If your company has employees, it is almost certain that at some point your company will have to address a sexual harassment claim. There are steps your company should immediately take to limit its liability and protect your employees from unlawful discrimination.
Let’s begin this discussion with a quick overview of how the complaining employee’s legal counsel will likely try to assert that your company violated state or federal anti-discrimination laws. Generally, there are two basis for liability. First, the suing employee will assert that the alleged harasser is a supervisor or a member of your company’s “upper management.” Second, the employee will assert that your company failed to exercise due care with respect to sexual harassment in the workplace.
Courts recognize the implementation and enforcement of an effective anti-harassment policy may limit your company’s liability. Hence, I recommend you immediately implement the following policies and procedures to limit your company’s potential liability:
Harassment, Discrimination, and Retaliation Prevention Policy
Develop and implement a harassment, discrimination, and retaliation prevention policy that:
- Is in writing and readily available to all employees.
- A copy of the written policy should be given to all employees at the inception of their employment.
- The written policies and procedures should be placed on each employee’s computer for quick reference. The employees should be made aware that the employee manual was placed on your employees’ computers. I recommend a yearly email reminding them of the same.
- Each employee should acknowledge in writing that they received a copy of your company’s well-prepared policies and procedures.
- Lists all current protected categories covered under the applicable state and federal anti-discrimination acts;
- Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the anti-discrimination acts;
- Creates a complaint process to ensure that complaints receive:
- An employer’s designation of confidentiality, to the extent possible;
- A timely response;
- Impartial and timely investigations by qualified personnel;
- Documentation and tracking for reasonable progress;
- Appropriate options for remedial actions and resolutions; and
- Timely closures.
- Provides a complaint mechanism that does not require an employee to complain directly to their immediate supervisor, including, but not limited to, the following:
- Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or another supervisor; and/or;
- A complaint hotline; and/or;
- Access to an ombudsperson; and/or;
- Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) and your state equivalent as additional avenues for employees to lodge complaints.
- Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally.
- Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
- States that the employer will keep confidentiality to the extent possible but does not indicate that the investigation will be completely confidential.
- Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
- Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation
Post Anti-Discrimination Posters
- Posters should be conspicuously displayed so they can be easily seen and read by all employees and job applicants. The text has to be large and legible enough to be easily read when posted.
- Posters should be posted in each location where your company has employees – warehouses, stores, branches, offices, etc.
- Check state, local, and federal requirements to ensure that your company is posting in accordance with the applicable laws.
Provide Training for both Supervisors and Employees
- Training should start at the inception of employment and should be followed up yearly.
- The training should be conducted by an attorney, Human Resources Professional, or Harassment Prevention Consultant.
- The yearly training must, at a minimum, include the following:
- The definitions of unlawful sexual harassment, unlawful discrimination, and other forms of unlawful workplace discrimination.
- The types of conduct that constitute harassment.
- Harassment prevention of lesbian, gay, bisexual, and transgender (LGBT) employees—as well as those who are perceived as LGBT.
- Prevention of abusive conduct.
- Available remedies for victims of harassment via civil actions and the potential liability for employers and individuals.
- Harassment prevention strategies.
- Make clear who can bring complaints.
- Complaint procedures are not limited to employees who have allegedly experienced harassment. Please stress that employees who witness inappropriate conduct can and, in many cases, must also file reports.
- Supervisor’s personal obligation to report any harassment, discrimination or retaliation immediately on becoming aware.
- Practical illustrative examples of harassment (real cases or hypotheticals) using role plays, case studies, group discussions, or other methods.
- An explanation of limited confidentiality during the harassment complaint and investigation process.
- Resources for victims (such as to whom they should report harassment).
- Appropriate remedial steps to correct harassing behavior, including the employer’s obligation to investigate harassment effectively.
- What a supervisor should do if accused of harassment.
- Essential elements of an anti-harassment policy include the supervisor’s role in the complaint procedure (provide the supervisor with a copy of the company’s harassment prevention policy and obtain acknowledgment that they have received and read the policy).
- Create and retain the following records relating to the training:
- Date(s) of training.
- Names of attendees.
- Names of trainers or training providers.
- Types of training (e.g., classroom, webinar, e-learning).
- Sign-in sheet(s)
- Copies of all written training materials (e.g., company policies and procedures, handouts, exercises, quizzes).
- Copies of all recorded training materials (e.g., videos, webinars).
- Copies of all written questions received and all written responses or guidance provided during any webinar or e-learning.
- Copies of any certificates provided (certificate of completion or certificate of attendance).
Have Effective Complaint Procedures and Take Strong Corrective Actions
Your company’s complaint procedure must be effective. First, employees must be instructed to report any allegations of workplace discrimination. Second, they should be given several options to report the same. Third, employees must be reassured that their complaints will be taken seriously, they will not be retaliated against for complaining, and that, to the extent possible, their complaints will be dealt with discretely and with confidentiality.
Once a complaint is filed, it is recommended that a neutral party conduct an investigation. After that investigation is completed, it is important to take prompt and proportionate corrective action to ensure that the alleged discrimination ends