Going to a website of a professional association and downloading a sample anti-harassment policy may not be the best way for an employer to draft an anti-harassment policy. This last week, we reviewed a draft antiharassment policy a human resource professional forwarded to us. The policy was well written and included most of the elements of policies favored by courts. However, the policy explicitly stated that the employee “shall” submit a complaint of harassment in writing on approved forms. The purpose of the policy was, in part, to permit the employer to assert an affirmative defense if sued for harassment. In court proceedings, an employer may ask the judge to dismiss the case, if there is a policy which includes a “meaningful process” for employees to complain about harassment, the employee did not complain or, if the employee complained, the employer investigated and took appropriate action.
On July 20, 2012, the Seventh Circuit Court of Appeals in Chicago examined such a policy. See Passananti v. Cook County, Case No. 11-1182 (7th Cir. July 20, 2012). The Court ruled that the policy, itself, may provide a “meaningful process.” However, the policy was not effective in practice and was not sufficient to meet the burden of providing the affirmative defense. In Passananti, the employee did not use the process in the policy but complained in a different way and the employer did not investigate her complaint. As a result, the Court did not allow the employer to use the affirmative defense. To the Court, the relevant inquiry is whether the employer is put on notice and not whether the employee followed the policy. Therefore, by having a policy that seems to limit the way employees may complain, employers are sending a message that employees may complain only by writing. In addition, employers with such policies may not investigate complaints made verbally or by other types of writings.
Before simply downloading and copying sample policies, companies should understand the implications of using such policies. They should determine how employees will make complaints to supervisors and human resources, how they will investigate those complaints and what actions are available to resolve issues and ensure that harassment does not reoccur.