16 Jan 4 Things for Your Anti-Sexual Harassment Policy
As much as we hope it would not be the case in our own company, sexual harassment remains a real problem in American workplaces. Employers with more than one employee will run the risk of a harassment claim and employers really should have a written anti-sexual harassment policy in an employee handbook.
But why you may ask? Well because if an employer has a policy that includes the following four elements, the employer has a defense in court that employers who don’t have a written policy would not have. So what four things should an anti-sexual harassment policy have?
A strong and uncomplicated statement that says sexual harassment will not be tolerated and the employer will enforce the policy against sexual harassment to the fullest extent necessary. The policy statement should, in my opinion, lead with this statement. Do not try to make it sound formal and legal sounding. It can be as simple as this “Company does not tolerate sexual harassment of any employees by owners, managers, supervisors, other employees, customers, vendors, or guests of our Company. Violations of this policy will be investigated and violators disciplined as needed, up to and including termination.”
A clear definition of what sexual harassment. The definition may be of the legal variety. The Equal Employment Opportunity Commission has a pretty good definition. But simply providing that definition is not enough to fully explain what is meant by sexual harassment. If you include the legal definition, be sure to break the definition down into its elements so that each part of the definition can be explained. Too many employers and their attorneys simply take the easy way out and copy the EEOC policy and leave it at that. Remember, unless you work at a law firm, the chances of all of your employees being able to break down a legal definition into easy to understand terms is unlikely. Think of it this way, if your 16 year old part-time worker can’t understand the policy and the definitions, it is time to re-think and re-write the definition.
Next, it is best to provide plain English examples to explain the definition. In your examples, be sure to explain not only the improper behavior, but why it is inappropriate. Make sure that your examples are marked as examples and that you make clear that these are just examples and not the only kinds of harassment out there.
A clearly defined, easy to follow reporting process. With the reporting policy, employers should make clear that without a report and knowledge of alleged harassment, the company cannot investigate and address harassing behavior. If an employee is the victim of harassment or witnesses harassment, the policy must describe a clear and easy to follow reporting process. Usually the reporting process starts with the employee’s supervisor. If it is the supervisor who is doing the harassing, then the employee must have the ability to go outside the management chain to make the report. For very small companies, this may be difficult, but the ownership can designate someone outside the company, such as counsel, to receive such complaints.
I strongly encourage having a written report form so that the investigation can have a clear starting point based in a document. Having clear documentation, made at the time of the events is most helpful to demonstrate that a proper investigation is being undertaken. Supervisors and management should be trained in how to conduct a harassment investigation. But the most important thing to remember is that the harassment report must be taken seriously and given its due concern. We will talk about investigation procedures next week, but the basic theme is Document, Document, Document and do so as the investigation is ongoing.
You cannot promise absolute confidentiality in an investigation because it may be impossible to withhold the name of the reporting party, but managers and owners should make clear that only those people with a need to know are going to know about the report and investigation.
A statement that clearly prohibits retaliation. In addition to the ban on harassment,no one who reports a harassment claim should be subject to retaliation, from ownership, managers, or coworkers. Not all claims of harassment are actually harassment because their is a fair amount of subjectivity and interpretation that could happen in human interactions. Even if the complaint results in no job action or a reasonable finding that no harassment took place, the reporting party should be held up for retaliation.
While the action might not be harassment within the legal definition, there is clearly an HR concern that needs to be addressed if there is not a harassment claim. Just because an investigation does not substantiate sexual harassment does not end the matter, other HR actions are almost certainly going to be required.
While employees who are subject to or witness harassment should be encouraged to come forward, complaints made with malicious intent to injure, defame or have another employee terminated should not be tolerated either. Admittedly, this distinction might be a fine line to walk, but employers need to be mindful.
The Goals of a Policy
The purpose of a anti-sexual harassment policy is two-fold. First, the company is able to clearly articulate a policy against harassment. The policy sets the tone for the company, the companies behavioral expectations, and the notion that the employer will address all concerns. There is an objective, articulated standard for employees, managers, and owners to follow.
Second, the policy, with a clear reporting procedure, provides a defense against a harassment claim. Let’s assume that an employee is being harassed in the supervisor’s private office. There may not be and usually won’t be witnesses, but unless there is a report according to the policy, there is no way for the company to investigate the matter. Now the defense of “we didn’t know” would seem to work, but the law doesn’t permit the employer to claim ignorance of the situation UNLESS the employer can show a clear, easy to follow reporting procedure and the victim failed to utilize the reporting procedure. This defense is not a slam dunk defense at all, but it is one element that can often mean the different in a case.
A strong anti-harassment policy is not the end-all, be-all of policies. There are still so many human dimensions to deal with that make an anti-harassment policy just a starting point. There will need to be an understanding that humans make mistakes, humans do things that one day offend no one, but some other day may be deeply offensive. Each incident must be addressed on its own merits.
What are some of the anti-harassment policies you have seen? Have you ever seen a policy which you knew was an anti-harassment policy, but you knew you didn’t understand? Share your stories of harassment here if you would like.