The U.S. Equal Employment Opportunity Commission (EEOC) identifies eradicating harassment among its key priorities in its 2013-16 Strategic Enforcement Plan and has recently increased the number of related class actions it has initiated. If the agency perceives there to be a hostile work environment affecting many employees, a lawsuit may follow. Employers looking to address workplace hostility should, like the EEOC, take a systemic approach.
The EEOC has long held that a nondiscrimination pledge with regard to sex is insufficient for addressing sexual harassment; rather, employers need a policy that targets the issue.
These days, even that is not enough. For the policy to be viable, employers must address other kinds of unlawful harassment, including racial or ethnic harassment and that which targets people with disabilities.
It is important that the policy avoid unnecessary legalese. When it comes to sexual harassment, some employers’ policies simply quote the EEOC’s regulations. While that approach is easy, be aware that the regulations provide little practical guidance to those who are not fluent in the law. Further, ironically, the regulations don’t accurately state the law. They suggest that in order for sexual harassment to exist, the conduct must be of a sexual nature. In fact, hostility directed at employees because of their sex can be sexual harassment even if there is no sexual component.
At a minimum, the U.S. Supreme Court has made clear that for a complaint procedure to be effective, it must provide employees with an option other than contacting their supervisor. And yet while having a supervisory bypass is necessary, it may not be sufficient. Ideally, there should be multiple points of access allowing people to begin a complaint process.
In making your policy user-friendly, consider diversity. In this context, that includes not only EEO diversity but also the operational and geographic kind.
The complaint procedure should have a strong nonretaliation section. Employers should carefully define who is protected by the policy, including complainants, witnesses and others participating in the investigatory process.
It is also helpful to define prohibited retaliation. Prohibited acts stemming from retaliatory motives include not only tangible employment actions but also material changes to the terms and conditions of employment, such as work assignments, and retaliation independent of the workplace, such as providing someone a bad reference. An employer should make clear that it will neither engage in nor tolerate retaliation.
While it’s not possible to promise absolute confidentiality, you can state that you’ll keep the complaint as confidential as possible, disclosing the allegations only to those who need to know.
The complaint procedure also must address corrective action. Discipline should be specifically referenced and should include as an option “termination of the employment or other relationship.” Inclusion of “other relationship” is important to emphasize the application of the policy to nonemployees.
Inappropriate vs. Illegal
Corrective action may apply not only to unlawful harassment but also to inappropriate conduct.
For example, one joke of a sexist nature is probably not in and of itself sufficient for a harassment claim, although the behavior is clearly unacceptable. The policy must provide a basis for the employer to take corrective action without putting a legal label on it.
For this reason, when employers provide examples of potential harassment, it is generally a good idea to avoid discussing the legal aspects and focus instead on inappropriateness.
An employer may want to consider having an appeals procedure so that employees have the option to complain about how the matter was handled initially. While an employer cannot ignore oral appeals, it may want to have some nominal written requirement to defend against a false allegation that an appeal was made when it was not.
For example, the employer might state that if an employee wishes to appeal his or her complaint, he or she should send an e-mail to a designated person stating, “I wish to appeal my EEO complaint.”
The stronger the policy and complaint procedure, the more likely that an employee’s failure to use it will be deemed unreasonable.
No harassment prevention program is complete without supervisory training.
Some states, such as California and Connecticut, require such training by statute. Others, such as New Jersey, effectively mandate it by case law.
In any case, there are at least three reasons to train your supervisors on unlawful harassment:
With training, some inappropriate conduct will be avoided and, therefore, fewer complaints will be filed.
Training helps to strengthen the availability of the Faragher-Ellerth defense when an employee does not complain before taking formal action.
Finally, in the absence of training, an employer has greater exposure to punitive damages. The argument is that the failure to train equals reckless disregard.
5 Elements of Supervisor Training About Harassment
When being trained about harassment, supervisors should be told to:
- Refrain from unlawful harassment or conduct that could give rise to a hostile work environment claim. It’s a good idea to give practical examples and to emphasize power and perception.
- Report to HR all complaints that could give rise to a hostile work environment. Supervisors should be told that this mandatory duty to report applies even if an employee:
- Requests that nothing be done.
- Asks for absolute confidentiality.
- Does not use legal buzzwords.
- Respond proactively to possible unlawful harassment. Silence equals tacit consent.
- Remedy conduct that may give rise to a hostile work environment complaint. This could involve anything from offering counseling to applying discipline to terminating employees. Supervisors should consult with HR before issuing a remedy to ensure consistency with similar situations.
- Understand the importance of nonretaliation. This should include a discussion of those who are covered by the protection as well as the broad definition of what may constitute unlawful retaliation. The fact that a complaint lacks legal merit is almost never a defense to unlawful retaliation.
Even in the absence of a legal mandate, there are benefits to educating employees about appropriate behavior. Presumably, fewer will engage in inappropriate behavior. Plus, employee education helps establish the Faragher-Ellerth defense based on failure to complain.
With regard to inappropriate behavior, employers should define it broadly and should include many practical examples.
An employer may wish to offer strategies for direct confrontation. One response that I recommend: “When you say X, it makes me feel uncomfortable. Please stop.” If employees have this in their heads, responding on the spot becomes easier.
However, employers must stress repeatedly that direct confrontation is an option and not a mandate. At any time, employees can use the complaint procedure, which should be explained to them in detail.
Regulating Romance: Options For Co-Worker Dating Guidelines
Many harassment claims involve workplace romance, and the biggest risks occur when employees date, or attempt to date, someone over whom they have direct, indirect or institutional authority.
Generally, an employer has three options in creating dating guidelines:
Dissuading such relationships in the context of training.
Imposing a notification requirement. Changing the reporting structure for a supervisor dating his employee is one possible option.
Prohibiting individuals from dating, or attempting to date, those over whom they have direct, indirect or institutional authority. (Such a prohibition would arguably prohibit anyone in HR from dating anyone else in the company.) While this is the safest legal option, it may not be the most practical. In fact, it could push workplace romances underground, eliminating any public evidence that the relationship was “welcome.”
Regardless of which approach you take, focus on the workplace relationship and not the personal one. There is a big difference between saying “You cannot date someone you are supervising” and “You cannot supervise someone you are dating.” The former statement may be seen as regulating off-duty conduct, while the latter more appropriately restricts the supervisory-subordinate relationship.
In every harassment program, employers need to emphasize that people have different perspectives. But be careful not to suggest that women are from Venus and men are from Mars. Doing so may leave you with no common ground here on Earth!
While differences need to be explored, it’s important to remember that we have more in common than what divides us. We don’t want individuals to avoid harassment claims by avoiding those who are different from them. That may be discrimination.