credibility of the two parties involved. Remember, you do not have to prove the incident occurred or did not occur "beyond a reasonable doubt" as a criminal court does. Rather, your decision should be based on the results of your good faith attempts to investigate and resolve the complaint.

There may be times when the evidence is inconclusive and a determination cannot be reached. In these cases, you should resist taking action against either party. Instead, you should explain to both sides why the evidence was inconclusive and remind them of their obligations under the policy to desist from inappropriate behavior and to come forward with any further complaints.

• Take appropriate remedial action if harassment occurred. According to recent court decisions, disciplinary action should be reasonably calculated to stop the harassment. The action should follow standard disciplinary guidelines, should consider the nature and severity of the harassment, and should reflect whether the incident is the first violation of the policy or part of a pattern of harassment. Termination, while appropriate for cases of severe or ongoing harassment, should not be the automatic remedial action chosen.

• Communicate the results to the involved parties. The results should be communicated only to those directly involved and any members of management with a legitimate need to know. Otherwise, the employer may face defamation claims. In addition, the complaining employee should be given the opportunity to appeal the decision. An appeals process lends additional fairness and impartiality to the decision. Further, you should follow up on any recommended disciplinary action to ensure that further harassment has not occurred.

The courts are regularly churning out decisions that find fault with employer harassment policies and set new compliance standards. These cases clearly demonstrate that having a well-written policy is not enough. You also need to train your employees as to what the policy prohibits and how to make a complaint. And, as always, you have to implement the policy consistently, making sure that all complaints are taken seriously and resolved quickly and fairly. As a final safeguard, you (and your legal counsel) should review your policy on a regular basis to ensure that it still meets the evolving standards of what is a legally effective harassment policy. These steps will help ensure that your policy both serves as an effective employee relations tool and provides meaningful protection from legal liability.

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This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.